Rules & Definitions for MBE Flashcards
1
Q
When is it possible to assert a Fourth Amendment Right?
A
To be able to assert a Fourth Amendment Right, a person must have a reasonable expectation of privacy.
Criminal Cases (Search & Seizure) No expectation of privacy held out to the public or that may be viewed from public vantage point (naked eye)
2
Q
What is the Doctrine of Part Performance?
A
This is an exception to the SOF (“Statute of Fraud”) and may be used to enforce an otherwise unenforceable oral contract of sale, provided the acts of part performance unequivocally prove the existence of the contract
3
Q
What’s a fee simple determinable?
A
This is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. The interest that is left in a grantor who conveys a fee simple determinable is a possibility of reverter, which arises automatically in the grantor and can be divided by will in almost every jurisdiction
4
Q
When a private action for nuisance will prevail?
A
For a private nuisance action to lie, the interference with the plaintiff’s use or enjoyment of his land must be substantial.
This means it must be offensive, inconveniente or annoying to an average person of the community.
“Extreme Sensitivity” is not considered to be substantial
5
Q
Does an arrest warrant give the police right to search the home of a third party?
A
No, an arrest warrant does not give right the police to search the home to a third party and evidence obtained from an unconstitutional search must be suppressed.
Fourth Amendment requires search to be reasonable, home search reasonable if police have search warrant
Search Warrant ≠ Arrest Warrant
6
Q
What does complete diversity mean?
A
Complete diversity means that each plaintiff must be a citizen of a different state from the defendant
Two defendants may share state without destroying complete diversity
7
Q
Where a Corporation is deemed to be a citizen for the purpose of diversity?
A
- Every state in which is incorporated;
2. The state in which is has its PPB (“Principal Place of Business”)
8
Q
Who can testify as to someone’s writing?
A
Anyone with familiarity with the person handwriting prior with the dispute arise may testify as to that person penmanship (“writing”)
9
Q
What’s the legal duty and general rule imposed to any person affirmatively acting for the benefit of others? (e.g. rescuer)
A
No legal duty is imposed on any person who affirmatively acts for the benefit of others
However, one who gratuitously engages for the benefit of another is then under a duty to act reasonably
10
Q
What’s the Congress power to spend?
A
The Art. I, Section 8 of The Constitution gives the Congress power to spend “for the common defense and general welfare”
Congress can Tax & Spend for any legitimate purpose. (e.g. energy conservation, preserving our natural resources, saving money)
11
Q
When a Defendant Motion for Directed Verdict will fail?
A
Defendant’s Directed Verdict Motion will only be granted if the Plaintiff fails to establish a prima facie case
12
Q
What are the prima facie elements of a negligence case?
A
(i) Duty of Care
(ii) Breach of duty
(iii) The actual and proximate cause = Causation
(iv) Damages
13
Q
How and when do a third party beneficiary rights vest?
A
- They learn of the contract and agree to it
- Learns of the contract and rely on it
- Learns of the contract and brings a lawsuit to protect their rights
Before a third party beneficiary vest, the contracting parties can modify or cancel the contract without the third party beneficiary consent.
Vest: to give or earn a right to a present or future payment, asset, or benefit
14
Q
What is the standard remedy for a non-breaching buyer?
A
(i) It can cancel the contract and recover any incidental damages
(ii) it can purchase replacement goods and sue for replacement “cover”
(i. e. Cover price - contract price)
15
Q
What kind of activities can the Congress regulate under the Commerce Clause?
A
(i) Channels (i.e. The channels of interstate commerce)
(ii) Instrumentalities (i.e. The instrumentalities of interstate commerce, as well as persons and things in interstate commerce)
(iii) Activities (i.e. The activities that have a substantial effect on interstate commerce.
Mnemonic (“CIA”)
16
Q
Can the President of the U.S. declare war?
A
The President is the Commander in Chief of the military, which affords the president extensive power to deploy military force against any enemy, foreign or domestic.
However, the President has no power to declare war
Art II, § 2 U.S. Constitution
17
Q
When is character evidence admissible?
