MBE REVIEW Flashcards
(120 cards)
1
Q
Valid Miranda Waiver
A
Do you understand your Miranda rights, and are you willing to give up those rights and talk to us? “yes” =
2
Q
Attractive Nuisance Doctrine
A
Owner/Occupier of Land will be liable for their failure to exercise reasonable care to protect trespassing child from physical harm caused by articificial conditions on land if:
- the condition is in a place where children are likely to trespass;
- the risk is one the owner or occupier knows or should know involves an unreasonable risk of death/harm,
- the risk is one that children would not realize because of their youth and
- the owner’s utility in maintaining the dangerous condition and the burden of eliminating the danger are slight compared to the risk to the children
3
Q
FRE 301: The Rule on Presumptions
A
Party against whom a presumption is directed has the burden of producing evidence to rebut. If presumption is properly rebutted, the presumption wll be taken out of the case and is up to the jury to determine. (i.e. a directed verdict for either party will not be successful)
4
Q
Defense to Property
A
One is privileged to use reasonable force to prevent or end a trespasser’s intrusion upon his land or to protect his property. Ex. Cannot use seriously bodily harm (punch in face to child) unless owner is in danger of serious bodily harm.
5
Q
Elimination of 5th Amendment Privilege against Self-Incrimination by:
Grant of Immunity
A
A Witness may be compelled to answer questions if granted immunity from prosecution.
“Use & Derivative Use” Immunity Sufficient (Kastigar v. US) - guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness.
Note: “Transaction Immunity” is broader and guarantees immunity from prosecution for any crimes related to the transaction about with the witness testifies, (witness may still be prosecuted if P shows independent source)
Testimony obtained by a promise of immunity is, by definition, coerced and therefore involtunary. Cannot be used to impeachment of the D’s testimony at trial unless trial for perjury/false statements.
6
Q
Practical Relation between:
[Renewed] Judgment as a Matter of Law & Motion for a New Trial
A
A motion for JMOL (renewed) may be combined with a motion for new trial under FRCP 50(b). If the judge grants the judgment as a matter of law motion, the judge must also rule conditionally on the new trial motion.
Later, if the JMOL is reverse on appeal, the new trial will then automatically occur unless the appeals court specifies otherwise.
7
Q
Civ Pro
Definition & Application of:
Provisional Remedies - ATTACHMENT
A
Definition: A process by which another’s property is seized in accordance with a writ or judicial order for the purpose of secuing a judgment yet to be entered
Applied: Fed court will authorize this any time following commencement of the action in order to secure satisfaction of a potential judgment (i.e. you are concerned that your defnedant may not have assets to satisfy the eventual recovery you expect)
8
Q
“Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”
A
Notice Statute
Subsequent purchaser protected as long as he had no actual or constructive notice at the time of the conveyance (or mortgage)
9
Q
“No conveyance or mortgage of real property shall be valid against a subsequent purchaser for value and without notice whose conveyance is first recorded.
A
Race-Notice Statute
Bona fide purchaser is protected only if he records before the prior transferee or mortgagee records.
10
Q
Is an “independent municipal water-suppy district” that was incorporated under the applicable laws of a particular state, “Government Action”?
A
Yes.
11
Q
Objections to Jury Instructions - Requirements
FRCP 51
A
Judge can reconsider and correct his mistake via jury instructions only if objection is…
1. Timely
- Objection is timely if: objected to during court’s allowance of giving parties the opporutnity to object OR if that does not happen, the party must object promptly after learning that the instruction/request will be, or has been given or refused.
- Court must inform the parties of its proposed instructions and actions on requests before instructing the jury and before final jury argument - thereby giving parties an opportunity to object on the record and out of the jury’s hearing
2. Disctinctly states the matter objected to on the record and the grounds for the objection.
- Example: Claiming that a jury instruction “would be prejudicial” is not distinct and does not identify the precise grounds for objection
- Request for Instructions to the Jury:*
- Before or at the close of evidence
- After close of evidence, only upon a showing of unanticipated grounds via filing a court request
12
Q
Definition: Harmless Error
A
An error made by the court but which does not affect any party’s substantial rights
Therefore, no grounds to grant new trial, set aside verdict, vacate, modify or otherwise disturb a judgment order.
13
Q
Definition: Plain Error
A
Error found by an appellate court that affects the substantial rights of the parties -
Therefore, can be considered in instructions even if claim was not preserved by proper objection
14
Q
Is the following statute constitutional?
Statute that requires autopsies for all non-obvious deaths that impedes on a religion that believes in no autopsy when their son dies
A
YES; constitutional.
15
Q
Evidence
When is Re-Direct Permitted?
A
Re-direct exam permitted only if there are significant new matters raised on Cross-Examination
i.e. NOT collateral matters
16
Q
Speech & Debate Clause
A
shields members of congress from civil or criminal suits relating to their legislative actions & grand jury investigations relating to those actions.
