Missed MBE Questions J24

Question 1

Non-character purposes for admitting crime or bad acts

Evidence

MIMIC

Answer 1

Motive
Intent
absense of Mistake
Identity
Common scheme or plan
Other (knowledge, opportunity, conciousness of guilt)

Question 2

Evidence of an organization’s routine business practice

Evidence

Answer 2

Admissible to prove that they acted in accordance with that practice on a particular occasion

Question 3

Mx for summary judgment

Civ Pro

Answer 3

Request that a court enter a judgment without a full trial. Movant must show:

1. no genuine dispute of material fact
2. the evidence is legally insufficient for a jury to find in the non-movant’s favor

Question 4

Defenses that are waived if not asserted in a pre-answer motion or answer

Civ Pro

Answer 4

1. lack of PJ
2. improper venue
3. insufficient process or service of process

Question 5

Tag Jurisdiction Method

Civ Pro

Answer 5

PJ acquired by serving the D with formal process while the D is voluntarily in the forum state - even if unrelated to P’s claim

Question 6

FJR

Civ Pro

Answer 6

Fed appellate court generally has no jurisdiction to hear an appeal until the district court has issued a final judgment on the merits

Question 7

Omnibus Motion Rule

Civ Pro

Answer 7

Requires that all FRCP defenses be consolidated in a single pre-answer mx

PJ, venue, process/service = waived if not in above

State claim, state defense, joinder = ok in answer/post answer

SMJ = never waived

Question 8

Asserting defenses (read)

Civ Pro

Answer 8

Most are waived if not asserted in the D’s answer.

Failure to join a required party or failure to state a claim on which relief can be granted = until end of trial

Question 9

Amendments of Pleadings

Civ Pro

Answer 9

Once as a matter of course within 21 days

1. after serving that pleading or
2. if a responsive pleading is required, after being served with a responsive pleading or motion

Question 10

General vs. Specific Jdx

Civ Pro

Answer 10

General: D has continued or systemic contacts with forum state and is “essentially at home”

Specific: P’s claim arises from or is closely related to D’s contact with the forum state

Question 11

Failure to make required disclosures - sanctions

Civ Pro

Answer 11

1. no use of evidence
2. opposing party’s reasonable expenses
3. inform jury of non-disc.
4. impose any other appropriate sanction

Question 12

Deadline to file notice of appeal

Civ Pro

Answer 12

Generally 30 days but 60 dys if one of the parties is the US, fed agency, or fed officer or employee sued for conduct related to gov duties

Question 13

Venue

Civ Pro

Answer 13

Proper in any fed district where:

1. any D resides
2. a subst. part of the events that occured or property at issue is located
3. and D subj. to court’s PJ

Question 14

Statutory impleader actions

Civ Pro

Answer 14

1. SMJ requires at least $500 AIM and min diversity between 2 or more claimants
2. PJ exists over any claimant who was served with process anywhere in the US
3. venue proper in any judicial district where any claimant resides

Question 15

Claim Preclusion (Res Judicata)

Civ Pro

Answer 15

Valid final judgment on merits prohibits relitigating identical claims between identical parties

Claims = identical = STO
Parties + identical = occupy same roles in both actions

Question 16

Deposition limits

Civ Pro

Answer 16

1. 10 depo limit
2. depos after initial planning conf.
3. deponent already deposed

Needs court’s leave if violation

Question 17

Collateral Order Doctrine

Civ Pro

Answer 17

Allows an immediate appeal from an interlocutory order that:

1. conclusively resolves an important issue that
2. is separate from the merits of the claim and
3. canot be effectively reviewed on appeal from a final judgment

Question 18

Response to Request for Admission

Civ Pro

Answer 18

A party’s admission or failure to adequately respond within 30 days after being served with the request results in the matter being conclusively established in the action

Question 19

When considering a mx for JMOL, court must:

Civ Pro

Answer 19

1. view the evidence and draw all reasonable inferences in favor of the nonmovant
2. disregard evidence favorable to the movant that the jury is not required to believe
3. NOT consider the credibility witnesses or evaluate the weight of the evidence