A
Limited to:
(i) Reputation
(ii) Opinion where character trait is an essential element of the charges
18
Q
What are the elements of Battery?
A
(i) Harmful or Offensive contact
(iIi To plaintiff’s person
(iii) Intent
(iv) Causation
19
Q
What is theft by false pretenses?
A
At common law, occurs when a defendant:
(i) obtain title
(ii) to the property of another
(iii) by an intentional (or knowingly) false statement of past or existing facts
(iv) with intent to defraud
20
Q
What is forgery?
A
At common law, consist of:
(i) making or altering
(ii) of a false instrument
(iii) with the intent to defraud
21
Q
What is embezzlement?
A
At common law, is:
(i) the fraudulent
(ii) conversion
(iii) of the property
(iv) of another
(v) by a person in lawful possession of that property
22
Q
What is larceny by trick?
A
At common law, larceny by trick occurred when possession of the property was obtained by intentionally making a false statement
23
Q
What is meant by the dormant commerce clause?
A
The “Dormant Commerce Clause” refers to the prohibition that any states passing legislation that discriminates against or place an undue burdens interstate commerce
There are two exceptions to the dormant commerce clause: (i) The Congress authorize it and (ii) The market participation exception
24
Q
What’s negligent entrustment? (i.e. negligent hiring)
A
Negligent entrustment provides for the recovery of damages when a person puts a dangerous device in the hands of a person who is not equipped to handle.
(e.g. hiring someone as armed guard who was barred from law from this type of jobs)
25
How to obtain title by adverse possession?
One may obtain title by adverse possession by taking and maintaining possession of it for the statutory period provided by the jurisdiction
The possession must be: (i) actual and exclusive, (ii) open and notorious (sufficient to put the true owner or the community on notice), (iii) hostile (without true owners permission), (iv) continuous (used in a way that actual owner would use it)
26
When objections to Personal Jurisdiction must be asserted?
FRCP 12 provides that objections to PJ may be asserted by pre-answer motion or in the answer
If the objection to personal jurisdiction is not presented in the first response, the objection is waived
27
How to establish liability in a strict liability action based on a defective product?
The plaintiff must prove that the defendant is a commercial supplier of the product (“put it in the stream of commerce” ) and that the product is expected to be supplied to the consumers without substantial change in the condition in which it is supplied
28
What is the relation back doctrine?
The relation-back doctrine, holds that amended pleadings, filed after the expiration of the applicable statute of limitations, are allowed to subsequent pleadings to the original complaint “relate back” to the date of the original complaint's filing if (i) the claims in the amendment arise from the same T/O; (ii) within the time allotted for serving the original complaint (90 days)
29
Can a court of appeal hear a certification of a class certification?
The court of appeal can hear appeal when a district court grants or denies certification of a class action
This certification can be appealed within 14 days of entry of the order
30
Does an inquiry terminate the original offer in a contract of sale of land?
When there’s mutual assent there’s a contract a counteroffer serves as rejection of the original offer as well as a new offer
31
Can a criminal defendant present relevant character evidence to help establish that he might not have committed the crime charged?
Yes, under FRCP 404(a) a criminal defendant is allowed to present relevant character evidence to help establish he may not have committed a crime
FRCP 404(a) (When presented, reputation evidence, open the door for prosecution to bring witnesses and prove the opposite)
32
What’s the standard of care for professionals?
The common law standard of care for performance of professional services is generally defined as the ordinary and reasonable care usually exercised by one in that profession, on the same type of project, at the same time and in the same place, under similar circumstances and conditions
A professional is required to exercise superior judgement, skills, and knowledge as he actually possesses
33
What’s anticipatory repudiation?
| “Theory of anticipatory breach”
It arises when one party makes a clear unequivocal statement of an intent he cannot or will not perform when the time comes, or acts in a manner rendering him unable to perform
34
When is prior identification admissible?
| e.g. police lineup
Prior identification is admissible only if the person who made the identification is able to be present at trial and subject to cross-examination
35
What’s the general rule to have an effective assignment of rights to collect debt from a third party?