Immunity Extends to aids (assistants) who engage in acts that would be immune if performed by a legislator. (Gravel v. US)
17
Q
Strict Liability Crimes are regulatory in nature and intended to prevent public harm
Very few strict liability crimes qualify as felonies for purposes of the MBE:
List the 1 that qualifies as a Felony and
1 that qualifies as a Misdemeanor
A
Strict Liability = Statutory Rape = Felony
Strict Liability = Sale of unadulterated milk = Misdemeanor
Statute making it felony to fail to register firearm = Not SL
18
Q
Con Law
Validity of an action by an reapportionment board will be valid when it is not based on:
A
Race - which would trigger SS and Govt would likely lose OR
In drawing current district lines, the board complied with state const’l rew. that the legislative disr. be compact and follow political subdivision boundaries to the max extent
19
Q
Art II Section 3 - decision to prosecute ambassador is reserved solely to…
A
Executive Branch
Thus, the Attorney General can decide whether to prosecute an ambassador
20
Q
Public Forum Test
A
Govt can restrict speech in public forums with reasonable time, place, and manner regulations
Regulation must: 1) be content-neutral (subj matter & viewpoint, 2) be narrowly tailored to serve an important govt interest; and 3) leave open alternative avenues of expression
21
Q
Insantity Defense - Are state required to recognize?
A
No, but
If a state does recognize an insanity defense, it is permissible to shift the burden to the defnedant to prove it as an affirmative defense
22
Q
Restriction of Expression in Public Forums
A
Same Test as Public Forum Test
Law upheld if it is 1) content neutral, 2) narrowly tailored to serve an important government interest, and 3) leaves open alternative avenues of expression
23
Q
14 Amendment Enforcemnet Clause
A
Allows congress to enact remedial legislation to combat age disc. incluing forced retiredment based age.
This authority allows Congress to subject an unconsenting state to private suits in federal court for damages related to such discrimination
24
Q
Example of potential state encourage of discrimination enough to held a federal question
A
Bar Association & Cosmo Club
25
Under Art. 1 Section 7 - a congressional veto regarding a fed agency's actions requires what 2 things:
Bicameralism & Presentment:
a majority vote by both houses of Congress AND presentment to President to exercise his veto power
* Congress can veto agency issuance without overstepping*
* (it is exercising legislative power when ti does this not judicial function)*
26
Congress has sole power to regulate what?
Foreign Commerce
27
Whether the president can/cannot recognize a certain country and
therefore tell an ambassador to leave the country
Nonjusticiable Political Question
28
Intent for Assault & Battery
If there is evidence of intent to assault, then that intent transfers to battery.
29
Deed Poll
Def: A deed that is signed only by the grantor.
If the grantee accepts a deed poll, he accepts all conditions on it (i.e. asummption of mortgage)
30
Assumption Agreement v. Subject to Agreement
Assumption: Grantee promises to pay the mortgage loan. Thus, grantee becomes primarily liable to the lender and original mortgagor becomes secondarily liable as a surety. But mortgagee can sue either the grantee or original mortgagor.
Subject: Original mortgagor is liable.
31
3rd Party Beneficiary to a Contract
Intended (not incidental) beneficiaries have contract rights - i.e. the right to enforce the K or share in the proceeds. Then, the promisor is allowed the same defenses against the intended beneficiary as he the promisor would have with the promisee.
Intended v. Incidental depends on the intent of the parties.
32
Condemnation of Land in Tenant-Landlord relationship
The extent of the effect of the taking on the tenant's rights depends on whether there was a complete or partial taking.
1. **Complete taking** (govt takes all prop that tenant was leasing) =
* lease is automatically terminated and tenant has no further obligations to make payments
2. **Partial taking** (some but not all land being leased was taken) =
* tenant is still responsible for making payments, but only to an amount proportionare to the land that was not taking.
* Tenant will also share in the monies paid by the govt to the landlord ofr the taking to the extent of the tenant's rent liabilit in portion of land that was taking
33
Character Evidence in Civil Cases
FRE 404: Proof of Character in order to show conduct consistent with that character is inadmissible in civil cases!!!
*Admissible only if character is at issue in the case (negligent hiring/entrustment, defation child custody)*
34
Evidence Privileges Choice of Law Rules
* Whether a privilege applies in a federal court depends on federal common law.
* When a case is federal question, court will apply federal common law.
* When a case is on diversity, court will apply state substantive law.
1. Physician-Patient Privilege: Recognized by most states, but not recognized federally
2. Patient-Psychotherapist: Recognized Federally
35
Attorney-Client Privilege Exception
There is no privilege if the services of the attorney were sought or obtained as an aid in the _planning or actual commission_ of something that the _client knew_, _or should have known_, was a _crime_ or fraud.
_It doesn't matter whether or not the attorney was aware of the client's illegal purpose_ behind seeking his advice.
36
FRCP 15(b)(2): Issues tried by consent
Issues tried by consent are treated as they were raised in the pleadings.
As such, a party may move to amend the pleadings to conform the pleadings to the evidence and raise a previously unpleaded issue.
Example: Defendant can assert a jury to try an issue that is akin to a "counter claim" if the plaintiff expressly or impliedly consents during trial. Defendant's failure to amend pleadings does not affect the result of the trial on that issue.
37
Complete Defense to Defamation (regardless of Private or Public figure)
Truth
- Regardless if the state was believed to be false when it was made
38
Death Escrow
Grantor may give a deed to an escrow agent to deliver to the grantee on the condition the grantor dies. It is effective as long as:
1. The only condition is the grantor's death; and
2. The grantor does not retain the legal right to take the deed back out of escrow. (he can get it back, but does not have a right to get it back)
* must place deed beyond control, reserving no power over it
39
Defamation - Qualified Privilege
A qualified privilege allows a speaker to say something defamatory if the recipient has an interest in the information
Examples: A former employer makes statements to prospective employee (includes agency settings)
Privilege is lost if the speaker has knowledge that the statement is untrue or a reckless disregard for its truth or falsity.
