MBE wrong questions 1

Question 1

Guy waits near bushes and hits passerby with a stick. what degree?

Answer 1

Because there was intent to cause bodily harm this would be second degree or even involuntary manslaughter. NOT first.

Question 2

Guy has land. 10 subdivision plots and an undesignated one. Sells undesignated one, is there marketable title?

Answer 2

No, becasue we are not sure whether the private restrictions of the other lots apply to the undesignated one. (Plan said that restrictions applied to all lots in the map).

Question 3

Juror when replying to “do you have any bias question” said no because their bias happened 20 years ago

Answer 3

No new trial, because no misconduct statement made in good faith

Question 4

A had recorded mortgages on lot 1,2,3. She got a release on 2 but recorded a release on 3 (Fraud). a BFP buys 3.

Answer 4

BFP cannot win a recording race beacuse the release of 2,3 (which was recorded) is not valid. LOOK OUT for invalid prior recordings. They don’t count.

Question 5

The owner of a boat took two friends out on a lake near his home. One of his friends was driving the boat when it struck a partially submerged rock that the owner of the boat had forgotten to tell him about. The owner of the boat and the other passenger were injured; the driver of the boat was not hurt.

In a jurisdiction that applies joint and several liability with comparative contribution, the passenger brought suit against both the boat owner and the driver, and the boat owner also sued the driver. The jury determined that the boat owner was 55% at fault and suffered $10,000 in damages, the driver of the boat was 45% at fault, and the injured passenger suffered $100,000 in damages. After entry of judgment, the boat owner paid the passenger her total damages of $100,000, while the driver of the boat has paid nothing

Answer 5

You get 45 + 4500 since you can recover 45% of the 10.000 of which you lost

Question 6

A man and a woman were arrested and charged with a series of armed robberies. Each suspect was given Miranda warnings, and different interrogation teams questioned each suspect separately. Upon being questioned, the man told the police, “I’m not going to talk until I see a lawyer.” An officer responded, “You might want to reconsider, because your partner has already confessed, and she’s implicated you in the crimes.” The man then told the police that he wanted to talk to the woman privately. The police escorted the man to the woman’s cell, locked him in with her, and left. Unbeknownst to either of them, the police had bugged the woman’s cell and recorded both the man and the woman making self-incriminating statements during their meeting. The man made no further statements to the police on advice of counsel, whom he called immediately after his conversation with the woman. The man was put on trial first, and the prosecution sought to introduce into evidence tapes of the bugged conversation between the man and the woman. The defense made a motion to suppress the evidence.

Answer 6

Here police was wrong because they induced a situation that led to an incriminating statement.

Wiretapping was OK though because there is no expectation of privacy in cell.

Question 7

A tenant vacated an apartment because he could no longer afford the rent. To ensure that the delinquent tenant made up for past arrearages, the landlord would not let him remove his personal property from the apartment. The tenant found a temporary place to stay with a friend, who wanted to help the tenant get his property back. The tenant remembered that the apartment would be vacant the upcoming weekend and that the landlord would be out of town, so he suggested that they break into the apartment and take the property then. They drove the tenant’s pickup to the apartment, and the friend entered through an unlocked window. The friend then opened the door for the tenant, and the pair collected the personal property. While the tenant was getting ready to drive away, the friend returned to the apartment and carried out some of the fixtures to the apartment. At this point, police officers who had been alerted by neighbors arrived and arrested the pair.

What is the tenant’s best defense to a charge of burglary?

Answer 7

NO because no intention to commit felony (only possible felony here is larceny which requires taking property of another)

Question 8

requirements contracts and assignment

Answer 8

Generally, the right to receive goods under a requirements contract is not assignable because the obligor’s duties could change significantly. In fact, here, a significant change would seem possible because the large toymaker is a larger company than the small manufacturer and its needs could be greater. However, the UCC allows the assignment of requirements contracts if the assignee acts in good faith not to alter the terms of the contract. [UCC §2-306] (The UCC applies here because goods are involved.)

Question 9

Exclusionary rule and no Miranda rights vs. involuntary confession

Answer 9

While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as “fruit of the poisonous tree.” In contrast to an involuntary confession, a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial “fruits” of the confession. [See United States v. Patane (2004)] Thus, the involuntariness of the confession, rather than the absence of Miranda warnings, is the best argument for excluding the cocaine.

Question 10

competency to stand at trial

Answer 10

The judge must raise the issue of competency. If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent

Question 11

A retailer entered into an oral contract with an office supply wholesaler to buy 100 file boxes for an upcoming back to school sale at the retailer‘s store. The wholesaler agreed to deliver the file boxes in two weeks at a cost of $4 per file box. A week later, the retailer phoned the wholesaler and asked if she could increase her order to 200 file boxes. The wholesaler agreed. The wholesaler delivered the 200 file boxes as promised, but the retailer accepted only 150 upon discovering that she lacked storage space for all 200.

May the wholesaler recover damages with respect to the 50 file boxes that were not accepted?

Answer 11

The wholesaler may not recover damages. Under the UCC Statute of Frauds, a contract for the sale of goods for $500 or more is unenforceable unless evidenced by a writing signed by the party sought to be held liable. The original contract was for $400 and, thus, was not within the Statute. Whether a modification must be in writing to be enforceable depends on whether the entire contract price as modified is within the Statute. Here, the retailer and the wholesaler modified their original contract to 200 file boxes, bringing the total price to $800. Thus, the modification was unenforceable under the Statute of Frauds, and the wholesaler cannot collect damages with respect to the 50 unaccepted file boxes. (A) is incorrect.

Question 12

When can a witness in a grand jury be compelled to give discriminating statements?

Answer 12

Only when use and derivative use immunity are given (transactional MAY be given but does not NEED to be given)

Question 13

When contract for sale of land signed can both parties insure land?

Answer 13

YES, as long as there are no contingencies, seller (legal interest) and buyer (equitable interest) can both insure land. However risk of loss passes to the buyer

Question 14

Dedication in a deed of roads

Answer 14

Dedication, in property law, means the donation of land or creation of an easement for public use. It may be expressed or implied. A dedication of property to public or pious uses may be implied or inferred from the acts of the owner. Where there is: (i) an expressed intent to dedicate land for public use; and (ii) acceptance of the dedication, a public dedication of land is established, and title to the land will pass to the public entity, a dedication of property is created.

Question 15

The defendant and an accomplice were on trial together for burglary. Both had given confessions implicating themselves and their accomplice. At trial, the defendant maintained that his confession had been obtained through improper coercion by the police. For the purpose of countering the claim of coercion, the prosecution seeks to place the accomplice’s confession into evidence. After objection by the defendant’s counsel, the judge agrees to issue a limiting instruction to the jury that the confession is to be considered only with regard to the question of whether the defendant’s confession was coerced.

May the accomplice’s confession be admitted under that condition?

Answer 15

The confession is admissible with the judge’s limiting instruction. Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission. The accomplice’s confession, which the prosecution seeks to introduce into evidence, implicates the defendant in the commission of the crimes charged. Consequently, introduction of this confession raises a problem based on the right of confrontation. However, given that the judge will issue the limiting instruction, the confession is admissible. (D) is therefore correc

Question 16

Waiver of right to jury trial

Answer 16

To ensure that this is the case, the judge should make sure that the defendant is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial. If the judge did not determine whether the woman understood that she had a right to a trial by jury, her plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it.

