Bar Exam Rules to Review

Question 1

To establish a prima facie case for defamation, the following elements must be proved.

Answer 1

(i) defamatory language on the part of the defendant
(ii) that the defamatory language was of or concerning the plaintiff;
(iii) publication of the defamatory language by the defendant to a third person;
(iv) damage to the reputation of the plaintiff

Question 2

Where defamation refers to a public figure or involves a matter of public concern, the plaintiff also needs to prove…

Answer 2

(v) falsity; and
(vi) fault by the defendant

Question 3

Defamatory statements that implicate (i) criminal activity; (ii) professional ____________; (iii) ___________ misconduct; or (iv) ____________ _____________ are considered defamation per se.

Answer 3

professional misconduct; sexual misconduct; or loathsome disease are considered defamation per se.

Question 4

What is a motion for Summary Judgment?

Answer 4

Support shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine issue of material facts exists when a reasonable jury could return a verdict in favor of the nonmoving party.

Question 5

A plaintiff is said to have assumed the_________ of certain harm if she has voluntarily _____________to take her chances that the _________ will occur.

Answer 5

A plaintiff is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that the harm will occur.

Question 6

To establish res ipsa, the plaintiff must show that (i) the event happened is one that usually ________ ___________ occur absent the ______________ of a party (ii) the harm was caused by something in the defendant’s _____________ _______________; and (iii) the plaintiff is not the one who __________ the event to occur.

Answer 6

To establish res ipsa the party must show that (i) the event that happened is one that usually does not occur absent the negligence of a party (ii) the harm was caused by something in the defendant’s exclusive control; and (iii) the plaintiff is not the one who caused the event to occur.

Question 7

To establish a prima facie case for trespass to land the elements proven must be, (i) an act of physical _________ of plaintiff’s ________________ by the defendant; (ii) __________ by the defendant to bring about a physical invasion of the plaintiff’s real property; and (iii) ____________.

Answer 7

To establish a prima facie case for trespass to land, (i) an act of physical invasion of plaintiff’s real property by the defendant; (ii) intent by the defendant to bring about a physical invasion of the plaintiff’s real property; and (iii) causation.

Question 8

There are four basic elements for defamation: (1) a defamatory __________ about the plaintiff, (2) an _____________ publication of the statement, (3) fault (at least negligence but a higher standard of “malice” for public figures), and (4) damages. If you see a defamation question, make sure you identify the _____________ of plaintiff and the ________ that the statement concerns, as this can affect the elements that the plaintiff needs to prove to prevail.

Answer 8

There are four basic elements for defamation: (1) a defamatory statement about the plaintiff, (2) an unprivileged publication of the statement, (3) fault (at least negligence but a higher standard of “malice” for public figures), and (4) damages. If you see a defamation question, make sure you identify the type of plaintiff and the matter that the statement concerns, as this can affect the elements that the plaintiff needs to prove to prevail.

Question 9

A plaintiff only needs to prove _____________ damages when defamation claim involves______________.

Answer 9

A plaintiff only needs to prove special damages when defamation claim involves slander.

Question 10

Trespass to chattels occurs when a DEF ______________ interferes with a plaintiff’s use or possession of a “chattel” (piece of property). If defendant takes chattel out of plaintiff’s ____________ a trespass to chattel has occurred. It is unnecessary for the defendant to have __________ to cause harm to the property interest. He must merely _______ to do an act that ends up causing an interference.

Answer 10

Trespass to chattels occurs when a DEF intentionally interferes with a plaintiff’s use or possession of a “chattel” (piece of property). If defendant takes chattel out of plaintiff’s possession a trespass to chattel has occurred. It is unnecessary for the defendant to have intended to cause harm to the property interest. He must merely intend to do an act that ends up causing an interference.

Question 11

Trespass to chattels requires that the plaintiff show actual _________ to or _________ of the use of the chattel for a substantial time.

Answer 11

Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 12

For _____________, the act must __________ to bring about the harmful or offensive contact. “___________” is the key word. The actor does not need to _________ that harm occurs, which would be a much higher standard.

Answer 12

For battery, the act must intend to bring about the harmful or offensive contact. “Contact” is the key word. The actor does not need to intend that harm occurs, which would be a much higher standard.

