Final Review Flashcards
1
Q
When does a party have the right to appeal an error in jury instruction?
A
The party must object on the record before the instructions are given.
2
Q
When does assumption of the risk preclude a SL claim?
A
If the π (1) knows of and appreciates the danger justifying imposition of SL and (2) voluntarily exposes himself to such danger
3
Q
When are prior inconsistent statements made under oath at a prior trial or proceeding considered nonhearsay?
A
As long as the declarant is now testifying and subject to cross
4
Q
What is inadmissible under the Confrontation Clause?
A
Prior “testimonial” evidence is inadmissible if:
(1) the declarant is unavailable; and
(2) the defendant had no prior opportunity to cross-examine the declarant.
5
Q
What is sequestration?
A
At the request of either party, or on its own motion, the court must exclude Ws from the courtroom. Exceptions: (1) ∆ and (2) persons essential to the presentation of the party’s case
6
Q
What is a PF case for strict products liability?
A
(i) the defendant is a commercial supplier,
(ii) the defendant produced or sold a defective product,
(iii) the defective product was an actual and proximate cause of the plaintiff’s injury, and
(iv) the plaintiff suffered damages to person or property.
7
Q
Delegation vs. assignment
A
An assignment occurs when the delegate promises that she will perform the duty delegated and the promise is supported by consideration.
If it’s merely a delegation, the obligee can’t compel the delegate to perform.
8
Q
When may a clerk enter a default judgment instead of a judge?
A
Only when it is for a sum certain
9
Q
What is the doctrine of avoidable consequences?
A
An individual cannot recover for losses that might have been prevented thru reasonable efforts to avoid further injury
10
Q
What is the remedy when a party performs all of a K, except a small portion which was excused by impossibility?
A
The contract price, minus the allocable cost and profit, so that they don’t benefit from being excused from performing.
11
Q
What is the effect of judicial notice of a fact made by prosecutor?
A
Judge must instruct jury that the fact that has been judicially noticed may be accepted by it as conclusive, but that the jury is not required to do so.
12
Q
When may motion for JMOL be made?
A
Any time before submission of the case to the jury
13
Q
In fed court, what is the burden of proof for affirmative defenses?
A
∆ bears the burden of proving affirmative defenses by C&CE
14
Q
When may a party found strictly liable for a product defect seek indemnification?
A
When strict liability applies, each supplier of a defective product is liable to an injured person, but each supplier has a right of indemnification against all previous suppliers of the defective product in the distribution chain, with the manufacturer of the defective product ultimately liable.
15
Q
What is required for a judgment creditor to put subsequent BFPs notice of its interest?
A
“Filing” a judgment lien is the same as recording. As such, any subsequent purchasers or lenders are charged with constructive notice.
16
Q
When is an easement for public use created?
A
When a dedicator expresses intention for part of his land to be used for a public purpose, and acceptance by public adoption is manifested.
A reversion interest remains in the grantor.
17
Q
When may a court enter judgment for a party on partial findings?
A
A court may enter a judgment on partial findings after allowing the other party to be fully heard, and if the other party has not sustained their evidentiary burden.
18
Q
How do easements by necessity arise?
A
When the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road
19
Q
What is Congress’s power to confer standing?
A
Congress may confer SMJX in fed district courts to challenge the constitutionality of fed statutes, but may not grant automatic standing – there must still be a case or controversy
20
Q
What is use immunity?
A
Protects W against gov’s use of his or her immunized trstimony in prosecution of W, except in subsequent prosecution for perjury or false testimony
21
Q
What is depraved heart murder?
A
A type of common law murder. It is an unintentional killing resulting from conduct involving wanton indifference to human life and conscious disregard of an unreasonable risk of death or SBH. It is absent any defense negating ∆’s awareness of the risk.
22
Q
What is the scope of a preliminary injunction?
A
A prelim injunction will apply to a party, as well as that party’s officers, servants, agents, employees, and attorneys.
23
Q
How may a party refresh a witness’s recollection?
A
When a witness does not have sufficient present recollection of a matter about which she is to testify, she may be shown virtually anything in an attempt to refresh her recollection so that she may then testify from memory as to the relevant facts. If her memory is not refleshed by the writing, the writing may be admissible if it qualifies as a past recollection recorded.