The general rule is that writing is not required to have an effective assignment
36
What’s arson's Modern and Common Law definition?
Majority rule: The malicious burning of any structure (i.e. Only Modern rule applicable by default in the MBE)
Minority rule: The malicious burning of the dwelling of another
37
When may the Supreme Court review a decision from a state court?
(“The adequate and independent state ground rule”)
1. It has to be a final decision
2. Must come from the highest state court
3. Must pose a substantial federal question
4. The decision by the high state court does not rest on adequate and independent state grounds
38
Why were anti-lapse statutes created?
At common law, the rule is that if the beneficiary of a will predeceased the will maker, the will to the beneficiary was void
These kinds of statutes have been created to prevent this from happening
39
Does immediate delivery of deed transfers property?
Yes
40
What’s the general rule when a property is bought subject to a mortgage in the property?
("When debtor default payments")
The lender may foreclose on the land or it may sue the prior owner on the underlying debt
Buyer is not personally liable unless assume the mortgage
41
What’s the duty owed by an owner or occupier of land to those on the land in a jurisdiction following the traditional liability rules?
This depends on whether the person on the land is characterized as a trespasser, licensee, or invitee
A trespasser, is one who comes onto the land without permission or privilege
A licensee is one who enters the land with the land owner’s permission, express or implied
An invitee is one who enters on the premises in response to an express invitation. However, a person loses his invitee status when exceeds the scope of the invitation
42
What is the duty owed to an invitee?
(i) Duty to inspect
(ii) Duty to make safe
However, a person loses his invitee status when exceeds the scope of the invitation. (e.g. goes beyond the area the invitee is allowed to be, this situation makes the invitee an anticipated trespasser)
43
What are the resources available for a Plaintiff who loses in a state court?
The proper next step is to appeal to the state appellate courts
The Plaintiff having selected initially the state court to file its suit, must pursue its appellate remedies before seeking review in the federal courts
44
What are the elements of standing?
(i) Injury in fact
(ii) Causation
(iii) Redressability
45
What’s the general rule to trigger Double Jeopardy?
The defendant cannot be tried again for the same offense
Double jeopardy attaches for convictions, acquittals and when there’s evidence for prosecutorial misconduct during trial (i.e. judgment on the merits)
46
Does exclusionary rule of evidence apply to Grand Jury Proceedings?
No, all the evidence is admissible in this stage of the process
This evidence might be excluded at trial, but threshold in grand jury proceedings is much lower because not determining guilty or innocence
The only purpose of the grand jury is to determine if there’s probable cause to issue an indictment
47
What’s an adoptive admission?
If the defendant is accused by someone with authority and does not deny the accusation, the silence may be used as an adoptive admission
48
Can a hearsay problem arise when the out-of-court declarant and the in-court witness are the same person?
Yes, just because the defendant is testifying on the stand about what the defendant said out-of-court, it’s still hearsay unless an exception applies
49
What’s likely to be the result of material breach of contract?
The non-breaching party can cancel the contract and sue the breaching party for damages
50
What’s likely to be the result of a minor breach of contract?
Non-breaching parties can only sue for damages, but can cancel the contract
51
When is evidence of subsequent remedial measures admissible?
1. To show ownership or control
| 2. When the defense is there is no way to improve the product, land, or to have a safer condition than already were
52
Can contracts be assignable and delegable?
Yes, all contracts are assignable and delegable except unique personal service contracts and long term requirement contracts
53
Can assignment and delegation of contracts be revoked?
The general rule is that assignment for value are irrevocable and gratuitous assignment are revocable
54
What are the mistakes considered as valid defenses against a breach of contract claim?
There are two types of mistakes considered as valid defenses in contracts: (i) mutual mistake arises when both parties to a contract are mistaken about the same material fact within their contract; (ii) Unilateral mistakes, only one part is mistaken and the general rule does not prevent contract formation. However, in all unilateral mistake situations if the non-mistaken party or has reason to know of the other party's mistake won’t be permitted to take advantage of the mistaken party and snap-up the bargain
55
What’s murder?