Question 13

To establish battery the following elements are required: (i) act by the DEF which brings _________ or __________ contact; (ii) __________ on the party of the defendant to bring about harmful or offensive contact to the plaintiff’s person; and (iii) __________.

Answer 13

To establish battery the following elements are required: (i) act by the DEF which brings harmful or offensive contact; (ii) intent on the party of the defendant to bring about harmful or offensive contact to the plaintiff’s person; and (iii) causation.

Question 14

Any time negligence is ___________, there is a res ipsa loquitur issue.

Answer 14

Any time negligence is inferred, there is a res ipsa loquitur issue.

Question 15

Res ipsa loquitur requires a showing that the defendant had control of the instrumentality.

Answer 15

Res ipsa loquitur requires a showing that the defendant had control of the instrumentality.

Question 16

A rescuer brought a products liability claim against retailer of defective climbing safety equipment after the rescuer was injured while helping a climber when the equipment failed. The rescuer can ___________in the claim against the retailer because injury to a person in the rescuer’s position was ______________ if the safety device failed.

Answer 16

A rescuer brought a products liability claim against retailer of defective climbing safety equipment after the rescuer was injured while helping a climber when the equipment failed. The rescuer can succeed in the claim against the retailer because injury to a person in the rescuer’s position was foreseeable if the safety device failed.

Question 17

Under both strict liability and negligence theories of products liability, anyone who is within the _____________ zone of risk can bring a claim, and no __________ is required.

Answer 17

Under both strict liability and negligence theories of products liability, anyone who is within the foreseeable zone of risk can bring a claim, and no privity is required.

Question 18

In general, a duty of _________ is owed to all persons who may __________________ be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Answer 18

In general, a duty of care is owed to all persons who may foreseeable be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Question 19

A person who comes to the aid of another is a ________________ plaintiff.

Answer 19

A person who comes to the aid of another is a foreseeable plaintiff.

Question 20

To bring strict-liability action, plaintiff not required to be in ___________ of contract with defendant. Anyone _____________ injured by a defective product or whose property is harmed by the product may bring a strict-liablity action. Appropriate plaintiffs include not only purchasers, but also the other users of the product and even _____________.

Answer 20

To bring strict-liability action, plaintiff not required to be in privity of contract with defendant. Anyone foreseeably injured by a defective product or whose property is harmed by the product may bring a strict-liablity action. Appropriate plaintiffs include not only purchasers, but also the other users of the product and even bystanders

Question 21

The privilege of self defense permits the use of force __________ and reasonably believed to be _______________ given the threat posed by the plaintiff.

Answer 21

The privilege of self defense permits the use of force actually and reasonably believed to be necessary given the threat posed by the plaintiff.

Question 22

Actual ___________ is insufficient to support the privilege of self-defense.

Answer 22

Actual fear is insufficient to support the privilege of self-defense.

Question 23

A nuisance does not have to be __________________ to substantially interfere with the neighbor’s use and ___________of his property.

Answer 23

A nuisance does not have to be continuous to be substantially interfere with the neighbor’s use and enjoyment of his property.

Question 24

A nuisance is a tortious ____________ which _________ with either private property rights or _________ rights.

Answer 24

A nuisance is a tortious harm which interferes with either private property rights or public rights.

Question 25

A private nuisance is a substantial, _________________ interference with another private individual's __________ or enjoyment or property, that is _____________, inconvenient, or annoying to an _______________ person in the community.

Answer 25

A private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment or property, that is offensive inconvenient, or annoying to an average person in the community.

Question 26

To prevail on a private nuisance claim, a plaintiff must demonstrate that the nuisance is an ___________________ interference, by _____________ that the injury _____________ the utility of the defendant's conduct.

Answer 26

To prevail on a private nuisance claim, a plaintiff must demonstrate that the nuisance is an unreasonable interference, by showing that the injury outweighs the utility of the defendant's conduct.

Question 27

Where a nuisance cannot be _____________ without undue burden, and the nuisance has ____________, damages for the reduction in property value of the affected plaintiff may be ordered.

Answer 27

Where a nuisance cannot be removed without undue burden, and the nuisance has utility, damages for the reduction in property value of the affected plaintiff may be ordered.