24
Q
What is the effect of participation in a criminal conspiracy on a person’s property rights against a co-conspirator?
A
A person participating in a crim conspiracy does not forfeit all of his property rights simply b/c he intends to violate the property rights of another
25
What duty does a person have if they promise to get aid for someone in need?
If an individual is under no duty to act, but decides to act by promising to get aid for someone in need, he is under no duty to actually deliver on the promise either, even if the victim detrimentally relies on the promise to help.
26
When is a co-tenant entitled to proceeds from rental value or net income received from jointly owned property?
When other tenant in possession has ousted co-tenant, or when tenant in possession received rents from TP who actually occupied the land
27
What additional evidence must be shown for authentication when the evidene is of a type that is likely to be confused or easily tampered with?
Proponent of the object must present evidence of chain of custody. Proponent must show that the object has been held in a substantially unbroken chain of possession (adherence to some system of identification and custody)
28
What duty does a business owe to an invitee in peril when it did not create the peril?
Business and its agents have a duty to intervene and use reasonable care to aid and assist an invitee in peril.
29
When may a party file a cross-claim against a co-party?
If it arises from the same transaction or occurrence as either the original complaint or a counterclaim, or relating to property that is the subject matter of the transaction
30
What are the requirements for affidavits supporting / opposing a motion for SJ?
When assessing a motion for SJ, a supporting/opposing affidavit must be made on personal knowledge, and set out facts that would be admissible in evidence.
31
Does a judgment creditor qualify as a subsequent purchaser for value under a recording statute?
Only if they purchase the property at a judicial sale. Mere entry of a judgment ≠ purchase for value.
32
When is a party's failure to respond to an accusation considered a statement?
1) party against whom the evidence is offered heard, understood, and was capable of responding, and
2) reasonable person in party's position would have responded (i.e. denied the accusation) – most common in crimes like rape/murder
33
When is venue proper in the district where ∆ resides?
If ALL ∆s reside in the same state
34
What is the difference between common law conspiracy and modern conspiracy?
At CL, conspiracy is just an agreement by 2 or more people to commit a crime. In modern law, there is also an overt act element.
35
Who can enforce rights against an obligor once an assignment is made?
An assignor may not enforce rights against an obligor that have been previously assigned. An assignment creates privity of K between the obligor and the assignee while extinguishing privity between obligor and assignor. The assignee alone is entitled to performance under the K.
36
What is a buyer's remedy when he properly rejects a nonconforming shipment?
The buyer is entitled to the difference between the K price and either the market price or the cost of buying replacement goods, plus incidental and consequential damages.
37
When is a principal vicariously liable for the acts of an independent contractor?
In general, a principal will not be vicariously liable for tortious acts of an independent contractor. The 2 broad exceptions are: (i) the independent contractor is engaged in inherently dangerous activities (ii) the duty, because of public policy considerations, is simply nondelegable
38
When may police seize evidence not specifically named in a search warrant?
The police can only take property other than what is named in the warrant if it is automatically apprent that the item is contraband. Further inspection is not allowed.
39
What duties does a property owner or occupier owe to trespassers?
An owner or occupier of land owes no duty to an undiscovered trespasser. However, when the trespasser is known, the owner or occupier must warn of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover.
40
Requirements for foreclosure by advertisement in Michigan
1. Power of sale clause in mortgage
2. Proper recordation of mortgage
3. Publication in local newspaper of notice of sale for 4 consecutive weeks
4. Within 15 days of 1st publication, posting copy of notice conspicuously on property
5. Public foreclosure sale
41
What sanctions may a court impose on a party for failure to comply with an order to provide discovery?
1. Default judgment against the party
2. Strike relevant pleadings
3. Enter order precluding party from offering evidence on certain claims or defenses
42
What is the difference between authentication of handwriting and of voice recordings?
Both may be authenticated by a person with familiarity, an expert, or the trier of fact. However, for handwriting authentication, the person with familiarity must have been familiar before trial. For voice authentication, the familiar person could become familiar for purposes of trial.
43
What may a party recover if he fails to fulfill an express condition or is in material breach of the K?