40
To A for life.
O's will: To B for life, then to C in fee simple.
O dies during A's life.
What result?
A holds life estate even upon O's death.
Upon A's death, B has life estate.Then to C and heirs permanently.
_I.e. death of owner does not affect life state - land will rever back to owner's estate if owner is dead._
41
Valid Conveyance of Land Requires what 2 things
1. **Execution of deed**: satisfied as long as the deed is _signed_ by the party to be charged (seller usually)
2. **Delivery of deed**: established by a proven _present intent to pass title_
1. need not be a physical transfer
2. Just some action intended to make the deed effective presently
3. *Exception*: Intent to have a transfer be effective at grantor's death is valid in a deed only if the deed _expressly_ reserves a life estate.
42
**_Federal govt_** takes action that would result in violating the Equal Protection Clause of the 14th Amendment - What is best constitutional grounds to challenge?
Violation of the **Due Process Clause of the Fifth Amendment**
*Example: US govt demonstrated that terrorist attacks involving commercial airliners were perpetrated exclusive by individuals of one particular race. So, congress enacted a statute imposing stringent new airpor and airlne security measures only on individuals of that race seeking to board airplanes (best challenge is not commerce but equal protection (applicable to fed govt through due process of 5th)*
43
Former Testimony
**_Testimony of now-unavailable witness (i.e. Former Testimony)_** is admissible as a **_Hearsay Exception_** if:
1. Testimony was given **under oath** (trial, hearing, deposition) in the same or different case AND
2. The party or predecessor in interest (in civil case) against whom the testimony is now being offered (party in the former transaction) had an **opportunity and similar motive** to develop the declarant's testimony at the prior proceeding _by direct, cross, or redirect._
* Similar Motive = same subject matter, not same cause of action
* Grand jury = no opportunity to cross, so cannot be Grand Jury Testimony
* Compare to: Prior inconsistent statement given under oath - admissible even if only at Grand Jury proceeding because no cross requirement. Instead, Witness is available for cross in this scenario.
44
Bona Fide Purchaser
Definition: purchaser who purchases in **good faith;
without notice**of any defect in title _and_ for a**valuable consideration**
**a BFP is NOT a donee, heir because no consideration.**
45
Easement Appurtenant
One that benefits the dominant estate (it on the servient tenement) and "runs with the land" so tranfers automatically when the dominant estate is transferred.
Application: allows property owners to access land that is only accessible through a neighbor's land,
Requires 2 pieces of property (dominant and a servient one) - leasing is irrelevant
46
Prima Facie case for
Trespass to Land
1. Act of physical invasion of P's real property by the Defendant
2. Intent by the D to bring about the physical invasion
3. Causation
Mistake as to the lawfulness of the entry is no defense as long as the D intended the entry (no need for intent to trespass)
47
FRCP 49(b)(4): Inconsistent Jury Verdict - What result?
49(b): Judge may require a general verdict supported by interrogatories as to specific findings of fact. Erroneous verdicts may be set aside if the court believes the jury dd not follow its instructions property.
Under 49(b)(4): When the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must
1. direct the jury to **further consider** it answers and verdict, **or**
2. must **order a new trial**
48
Spoken Defamation
**Slander**
When defamation is slander, P must also prove special (pecuniary) damages unless the verbal defamation falls within 1 of 4 exceptions (considered slander per se): 1) criminal activity, 2) occupational conduct, 3) sexual misconduct, or 4) loathsome disease.
*Example: P tried to return some items from a store. Store said no. continued to bill. Sent bill collector who announced to neighborhood that P was bad person. P must prove special damages to prevail.*
49
Motion for Remittur
Must always be paired with the alterntive option for a motion for a new trial
Rmr: in diversity cases, to use the state law standard (shocks the concious v. excessive) PLUS motion for new trial - even if this part is not included in the state's statute
50
Conversion Definition & Damages
Definition: D intentionally commits an act depriving the P of possession of her chattel or interferes with the P's chattel in a manner so serious as to deprive the P use of the chattle
Damages = Full Value at time of Conversion.- apply this diligently
51
Joint Tenancy Characteristics
* Right of Survivorship
* Termination by Partition or Serverance
* Severance: one JT makes an inter vivos conveyance of their entire interest in the property,JT is destroyed
* Partition - in kind (split up) or by sale
* creation by 4 unities - time, title, possession, interests
52
Suretyship does not need to satsify SOF when?
* Promise made to answer for the debt of another - must satisfy SOF unless:
* Where surety prmise was made to the principal (seller) and not the obligee (creditor)
* Ex. buyer and seller orally agreed that buy would pay 46K for Blackacre and that 25K of that purchase price would be paid to creditor to satisfy seller's debt. No facts suggest buyer made any promise directly to seller. Creditor can sue under theory of intended beneficiary and Buyer cannot raise SoF defense.
