MEE Flashcards
Actual authority:
Be able to say, “Actual authority can be express, where the
agent is expressly given authority to act for the principal. It can also be implied. Implied authority is present when the principal’s conduct leads the agent to believe it has authority.”
Apparent authority: State:
“the elements of apparent authority are: (a) the person dealing with the agent must do so with a reasonable belief in the agent’s authority, and (b) the belief must be generated by some act or neglect on the part of the principal.”
Principles of vicarious and direct liability
Remember that an agent is always liable for her own torts. A principal can be vicariously liable if the agent or employee was acting in the scope of employment, made a minor deviation from employment, or committed an intentional tort (a) for the principal’s benefit, or (b) because the principal authorized it, or (c) the intentional tort arose naturally due to the nature of
employment.
The duty of care. Remember the business judgment rule! (for both LLC and Corporations)
There is a presumption that “in making a business decision, the directors acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interest of the company.”
To successfully assert collateral estoppel use ___
IF
I- Identical issue was previously decided in an earlier action.
F- The party against whom collateral estoppel is being asserted had a full and fair opportunity to previously litigate that issue.
RAABI:
R- the party’s Resources.
A- the amount in controversy.
A- the relative access to the requested information.
B- the burden (expense) on the producing party
B- the benefit to be derived from the discovery.
I- Its importance in resolving the issues of the case.
In a motion seeking initial child custody or a motion seeking a change in custody based on a SUBSTANTIAL CHANGE IN CIRCUMSTANCES the court considers the following factors: (but there is no single controlling factor)
DAD FLIPS
D- Desires of the children
A- The parent’s Availability and Ability to raise the children
D- Prior incidents of Domestic violence, which must be established by a preponderance of the evidence.
F- Financial ability of each parent
L- Lifestyle of each parent and its possible adverse effect on the child.
I- How the Initial custody arrangement was made. Was there a full hearing on the big issue or was it on the consent of the non-custodial parent? The Uniform Marriage and Divorce Act provides a two year waiting period before the non-custodial parent can petition for a change in custody unless there is evidence of a clear and present danger to the child.
P- Who has served as the child’s prior parental caretaker? That is the length in time the current custody arrangement has been in effect.
S- Siblings should not be separated.
Equitable distribution does not apply to _____. Separate property owned by one spouse including:
PIGS
P- Assets acquired prior to the marriage.
I- Property inherited during the marriage.
G- Gifts during the marriage from someone other than the spouse.
S- Property purchased during the marriage but paid for with a spouse’s separate property
In equitably distributing marital property the court considers
HIP PAID SEAT
H- Health insurance loss
I- Loss of Inheritance
P- Loss of Pension Benefits
P- Separate Property holdings of each spouse
A- Age and health of each spouse
I- Incomes of each spouse at the beginning and end of the marriage
D- Duration of the parties’ marriage.
• The longer the marriage the more likely the court is to equitably divide property, whereas in short marriages, the court usually divides in accordance with each spouse’s economic contribution to the property holdings. The court’s goal in a short-term marriage is to rescind the marital contract and to restore each spouse to their pre marriage position.
S- Marital Standard of living
E- Earning capacity of each spouse
A- Any other relevant factor, including either spouse’s egregious domestic violence
• Marital fault in about ½ of the states is a factor in awarding ALIMONY in a majority of states fault is not a factor in awarding ED (UBE FEB 2018)
• Marital debts are usually allocated in the same % as marital property is allocated.
• In majority of states a spouse’s wasteful spending or excessive dissipation of marital property for purposes unrelated to the marriage (gambling or spending on a girlfriend) where the marriage had irreconcilably broken down is brought back into the pot for ED purposes
T- Tax consequences of the property distribution to each spouse.
• The judgment treats the former spouse as immediately predeceasing the testator for the following ______ document
TRIP JAW
T- Totten trust
R- Revocable lifetime trust (Lecture 10 future interests)
I- A life insurance policy
P- A pension plan if permitted by federal pension laws.
J- jointly held realty, joint bank accounts, or joint stock brokerage accounts. It defeats the survivorship interest and each spouse shares the asset 50/50.