Question 28

At common law, contributory negligence completely _________ the right to recover. Even if the DEF is much more negligent than the plaintiff, in a contributory negligence jurisdiction, if a plaintiff is even __________% negligent, he is completely barred from recovery. However, under the doctrine of last ____________ chance, a plaintiff can recover despite their own contributory ______________.

Answer 28

At common law, contributory negligence completely bars right to recover. Even if the DEF is much more negligent than the plaintiff, in a contributory negligence jurisdiction, if a plaintiff is even 1% negligent, he is completely barred from recovery. However under the doctrine of last clear chance, a plaintiff can recover despite their own contributory negligence.

Question 29

Under the last _____________ ______________ doctrine, the person with the _______________ ____________ ____________ to avoid an accident who fails to do so is liable for negligence.

Answer 29

Under the last clear chance doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

Question 30

Assumption of the risk in a negligence action normally only ________________ recovery unless it is an express assumption of the risk.

Answer 30

Assumption of the risk in a negligence action normally only reduces recovery unless it is an express assumption of the risk.

Question 31

If the defendant was protected by either an ___________ or qualified privilege while making the statement, it will __________ the plaintiff from recovery. For example, where the plaintiff __________ to the publication of the statement, the defendant will be ___________ by absolute privilege.

Answer 31

If the defendant was protected by either an absolute or qualified privilege while making the statement, it will bar the plaintiff from recovery. For example, where the plaintiff consented to the publication of the statement, the defendant will be protected by absolute privilege.

Question 32

Regarding negligence, duty of care is owed to all _______________ persons who may be injured by the defendant's failure to act as a ___________ person of ordinary prudence under the circumstances.

Answer 32

Regarding negligence, duty of care is owed to all foreseeable person who may be injured by the defendant's failure to act as a reasonable person of ordinary prudence under the circumstances.

Question 33

In a murder case, the accused's reputation in the community as a peaceful person is a _______________ trait and admissible. However, the accused's reputation in the community as a truthful person is ____________ pertinent to a murder charge.

Answer 33

In a murder case, the accused's reputation in the community as a peaceful person is a pertinent trait and admissible. However, the accused's reputation in the community as a truthful person is not pertinent to a murder charge.

Question 34

In the context of murder trials, a defendant's character for honesty or truthfulness is generally ___________ unless it is directly at issue or offered as part of a specific defense, such as self-defense. This is because focusing on a defendant's general character for _______________ can distract from the core issue of whether the defendant ______________ the murder.

Answer 34

In the context of murder trials, a defendant's character for honesty or truthfulness is generally irrelevant unless it is directly at issue or offered as part of a specific defense, such as self-defense. This is because focusing on a defendant's general character for truthfulness can distract from the core issue of whether the defendant committed the murder.

Question 35

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an ________________ and similar _______________ to develop the testimony by direct, cross, or redirect examination, is __________________ if the declarant is unavailable.

Answer 35

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an OPPORTUNITY and similar motive to develop the testimony by direct, cross, or redirect examination, is admissible if the declarant is unavailable.

Question 36

A judge may consider an affidavit in making its determination of the admissibility of statement even though it is _____________.

Answer 36

A judge may consider affidavit in making its determination of the admissibility of statement even though it is hearsay.

Question 37

In prosecution for homicide or a civil action, a statement made by the now-unavailable declarant while believing his death was ___________that concerns the cause or circumstances of what he believed to be his impending death is ______________.

Answer 37

In prosecution for homicide or a civil action, a statement made by the now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible.

Question 38

The rule is that the court determines the ____________ question of admissibility, and is not bound by the rules of evidence and may consider hearsay. Therefore a judge may consider an ___________, even if hearsay, to determine the admissibility of a pedestrian's statement when he is in the hospital declaring his death multiple times.

Answer 38

The rule is that the court determines the preliminary question of admissibility, and is not bound by the rules of evidence and may consider hearsay. Therefore a judge may consider an affidavit, even if hearsay, to determine the admissibility of a pedestrian's statement when he is in the hospital declaring his death multiple times.

Question 39

May a judge consider hearsay in ruling on preliminary questions?

Answer 39

Yes.

Question 40

May an affidavit be considered by the court in ruling on the admissibility of a person's statement?

Answer 40

Yes.