He may still be able to recover in quantum meruit the value of the benefits conferred, reduced by the damages suffered by the aggrieved party due to the breach. It does not matter if the breach was willful.
44
What are a court's options when a poll of the jury reveals a lack of unaninimity (or lack of assent by # of jurors parties stipulated to?)
The court may 1) direct the jury to deliberate further or 2) order a new trial.
45
What is the reputation evidence exception for self-defense cases?
When a ∆ asserts that the victim was the first aggressor, the prosecution may show evidence of the victim's xter for peacefulness using R/O.
46
What standard of review for legal rulings?
De novo
47
What is a novation?
A novation occurs when a new K substitutes a new party to receive benefits and assume duties that had originally belonged to one of the original parties under the terms of the old K. It discharges the old K. All parties must agree to the substitution.
48
Are police checkpoints to obtain info from motorists about a recent crime valid under 4A?
A police checkpoint set up to obtain info from motorists about a recent crime do not violate 4A b/c the intrusion is minimal and the intent is not to find evidence of crime committed by the occupants of the vehicle.
49
When is notice not required for a covenant to run with the land?
When the succeeding party is not a BFP; "notice" refers to the recording statute, and heirs/donees are not protected by the recording statute, so they are bound even without notice.
50
When can a prior inconsistent statement for impeachment purposes be proven by extrinsic evidence?
1. Must be relevant to the case (not collateral)
2. W must be given opportunity to explain or deny statement at some point during trial (unless it is a hearsay declarant)
3. Adverse party must be given an opportunity to examine W about the statement
51
Scope of physician-patient privilege
Under the physician-patient privilege, a physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his professional capacity. Information given by a patient that deals with a nonmedical matter is not protected by the privilege.
52
When is a state tax valid under the commerce clause?
(i) the tax does not discriminate against interstate commerce; (ii) there is a substantial nexus between the activity taxed and the taxing state; (iii) the tax is fairly apportioned; and (iv) the tax fairly relates to services or benefits provided by the state
53
How may the amount in controversy be met with an injunction?
Either by the injunction's worth to π or the cost of the injunction to ∆. If the π is the only party suing for injunction, but the injunction affects several parties, assess the cost to ∆ as it applies to all parties.
54
Which preliminary facts are for the judge to decide and which are for the jury?
Jury must determine whether the offered evidence is relevant to the issues in the case. The judge determines whethe roffered evidence is competent to be admitted at all. For most factors, the judge merely has to establish that there are enough facts to support a jury finding. For hearsay exceptions, authenticity of guilty pleas, and qualifications of expert witnesses, the judge must decide on his own first to avoid prejudice.
55
What are a corp's obligations when deposed?
Corp must submit to deposition by designating person to testify on its behalf. Testifying person must testidy about info known or reasonably available to the org. Corp is bound by these answers at deposition.
56
When does ∆ have a duty to render aid?
Where ∆ has a pre-existing legal duty or ∆'s actions have placed another person in peril or caused another's injury, ∆ has the duty to make reasonable efforts to rescue or render aid. This duty applies even if the act that put π in peril wasn't negligent.
57
What is required for a condition to excuse performance?
Nonfulfillment of a condition will normally excuse a duty to perform that was subject to the condition. Breach of a promise by one party may or may not excuse the other party's duty to perform.
58
How may impeachment of a witness's general character for truthfulness by reputation/opinion evidence or conviction of a crime be rebutted?
By redirect examination, or by other testimony of other Ws as to that W's good repuation for truthfulness.
59
What remedy is available to a lost volume seller when a buyer breaches?
Profit: diff b/w K and expenses
60
Rule re: option Ks under the UCC
Option Ks are valid under the UCC, and will not be constrained by the 3-month limit from the MFOR when supported by consideration
61
When is prior testimony H admissible?
The prior testimony exception applies if the statement was taken at a deposition in **this litigation**. It must be **under oath** and parties must have had opportunity to **develop or cross**-examine. Declarant must be **unavailable**.
62
What is a landlord's remedy for subtenant's failure to pay rent?
Landlord can't get rent from subtenant – only from original tenant
63
Validity of an assignment if the original obligor prohibited assignments
A clause prohibiting the assignment of "the contract" will be construed as barring only the delegation of the assignor's duties, not hte assignment of the right to receive payment.