53
54
Attorney Work-Product Doctrine
*Absolute v. Qualified Immunity*
* Not only protects the attorney's work product (which recieves **absolute immunity)** but
* Expands to all other documents prepared for litigation _by other partys_ (which receives **qualified immunity)**
* Qualified Immunity can be overcome by showing _a substantial need for the materials_ and that their _equivalent is not available through other means_
* Can only be compelled to produce by _Court Order_
* *Example: Baker v. Roofer alleging Roofer caused fire - Baker's insurance agency employees photos/memo documenting the fire will be protected as a Qualified Work Product - so can be compelled if properly overcome*
55
56
Requirement by Authentication or Identification as a Condition to admissibility
is satisfied how?
* By evidence to support a finding that the matter in question is what the proponent claims
* Real Evidence is commonly authenticated by recognition testimony or by establishing a chain of custody
Example: D drops plastic bag and runs away from Police, Police return minutes later to same spot and retreive the bag - This is sufficient evidence for a finding that the bag was the one the 🜂 dropped
57
Reasonable Use Doctrine
* Under the reasonable use doctrine (followed by many eastern states), a landowner is limited to reasonable use of the underground water for beneficial purposes on the overlying land.
* “Reasonable” use is just about any use on the land that is not merely malicious or a waste of water.
* *Example: use of water for gardening, filling a pool, and for the needs of tenants will constitute a reasonable use for beneficial purposes on the family’s overlying land*
58
Clergy-Penitent Privilege
| (similar to Attorney-Client)
* Communication must be made _to member of clergy_ _acting in their capacity_ as a spiritual advosor (Confessional/Counseling Session)
* *Example: Communication made during church fundraise is a social function and therefore falls outside the scope of privilege and will not be protected*
59
When is Evidence of Defendant's Prior Bad Acts
FRE 404(b)
* Evidence of Defendant's **prior bad acts** (crimes, wrong) **not admissible to prove character** in order to show that on a particular occasion the person acted in accordance with the charactr. **It IS admissible to prove:**
* _Motive_
* _Intent_
* _Absence of Mistake/Accident_
* _Mistake_
* _Identity_
* * _Knowledge_
* _Opportunity_
* _Preparation_
* _Plan_
* _Scheme_
* For **Criminal Case**, Prosecutor must officr notice of any such evidence (along with the reason)
60
Joint Tenants - What happens when JTs die at the same time?
* General Rule is the Right of Survivorship. But if both die at the same time:
* Joint tenants who have died simultaneously are deemed to have held the property as tenants in common. This means that there is no right of survivorship between the joint tenants. Each tenant’s interest in the property passes according to their will/intestate.
61
Liquidated Damages Clause
* Found in a Real Estate K
* It is a reasonable and agreed upon amount that would be awarded to the seller, should the buyer breach the contract
* Amount: Usually does not exceed 3% of the purchase price but can be up to 10%;
* To be enforceable, must be in good faith attempt by both parties to approximate fair amount; if liquidated clause exists, it will be controlling (as long as not a penalty or unconscionable)
## Footnote
*Example: "K stated that the owner had the right at his option to retain the deposit as liquidated damages in the event of the buyer's default" = enforceable liquidated damages clause*
62
Non-Hearsay Prior Consistent Statements
* (regardless of it they are made under oath) - not hearsay when offered to rebut an express or implied charge of lying/exaggerating
* only admissible if it was made before the alleged motive to lie or exaggerate came into being
*Example:*
* *Direct Examination - prior consistent not admissible because 🜂 is yet to have been accused of lying or exaggerating*
* *If it is an out of court statement made _when being arrested_, motive to lie already arisen so cannot come in as PIS*
63
Increase Use of an Easement
* Will not terminate the easement.
* The correct remedy is damages or an injunction.
64
How does one "accept" a unilateral K?
* Definition of Unilateral K: one party promises to do something and the other party is free to act or not act as he wishes
* Acceptance is effective when offeree is given notice of acceptance (unless offeree has reason to know that the offerror will learn without notice)
## Footnote
*Example: Manufacture offer to wholesaler to give credit to Retailer and manufacturer will make good any loss (up to X amt), is unilateral because manufacturer did not seek return commitment. Wholesaler should give notice of acceptance of extension of credit to retailer in order to accept.*
65
Contract Defenses
(MMIISDUM)
1. Misunderstanding
1. includes Vagueness
2. *Example: 5 acres of a 100 acre farm = not indentified with reasonable specificity and therefore vague & unenforceable*
2. Mistake
3. Illegality
4. Incapacity
5. Statute of Frauds
6. Duress
7. Unconscionability
8. Misrepresentation/Fraud
66
Mutual Mistake
* Defense to K formation, renders K void
* Elements:
* 1) the mistake concerns the basic assumption on which the K was made
* 2) the mistake has a material effect on the agreed exchange of performances and
* 3) the adversely affected party must not have assumed the risk
* A disadvanted party will not be able to avoid the K if the risk of that mistake was and still is allocated to him (can be re-allocated by K)
* *Example: Risk is assumed and therefore K cannot be avoided when: builder engaged in a business of excavation and had opportunity to investigate the condition on ground*
67
UCC Perfect Tender Rule
* If not perfectly tendered, buyer can reject, and if defective delivery not timely cured, buyer can pursue remedies for breach of K
* Buyer is only obligated to allow seller an opportunity to cure if the performance is not yet due or if the seller reasonably thought that the delivery would be conforming
* *Example: Seller promises to deliver 100 bushels of wheat on Aug 1, and deliers only 95 on Aug 21. Buyer need not give reasonable time to cure (b/c there is no time left for performance), and instead can reject and bring cause of action for breac*h
68
When are gifts revocable/irrevocable?