Question 17

In his employment, an employee operates a grinding wheel. To protect his eyes, he wears glasses, sold under the trade name “Safety Glasses,” made by a glasses manufacturer. The glasses were sold with a warning label stating that they would protect only against small, flying objects. One day, the grinding wheel that the employee was using disintegrated and fragments of the stone wheel were thrown off with great force. One large fragment hit the employee, knocking his safety glasses up onto his forehead. Another fragment then hit and injured his eye.
The employee brought an action against the glasses manufacturer for the injury to his eye. The jurisdiction adheres to the traditional common law rule pertaining to contributory negligence.
In this action, will the employee prevail?

Answer 17

C is correct. The key phrases in this problem are “small flying objects” as specified in the warning sold with the glasses, and “large fragment” hitting the employee’s glasses from his face. This is not a defective products case, a misrepresentation, or a failure to warn case. The warning was accurate. The employee, however, encountered a hazard that the glasses were not designed to prevent against.

Question 18

A businessman filed suit against a landscaper in federal court. The first count of the complaint alleges that the landscaper knowingly made false statements to the businessman concerning the financial status of the landscaper’s company and that the businessman had relied on those statements, to his detriment, in making a loan to the landscaper. The second count of the complaint alleges that although the landscaper’s statements to the businessman were not false, and although the businessman did not rely on the landscaper’s statements when making a loan to the landscaper, that the landscaper is in default on the loan and is liable to the businessman for the balance due. Payment of the loan was due before the complaint was filed.
Is a court likely to find that the businessman’s complaint was plead in good faith?

Answer 18

C is correct. Although it’s possible that the businessman could have inconsistent evidence with respect to whether the landscaper was telling the truth, the same cannot be said for whether the businessman relied upon the landscaper’s statements.

NOT B is incorrect. Although parties are permitted under the federal rules to make alternative and inconsistent allegations, FRCP 8 is subject to the requirements imposed by FRCP 11 that pleadings must be made in good faith.

Question 19

Requirements for equitable servitude to run with the land

Answer 19

n equitable servitude in a deed is only enforceable where a party can establish: 1) intent that the restriction be enforceable by subsequent grantees; 2) that the subsequent grantee had notice of the servitude; and 3) that the restriction touches and concerns the land. Privity, notably, is not required.

Question 20

liquidated damages

Answer 20

Conversely, a liquidated damages clause will not be enforced if it is deemed to be a penalty or unconscionable. A liquidated damages clause is also invalid if it gives one party a choice of possible remedies while not providing any pre- determined remedy for the other party.

usually less than 10 is fine

Question 21

Is someone in custodial interrogation?

The owner of a used car dealership and his business had been under investigation by the IRS for several months because of suspected fraudulent tax returns. In addition, a police detective who had been investigating a stolen car ring uncovered evidence indicating that the car dealer might be a part of the ring. The detective went to the car lot and found evidence indicating that the ring was operating through there. The car dealer then agreed to accompany the detective to the station to make a statement on the evidence. On the way he voluntarily informed the detective about the fraudulently filed tax returns, because he believed that by revealing these facts he might receive a lighter sentence for his involvement in the stolen car ring.

At his trial for filing false tax returns, the car dealer’s attorney moved to exclude the statement he made. The best argument for admitting the statement is that

Answer 21

The best argument for admitting the statement is that it was volunteered by the car dealer. Generally, Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made by the accused during custodial interrogation. I

Question 22

When gratuituous gift made can other party compel performance?

Answer 22

NO

After reaching an oral agreement on the terms of representation, a law firm, at its clients’ behest, instituted a class action lawsuit against a tobacco company for $100 million. Prior to signing the written contract outlining the parties’ rights and responsibilities, including the fee arrangement, the firm’s senior partner told the clients’ representative in a moment of goodwill and generosity that if they won or the tobacco company settled, he would turn over half of the attorneys’ fees in the case to a particular nonprofit group that funds research on lung cancer and other respiratory illnesses. After the law firm won the case and collected its fee of $33 million, it had second thoughts about turning over half of it to the nonprofit group.

If the nonprofit group sues the law firm in an attempt to collect the $16.5 million, which of the following is the law firm’s best defense to such action?

The nonprofit group did not give consideration to the law firm in return for the law firm’s promise to turn over half of its attorneys’ fees to the group in the event it won or settled the class action suit. Thus, the law firm’s promise was gratuitous; i.e., it was simply attempting to confer a gift upon the nonprofit group, and the group could not compel the law firm to turn over the money.

Question 23

in assault no need for fear

Answer 23

A young teenager pointed a squirt gun at an older teenager as if she was going to squirt him, although the younger teenager knew that the gun was empty. The older teenager did not know that the gun was empty and yelled, “A little water isn’t going to hurt me.” The younger teenager pulled the trigger and yelled back, “You’re lucky, it wasn’t even loaded.”
Is the younger teenager liable to the older teenager?

The younger teenager is liable for assault. An assault is an affirmative act by the defendant done with the intent to place the plaintiff in apprehension of an imminent harmful or offensive contact to his person and that actually causes the plaintiff apprehension. Children are deemed to be capable of forming the intent for assault and other intentional torts. The plaintiff need not be placed in fear of the contact; an apprehension of contact that is offensive (that is, not consented to) is sufficient. Furthermore, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. Here, the older teenager was placed in apprehension of imminent offensive contact, namely the squirts of water. The younger teenager’s actions show that she intended to cause the older teenager to believe that he was going to get squirted, thus satisfying the intent requirement.

Question 24

Remember when you stop to assist you only have to not make them worse. Still no duty to rescue.

Answer 24

A motorist driving home one night on a desolate two-lane road stopped when he saw a person lying on the road next to a bicycle. The cyclist had slipped and fallen off his bicycle, and was knocked unconscious when he hit his head on the pavement. Not wishing to get involved and seeing that no one else was around, the motorist got back into his car and drove away without making any effort to help the cyclist, even though he had a cell phone with which he could have summoned aid. The cyclist remained lying in the same place and was later struck by another car.

If the cyclist brings suit against the motorist for injuries suffered when he was struck by the other car, will the cyclist prevail?

The cyclist will not prevail because the motorist was not responsible for putting the cyclist in a position of danger. While one whose conduct places another in a position of peril has a duty to assist the person, there is no general affirmative duty to rescue, except by a professional rescuer. Also, once any person decides to assist in a rescue, he must act as a reasonable person in an emergency situation. Here, the motorist was under no duty to assist the cyclist, and his actions when he stopped and got out of his car did nothing to make the cyclist’s situation worse (such as causing others not to stop because they believed the cyclist was receiving assistance). Hence, the motorist will not be liable.

Question 25

A send acceptance and then called to say no. B said ok. But then when receiving acceptance changed his mind.

Answer 25

No acceptance of rejection because B did not know that A had accepted. No meeting of minds. Follow normal rules.

Question 26

What is res ipsa

Answer 26

The circumstantial evidence doctrine of res ipsa loquitur (“the thing speaks for itself”) deals with situations where the mere fact that an injury occurred can establish or tend to establish a breach of duty. Where the facts strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer that the defendant was probably negligent. Res ipsa loquitur requires the plaintiff to show: (i) an inference of negligence (i.e., that the accident causing the injury is the type that would not normally occur unless someone in the defendant’s position was negligent); (ii) negligence attributable to the defendant (i.e., evidence that this type of accident normally happens because of negligence, such as that the instrumentality that caused the injury was in the defendant’s exclusive control); and (iii) that the plaintiff is free from negligence, meaning the injury was not attributable to him.