64
What is the difference between arbitration and mediation?
Arbitration is permanent, while mediation is merely an intermediate step. A court can order mediation at a pretrial conference but cannot order arbitration.
65
When is a K rescindable for mutual mistake?
(i) mistake concerns a basic assumption on which K is made; (ii) mistake has a material effect on the agreed-upon exchange; and (iii) party seeking avoidance did not assume risk
66
Who holds the spousal privilege?
Witness spouse only
67
What are a seller's remedies when a buyer breaches a land sale K?
Even though a seller can be fully compensated by money damages, the courts will usually grand specific performance because land is considered unique.
68
What are a party's remedies when there is anticipatory repudiation?
1. Treat as total breach and sue immediately; 2. Suspend own performance and wait to sue until performance date; 3. Treat repudiation as offer to rescind and treat K as discharged; or 4. Ignore the repudiation and urge promisor to perform (but can still sue for breach if chooses to urge)
69
Sanctions for failure to respond to request for waiver of service
A court may impose sanctions on a party that fails to respond to a request for waiver of service of process, but will not do so when there was "good cause" for failing to respond, i.e. where the party did not receive the waiver
70
What is the effect of a novation?
When there has been a novation, the original party is replaced by the substituted party and is no longer liable on the K.
71
What is a contingent remainder?
A remainder that is subject to a condition precedent, or it is created in favor of unborn or unascertained persons.
72
When is a defendant entitled to notice in an entry of default judgment?
Only when he has made an appearance
73
What is a vested remainder subject to total divestment?
A vested remainder that is subject to being defeated by the happening of a condition subsequent.
74
What is a vested remainder subject to open?
A vested remainder created in a **class** of persons that is **certain to take** but is **subject to diminution** by reason of others becoming entitled to take.
75
When is truth a defense to defamation?
Truth is an absolute defense to defamation, whether private or public figure
76
What is the modern approach to arson compared to common law?
Relaxed dwelling house, relaxed structure (assume modern on MBE unless they say CL)
77
When is extrinsic evidence of a record of an arrest admissible to impeach a witness?
Never, even if it is a crime of dishonesty. If there was no conviction, it is evidence of a prior bad act, which cannot be proven using extrinsic evidence. The attorney can only question the witness about such acts during cross-examination, and must take their answer at face value. If the arrest was not for a crime of dishonesty, it is not admissible for impeachment at all.
78
When does a party have to provide the other party copies of insurance agreements?
Without waiting for a discovery request, a party must provide to the other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
79
What are the 5 major ways to impeach a witness?
1. Prior inconsistent statement
2. Bias or motive to misrepresent
3. Prior conviction
4. Specific acts of misconduct which bear on truthfulness or untruthfulness (un-convicted)
5. Reputation or opinion evidence of untruthfulness
80
Validity of an assignment if the original obligor prohibited assignments
Absent circumstances suggesting otherwise, a clause prohibiting the assignment of "the contract" will be construed as barring only the delegation of the assignor's duties. A clause barring assignment of "contractual rights" generally doesn't bar assignment, but merely gives obligor right to sue for breach if an assignment is made.
81
When may a party appeal when there has been a judgment on some claims/parties but not others?
When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is deemed a final, appealable judgment only to the extent the court makes an express determination that there is no just reason for delay.
82
What are the exceptions to the rule about voidable Ks due to infancy?
Statutory exceptions: student loan agreements, insurance Ks, agreements not to reveal an employer's proprietary info, etc.
83
What is the effect of modification of a senior mortgage on junior interests?
If a senior mortgage is modified, a junior mortgage prevails over the modification if the modification materially prejudices the holder of the junior mortgage (e.g. increasing amount of principal or increasing interest rate). Modifications that normally don't materially prejudice the junior holder include extensions of the mortgage maturity date and rescheduling of installment payments.
84
When will a court grant a motion for judgment on the pleadings?
Once pleadings are complete, a party may file for motion for judgment on the pleadings.
The court will accept all facts alleged in the pleadings as true, and failure to deny allegations in the complaint constitutes an admission.
A court will render judgment if it believes a party is entitled to JMOL.
85
When is assumption of the risk a defense?
Only to negligence, not to intentional torts
86
What duties may be assigned?