Murder is the unlawful killing of human being with malice aforethought.
Malice aforethought exist if the defendant has any of the following states:
(i) intent to kill
(ii) intent to inflict great bodily injury
(iii) reckless indifference to an unjustifiable human risk to human life
(iv) intent to commit a felony
56
What's a peremptory challenge?
Peremptory challenge allows an attorney to disqualify a potential juror because the juror displays an attitude or some characteristics that appear unfavorable to the attorney’s client but that does not rise to the level of bias that would present grounds for challenge for cause
The party cannot use peremptory challenges if the court suspects the challenge is for, race, national origin, religion or gender, which violate the juror’s equal protection rights under the Fourteenth Amendment
57
When a defendant have standing to challenge an illegal search and seizure under the Fourth Amendement?
The defendant must have ownership or must have a reasonable expectation of privacy in the place searched or item seized. (e.g. no piggy-back on someone else standing to challenge the search).
58
What are the problems arising with a hold-over tenant?
1. We need to determine which would be the rent
(i) If the tenant was notified of a rent increase, they will pay the increased rent
(ii) if the tenant was not notified of a rent increase, the tenant will pay the rent they’ve been paying up to that point
2. How long will the tenancy last for?
(i) if it’s a residential tenancy, will be a month to month tenancy
(ii) if it’s a commercial tenancy, it will be year to year most frequently
59
When can a plaintiff assert third-party standing to challenge a government action?
Any person who challenges a government action must have standing to raise a constitutional issue and would only have standing if can demonstrate a concrete stake in the outcome of a controversy and that the government action impairs her own rights
A plaintiff may assert third party rights if she has suffered injury and that injury adversely affects the relationship with third parties, resulting in an indirect violation of their rights
60
What’s an assignment?
If a tenant makes a complete transfer of the entire remaining term of his leasehold interest, he has made an assignment. The assign and the landlord are in privity of estate, and each is liable to the other on all covenants in the lease that runs with the land
61
What happens when an assignment is reassigned?
When an assignee reassigns the leasehold interest, her poverty of estate with the landlord ends, and is not liable for the subsequent assignee's failure to pay rent
62
What’s joint liability?
This means both parties can be liable for the whole
63
What’s several liability?
This means each party is only responsible for his share
| i.e. can seek contribution for the portion he is not responsible for
64
What’s the standard of care for a child imposed in negligence actions?
The general standard of care imposed by the courts when the tortfeasor is a child in negligence actions is that of a child of same age, education, intelligence, and experience
65
What’s the definition of conspiracy?
This is an agreement between two or more persons to commit an unlawful act or to commit a lawful act in an unlawful manner
The elements are
(i) an agreement between two or more persons
(ii) the intent to enter into an agreement
(iii) the intent to achieve the objective of the agreement
At common law, you can’t withdraw from conspiracy
Whether, you can withdraw from the responsibility of the later crime this is not defense for conspiracy
66
What’s the preexisting duty rule?
Principle under contract law that states that if a party to a contract is under a pre-existing duty to perform, where a modification would operate to the benefit of only one parties, if no consideration is given for any modification of the contract, the modification is therefore voidable
UCC allows modification as long as the modifications are entered in good faith
However, at common law modernly we are now allowing modification if the modification is fair, equitable and due to some enforceability
67
What are experts allowed to testify?
Experts are allowed to base their testimony, reports, opinions or anything that is reasonably relied on by other experts in their field.
Fed. R. Evid. 703
68
What’s a collateral matter doctrine?
Testimony which is minimal relevance is substantially outweighed by consideration of waste of time and confusion of the issues under Rule 403
Therefore, when a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue either by extrinsic evidence or by prior inconsistent statements
69
When is a fee simple subject to a condition subsequent created?
One fee subject to a condition subsequent is created when the grantor retains the power to terminate the estate of the grantee on the happening of a specific event
On the happening of the specific event, the estate of the grantee continues until the grantor exercise power of termination (right of entry) by bringing suit or making reentry
70
What’s remittitur?