Question 27

What does each party say?

Answer 27

Res ipsa loquitur does not change the burden of proof or create a presumption of negligence. A successful res ipsa showing by the plaintiff amounts to a prima facie case, which will preclude the defendant from being awarded a directed verdict. However, if the defendant rebuts the res ipsa showing with evidence that he did exercise due care, it has the same effect as in all other cases. In that scenario, the jury may either find that the defendant’s evidence overcomes the plaintiff’s res ipsa showing and decline to infer liability, or it may reject the defendant’s evidence and draw the permissible inference of negligence, finding for the plaintiff. Even if the defendant rests without offering evidence, the jury may still elect not to infer negligence.

Question 28

Ex. of res ipsa

Answer 28

As a shopper was leaving a supermarket, an automatic door that should have opened outward opened inward, striking and breaking the shopper's nose. The owner of the building had installed the automatic door. The lease, pursuant to which the supermarket occupied the building, provided that the supermarket was responsible for all maintenance of the premises. The shopper sued the supermarket. At trial, neither the shopper nor the supermarket offered any testimony, expert or otherwise, as to why the door had opened inward. At the close of evidence, both the shopper and the supermarket moved for judgment as a matter of law. How should the trial judge rule? derrefni eb yam ecnegilgen stcaf eseht no esuaceb ,yruj eht ot esac eht timbuS

Question 29

Non lawyer (real estate agent, broker, officere of title insurance company) CAN...

Answer 29

can close when buying or selling property. CAN"T answer legal questions though.

Question 30

Federal question? With the advice and consent of the Senate, the President entered into a self- executing treaty with a foreign country. The treaty provided that citizens of both nations were required to pay whatever torts damages were awarded against them by a court of either nation. A man and a woman who were U.S. citizens and residents of the same state were traveling separately in the foreign country when their cars collided. The foreign court awarded the woman a judgment for $500,000 in damages for her injuries from the accident. The woman filed suit against the man in federal district court in their home state to enforce the judgment. The man filed a motion to dismiss for lack of jurisdiction. Should the court grant the motion to dismiss?

Answer 30

Yes, it arises under a treaty

Question 31

Voi dire - strike for cause- when is bias presumed?

Answer 31

Stock ownership, or having worked for or having a spouse who works or worked for one of the litigants, has been found to create a presumption of bias that merits striking a potential juror for cause.

Question 32

The general rule is that a life tenant is responsible for the real estate taxes on the property and interest on the principal to the extent of income from the property. However, a life tenant is liable to the holder of the future interest for property taxes only to the extent of rents received, or the fair market value of the property if the life tenant is occupying the property. In other words, if the life tenant is not occupying the property, and not renting the property, then the future interest holder upon coming into present possession of the property will be unable to sue the former life tenant for unpaid taxes on the property.

Answer 32

A land owner owned in fee simple Lots 1 and 2 in an urban subdivision. The lots were vacant and unproductive. They were held as a speculation that their value would increase. The land owner died and, by his duly probated will, devised the residue of his estate (of which Lots 1 and 2 were part) to his sister for life with remainder in fee simple to his niece. The land owner's executor distributed the estate under appropriate court order, and notified the sister that future real estate taxes on Lots 1 and 2 were her responsibility to pay. Except for the statutes relating to probate and those relating to real estate taxes, there is no applicable statute. The sister failed to pay the real estate taxes due for Lots 1 and 2. To prevent a tax sale of the fee simple, the niece paid the taxes and demanded that the sister reimburse her for same. When the sister refused, the niece brought an appropriate action against the sister to recover the amount paid. In such action, the niece should recover

Question 33

n October 1, a toy store entered into a written contract with a toy factory for the purchase at $20 per unit of 1,000 mechanical dogs, to be specially manufactured by the factory according to the store's specifications. The factory promised to deliver all of the dogs "not later than November 15, for the Yule shopping season,"and the store promised to pay the full $20,000 price upon delivery. In order to obtain operating funds, the factory as borrower entered into a written loan agreement on October 5 with a finance company. In relevant part, this agreement recited, "[the factory] hereby transfers and assigns to [the finance company] its [the factory's] October 1 mechanical dog contract with [the store], as security for a 50-day loan of $15,000, the advance and receipt of which are hereby acknowledged by [the factory]. . ." No copy of this agreement, or statement relating to it, was filed in an office of public record. On October 15, the factory notified the store, "We regret to advise that our master shaft burned out last night because our night supervisor let the lubricant level get too low. We have just fired the supervisor, but the shaft cannot be repaired or replaced until about January 1. We can guarantee delivery of your order, however, not later than January 20." The store rejected this proposal as unacceptable and immediately contracted with the only other available manufacturer to obtain the 1,000 dogs at $30 per unit by November 15. By November 16, the factory, without legal excuse, has delivered no dogs, and the store has brought an action against the factory. In an action brought on November 16 by the store against the finance company on account of the factory's default, the store can recover

Answer 33

A is correct. The factory's assignment to the finance company was made to secure a loan and, as such, was an assignment of payment rights, not a delegation of duties. The assignment was also made conditional upon the factory not paying its $15,000 loan with the finance company within 50 days. The 50-day time for repayment had not passed on November 16 when the lawsuit was filed, the factory was not in default, and the finance company had not yet assumed any rights under this agreement.

Question 34

Another example of embezzlement

Answer 34

The defendant was fired from his sales job while calling on customers in another city. He failed to return the company car that he was using for his sales visits; instead, he sold the car to a “chop shop” for cash.

Question 35

A jeweler sent a fax to a gold dealer offering to sell the dealer 100 ounces of gold at $900 per ounce. The dealer immediately responded via fax, "What are your terms of shipment?" The jeweler faxed back, "F.O.B. my store." The dealer faxed back, "I accept." Who must pay the freight charge from the shop to the dealer?

Answer 35

The gold dealer must pay the freight because that is what the offer stated, and he accepted the offer. The term "F.O.B." is a delivery term under the UCC, which governs the contract here because it is a contract for the sale of goods. That term means "free on board," and it obligates the seller to get the goods to the location indicated after the term. [UCC §2-319(1)] Here, the term indicates that the goods are "F.O.B. [jeweler's] shop," so the jeweler is not obligated to pay for costs of shipment beyond his shop. Thus, (A) is incorrect.

Question 36

Restitution example: breeder of quarter horses entered into an agreement with a rancher to sell and deliver two quarter horses, one to the rancher and the other to the rancher's fiancée as a gift. Although the fair market value of each horse was $3,000, the horse breeder agreed to sell both horses together for a total price of $5,000. Under the agreement that the rancher wrote out and both parties signed, the horse breeder agreed to deliver one horse to the rancher on August 1, at which time the rancher agreed to pay the horse breeder $5,000. The horse breeder further agreed to deliver the other horse to the rancher's fiancée on August 12. On August 1, the horse breeder delivered the first horse to the rancher and, at the same time, the rancher gave the horse breeder a certified check for $5,000. On August 12, the horse breeder brought the second horse to the residence of the rancher's fiancée and told her that the horse was a gift from the rancher. The rancher's fiancée told the horse breeder that she loathed quarter horses and she refused to take the horse. The horse breeder brought this horse back to his farm and sent an e-mail to the rancher, informing him that his fiancée refused delivery and that he (the horse breeder) could not keep the horse. Two weeks later, after not hearing from the rancher, the horse breeder sold the horse to an interested party for $3,000. If the rancher sues the horse breeder, how much should the rancher recover?