As a general rule, **all** contractual duties may be delegated to a third person.
If the duties involve **personal judgment and skill**, they may not be delegated.
**Obligee must accept performance** from the delegate of all duties that may be delegated.
87
How do implied easements arise?
When a parcel is divided and (i) there was an existing use prior to the severance, or (ii) the severance deprives one lot of access to a public road or utility line.
88
When may a π who is contributorily negligent recover from ∆?
If π is contributorily negligent, he cannot recover from ∆ unless ∆'s actions were reckless or wanton, in which case contributory negligence is not a defense.
89
What intent must π show to prove conversion?
A conversion occurs when ∆ intentionally causes serious interference with π's chattel. The intent involved refers to the physical act that results in the conversion, not to ∆'s desires regarding ultimate disposition of property. So, if takes the property intentionally, good faith belief in ownership is not a defense.
90
What is a private nuisance?
A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property. The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with a specialized use of the land.
91
Is a person who supplies material to others knowingly that they intend to commit a crime guilty of conspiracy?
Yes, if they supply goods that have no legitimate use or charge inflated prices for the goods/services. No, if it is just mere knowledge.
92
When may a party move to amend the pleadings to raise an unpleaded issue after judgment?
An issue not raised by the pleadings is treated as if raised in the pleadings if is tried by the parties’ express or implied consent. In such a case, a party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise the unpleaded issue.
93
What is prohibited by the parol evidence rule?
The parties cannot use evidence of prior or contemporaneous oral communications that seek to vary the terms of the written K. An oral statement that was made before the written K was signed that changes the written terms will not be admissible.
94
What are a contractor's remedies in a construction K when the owner breaches?
In a construction contract, if the owner breaches the contract after the builder has already begun his performance, the builder will be entitled to any profit he would have derived from the contract plus any costs he has incurred to date. This formula contains an expectation component (the profit the builder would have made) and a reliance component (the cost incurred prior to the breach).
95
When is effect given to an oral condition made when giving a deed to an intermediary?
Grantors can give physical possession of a deed to a third party with instructions to transfer the deed to a grantee under specific circumstances. Extrinsic evidence is admissible, and a finding of express retention of right to retrieve the deed results in finding of no delivery.
96
When does a seller need to tender marketable title on an installment land K?
When delivery is to occur, e.g. when the buyer had made his final payment
97
What is required for service of multiple named defendants residing in the same home?
Regardless of where the defendants reside, each named defendant must be served separately
98
What is estoppel by deed?
Personal estoppel. Title enures to grantee's benefit only as against grantor, not a subsequent BFP. So, if grantor transfers after-acquired title to an innocent purchaser for value, the BFP will receive good title.
99
When may a ∆ assert a cross-claim against a co-party?
Generally, only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim. However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party.
100
When can π recover for NIED under the bystander theory?
(i) the plaintiff and the person injured by the defendant’s negligence are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event (need not actually see it).
101
What is transactional immunity?
Protects prosecution from prosecution for offense altogether
102
May experts base their opinion on hearsay?
Yes, need not be admissible if the thing they're basing their opinion on is of a type reasonably relied upon by experts in the particular field
103
What are a court's options when the jury gives a general verdict that is inconsistent with the answers to written questions?
The court may 1) direct an entry of judgment consistent with the answers to the questions; 2) order the jury to give further consideration to its answers and its verdict; or 3) order a new trial.
104
Who is a proper defendant for a strict products liability claim?
A commercial supplier at any level of the distribution chain, except occasional and one-time sellers
105
What is a pretrial order and how may it be modified?
The pretrial order controls the subsequent course of an action unless modified. Although a court will consider the timing of the request in determining whether to modify the pretrial order, there is nothing to prevent a judge from modifying the order, even if the trial has begun.
106
What standard of review of findings of fact?
Clearly erroneous
107
When is an employer vicariously liable for the intentional torts of its employee?
While the general rule is that intentional tortious conduct by employees is not within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when (i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer.
108
What are the appropriate grounds for seeking rezoning of property?
Property owner must show that the ordinance imposes a unique hardship on him and that the variance will not be contrary to public welfare
109
What is a trespasser to land's liability under the defense of private necessity?