A- A power of attorney naming the former spouse to act as an agent. AND
W- A spouse’s will
A valid will must be
SWEPT:
S – SIGNED by an adult testator
W – In WRITING
E – Signed at the END by the testator P – PUBLISHED
T – TWO witnesses (who don’t have to be adults)
_______ sidesteps an in terrorem (“no contest”) clause:
I FACE SIR
I – An INFANT can always object to a will without violating a no contest clause
F – Litigating to establish the will as a FORGERY, but only if based on probable cause
A – Demanding an ACCOUNTING or questioning the conduct of the fiduciary
C – Petitioning for a CONSTRUCTION of a will provision to determine the testator’s intent E – Surviving spouse exercising the right of ELECTION
S – Objecting to SUBJECT matter jurisdiction or the court’s jurisdiction over the will
I – A person judicially declared INCOMPETENT can object to the will without violating
the no contest clause
R – Where the will offered for probate was REVOKED by a later will, based on probable
cause
______ can alter an existing will:
DAMN CAR LAW D – DIVORCE A – AFTER-BORN children M – MARRIAGE of the testator N – NO CONTEST CLAUSE breach C – CY PRES of charitable bequests A – ADVANCEMENT of a bequest aka a satisfaction R – RENUNCIATION by a beneficiary L – LAPSED legacies (but always consider the Anti-Lapse Statute) A – ADEMPTION or abatement W – WRONGFULLY killing the testator
A surviving spouse can increase the right of election with
JAG TIP:
J – Post-marriage JOINTLY-HELD bank accounts, stock brokerage accounts, U.S. savings
bonds, or jointly-held personal property, but only to the extent that consideration was
furnished by the decedent
A – Stock ACCOUNTS or DEEDS payable on death.
G – GIFTS causa mortis
T – Revocable lifetime TRUSTS or Totten Trusts
I – INTER VIVOS gifts, even to charity, exceeding $15,000 if made within the one year prior
to the testator’s death (absent written waiver by other spouse) UPC § 2-202
P – General POWER of Appointment
A valid will must be SWEPT:
S – SIGNED by an adult testator
W – In WRITING
E – Signed at the END by the testator P – PUBLISHED
T – TWO witnesses (who don’t have to be adults)
A beneficiary who uses ______ is deemed to predecease the testator:
I-DROPS I – INTERROREM clause breach D – DIVORCE or Annulment decrees R – RENUNCIATION O – Death within ONE hundred and 20 hours from testator’s death P – PREDECEASES testator S – SLAYS the testator
The pre-trial discovery devices in federal practice are ___
MR AID
M- Mental and physical exam. R- Requests for Production A- Admissions demand I- Written Interrogatories D- Depositions (a.k.a. EBTs – “examinations before trial”)
A demand for MR AID discovery of a party or non-party must allow at least 30 days notice for compliance.
PINTS for real covenants, but TINS for equitable servitudes:
P – PRIVITY of estate
I – INTENT by original contracting parties that covenant attach to land & run to future
assignees (Horizontal Privity)
N – CIA NOTICE of Restrictive Covenant T – Must TOUCH & concern the land
S – Must satisfy the SOF
PINTS can come in ____:
C – Imposed by COMMON owner to protect lands retained
A – Covenants agreed to by ADJOINING landowners/neighbors N – Imposed for the benefit of NEIGHBORING lands
S – To carry out common plan or SCHEME
The collateral order doctrine, this immediate rule seeks to prevent harm from a judge’s order that does not end the litigation, but is considered a final order on that issue and is immediately appealable because of ____
LLM
L- the court’s order is the Last word on that issue
L- the final appeal will be too late for the final review of that issue.
M- The order is unrelated to the merits of the claim. That is it is a collateral issue of the case.
2 Examples:
1. A court’s denial of an attorney’s motion to withdraw because her client was not paying the agreed fee.
2. An order denying a party the right to proceed anonymously.
A EUNUCH establishes adverse possession:
E – EXCLUSIVE possession (not shared w/ owner)
U – Owner was UNDER no disability (infancy or mental incompetency) when AP began!
N – NOTORIOUS & open possession, which would put the true owner on notice that a
trespasser was possessing his land & he should bring an ejectment action
U –UNDER actual or constructive occupancy
C – CONTINUOUS/uninterrupted actual possession
H – HOSTILE possession
The 4 “PRIORS” aren’t hearsay provided the declarant testifies:
1 – PRIOR recorded recollection
2 – PRIOR out-of-court identification
3 – PRIOR consistent statement
4 – PRIOR inconsistent statement that was given under oath, subject to penalty of perjury, at a prior trial, hearing, or EBT
Use a CRIB PIC to impeach a witness:
C – Impeachment by CONTRADICTION
R – W’s bad REPUTATION in the community for truthfulness I – W’s prior VIC acts (vicious, IMMORAL, or criminal)
B – W’s BIAS
P – W’s PRIOR inconsistent statement
I – INFLUENCE of drugs or alcohol on W C – Prior criminal CONVICTIONS of W
Hearsay is admissible for ARIES’ DWARFS:
A – ADMISSIONS of an opposing party R – Business or public RECORDS I – Present sense IMPRESSION E – EXCITED utterance S – Declarant’s existing STATE of mind D – DYING declaration W – WITNESS tampering (Intimidated Witness Rule) A – Declaration AGAINST interest R – RESIDUAL hearsay exception F – FORMER testimony S – Pedigree STATEMENTS of personal history