* Only Promises to make future gifts are revocable;
* Complete gifts are not revocable
* *Example: A gift will be "completed" upon delivery of a passbook (representation of the money in the account) and regardless of a silence in reply, is therefore not revocable.*
69
Accord and Satisfaction
* Partial Payment of an original debt will satisfy as an accord and satisfaction if there is a **bona fide dispute** about the validity of the claim
* One person at least must honestly believe that they don't owe anything
*Example: Son dies. Creditor writes to father that son owes bill of 200 and will file against estate. Father says if you don’t sue against estate I will pay. Creditor believe he is owed, he accepts 150. If father believes he owes the creditor, accord and satisfaction do not apply, so he will be liable for the $50 still to creditor.*
70
Temporary Restraining Order
v.
Preliminary Injunction
* **Temporary Restraining Order**: Granted by a court when it is necessary to prevent irreparable injury to a party and the injury will result before a preliminary injunction can be made
* Can be **granted without notice if:**
* States specific facts that she will suffer irreparable injury w/o grant
* Certifies in writing efforts mae to notify or why notice is not required; and
* Provides security to pay for damages incurred by non-moving party if TRO ends up being wrongful
* Not immediately appealable
* Lasts for _not more than 14 days._
* **Preliminary Injunction:**
* **Cannot be granted without notice** (and opportunity to be heard)
* Immediately appealable
71
FRCP 59: Motion for New Trial
* **On Motion,** the Court is authorized to grant a new trial on all or some issues:
* After a jury trial for any reason including: a significant error of law, verdict going against the weight of evidence, irregularity in the court proceeding, jury misconduct, newly discovered material evidence, and improper damages
* Example: A juror's misunderstanding of the jury instructions is grounds for requesting a new trial.
* Court can **SUA SPONTE**, on its own, grant motion for new trial for any of the reasons above (without motion)
* **_Timing: 28 days after entry of judgment_** (includes Motion to Alter or Amend judgment)
72
Issue Preclusion (Collateral Estoppel)
Elements + Minority/Majority View
* can be asserted **_defensively_** if:
* (i) the prior action ended in a **final** judgment;
* (ii) the issue has been **actually litigated and determined**;
* (iii) the issue was **essential** to the judgment; AND
* Asserted by:
* Minority, Mutuality View: _Only parties_ to the prior litigation
* Majority View: Those who were _not parties_ to prior litigation
* in this instance, can also be used *offensively*.
## Footnote
*Example: Ped sues driver for negligence and wins because driver is negligent. Ped sues owner of truck on theory of vicarious liability and negligence. Owner will not win on issue preclusion if in a minority jx because he was not a party in the prior action.*
73
74
Claim Preclusion (Res Judicata)
* Affirmative Defense
* *Once a final judgment on the merits is rendered on a specific cause of action, claimant is barred from retrying the same cause of action in a later suit.*
* After final judgment on a COA, a claimant will be _precluded from re-trying the COA if_:
1. Second case was brought by the _same party against the same party_
2. _Same COA = arising out of the same T/O_ that is the subject matter of a claim
3. _Dismissed with prejudice_ unless based on jurisdiction, venue or indispensable parties
75
CAFA Class Action Requirements
* Relaxes federal jurisdiction Requirements for Class Actions
* 5 mil, 100 class members
* SMJ established as long as any class member (not just a rep) is of diverse citizenship with any Defendant
* Any Defendant can remove to fed court without the consent of all Defendants
* No in-state defendant limitation on removal.
76
Standard for 12(b)(6) Motion to Dismiss for...
* Failure to state a claim upon which relief can be granted
* 12b6 motion is successful if it demonstrates that **even if every fact asserted in the complaint is taken as true** **no recovery is plausible under any legal theory**
Example: Writer brings suit & alleges: w/o giving writer credit, director intentionally copied my unpublished screen play. --\> on these grounds, a 12b6 motion will fail; court will allow 𝛑 to use discovery to find out more
77
FRCP 38: Right to Jury Trial
* Allows a party to demand a jury trial _on any issue triable of right by a jury_ by:
* **serving** opposing parties with proper written demand **within 14 days after service of the last pleading**
* **If no jury demand made court may:**
* on motion, order a jury trial on any issue _for which a jury might have been demanded_
* authorize use of advisory jury of "an action not triable of right by a jury"
* not binding
* If an action is not an issue for which a jury might have been demanded, court **needs both parties consent**
78
Appellate Court Discretion when:
Reviewing Discretionary Ruling (Motion for new trial on evidence or discovery) by Trial Court
* Ruling will not be overturnd unless it is _plainly wrong_ or without an appropriate basis
* Example: The standard a federal trial judge uses for determining whether to grant a new trial in jury cases is whether the verdict is against the clear weight of evidence. Therefore the appellate court can only reverse if trial court is plainly wrong.*
* *X motions for new tiral; denied; X appealed; answer: appellate court can affirm denial if it believes the verdict was not against the clear weight of the evidence*
79
Involuntary Dismissals by the Court bar subsequent suits. What will rise to involuntary dismissals and what are th 4 exceptions?