Answer 36

The rancher should recover $2,000 because that is the amount by which the horse breeder would be unjustly enriched. In a proper tender of delivery under UCC section 2-503, the seller must put and hold conforming goods at the buyer's disposition for a time sufficient for the buyer to take possession. The seller must give the buyer notice reasonably necessary to enable him to take possession of the goods. Proper tender of delivery entitles the seller to acceptance of the goods and to payment according to the contract. [UCC §2-507] Having made a proper tender of delivery at the place designated by the rancher and having notified the rancher of his fiancée's nonacceptance, the horse breeder has discharged his duty under the contract. When a party's duty of performance is discharged, the other party is entitled to restitution of any benefits that he has transferred to the discharged party in an attempt to perform on his side. With the horse breeder's contractual duty to deliver the second horse to the rancher's fiancée discharged, the horse breeder would be unjustly enriched, to the detriment of the rancher, if he were permitted to keep the entire $5,000 paid to him by the rancher. The rancher conferred a benefit upon him by paying him $5,000 in exchange for two horses, one of which was to be delivered to the rancher, the other to the rancher's fiancée. Because delivery to the fiancée cannot be accomplished, the rancher finds himself in a position of having paid $5,000 for one horse, the fair market value of which is $3,000. Thus, if the horse breeder is permitted to retain the sum of $5,000, he will be unjustly enriched by $2,000. Therefore, the rancher should recover restitution of $2,000.

Question 37

A statute in the jurisdiction, which was enacted with the express purpose of preventing public employees from taking advantage of the status of illegal aliens, made it a felony to accept money or other benefits in exchange for issuing a state identification card. During an undercover investigation, an illegal alien was recorded offering $500 to a clerk in exchange for issuance of a card. The clerk agreed to the deal and later that day exchanged the card for the money, after which both parties were arrested. In a jurisdiction following the common law approach to conspiracy, which of the following statements is correct?

Answer 37

The illegal alien cannot be convicted of a crime under the statute because it was enacted for his protection, and the clerk cannot be convicted of conspiracy under the statute because the illegal alien, who would otherwise be liable as an accomplice, is not subject to conviction because of a legislative intent to exempt him. If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability,

Question 38

Eminent domain

Answer 38

The Fifth Amendment prohibits governmental taking of private property “for public use without just compensation.” As such, both state and federal governments have the right to take private property for public use as long as “just compensation” is paid. This power is known as the right of “eminent domain.” The scope of a governmental taking encompasses not only physical appropriations of property, but also any governmental action that significantly damages property or impairs its use. See, e.g., United States v. Causby, 328 U.S. 256 (1946). The Supreme Court has construed the requirement of “public use” quite broadly. A use will be held to be “public” as long as it is rationally related to a legitimate public purpose, such as health, welfare, safety, moral, social, economic, political, or aesthetic ends. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984). The property need not be open to the general public after the taking, either. The fact that the property is turned over to some private user does not prevent the use from being a public one as long as the public can be expected to derive some benefit (e.g., economic development) from the use. Regulations or use restrictions on private property by the government will also constitute a taking if there is a denial of all economic value of the land because such a regulation is equivalent to a physical appropriation. B is correct. Even though the government is planning to sell the property to a private entity, the use will increase the city's tourist trade and revive the local economy. Therefore, the building of a hotel will qualify as a public use, and the owners are not likely to prevail in their claim.

Question 39

Appellate review of jury instructions objections

Answer 39

The judge must instruct the jury as to the law or laws relevant to their findings of fact. At the close of evidence, any party may file a written request for what jury instructions the jury receives, which is governed by Federal Rule of Civil Procedure (FRCP) 51(a)(1). In order to raise the inadequacy of instructions on appeal, a party who wishes to make an objection to the instructions must do so before the jury retires. Under FRCP 51(c), a party who objects to an instruction or the failure to give an instruction must state on the record the objection, stating distinctly the matter objected to and grounds for the objection. In other words, the objecting party must give the trial judge a chance to reconsider and correct his mistake. AdaptiBar Online MBE Simulator & Prep | AdaptiBar Under FRCP 61, "harmless error" means that, "[u]nless justice requires otherwise, no error in admitting or excluding evidence - or any other error by the court or a party - is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights" (emphasis added). "Plain error," by contrast, is an error found by an appellate court that affects the substantial rights of the parties. Under FRCP 51(d), a court may consider a plain error in the instructions when the claim was not preserved by proper objection if the error affects substantial rights. A is correct. The appellate court should not reverse the trial court's verdict because the baker's objection failed to distinctly state the matter objected to and identify the precise grounds for the objection, which did not allow the trial court an opportunity to correct the mistake. The only way the appellate court could properly reverse the verdict is if the improper jury instruction had amounted to "plain error." However, this answer choice states that assuming it was not plain error, the appellate court should uphold the verdict because the objection was not properly preserved.

Question 40

When is there an embedded federal issue?

Answer 40

An "embedded federal issue" is either: (i) a federal law issue that will be central to determining whether a defense asserted or expected to be asserted by the defendant is valid; OR (ii) a federal law issue whose resolution will help determine the validity of the plaintiff's state law claim, even though the direct source of the plaintiff's claim is state rather than federal law. An example of the latter is when the plaintiff asserts a state law legal malpractice claim, and the core issue of whether the defendant committed malpractice will depend on some aspect of federal law that was relevant in the underlying case that gave rise to the malpractice claim. But see Gunn v. Minton, 568 U.S. 251 (2013) (finding that "state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law . . . . Although such cases may necessarily raise disputed questions of patent law, those cases are by their nature unlikely to have the sort of significance for the federal system necessary to establish jurisdiction) (emphasis added). If there IS an embedded federal issue, the case will qualify for federal question jurisdiction despite it being a state law claim. While the plaintiff should always place their federal question at the center of their complaint, the fact that an issue of federal law might be somehow relevant in deciding the case does not necessarily mean that an "embedded federal issue" exists. To determine if there is an embedded federal issue, courts will consider if: (i) the embedded federal issue will be necessarily raised in the federal case; (ii) the federal issue will be actually disputed in the case; (iii) the federal issue embedded is substantial; and (iv) allowing this exception will not disrupt the federal-state balance of judicial decision-making.

Question 41

Example of embedded federal issue? A client sued his former attorney in federal court for malpractice. The client had retained the attorney to file and prosecute U.S. patent applications. The client alleged that if the attorney had not omitted from the client's patent application a portion of the computer source code for the client's invention, the resulting U.S. patent would not have been held invalid for indefiniteness. The malpractice claim requires analysis of U.S. patent law and proof of the patent's invalidity. Claims arising under U.S. patent law are within the exclusive jurisdiction of the federal courts. In response to the former client's complaint, the attorney moved to dismiss for lack of subject-matter jurisdiction. How should the court rule on that motion?

Answer 41

D is correct. The claim is a state law created malpractice claim. The embedded federal issue is not sufficiently substantial to support federal jurisdiction because it presents only a hypothetical question: Would the inclusion of a piece of computer source code in the patent application have prevented the patent from being held invalid for indefiniteness?