Question 20

Party’s identical disclosures must include

Civ Pro

Answer 20

all documents, electronically stored info, and tangible things in the party’s possession that the party may use to support P’s claims and defenses. NOT those of the opposing party

Question 21

Issue Preclusion (collateral estoppel)

Civ Pro

Answer 21

Precludes the relitigation of issues that were actually litigated, determined, and essential to valid final judgment

Question 22

100 mile bulge rule

Civ Pro

Answer 22

Establishes PJ over a party

1. added to the suit through impleader or reqired joinder and
2. served with process within 100 miles of the fed court where the suit is pending

Question 23

Exception to BER when evidence is not available

Evidence

Answer 23

Allows extrinsic content to prove if other party had evidence, was put on notice, and did not produce the evidence

Question 24

BER only applies when

Evidence

Answer 24

the contents of a recording, writing, or photo are at issue - not when a witness is testifying based on personal knowledge

Question 25

BER in jury trials - what does the jury determine? | Evidence

Answer 25

Whether: 1. an asserted document ever existed 2. another doc produced at hearing or trial is original 3. other evidence of content accurately reflects the doc's content

Question 26

If an out of court statement is offered for anything other than the TOMA, upon timely request, the court must | Evidence

Answer 26

1. limit the admissibility of the statement to its nonhearsay purpose and 2. instruct the jury accordingly

Question 27

State of mind exception includes | Evidence

Answer 27

Motive, intent, plan and admissible as substantive proof that the declarant later acted in accordance with that state of mind

Question 28

Prior consistent statement is not hearsay if | Evidence

Answer 28

1. made by dec who testified and is subject to cross 2. offered to rebut a charge of fabrication/improper influence 3. was made before any motive or fabrication arose

Question 29

Hearings on prelim questions must be held outside jury's presence if | Evidence

Answer 29

1. hearing involves admissibility of a confession 2. a D in a criminal case is a witness and requests it 3. justice so requires

Question 30

Leading questions barred on direct unless | Evidence

Answer 30

1. witness is a child or an adult with difficulty communicating 2. the question is needed to develop witness's testimony 3. witness aligned with adverse party

Question 31

A court is not bound by evidentiary rules, except those regarding privilege, in determining preliminary questions of fact relating to the admissibility of evidence | Evidence

Answer 31

Read Only

Question 32

If a witness's character for truthfulness has been attacked, the party who called the witness may rehabilitate the charaacter by offering: | Evidence

Answer 32

1. reputation testimony 2. opinion testimony 3. testimony on cross re specific instances of conduct

Question 33

If a party asks to exclude witnesses from the court room, court must exclude them unless the witness is | Evidence

Answer 33

1. the party or designated rep 2. person who's presence is essential to the case 3. person authorized by statute to be present

Question 34

Offers to compromise are allowed IF | Evidence

Answer 34

Bias Negating intentions of undue delay Proving efforts to obstruct criminal justice

Question 35

Statements affecting property interests not HS if | Evidence

Answer 35

1. matter stated was relevant to the documents purpose and 2. later dealings with the property do not contradict the truth purported in the statement/document | Property can be money

Question 36

Creation of implied in fact contract | Contracts

Answer 36

1. party intentionally engages or fails to engage in conduct and 2. party knows or has reason to know that assent can be inferred

Question 37

Common law contract modifications | K

Answer 37

Only binding if there is new consideration - both parties need to alter their duties in some way

Question 38

Offer to buy goods for immediate shipment can be accepted by promising to ship or shipping. (Read only) | K

Answer 38

Once the offer has been accepted, it cannot be revoked because the contract has been formed.

Question 39

Preexisting duty rule and payments of debt | K

Answer 39

A debtor's promise to pay a liquidated debt is NOT consideration for a creditor's return promise

Question 40

Duress | K

Answer 40

Physical force imminent harm improper threat w no reasonable alt but to succumb

Question 41

Warranty of merchantibility in UCC K sales | K

Answer 41

Implied in all sales with merchants - dealer in goods of that kind