What are the exceptions to this? (4)
Court will order Involuntary Dismissal if
* 1) failure of the plaintiff to prosecute,
* 2) failure of plaintiff to comply with court order or
* 3) failure of 𝛑 to show by close of evidnece a right to relief = adjudication on the merits
If dismissed these ways, no bar to subsequent suit:
* 1) lack of jx,
* 2) improper venue,
* 3) failure to join a party and
* 4) anything else the court deems via order
*Example - Failure of plaintiff to prosecute: A brings claim, after filing, nothing happens and ourt dismisses claim. Effect = dismissal will operate as an adjudication on the merits that precludes A from re asserting the same claim in a newly filed action*
80
FRCP 52: Non-Jury Trial
Requires the Court to do what?
* trial court must "find the facts specially and state its conclusions of law seperately".
* *i.e. judge must set forth the facts as she finds them with some particularity & in a separate section, state the law she believes disposes of the case*
* *This obligation only exists for non-jury trials*
*Example: A grant or denial of a motion for summary judgment or 12b6 motion to dismiss for failure to state a claim does NOT need to be accompanied by findings of fact and conclusions of law*
81
FRCP 8(a): General Pleading Rules
What must a complaint include?
a complaint must contain:
1. a **short and plain statement** of the court's jx,
2. sufficient **factual allegations** to allow a dist. ct to find that the claim is **_plausible_** and
3. identification of the **relief sought**
**_Exception_**: Certain special matters must be _pleaded with particularity_.
* Allegations of Fraud or Mistake
82
False Pretenses
83
False Pretenses
1. Obtaining Title (ownership rather than mere possession)
2. by False misrepresentations (must be intentional false statements)
3. of past or existing fact (misrepresentation of a future event does not qualify)
4. with the intent to defraud (the victim must be decieved or must act in reliance of the defendant's false statement in passing)
Specific Intent Crime
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What 2 things do you need in order to join multiple defendants?
1. Some claim against each defendant must relate to or arise out of the same series of occurrences or transactions; and
2. There must be a question of fact or law common to all parties.
If misjoinder, motion to sever
85
Conflict of laws as to real property in a diversity suit -
which state's law governs?
* Choice of Law rules will not be determined by where the suit was filed but **where the property is located**
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Letter on Oct 8 from Seller to Buyer: "i need a motorcycle and will buy yours for $1200 upon your bringing to my home address on or before November 12"
Buyer's response via mail the following day: "i accept your offer and promise to deliver the bike as you specified".
What effect of Buyers response?
* Mailing of the letter by Buyer did not, of itself, prevent a subsequent, effective revocation by the Seller of his offer
* Letter was not an appropriate method of acceptance because seller's letter offer requested performance; thus mailox rule would not apply to make the acceptance effective upon dispatch and Seller's offer remains freely revocable.
* Unilateral Contract
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A state's imposition of residency or citizenship requirements on non-residents imposes what?
* The Privileges and Immunities Clause of Article IV
* States cannot impose residency or citizenship requirements on non-residents without demonstrating a substantial interest justifying the classification.
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Purposeful availment will not be found when...
&
It will be found when...
* A manufacturer's knowledge that its machines wee being advertised, sold, an delivered to a company in State A by an independent State B distributor (not in the manufacturer's control) is not enough to legitimate the assert of jurisdiction.
* i.e. Just because a manufacturer targets a country, he does not target each state within that country
* To have purposefully availed: Manufacturer must have advertised, sent goods, or in any way targeted State A
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A contracts in writing with B to renovate kitchen for $25K, "_subject to homeowner's complete personal satisfaction_". A truthfully believes she did not like the finish ont he cabinets and thus not satsified. Pays B only $20K. B sues A for $5K.
What result?
* "Subject to..." = condition precedent
* A's promise to pay is subject to her complete personal satisfaction with B's work.
* As long as homeowner was truthful in her dissatisfaction with B's work, this will not amount to a breach of the convenant of good faith and fair dealing.
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Effect of: Right-of-Way Easement
* Will render a title unmarketable
* If an owners promise to deliver martketable title is paired with a quitclaim deed, the buyer can refuse to close because of the explicit promise. If only a quitclaim deed, no effect of right of way easement.
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Quitcaim Deed effect on Marketable Title
NO EFFECT
Seller must provide marketable title in quitclaim deed.
*Example: Right of Way Easement renders title in quitclaim deed unmarketable*
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How does an easement affect title marketabilty?
* An easement that reduces the value of the property (right of way for the benefit of the neighbor) renders title unmakretable.
* Majority of courts have hel that a beneficial easement (utility easement to service property) or one that was visible or known to the buyer does not constitute an encumbrance.