Question 42

On April 1, an owner and a buyer signed a writing in which the owner, in consideration of $100 to be paid to the owner by the buyer, offered the buyer the right to purchase Greenacre for $100,000 within 30 days. The writing further provided, "This offer will become effective as an option only if and when the $100 consideration is in fact paid." On April 20, the owner, having received no payment or other communication from the buyer, sold and conveyed Greenacre to a citizen for $120,000. On April 21, the owner received a letter from the buyer enclosing a cashier's check for $100 payable to the owner and stating, "I am hereby exercising my option to purchase Greenacre and am prepared to close whenever you're ready." Assume that, for whatever reason, the buyer prevails in the suit against the owner.

Answer 42

D is correct. Damages to an injured buyer in a contract for the sale of real estate are usually measured by the difference between the contract price and the market value of the property as of the time that the buyer learned of the breach, plus any incidental or consequential damages. So if the buyer prevails in her suit against the owner, she may recover damages equal to the excess of the market value of Greenacre over the contract price.

Question 43

when does a covenant automatically touch and concern land?

Answer 43

When it is a covenant n ot to compete

Question 44

Does D need notice when default judgement is imposed?

Answer 44

The clerk may enter a default judgement only if the Defendant has not appeared. Judge may enter the default judgement as long as additional notice is provided to the law firm. A Defendant against whom a default is entered loses the right to contest liability. However, the amount of damages must still be determined before a default judgement may be entered, and the defaulting party can be heard at the hearing for damages. If D has "appeared" even through he has not answered he must be notified of the request for a default judgement by first class mail at least seven days before the hearing on the application for a default judgement. Appearance includes any actual formal appearance before the court and any other action that clearly indicates that D intends to contest the case on the merits (ex. D's continued settlement negotiations). Furthermore, an appearance cuts off the clerk's ability to enter a default judgment.

Question 45

When can an action be dismissed after a D has answered?

Answer 45

With a stipulation signed by all parties or by court order

Question 46

If during depo attorney forgot to object and then later you want to stop its admission in court...can you do that?

Answer 46

NO

Question 47

Discussions between expert witness (even those who are going to testify) and attorney?

Answer 47

Draft report and draft disclosures of trial experts are work product. Confidential communications between such experts and counsel for the party are also generally protected under the work product doctrine, except for communications relating to the expert's compensation or to facts or data the attorney provided to the expert.

Question 48

Question: A wants to add B as a third party because believes that B was all at fault. State does not recognize contribution between tort feasors

Answer 48

NO there would be no liability

Question 49

When does an amendment relate back?

Answer 49

An amendment relates back to the time of the original complaint if it asserts a claim that arises from the same transaction set forth in the original complaint and within the time prescribed for service of process the new defendant received such notice of the action that it will not be prejudiced in defending the merits and either knew or should have known that the action would have been brought against it bit for a mistake concerning the proper party's identity.

Question 50

Erie question. State law said that the defense that another action is already pending should be raised in these rule 12 response.

Answer 50

Because the defense in questino is not an affirmative defense in Fed Law, we apply Fed law (remember all the substantive stuff applies only in diversity and where there is a contrast)

Question 51

A seller entered a contract with buyer under which the buyer agreed to purchase certain corporate securities for 500,000. The buyer refused to go through with the purchase, contending that the entire transaction was void because of federal securities statutes. The seller thus sold the securities to another party but was able to sell them for only 420,000. The seller filed an action against the buyer in federal district court, alleging that the transaction did not violate federal securities statutes and seeking 80,0000 for the buyer breach of contract. S and buyer are both citizens of the same state.

Answer 51

No federal question becuase the federal claim is only an anticipated defense? (Arbi Baba MBE workshop Civil Pro- question 4)

Question 52

Diversity, P died, legal representative's citizenship?

Answer 52

Fir diversity purposes, a legal representative of a decent assumes the state citizenship of the decedent.

Question 53

Man went to B's office and said "if you get out you'll get it". B laughed and said "Ill get out in a few minutes". Then A went outside office and placed couch in front of door. B was able to force its way out. What do we have?

Answer 53

NO assault (words not enough) YES false imprisonment. Does not matter if you were confined only for a short amount of time

Question 54

A intentionally takes B's board thinking it's his. Then puts in his car which gets stolen. Any crime?

Answer 54

NOT larceny but there is conversion because there was an intentional taking.

Question 55

Worker mixed two chemicals causing fumers while cleaning store. He did not know that the two chemicals would cause fumes. CUstomer sues. Negligent?

Answer 55

Yes, we look at what the reasonable worker with same mental capabilities would have done. Subjective shortcoming we do NOT look at.

Question 56

I am not negligent. However I cause you to fall. You break your leg. Driver leaves pedestrina on the road and pedestrian now developed pneumonia.

Answer 56

Liable for pneumonia NOT leg injury. Where the Defendant's actions have placed another person in peril or caused another's injury, the defendant has a duty to make reasonable efforts to rescue the imperilled person or render aid to his victim. The driver's neglect of the bicyclist after injuring him will make him liable for the resulting pneumonia

Question 57

Three volunteers prepared food with meet. The dishes were squished together. SOmeone got stick because someone used uncooked meat. Is the eater likely to recover?

Answer 57

NO. The causation rule saying that all will be held liable and each D will need to show it was not them only applies when we know that two or more people were negligent. Here likely there was only one negligent person. Here volunteers will not be required to prove that the did not cause guest injury because there is no evidence that all the volunteers were negligent (question 15 tort Arbi Baba workshop)

Question 58

Mother claims there was a design defect. Manufacturer never had any notice that the defect occurred.

Answer 58

To establish this the plaintiff must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed.

Question 59

Fishing line used to hang pictures. Manufacturers knew of the use but nevertheless put no warning

Answer 59

Manufacturers cannot claim misuse because manufacturers knew of the issues and it was therefore foreseeable. Foreseable misuse of a dangerously defective product by a purchaser or user does not relieve the manufacturer of the product of liability for injuries that are caused by the defect.

Question 60

A drives and falls asleep while driving because he did not take a break in three days. As he gets into an accident (for which he breaks his arm) there is a defective piece in the car that causes him to break his neck. What can he recover.

Answer 60

Only from the broken neck. Even though there manufacturer of the defect was not the proximate cause (I mean the driver negligence came in) they are still strictly liable for whatever injuries they cause.

Question 61

A has a truck that is carrying dynamite. a defective latch at the back gets loose and the dynamite rolls down the street and breaks the ankle of a person passing by. A liable?

Answer 61

NO even though it was an abnormally dangerous activity the incident was caused by the defective product. SO WATCH OUT when there are two strict liability stuff.

Question 62

An airline passanger wants to introduce a picture of him at the crash. Airline says it would cause unfair prejudice. In making his ruling which of the following is NOT appropriate for the judge to consider: a= thevideotape will make it more likely that the passenger will win the suit d= the videotape will encourage the jury to decide the suit on an emotional basis

Answer 62

A: because thinsk about it if the judge considers this it means that it is unfair. If judge considers D then that is good, because he should consider whether jury is taking tkain emotionally or not.