Private necessity is a defense to trespass to lands, but does not relieve the bus driver of liability for damage done to the property.
110
When is a co-tenant accountable to other co-tenants for rental value of property or net income received from property?
A co-tenant in possession has no duty to account to other co-tenants for rental value of prop or actual net income received from prop, except when he has ousted other co-tenants or is receiving rent from TP who is actually occupying the land
111
Requirements for permissive intervention
When the intervenor has a claim/defense that shares common Q of law or fact + independent jurisdictional ground
112
With what may a hearsay declarant who is not available at trial be impeached?
By evidence that would be admissible if the declarant had testified as a witness
113
What is the legislative proceeding exception to defamation?
Remarks made by either federal or state legislators in their official capacity during legislative proceedings are absolutely privileged. Such a privilege is not affected by a showing of malice, abuse, or excessive provocation.
114
When do an intended beneficiary’s rights vest?
(a) manifest assent to promise in a manner invited by the parties, (b) bring suit to enforce, or (c) materially change position in reliance
115
When does a judicial bypass make a law that requires a woman seeking an abortion to get consent constitutional?
Judicial bypass is sufficient to allow a consent requirement only if the woman is minor
116
What is the effect of identical crossing offers?
If offers stating precisely the same terms cross in the mail, they do not give rise to a contract despite the apparent meeting of the minds. An offer cannot be accepted if there is no knowledge of it.
117
What is the effect of impleader where the TPD destroys complete diversity?
Claims by a π against an impleaded party may not use supplemental jurisdiction to circumvent the diversity statute. However, supplemental jurisdiction is available to a ∆ (TPP) against a TPD.
118
What is a licensee and what duties does the premises owner owe?
A licensee is one who enters on the land with permission for his own purpose or business and includes social guests. The owner owes the licensee a duty to warn or or make safe a dangerous condition known to owner that creates an unreasonable risk of harm to licensee and that licensee is unlikely to discover. There is no duty to inspect for defects or repair known defects.
119
When may extrinsic evidence of contradictory facts be introduced to impeach?
1. W's testimony on a particular fact is a **material issue** in the case,
2. Testimony on a particular fact is significant on the issue of **credibility**, or
3. W volunteers testimony about a subject as to which opposing party would **otherwise be precluded** from offering evidence (but not for collateral matters)
120
When is a prior consistent statement admissible as substantive evidence?
Prior consistent statement is excluded from the H definition only if offered to rebut a charge of recent fabrication or improper influence or motive. In addition, the declarant must testify and be subject to cross-examination concerning the statement. If these conditions are met, the statement may be used as substantive evidence.
121
What is the standard for public and private figures in defamation actions?
Public flgure suing for damages in a defamation action must prove actual malice. Mere hostility or dislike is insufficient. If it is a private figure, the standard is negligence.
122
What is the effect of contributory negligence of a parent on the child?
Contributory negligence of a parent is not attributable to an injured child.
123
What are the 2 theories of recovery for NIED?
1. Zone of danger 2. Bystander
124
When is indemnity available in vicarious liability situations?
Where one party is held liable for damages caused by another simply because of his relationship to that person.
125
How may impeachment of a witness's bias or sensory deficiency be rebutted?
It may never be rebutted using evidence of W's overall good reputation for truthfulness. It may be rebutted on redirect examination or using prior consistent statements. Prior consistent statements may be used to rebut claims of bias/improper motive if they were made before the onset of the alleged improper motive. They may also be used to rehabilitate after impeachment for some other ground, like sensory deficiency, if it has a special tendency to rehabilitate W's credibility.
126
What must a police do to affect an arrest + search during a valid traffic stop?
If, during a valid traffic stop, the police develop probable cause for arresting the defendant, they may do so without a warrant and may search the entire passenger area while the defendant is still in the car.
127
When is character evidence admissible in a civil case?
Character evidence is generally inadmissible in a civil case, unless ∆'s character is "in issue," or it is being used for impeachment.
128
When is evidence of subsequent remedial measures admissible?
When it is relevant to some matter that is at issue in the case, other than negligence, in the case, such as ownership or control; or, to rebut ∆'s argument that further precautionary measures could not have been taken. It needn't prove ownership, it must simply help establish ownership to be relevant.