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Felony Murder
## Footnote
*Remember the Examples.*
* Def: A killing committed during the course of a felony
* Requirements
* Defendant must have intent to commit the underlying felony (malice, intent for murder is implied from the intent to commit the underlying felony)
* Causation:
* Actual: Death must have been cause during the commission or attempted commission of the felony
* Proximate: Death must have been a foreseeable result of the commission of the felony
* *Example: D goes to rob a store and shakes gun only to scare cashier. Gun goes off and kills cashier. Another employee with heart condition see and dies from heart attack. D is liable for felony murdr of BOTH employees b/c foreseeable.*
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Prior Conviction - Impeachment
**Prior Conviction**
NOT Involving Acts of Dishonesty
Felony:
* If W **is Δ**: Admissible _only if passes 403 Test_
* If _W is not Δ_: admissible but _court can exclude_ under 403 Test
Misdemeanor: inadmissible unless it involves dishonesty/false statements
Prior Conviction
Involving Act of Dishonesty
Acts of Dishonesty = prior conviction required proof of admission of an act of dishonesty or false statement
Both Felonies and Misdemeanors : Always Admissible – Cannot be excluded even under 403
Convictions more than 10 years old (felonies and misdemeanors)
Not admissible unless:
* Probative value substantially outweighs unfair prejudice (invesr of 403) and adverse party is given notice
10 year Date = Either 10 years since date of conviction or from release of confinement, whichever is later.
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Prior Convictions of Impeachment of:
A Witness that is also a Defendant vs. One that is only a Witness
* **_Witness only_**
* **Prior Conviction not involving act of dishonesty**
* **Admissible but court can exclude under the 403 Balancing Test**
* Prior Conviction involving act of dishonesty
* Admissible
* If in either category, conviction is more than 10 years old: not admissible unless heightened 403 balancing applies.
* **_Witness - Defendant_**
* **Prior Conviction not involving act of dishonesty**
* **_Inadmissible unless_ passes 403 balancing Test**
* Prior Conviction involving act of dishonestly
* Admissible
* If in either category, conviction is more than 10 years old: not admissible unless heightened 403 balancing applies.
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Expert Testimony
* Expert may state an opinion or conclusion, provided it its:
* Relevant and Reliable
* Opinion may embrace the ultimate issue
* but in a criminal case, in which the D's mental state constitutes an element of the crime or defense, an expert cannot state opinion as to whether or not the D had the mental state in issue
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Choice of Law for Preclusion Cases
* When deciding which jurisdiction's preclusion law applies, courts will apply the law of the forum whose court rendered the earlier judgment. If earlier judgment was by a state court, that states preclusion law applies via the Full Faith and Credit Clause.
* If earlier judgment was rendered by a federal court having diversity jurisdiction, federal preclusion law applies, BUT federal law calls for applying the preclusion law of the state in which the federal court sits.
* *Example: 2 seperate class action suits filed by 2 people in State A & State B.*
* *Suit #1: Person 1 files in State A federal court. Judgment for D.*
* *Suit #2: Person 2 files in State B state court. D moves to dismiss on res judicata.*
* *Answer: State Court should look to federal law, because judgment was entered in fed court.*
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FRCP 60(b): After a judgment has been entered, a party may be entitled to have the judgment voided on what grounds?
* mistake, inadvertance, surprise, or excusable neglect
* newly discovered evidence that, with reasonable diligence, could not have been discovered in time for a new trial
* **fraud**, misrepresentiation, or misconduct by an opposing party
* *example: discovering a video that shows that P did not have permanent injury (she was jogging just days after her alleged injury - on only these fact, Fraud is the best ground to request void judgment.*
* judgement is void
* judgment has been satisfied, released, or discharged
* any other reason that justifies relief
99
What wholly insulates members of Congress from Tort Liability (ex. defamation) for Statements made on the floor of Congress?
* Speech and Debate Clause of Article 1, Section 6
* Note: Although members of Congress enjoy 1st amendment freedoms, this is not a bsis for having "an unqualified right to speak on matters of public conern at any place and time without having to fear adverse legal consequences"
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Does the 5th Amendment protect contents of business records?
No, because they are voluntarily prepared documents and therefore not compelled.
5th Amendment protects information sought by the govt of an individual (cannot be corp) that is:
* 1. Compelled
* 2. Incriminating; and
* 3. Testimonial (relates to an assertion of fact)
101
Undue Influence is a defense based on what?
Lack of Capacity
102
Prohibition against questioning a detainee after he has invoked his right to counsel lasts how long?
* The entire time the detainee is in custody for interrogation purposes plus 14 more days after the detainee has returned to his "normal life" - then can be requested regarding the same matter upon recieving a fresh set of miranda warning.
* Note: Right to remain silent must be honored until a "significant time" has passed
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When is Defendant's presense required - Fed Rule of Crim Pro
* For a non-misdemeanor offense, the defnedant must be present at every trial stage after formal proceedings have begun. This includes jury selection and impanelment.
* Exception: The proceeding involves only a conference or hearing on a question of law or proceeding involves correction of reduction sentence
* Example - AC malfunctioned in courtroom so judge held jury selection in chambers. D must be present!
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What happens to adversely possessed property by 2 people when 1 person dies?
* As long as title vests in the 2 people (which is satisfied by showing proper adverse possession), the dead man's **heir** will take because the 2 men acquire **title as tenants in common.**
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Pretrial Conferences / Time for interrogatories
* 1. As soon as practicable, parties must meet for initial conference to discuss claims and defenses, settlement possibilities, initial disclosures and discovery plans.
* This is a **Rule 26(f) Conference of Parties** - "Planning for Discovery"
* Parties must **submit their initial disclosures** and proposed discovery plan **within 14 days** of this meeting,
* Party **may not seek discovery** from any source **before** the parties have conferred for this initial conference.