Question 63

The owner of Blackacre needed money. Blackacre was fairly worth $100,000, so the owner tried to borrow $60,000 from a lender on the security of Blackacre. The lender agreed, but only if the owner would convey Blackacre to the lender outright by warranty deed, with the lender agreeing orally to reconvey to the owner once the loan was paid according to its terms. The owner agreed, conveyed Blackacre to the lender by warranty deed, and the lender paid the owner $60,000 cash. The lender promptly and properly recorded the owner's deed. Now, the owner has defaulted on repayment with $55,000 still due on the loan. The owner is still in possession. Which of the following best states the parties' rights in Blackacre?

Answer 63

NO SOF. ALSO: A landowner needing to raise money may "sell" the land to a person who will pay cash and may give the "buyer" an absolute deed rather than a mortgage. This may seem to be safer than a mortgage loan to a creditor and may seem to have tax advantages. However, if the court concludes, by clear and convincing evidence, that the deed was really given for security purposes, they will treat it as an "equitable" mortgage and require that the creditor foreclose it by judicial action, like any other mortgage. This result will be indicated by the following factors: (i) the existence of a debt or promise of payment by the deed's grantor; (ii) the grantee's promise to return the land if the debt is paid; (iii) the fact that theamount advanced to the grantor/debtor was much lower than the value of the property; (iv) the degree of the grantor's financial distress; and (v) the parties' prior negotiations.

Question 64

public employee has a First Amendment right to speak on a matter of public concern, and may not be discharged for that speech unless the employee's actions interfere with the functions of the government. Ex

Answer 64

A city ordinance makes the city building inspector responsible for ensuring that all buildings in that city are kept up to the building code standards, and requires the inspector to refer for prosecution all known building code violations. Another ordinance provides that the city building inspector may be discharged for "good cause." The building inspector took a newspaper reporter through a number of run-down buildings in a slum neighborhood. After using various epithets and slurs to describe the occupants of these buildings, the building inspector stated to the reporter: "I do not even try to get these buildings up to code or to have their owners prosecuted for code violations because if these buildings are repaired, the people who live in them will just wreck them again." The reporter published these statements in a story in the local newspaper. The building inspector admitted he made the statements. On the basis of these statements, the city council discharged the building inspector. Is the action of the city council constitutional?

Question 65

remember

Answer 65

The Court has held that there is generally no First Amendment right of access to records kept by the executive branch. In this case, it is only the access to those records, not censorship of the information, that the statute 03:29 regulates.

Question 66

Can you appeal a denial of a motion for summary judgement?

Answer 66

The denial of a motion for summary judgment is generally not appealable until after a trial on the merits, or a final judgment. In both federal and state litigation, the party who loses at trial generally has the right to appeal the adverse judgment. Generally, only final orders are reviewable on appeal. A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved. An interlocutory appeal is discretionary and may be available when: (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals agrees to allow the appeal. In federal litigation, Federal Rule of Civil Procedure (FRCP) 54(b) may allow for an appeal when there is a final judgment on one claim but other claims in the same suit remain. The standard for this partial judgment rule is that the “court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” If the court does not expressly determine that there is no just reason for delay, there can be no appeal. Fed. R. Civ. P. 54(b) If the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review, it may be classified as a judgment in a separate (“collateral”) proceeding and thus be appealable. C is correct. Once a final judgment is entered, then the factory may appeal. The denial of the motion for summary judgment is not appealable until the trial has ended and/or a final judgment has been entered. As discussed below, no other exception applies to allow the denial of the summary judgment to be heard on appeal. A is incorrect. This answer choice states the standard for interlocutory appeals, which allow review without a final order in specific circumstances. In this case, the motion for summary judgment does not contain a controlling question of law on which courts are divided. An appeal from the denial of summary judgment would not meet the requirements for interlocutory review.

Question 67

A plaintiff sued a defendant for shooting her husband from ambush. The plaintiff offers to testify that, the day before her husband was killed, he described to her a chance meeting with the defendant on the street in which the defendant said, "I'm going to blow your head off one of these days." The plaintiff's testimony concerning her husband's statement is

Answer 67

It is hearsay and not within exception. Remember how can what the husband said come in?

Question 68

A man owned a much-loved cat, worth about $25, that frequently trespassed on a neighbor's property. The neighbor repeatedly asked the man to keep the cat on his own property, but the trespasses did not diminish. Aware of the man's long- standing attachment to the cat, the neighbor killed the cat with a shotgun in full view of the man. As a consequence, the man suffered great emotional distress. In an action by the man against the neighbor, which of the following claims would be likely to result in the greatest monetary recovery?

Answer 68

B is correct. The tort of intentional infliction of emotional distress allows recovery for personal injury despite the absence of physical injury or touching of the plaintiff. The prima facie elements of a claim for the intentional infliction of emotional distress are: (i) an act by the defendant constituting extreme and outrageous conduct; (ii) intent or recklessness by the defendant; (iii) causation; and (iv) damages amounting to severe emotional distress. On these facts, the neighbor was aware that his conduct would cause severe emotional distress, and he could be held liable for the man's emotional suffering, as well as for the value of the cat. NOT conversion

Question 69

A city council passed an ordinance providing: “No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the city electorate or regularly engaging in such activities.” If the ordinance is challenged in federal court, how should the court rule on the constitutionality of this ordinance?

Answer 69

The federal court should strike the ordinance for violating the First Amendment. While the government may limit the amount of contributions that an individual can contribute to a candidate’s campaign (to avoid corruption or the appearance of corruption), the government may not limit the contributions to a political committee that supports or opposes a ballot referendum, because such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association. C) is incorrect because a legitimate interest in controlling contributions to a political committee for ballot referendum is not enough. The statute must be “closely drawn” to match a “sufficiently important interest,” which is an intermediate scrutiny standard, and the Supreme Court has invalidated limitations on contributions to influence referendum elections

Question 70

A plaintiff read of the success of a box-office hit movie about aardvarks in various entertainment journals. The movie was enormously popular among young children, and cartoon figures from the movie began appearing on T-shirts, soft drink mugs, and other novelties. The plaintiff filed suit against the studio alleging that the production company unlawfully used his ideas for the movie. The studio admitted that it had received a clay model of a cartoon animal from the plaintiff, but denied that the model had any substantial similarity to the now-famous aardvarks. The studio had returned the model to the plaintiff, but he had destroyed it. For the plaintiff to testify at trial as to the appearance of the model, which of the following is true?

Answer 70

The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. A witness must be competent to testify, which includes the requirement that he have personal knowledge of the matter he is to testify about. Here, the plaintiff has personal knowledge of the model, as he is the person that had submitted it to the studio. Thus, he is competent to testify as to the model’s appearance. (B) is wrong because it states the foundation requirement for the admissibility of secondary evidence under the best evidence rule (also called the original document rule), which does not apply under these circumstances. The best evidence rule covers writings and recordings, which are defined as “letters, words, numbers, or their equivalent, set down in any form.” A clay model clearly does not fit within that definition.

Question 71

The federal government recently constructed a radio telescope in Puerto Rico. In addition to receiving radio signals, the telescope was set up to beam radio waves far out into space. As part of the bill providing for operational funding for the facility, Congress provided for a program to "inform any aliens who might be listening in outer space of the 'American Way of Religion.'" A $10 million appropriation was provided; any religious group whose membership exceeded 500 members in the United States was permitted to prepare a five-minute presentation, and the federal government would pay for the recording of the presentations and broadcast them into space using the transmitter in Puerto Rico. The President signed the bill and it became law. A religious group with a large following in Europe, but only 100 members in the United States, protested and filed suit. Will the court find the religious broadcasts to be constitutional?