Remittitur arises when a trial judge believes that jury damages award is so excessive as to “shock of conscience”
The court may order a new trial or an alternative of a lower award and it’s available in state and federal court
71
When are contracts regulated by the UCC?
When is for sale of goods of more than $500.00
72
What’s an option?
A promise to keep an offer open for a certain period of time
73
How to maintain an option open in Common Law?
In order to have an offer open in common law, It’s has to be supported for consideration
74
What is the merchant’s firm offer rule under UCC 2-205?
An offer by a merchant in sign writing terms which give insurance that it will be held open, its irrevocable during the time stated
If not time stated, the period of irrevocability may not exceed 90 days
Only apply to merchants, and must be signed by the offeror
75
What's the automobile exception to the Fourth Amendment to the warrant requirement?
United States v. Ross, 1982
If probable cause justifies the stop of the vehicle, it justify the search of the entire vehicle including closing containers kept therein including the trunk
76
What's a search incident to a lawful arrest?
Arizona v Gant, 2009
The Supreme Court held that police may search the vehicle of its recent occupant after his arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest
Under Gant the police can only search the interior of a vehicle only to find
(i) instrumentalities associated with arrest
(ii) to officer safety or are chances that evidence would be destroyed
The police can search the area in control but the trunk is excluded
77
Is the seller liable when concealed defective conditions on a property?
Yes
Concealed = kept secret, hidden
78
What’s the Free Exercise Clause?
Prohibits government from acting in a way that interferes with free exercise of religion
The Supreme Court has found the Clause to provide almost absolute protection for religious belief
79
What’s a time-is-of-the-essence clause?
This clause created by its terms, in conjunction with the surrounding circumstances, establishes that time is of the essence, failure to timely perform will be a material breach, therefore, will constitute a breach of contract of the builder
80
When an owner breaches a construction contract after construction has been started but before construction is completed?
The builder is entitled to recover any profit he would have derived from the contract plus any cost he has incurred to the date of the breach
81
What’s right of first refusal?
[subject to RAP analysis (“Rule Against Perpetuities”)]
A right of first refusal gives its holder the preemptive right to meet any third party’s offer to purchase real estate
The right of first refusal is valid only when is held by an ascertainable person (or group of people), while personal to the holders and ends with their life is not subject to RAP
82
What are the elements to establish a prima facie case for trespass to land?
To establish a prima facie case for trespass to land the plaintiff must prove
(i) an act of physical invasion of plaintiff’s real property by defendant
(ii) intent on defendant’s part to bring about the physical invasion
(iii) causation
83
Where is the venue proper in federal civil actions?
Federal venue in civil actions is proper in
(i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and
(ii) the district in which a substantial part of the events or omission giving rise to the claim occurred
84
Failure to timely object to a procedural mistake waive right to raising issue in appeal?
Yes, for matters other than legal theories are asserted by parties by raising a timely objection at trial, failure to object waives the right to raise that issue on appeal
85
What are the exceptions to actual damages in an action for (“NIED”) negligent infliction of emotional distress?
(i) Mishandling of a corps
| (ii) False report of a death
86
What are the Presidential pardoning powers scope?
In the United States, the pardon power for offenses against the United States is granted to the President of the United States under Article II, Section 2 of the United States Constitution which states that the President "shall have power to grant reprieves and pardons for offenses against the United StatesFederal linked offenses
Not possible to pardon official impeached by the Congress
Not possible to pardon a person convicted of a state crime
87
What is the burden for the state in gender discrimination policies?
The courts will apply an intermediate standard of review, and the state bears the burden to overcome the standard of review by showing the policy or program is substantially related to an important government interest
88
What’s the duty of commercial suppliers of components manufactured by others if those are defective?
A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component
In product liability actions, always make sure you are applying the appropriate theory of liability (i.e. strict liability or negligence)
89
What must be proven to establish a prima facie negligence product liability case?
To establish a prima facie case of negligence in product liability case, the plaintiff must show
(i) the existence of a legal duty owed by the defendant to a particular plaintiff
(ii) breach of that duty
(iii) actual and proximate cause
(iv) damages
90
What is supplier liability for defective products?