* 2. Court will them schedule **16(b) Scheduling Conference** which will limit the time for joinder, motions, and discovery. Also may include days for pretrial conference, trial etc
* *Pretrial Conference (optional)* - to exedite trial and foster settlement.
* *Final pretrial conference (optional)* - to forum a plan for time including the admission of evidence
* Order must be entered that controls the subsequemt course of events
* *Note: Interrogatories can include opinions and contentions,*
* *25 for each side unless parties stipulate otherwise.*
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4th Amendment: Can a government agent, in the same manner as a private person (i.e. undercover), enter premises w/ consent by deceit?
* Yes. Officer can use deciet to gain entry. Once inside, he is legimately on the premises.
* Exception to warrant requirement, under plain view doctrine, allows police to make a warrantless seizure when they:
* 1. are legitimately on the premises
* Even if they got there by deceit
* 2. Discover evidence, fruits, or instrumentalities of a crime or contraband
* 3. see it in plain view
* 4. have probable cause to believe or it is immediately apparent that the item is evidence, contraband or fruit or instrumentality of a crime.
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Solicitation
* Definition: Inciting counseling, advising, inducing urging, or commanding another to commit a crime with specific intent that the person commit the crime
* the offense is complete the moment the solicitation is made, regardless of agreement
* Soliciation merges with the crime solicited if it was actually committed
* Thus, accused cannot be convicted of both solicitation and the principal offense.
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11th amendment
* Modifies judicial power by prohibiting a federal court from hearing a private party or foreign government claims against a state govt
* it does not bar actions by the US govt against a state
* Typically only bars suits for damages, not suits involving injunctive relief
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Defense to Strict Liability
* Assumption of Risk: If Plaintiff knowingly, voluntarily, and unreasonably or reasonably subjected herself to the danger - she will not prevail on a claim of strict liability
* *Example: Hot air ballooning is deemed abnormally dangerous activity in jx. Co. put up fense, with signs not to enter. Golfer jumped over to get golf ball and was stuck by a crash landing hot air balloon. - P assumed risk. She will lose on claim of SL against company*
* Note: Ordindary Contributory negligence will not be a defense to SL and plaintiff will still recover despite having acted negligently (P was inattentive, did not discover a risk she reasonably should have)
110
Lien priority can be affected by the modification of the mortgage...when?
* Where there is both a senior mortgage and a junior mortgage, **modifications** to the senior mortgage that are **detrimental** to the junior mortgage, such as _raising the interest rate_, _or the principal amount,_ thus making it more burdensome on the debtor, will give the junior mortgage priority.
111
Remedy at Law (damages) is inadequate for what?
* Unique/Rare things such as Real Estate! (and antiques, rare things)
* Court will enforce specific performance
112
Implied-in-fact Contract
* Formed by manifestations of assent through conduct, rather than oral or written language.
* *Example of enforceable implied in fact K: Attorney recieved a document at his office with an attached note from a client for whome he had just finished drafting a will. Note said "do you think this K for sale for my boat complies with state law? I would talked to you in person but im going out of town. Be back next week". Attorney reviews and writes 1 page letter and charges client $500. Clien refuses to pay.*
* *Client and Attorney previously engaged in conduct that would indicate some sort of contractual relationship, new question on diff topic manifests assent to further services from the attorney.*
* *Implied in fact K can be formed despite lack of essential terms*
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Expectation Damages does not include...
Attorneys fees
114
Double Jeopardy does not apply when?
* It does not apply to trials by seperate soveriegns (this includes being tried for the same conduct by two different states).
* General Rule: 5th amendment provides the right to be free of double jeopardy for the same offense.
115
Supplemental Jurisdiction
* **Federal Question** - Allows additional claims and parties to be brought into a federal case without independently satisfying SMJ as long as there is an underlying controversy that does have SMJ and:
* the **claim is so related** to the claims in the action that they form part of the same case of controversy - more generous standard than the below
* **Diversity** - When the core claim is based solely on diverity, there is no need for diversity and amount in controvery for supplemental claims if:
* The claim is compulsoy, joinder of additional parties to compulsory counterclaims, cross-claims, joinder of multiple plaintiffs; and
* claim **arises from the same nucleus of operative fact** as the underlying case.
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When a buyer and seller enter into a valid Real Estate K that satisfies the Statute of Frauds, can the parties enter into a **oral** agreement to abandon/rescind the K **without** a writing?
* Yes, the oral agreement effectively abrogates their prior contract, whether the rescission agreement is executed or executory.
* This recission is not a modification and therefore, need not satisfy the writing requirement of SoF.
* If the parties attempted to modify or alter the written K, a writing would be necessary.
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Tenancy in common characteristics
* Tenants in common can receive their interests at different times and from difference conveyances.
* They can hold unequal shars of the land, even if they have full use of all the premises
* When a TIC wants to create an easement or resolve a boundary dispute, that action will not affect the legal rights of any other tenants in common who do not sign he grant or agreement
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119
Tenancy by the Entirety v. Joint Tenancy
* Tenancy by the Entirety can only be distinguished by: divorce, death of one spouse, creditor of both spouses, or mutual agreement
* Joint Tenant can make an inter vivos conveyance of her interest in property. This results in severance and Tenancy in Common is created.
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