Answer 71

The court will find that the requirement of a minimum number of members violates the Establishment Clause of the First Amendment. The Establishment Clause prohibits any law "respecting an establishment of religion." While usually a three-part test based on Lemon v. Kurtzman is used to determine whether legislation creates improper government involvement with religion, the "compelling government interest" test is used if a law or government program discriminates among religions. Here, the law differentiates among different religious groups, allowing only those with larger memberships to record presentations. There is no compelling government interest for discriminating among the religious groups in this way; thus the legislation is unconstitutional.

Question 72

A minor league ballplayer hit a fly ball over the wall and out of the park during a game and struck a woman riding along the adjacent street on a bicycle. The woman sued the ballplayer for negligence. The woman alleged that the ballplayer had often hit balls out of the park and was aware that he had previously struck a car driving down the street. Assuming the woman’s allegations are correct, is she likely to prevail? response - correct Press Enter or Space to submit the answer

Answer 72

The woman will not prevail because the ballplayer’s conduct did not breach any duty owed to the woman. The prima facie case for negligence requires the plaintiff to show: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. If a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. Here, there is some risk of injury to those outside the park based on previous occurrences. However, there are no precautions that the ballplayer could have undertaken that would not directly conflict with the requirements of his job and harm his career. On balance, the burden on the ballplayer to avoid any risk of injury far outweighs the likelihood of a ball hit by him clearing the wall and causing injury to someone. Hence, the ballplayer’s conduct did not create an unreasonable risk of injury to the woman and he did not breach a duty of care owed to her. Thus, she is not likely to prevail

Question 73

Witness was a juror in prior case involving D. Ok?

Answer 73

YES, A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness’s testimony unpersuasive, but it would not make it inadmissible.

Question 74

A landowner leased 150 acres of farmland to a produce company for 15 years. The produce company used the land for crops along with several other contiguous acres that it owned or leased. About four years into the lease, the state condemned a portion of the leased property because it intended to build a highway. As a result, too little property remained for the produce company to profitably farm, although there still existed the farmhouse on the property, which was being used by one of its foremen. The produce company gave the landowner 30 days’ written notice that it considered the lease to have been terminated because of the condemnation. In a suit for breach of contract, is the landowner likely to win?

Answer 74

The landowner probably will win in a breach of contract suit. In partial condemnation cases, the landlord-tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease. Therefore, (B) and (C) are incorrect. (A) is not correct because the law of landlord and tenant traditionally refuses to recognize frustration of purpose as grounds for termination of a lease

Question 75

intervention

Answer 75

An indispensable party is one whom, if absent, the court cannot grant complete relief to the other parties, or one who has such an interest in the subject matter of the suit that his absence will impair his ability to protect that interest. If the absentee can be properly joined, he must be. In this case, the employer is not an indispensable party. The employer's absence does not impede the mail clerk from obtaining relief, nor does it impair the employer's claim against the building owner.

Question 76

erie

Answer 76

In the famous Erie decision, the Supreme Court held that federal courts sitting in diversity must apply state substantive law on the substantive issues of the case, including state common law. For all procedural issues, federal courts sitting in diversity must apply federal procedural rules, namely the Federal Rules of Civil Procedure (FRCP). C is incorrect. A federal court cannot disregard a jury's finding on damage and reduce the damages award on its own. Doing so would violate the Seventh Amendment, which prevails over state law in Erie situations. Instead, the courtmust offer the plaintiff the choice between a new trial or the reduced award. A motion for remittitur, accordingly, should be paired with a motion for a new trial in the alternative.

Question 77

Evidence enough for identity? A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the latter for purchase at the cash register. The defendant testified in her own behalf that the tag must have been switched by someone else. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud in the defrauding of a retailer by the same means of switching the price tag on a fur-trimmed coat. Is the question about the prior convictions proper either to impeach the defendant or to prove that the defendant committed the crime?

Answer 77

B is correct. The prior convictions are admissible for the purpose of establishing identity, given that the defendant is contesting she was the one who switched the tag. These prior convictions are also admissible for impeachment purposes because they are crimes involving dishonesty or false statement.

Question 78

Ex. of arising under that was obvious but not... A state of the United States wanted to have a law that would prohibit companies that run internet search engines from tracking computer users' searches and then selling that information to advertisers. Such a law is difficult to draft and the legislators of the state have been overwhelmed with other tasks. However, the federal Congress recently drafted a similar law that applies to the interstate sale of information. To save time and get a law into place as quickly as possible, the 04:36 state legislature passed a bill that copied the federal statute verbatim, except that the state law omitted the limitation to interstate sales of information. The state bill then became a state law. A resident of the state sued a non-diverse company thatruns an internet search engine, alleging that the company violated the state law by tracking the resident's computer searches to sell that information to advertisers. The resident brought suit against the company in federal district court, alleging the presence of federal question jurisdiction. The company then moved to dismiss the case for lack of jurisdiction. Should the court grant the company's motion to dismiss?

Answer 78

D is correct. The court should grant the motion to dismiss because the resident's claim is created by state law and does not concern a federal question. A is incorrect. Even though the state law largely copied a federal statute, the claim is created by state law and the state courts may interpret the state law however they like, with no implications for how the federal law should be or will be interpreted. Thus, while claims can "arise under" federal law for purposes of federal question jurisdiction even when state law creates the cause of action, that principle does not apply here.

Question 79

NOTE on preliminary hearnings

Answer 79

They MUST be conducted without a jury

Question 80

NOTE on preliminary hearnings on admissibility of confession

Answer 80

They MUST be conducted without a jury

Question 81

can you appeal granting motion for new trial?

Answer 81

C is correct. In the federal system, an order for a new trial is not considered a final judgment, which is required to establish proper appellate court jurisdiction. NO

Question 82

Example of a collateral matter

Answer 82

A plaintiff sued a defendant for injuries the plaintiff received in an automobile accident. The plaintiff claims the defendant was negligent in (a) exceeding the posted speed limit of 35 m.p.h., (b) failing to keep a lookout, and (c) crossing the center line. A bystander, the plaintiff's eyewitness, testified on cross-examination that the defendant was wearing a green sweater at the time of the accident. The defendant's counsel calls another witness to testify that the defendant's sweate

Question 83

Was there attempt to violate statute? A professional poker player had cheated a man in a card game. Angered, the man set out for the poker player's house with the intention of shooting him. Just as he was about to set foot on the poker player's property, the man was arrested by a police officer who noticed that the man was carrying a revolver. A statute in the jurisdiction makes it a crime to "enter the property of another with the intent to commit any crime of violence thereon." If charged with attempting to violate the statute, the man should be found

Answer 83

YEAH...C is correct. The statutory crime here is to enter the property of another with the intent to commit any crime of violence thereon. The question indicates that the man clearly had the intent to shoot the poker player, and the man clearly had the intent to enter the poker player's property to do so. Obtaining the weapon and going over to the poker player's house are substantial steps towards the commission of the statutory offense. The man intended to enter the poker player's property in order to cause violence and took substantial steps toward the commission of that offense; thus, he should be convicted of attempt to commit the offense.