One who sells a product in a defective condition unreasonably dangerous to user, consumer or bystander is held strictly liable for the resulting harm or injury that occurs
91
Is Congress allowed to impose conditions for the granting of money to states?
Yes, as long as it’s not unduly coercive
92
How does the doctrine of equitable conversion govern the rights of parties when the purchaser dies before the sale is completed at closing?
Once the parties entered into a land sale contract this is affixed to the property
A deceased buyer’s interest passes as real property to the taker of the buyer’s real property interest, therefore, estate can compel specific performance and demand the conveyance of the land
93
How does confidential marital privilege operate?
First, in a criminal case, a spouse can testify if she wants to testify, but the spouse cannot be compelled to testify. The privilege applies to all information that the spouse has gained BEFORE and DURING the marriage
This privilege ends when the marriage ends
Second, in any type of case, a spouse can refuse to disclose, or prevent a spouse from disclosing, confidential communications made between the spouses during the marriage. While the defendant can object to his wife’s testimony concerning confidential communications during the marriage, he has no privilege to object to other testimony by her
94
What’s a motion to compel?
A motion to compel asks the court to order either the opposing party or a third party to take some action mostly common in discovery disputes when one of the parties consideres discovery responses are insufficient
95
What are the sources of Subject Matter Jurisdiction?
The two primary sources of the subject-matter jurisdiction of the federal courts are diversity jurisdiction and federal question jurisdiction
96
What is Diversity Jurisdiction?
Diversity jurisdiction generally permits individuals to bring claims in federal court when:
(i) The plaintiffs and defendants are from different states
&
(ii) the claim exceed $75,000.00
97
When the defense of necessity can be raised in a trespass to land claim?
Necessity arises when the defendant enters the land of another when enters the land of another in order to avoid greater harm
Necessity can be public and private
(i) in private defense, the defendant is liable for the damages
(ii) in public defense, the defense is absolute
(e. g. school bus driver entering into land to avoid an accident and causing damage to lawn or property in order to save children or members of the community).
98
When is a defendant entitled to a directed verdict in a negligence action?
When the plaintiff has failed to prove has a prima facie case for negligence
99
What’s the trade fixture doctrine?
We allow a commercial tenant to remove all trade fixtures prior to the lease expiring. The only exception are accession: structure additions to the real property cannot be removed (e.g. a balcony, a deck, a loft)
100
Are Laws designated to protect local business against interstate competition allowed?
No, state legislation that discriminates against out-of-state goods in violation of the Commerce Clause will be invalidated
101
When is a contract Unconscionable?
Unconscionability usually arises where one of the parties has substantially superior bargaining power and can dictate the terms of the contract to the other party, who has an inferior bargaining power
102
What is the written confirmation ten (10) days rule exception to the SOF?
If within a reasonable time after entering into an oral agreement one of the merchants sends a written confirmation of the oral agreement, it binds the sending merchant immediately, and if the recipient merchant doesn’t object to the content of the writing within ten (10) days of receipt, it binds them as well
103
Where’s the venue proper?
To determine where is venue proper, the following test must be applied:
(i) if all the defendants reside in the same state > Venue is proper in any District where a defendants if all the defendants reside in the same state
(ii) if the defendants do not reside in the same state > Venue is proper where the cause of action occurred
104
How are the proceeds of a foreclosure sale distributed?
The proceeds of the foreclosure sale are used first (after expenses and fees) to pay the principal and accrued interest on the loan that was foreclosed (the foreclosing party obtains payment first), and then to pay off any junior interest in the order of priority
Where the proceeds of the sale are insufficient to satisfy the mortgage debt, the mortgagee can bring a personal action against the mortgagor/debtor for the deficiency
```
Mortgagee = Lender
Mortgagor = Borrower
```
105
What’s the rule of proximate cause?
The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents and within the increased risk caused by his acts
In indirect cause cases, an independent intervening force may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff
Even a criminal act by a third party will not cut off the defendant’s liability if the defendant’s negligence created foreseeable risk that a third person would commit the crime
106
How does pure comparative negligence operate? (“majority rule for MBE”)
The plaintiff recovers regardless of fault and their recovery is reduced by the percentage attributed to them
107
What’s the issue of the preclusion rule?