129
In the event of a death, who has a cause of action against the tortfeasor?
Estate has survival action and heirs have wrongful death action
130
When does the burden of a covenant run with the land?
(i) original parties intended; (ii) original parties in horizontal privity; (iii) the succeeding party in vertical privity with the original promisor; (iv) touches and concerns; and (v) generally, actual/constructive notice to burdened party
131
Rule re: habit
Habit describes one's regular response to a specific set of circumstances. Evidence of a person's habit may be admitted to prove that, on a particular occasion, the person acted in accordance with the habit.
132
What standard of care does ∆ owe during an emergency?
In an emergency, ∆ is held to SOC of a reasonable person in an emergency. This is a question for the jury.
133
For what purpose may an act of independent legal significance be introduced?
The purpose is to prove that the statement was made, not that the statement is true.
134
What is the effect of being an accessory before the fact?
Liable for full offense
135
Compare shifting executory interest and springing executory interest
Both shifting and springing uses pass title to a TP upon the occurrence of a designated event or condition, but a shifting use cuts off an interest conveyed to a grantee, whereas a springing use cuts off an interest retained by the grantor.
136
What torts does the doctrine of transferred intent apply to?
BFATT: battery, false imprisonment, assault, trespass, trespass to chattels
137
What is a tortfeasor's liability for an indivisible injury caused by 2 or more tortious acts?
When two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury. If the injury caused by 2 tortfeasors is indivisible, each is liable for the full amount of damages.
138
What is the attractive nuisance doctrine?
∆ has duty to exercise reasonable care to prevent injury of trespassing children if (i) artificial condition creates foreseeable risk of unreasonable danger to trespassing children (ii) foreseeable that children are likely to trespass (iii) subjective child trespasser, b/c of age and maturity, is unaware of risk, and (iii) risk of danger outweighs utility
139
When does a mortgage extend to fixtures?
A mortgage extends to all of the encumbered property's fixtures, whether the fixture was annexed before or after the mortgage.
140
When will a court sanction a ∆ for destroying ESI by requiring them to pay data recovery costs?
When ESI is destroyed or deleted, sanctions may not be imposed if it is a "routine, good faith operation of an electronic information system."
141
What type of hearing is required for termination of tenured position?
Pre-termination hearing
142
How is a unilateral K formed?
An offer for a unilateral contract provides that it may be accepted only by performance. The offer becomes irrevocable only when the offeree has started performance.
143
What notice is required in a class action lawsuit?
Due process requires that the method have *_reasonable prospect_* of giving actual notice. Posting of notice is insufficient when persons could reasonably be notified by mail.
144
What are the roles of the judge and jury in assessing evidence?
The judge determines admissibility and the jury determines what weight to give the evidence.
145
What is a rule 26(f) conference and what must the parties submit to the court?
At a Rule 26(f) conference, the parties must confer to consider their **claims** and **defenses**, the possibility of **settlement**, initial **disclosures**, and a **discovery** plan.
The parties then must submit a **_proposed discovery plan_** to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.
146
When are learned treatises admissible and for what purposes?
Exception to H for learned treatises – may admit them as substantive evidence if:
(i) the expert is on the stand + it is called to his attention, and
(ii) it is established as reliable authority:
* the direct testimony or cross-examination admission of the expert
* the testimony of another expert, or
* judicial notice
147
What is the parental discipline privilege?
Parents have a right to exercise control over their children, provided that they use reasonable force to control and educate them. The force used by the parent should be appropriate to the age, sex, physical and mental state of the child. The nature of the misconduct of the child and the severity and foreseeable consequences of the punishment are considered in determining whether the parents exceeded the scope of the privilege.
148
When may parties join as plaintiffs or be joined as defendants?
1. Some claim is made by each π against each ∆ relating to or arising out of the same series of txns or occurrences
2. There is a question of law or fact common to all parties
149
What is required for discharge of duties by impossibility?
1. The occurrence of an **unanticipated** or extraordinary event that makes contractual duties **impossible** to perform.
2. Nonoccurrence of the event was a **basic assumption** of the parties in making the K.
3. Neither party expressly or impliedly **assumed the risk**.
4. Impossibility is **objective**.
5. Impossibility arose **after K** had been made.
150
When are prior inconsistent statements admissible for their substance?
