ALL Flashcards
When is a judgment appealable and what is the exception?
A judgment is appealable when there is a final judgment on the merits. The only time a final judgment is not required is when it’s an interlocutory appeal (i.e. injunction).
When must a party request a jury demand?
Must serve a written demand 14 days after service of the last pleading directed to that issue.
What is a compulsory counterclaim and when must it be asserted if it is an affirmative defense?
A counterclaim that arises out of the same transaction and occurrence and has a common law or fact. The defense is waived if the counterclaim is not raised in the defendant’s answer.
When is a party not allowed to use supplemental jurisdiction?
When a party does not meet the diversity or amount in controversy and are plaintiffs who are joined under rule 14, 19, 20, and 24.
When is a 7 day notice required in a default judgment?
When the amount is not for a sum certain or cant be computed for a sum certain.
Transfer of venue is governed by state or federal statute?
Federal law governs. If there is a forum selections clause within the contract, the court will most likely always enforce it no matter the convenience of the parties.
When is a contract not divisible?
A contract is not divisible when one performance takes time and the other doesn’t. The former must be completed before the latter.
When is involuntary manslaughter most permitted?
Involuntary manslaughter is most permitted in criminal negligence and recklessness cases.
Can co-clients invoke attorney-client privilege during a dispute?
No. Attorney-client privilege can not be invoked once the parties are in dispute. Unless the parties agreed to be able to invoke the privilege when counsel was sought.
Under the business record exception, can a chart or summary be admissible?
Yes. A chart or summary can be admissible under the hearsay exception if the records are so voluminous that they cannot be examined in court and the underlying records are admissible.
What are the elements of the business record hearsay exception?
A record of an event, act, condition, opinion, or diagnosis.
A. made at the time or near the time by someone with knowledge.
B. kept in the course of regularly scheduled business
C. making a record was a practice of that activity
D. conditions are shown by the testimony of the custodian or qualified witness
E. opponent does not show that the source of information or method of circumstances of preparation indicate a lack of trustworthiness
When are subsequent remedial measures admissible?
To rebut a claim that an alternative design would not have been feasible, ownership, control, or impeachment.
Does a right-of-way easement make the title unmarketable?
No. If the easement is visible when the contract is signed, the title would not be rendered unmarketable.
When would a modified senior loan make its priority change?
When the senior loans modification becomes materially prejudicial.
What does multiple adverse possessions turn into?
Tenants in common.