The issue preclusion rule is whether the issue was actually litigated
For issue preclusion to apply (collateral estoppel), the relevant issue must have been actually litigated and determined in the previous case
108
What’s provided by the Fifth Amendment?
The Fifth Amendment provides that no person “shall be compelled to be a witness against himself”
To protect this right, the Supreme Court requires detainees to be informed of certain right (that’s Miranda warnings) prior to custodial interrogation by someone the detainee knows is a police officer
The rationale is that the warning helps mitigate the inherent coercive nature of custodial police interrogation. Among these right are the right to remain silent and right to counsel.
109
Can habit evidence be admitted?
Evidence of a person’s habit may be admitted to prove that, on a particular occasion, the person acted in accordance with the habit [Fed. R. Evid. 406]
110
When can a motion for a new trial be granted?
A motion for a new trial may be granted
1. because of error during trial (usually going to the admissibility of evidence or the property of the jury instructions),
2. the verdict is against the weight of evidence (limited to the cases where judges finds the verdict seriously erroneous)
3. jury misconduct or
4. the verdict is inadequate
111
What’s the doctrine of forum non conveniens?
Courts has discretion to dismiss for forum non conveniens and have the plaintiff refile the action in another country it it determines a court in the other country is a substantially better forum for the case (considering the location of the parties and evidence, the applicable law, potential administrative problems like language barriers and the need for translations, etc)
112
What are the requirements to have a valid conveyance?
In order to have a valid conveyance, the deed must adequately describe the land being conveyed, and if the deed fails to adequately describe the land, the deed failed for lack of definitness
113
What’s Reformation?
Reformation is an equitable action in which the court rewrites the deed to make it conform to the intention to the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener’s error, and may also be granted when there’s unilateral mistake if misrepresentation is involved
114
Is mistake of Law a valid defense?
Mistake of law is never a valid defense
115
What’s an admission?
| “statement by an party-opponent”
Out of court statements offered against them by a party opponent and by definition admissions are not hearsay
Federal Rule 801(d)(2) provides that a statement offered against a party that is the party’s own statement is not hearsay and therefore cannot be excluded by rules against hearsay
116
What are the prima facie elements to establish a case for intentional infliction of emotional distress?
The plaintiff must show
(i) an act by defendant amounting to extreme and outrageous conduct
(ii) intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct
(iii) causation
(iv) damages
Tips for MBE:
Reckless or intentional > intentional infliction of emotional distress > Mental injury is an element of IIED (e.g. depression, humiliation, embarrassment)
Accidental or by mistake > Negligent infliction of emotional distress > Physical injury is an element of NIED (e.g. illness, hospitalization, etc)
117
What’s informed consent?
One of the duties that doctors, dentists, and other health professionals owe their patients is the duty to provide a patient with enough information about the risks of a proposed treatment or surgical procedure to enable patients to make an “informed consent” to the treatment
If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the health care professional has breached this duty
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What’s in the scope of discovery?
In general, discovery may be had of any non-private matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issue at stake in the action, the amount in controversy, the parties’ relative access to the information, the resources of the parties, the importance of discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefits
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What does the Sixth Amendment provide?
| “Massiah v. United States”
The Sixth Amendment provides defendants with the right of counsel at any post indictment interrogation and must be used to evaluate the admissibility of any statement made after the defendants has been charged with the relevant crime
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What’s a condition precedent?
It’s an act or event that must occur first before a party is under a duty to perform
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What’s the work product doctrine?
The work product doctrine provides qualified immunity from discovery, the documents prepared in anticipation of litigation by a party or representative are not discoverable unless the opposing party can show a substantial need, and that it cannot obtain the materials in an alternative way without undue hardship
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What are traditional public forums?
Some public property, such as streets, sidewalks, and parks, is so historically associated with the exercise of the First Amendment rights that it is categorized as a traditional public forum
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Can speech be regulated in public forums?