Only if made under oath at a prior trial or proceeding
151
What standard of scrutiny for a denial of the right to marry?
Strict scrutiny because it is a fundamental right
152
What is additur?
Additur is a motion to increase a jury's award of damages. It is unconstitutional in fed court.
153
What does a party moving for summary judgment need to submit to support its motion?
A party moving for summary judgment submits evidence to establish that there are no issues of material fact.
When assessing a motion for SJ, a supporting/opposing affidavit must:
1. be made on **personal knowledge**, and
2. set out facts that would be **admissible in evidence**.
154
Standard for admissibility of prior bad acts against ∆
sufficient evidence to support a jury finding that ∆ committed the prior act
155
When does the BER apply?
When the content of a document is in being admitted, and
A. Where the writing is a legally operative or dispositive instrument such as a K, deed, will, or divorce letter; or
B. Where the knowledge of a witness concerning a fact results from having read it in the document.
156
What type of hearing is required for deprivation of welfare benefits?
Pre-termination hearing
157
What is the modern approach to burglary compared to common law?
Relaxed dwelling house, relaxed nighttime (assume modern on MBE unless they say CL)
158
Who tries equitable issues and who tries factual issues?
Judge tries equitable issues and jury tries issues of fact. If there is both, sever them. Do jury issue first.
159
How are outputs/requirements contracts distinguished from illusory promises?
An agreement to buy only what is "desired" is not consideration. An agreement to buy what is "needed" is a valid requirements contract.
160
Where is venue proper in a statutory interpleader action?
Venue in a statutory interpleader action is proper where any claimant resides.
161
What is remittitur?
Remittitur is a remedy designed to reduce a damages award that is grossly excessive. If jury's verdict is grossly excessive as a matter of law, judge may order π to remit a portion of the award.
162
What is a present recollection revived and how does it differ from a past recorded recollection?
A witness may use any writing or thing for the purpose of refreshing her present recollection. The writing need not be authenticated or in evidence. If she is unable to recall the information, the document itself may be read into evidence as a past recollection recorded, but it must meet the requirements for admissibility.
163
What is a landlord's duty at transfer of possession regarding latent defects?
Landlord has duty to warn tenant of latent (non-obvious) defects or repair upon transfer of possession.
164
Where is service of process proper in statutory interpleader?
Under statutory interpleader, nationwide service of process is available.
165
Merger in inchoate crimes
Solicitation and attempt merge with the completed crime, but conspiracy does not
166
What are the requirements for subject matter JX in statutory interpleader action?
Statutory interpleader allows a person holding property over $500 which may be claimed by two or more adverse claimants to interplead all possible claimants. Fed court has JX as long as there are 2 or more claimants of diverse citizenship.
167
What effect does exceeding the scope of invitation have on invitees and licensees?
A person may lose invitee status and become a licensee by being on the premises at a time outside the scope of his invitation. A licensee does not become a trespasser by exceeding scope.
168
When can a party retract the repudiation?
Before the time for performance, if the other party has not 1) relied on repudiation 2) given notice of acceptance of repudiation or 3) actually commenced an action for breach of K (not mere intent to sue)
169
What must π show for duty/breach in negligence action based on design defect?
π must show that those designing the product knew or should've known of enough facts to put manufacturer on notice about the dangers of marketing the product as designed. Negligent design is not shown if the danger of the product becomes apparent only when the product reaches the public.
170
What is the effect of res judicata on defenses that were not originally litigated?
Claim preclusion (res judicata) would bar claims arising out of the same transaction or occurrence. It does not bar defenses that were not litigated originally.
171
Who may request a jury trial?
Either of the parties; not the judge
172
What is required for compulsory intervention?
Interest so important that not allowing intervention would impair or impede intervenor's ability to protect his interest
173
When is an employer liable for an employee's intentional torts?
When the tort is foreseeable (e.g. prior offenses, turning a blind eye)
174
How does a vested remainder differ from a contingent remainder?
A vested remainder can be created in and held only by ascertained persons in being, and cannot be subject to a condition precedent. A contingent remainder is subject to a condition precedent or created in favor of unborn or unascertained persons.