Question 84

A farmer contracted to sell 100,000 bushels of wheat to a buyer. When the wheat arrived at the destination, the buyer discovered that the farmer had delivered only 96,000 bushels. The buyer sued the farmer for breach of contract. At the trial of the case, the court found that the written contract was intended as a complete and exclusive statement of the terms of the agreement. The farmer offered to prove that in the wheat business, a promise to deliver a specified quantity is considered to be satisfied if the delivered quantity is within 5% of the specified quantity. The buyer objected to the offered evidence. Is the court likely to admit the evidence offered by the farmer?

Answer 84

D is correct. This transaction involves a sale of goods and is subject to UCC Article 2. Under Article 2, evidence of trade usage that can be construed as reasonably consistent with an agreement's express language is admissible to interpret or supplement an agreement. The majority rule provides that trade usage will be viewed as consistent with an agreement's express language unless the usage completely negates specific express language. The trade usage allowing for a variation of up to 5% does not completely negate but rather qualifies the express language calling for the delivery of 100,000 bushels of wheat

Question 85

Tell me about the parol evidence rule

Answer 85

The parol evidence rule bars parties to a written contract from presenting extrinsic evidence of terms in a contract that contradict, modify, or vary the terms of a written agreement when that written agreement is considered complete and finalized. A completely integrated agreement is an unambiguous written agreement that leaves no doubt that the parties intended it to be the final contract, and expresses the parties’ full and exclusive agreement on a matter. Even if a court finds a written agreement to be completely integrated, outside evidence may be allowed to clarify terms in a contract when a term’s meaning is ambiguous. The parol evidence rule does not bar extrinsic evidence offered to aid in the interpretation of existing terms. Under § 2-202 of the UCC, contract terms that are intended by the parties to be the final expression of their agreement can't be contradicted by evidence of any previous agreement or contemporaneous oral agreement but may be explained or supplemented by evidence of "consistent additional terms." These consistent additional terms can be based on (i) course of performance (UCC §2-208 (1) and Rest. 2d., §202(4)), which refers to the way the parties have conducted themselves in performing the particular contract at hand; (ii) course of dealing (UCC §1-205(1) and Rest. 2d., §223), which is a pattern of performance between the parties to the contract with respect to past contracts; and (iii) trade usage (UCC §1-205(2) and Rest. 2d., §222), which is any practice regularly observed in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. The UCC allows trade usage (i.e., industry standard) to inform the interpretation of a contract and will be admitted in court, even if there is a completely integrated contract unless they can't be reasonably reconciled with express terms of the contract. The majority rule provides that trade usage will be viewed as consistent with an agreement's express language unless the usage completely negates specific express language.

Question 86

Malicious damage of property

Answer 86

Malicious damage to property is an intentional crime and the necessary mens rea must exist in order for a defendant to properly be convicted. The mens rea of “malice” requires that the defendant was engaged in reckless conduct, i.e., conduct taken in disregard of a known high probability of risk. Recklessness is further defined as acting with the knowledge that a specific injury might result. The Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." Double jeopardy does not preclude conviction of two distinct crimes with separate legal elements. Blockburger v. United States, 284 U.S. 299 (1932).

Question 87

RJAML and new trial. Can we bring them both? Can we deny both?

Answer 87

C is correct. Federal Rule of Civil Procedure 50 governs judgments as a matter of law and motions for new trials. FRCP 50 states, in ruling on the renewed motion, the court may (1) allow judgment on the verdict, if the jury returned a verdict, (2) order a new trial, or (3) direct the entry of judgment as a matter of law. Motions for judgment as a matter of law and motions for new trial have different requirements, so circumstances can justify a court granting the latter but not the former. A motion for judgment as a matter of law is brought only after the nonmoving party has been fully heard on the matter. The court will grant this motion if it finds that a reasonable jury would not have a legally sufficient basis to find for the party on that issue. A motion for a new trial, on the other hand, is granted because of an error during trial, because the verdict is against the weight of the evidence, because of juror misconduct, or because the verdict is inadequate. Therefore, there might be sufficient evidence for a judge to deny a motion for judgment as a matter of law on the ground that a reasonable jury could find for the other party, yet a judge could grant a motion for new trial if she thought the jury's verdict was deeply flawed.

Question 88

A state adopted a rule denying admission to its bar to anyone who was currently or had previously been a member of a subversive group. The state's bar application form was modified to ask applicants whether they were or had previously been members of any subversive organization. An applicant refused to answer the question and was denied bar admission on that basis. The applicant challenged the decision, arguing that the question infringed upon his freedom of association. Is the applicant likely to prevail?

Answer 88

D is correct. The freedom of association under the First Amendment prevents a state from inquiring about an applicant’s associations for the purpose of withholding a right or benefit due to the individual's beliefs. Despite the legitimate interest in determining the character and professional competence of bar applicants, the state may use other means to determine this, which are less restrictive of First Amendment freedoms. See Shelton v. Tucker, 364 U.S. 479 (1960).

Question 89

legal and equitable claim

Answer 89

A is correct. Under the Seventh Amendment, if legal and equitable claims arising out of the same common facts are joined, the legal claim should be tried first by the jury and then the equitable claim to the court. Thus, the court should first hold a jury trial of the team's counterclaim and then a nonjury trial of the city's claim.

Question 90

Witness has testified and implicated Defendant in a crime. Defense counsel, believing in good faith that Witness has previously committed perjury when testifying in an unrelated case, asks Witness whether he has ever perjured himself. Witness denies ever committing perjury. Defense counsel may now...

Answer 90

If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The court has the discretion to allow or stop the inquiry. Eventually, the cross-examiner must accept the witness’s answer and move on.

Question 91

MUST the Court allow you to impeach a witness?

Answer 91

Federal Rule 608 permits inquiry on cross-examination into prior acts of misconduct that are probative of truthfulness (i.e., an act of deceit or lying), in the discretion of the court. Thus, the court may allow such inquiry, but because it is discretionary with the court, “must” is a wrong choice.

Question 92

A witness testified against a defendant in a contract action. The defendant then called the witness’s neighbor to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness’s employee to testify that the witness once perpetrated a hoax on an insurance company. The witness had in fact been convicted for perpetrating the hoax 20 years ago. Is the employee’s testimony admissible?

Answer 92

The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted. A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it. (A) is incorrect because there is no specific rule limiting cumulative impeachment. (C) is incorrect. A witness may also be impeached by introducing evidence that the witness was convicted of a crime if the conviction required proof or admission of an act of dishonesty or false statements, or if the crime was a felony. However, the prior conviction will generally not be admitted if more than 10 years have passed since the date of conviction or release from confinement, whichever is the later date (although the judge has discretion to admit older convictions in extraordinary circumstances). Here the witness was convicted 20 years ago and the conviction is likely too remote. Additionally, the defendant did not attempt to introduce evidence of the witness’s conviction; the proposed testimony only concerns the commission of the misconduct.

Question 93

The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, “Isn’t it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?” The waiter responded, “Yes, but I wasn’t trying to steal anything. I just forgot to charge them.” The defense then asked, “Isn’t it a fact that last month you threw a rock through the plate glass window at the restaurant?” The waiter replied, “That’s not true; I was there but I didn’t throw the rock.” The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant’s window. Assuming that there have been no criminal charges filed as a result of the broken window, is the witness’s testimony admissible?

Answer 93

The witness’s testimony is admissible to show bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant’s window, because such evidence would help establish the waiter’s bias against the restaurant.

Question 94

Evidence- when can silence be an admission?

Answer 94

For silence to be an admission the following requirements must be met: (i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation under the same circumstances.