Speech in public forums may be regulated by time, place and manner regulations that are
(i) content neutral
(ii) narrowly tailored to serve an important governmental interest, and
(iii) leave open alternative channels of communication
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What’s Robbery?
Robbery is larceny from the person of presence of the victim by means of violence or intimidation
Larceny + battery and/or assault
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Parol Evidence Rule is generally admissible to establish ______________ against ___________
Parol Evidence Rule is generally admissible to establish DEFENSE against ENFORCEMENT
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What are expectation damages?
For a breach of contract, a party may be entitled to expectations damages. These damages are intended to put the injured party in the same position as if the contract had been performed
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What are consequential damages?
Consequential damages consist of losses beyond those covered by the standard measure that a reasonable person would have foreseen would occur as a result of a breach of contract
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When is an implied easement formed?
An implied easement, which does not require a signed writing, can be formed when a property is (a) previously undivided with a single owner, (b) the easement in use prior to property division, (c) upon division of the property, the parties intended for easement to continue, and (d) the use following division was continuos, apparent, reasonably necessary
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How can a contract be formed under UCC?
Under UCC, a contract can be formed in any reasonable manner to show manifestation of contract
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What are goods under UCC?
Goods are movable objects at the time the contract is entered into
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What's the confirmatory memo rule?
The confirmatory memo rule is an exception to the Statute of Frauds which allows a contract to be enforceable without writing signed by the party to be bound, in this case the recipient of the confirmatory memo
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What's Fee Simple Absolute?
A Fee Simple Absolute is absolute ownership of potentially infinite duration. It is freely alienable, devisable, and descendible
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What're the Defeasible Fees categories?
(i) The Fee Simple Determinable, (ii) The Fee Simple Subject to Condition Subsequent, (iii) The Fee Simple Subject to Executory Limitation
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What's a Life Estate?
This is an Estate that must be measured in explicit lifetime terms, and never in terms of years
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What's a Life Estate pour autre vie?
A Life Estate measured by a life other than the grantee's
| e.g. To A for the life of B
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What's a reminder?
A reminder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the reminder is created
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What's an executory interest?
An executory interest is a future interest created in a transferee (a third party), which is not a reminder because it takes effect by either cutting short some interest in another person ("shifting") or in the grantor ir his heirs ("springing")
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What's the RAP?
"Rules Against Perpetuities"
Certain kind of future interest are void if there is any possible, however, remote, that the given interest could vest more than 21 years after the death of a measuring life (i.e. only applies to contingent reminders, executory interest, and certain vested reminders subject to open)
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What are the elements of Adverse Possession?
(i) continuous, (ii) open and notorious, (iii) actual, (iv) hostile
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What are the forms of Concurrent Estates?
(i) Joint Tenancy: Two or more own with the right of survivorship;
(ii) The Tenancy by the Entirety: A protected marital interest between spouses with the right of survivorship;
(iii) Tenancy in Common: Two or more own without the right of survivorship
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What are the Four Leasehold or Non Freeholds Estates?
(i) Tenancy for Years, (ii) Periodic Tenancy, (iii) Tenancy at Will, (iv) Tenancy at sufferance
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What's an Easement?
An Easement is a grant of non possessory property interest that entitles its holder to some form of use or enjoyment of another's land
Easement can be affirmative & negative
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What's an affirmative easement?
Most easements are affirmative, and affirmative easement is the right to go onto and do something on servient land
There are Method of Creation (PING)
Prescription, Implication, Necessity, Grant
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What's a negative easement?
The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible
There are Method of Creation (LASS)
Light, Air, Support and Stream Water
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When is an Easement Appurtenant?
An Easement is Appurtenant when it benefits its holder in his physical use or enjoyment of his property
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When is an Easement in Gross?
The Easement is in Gross if it confers upon its holder some personal or pecuniary advantage that is not related to his use or enjoyment of his land. However, there is no benefited or dominant tenement
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Which is the definition of License?
The License is a mere privilege to enter another another's land for some delineated purpose, is a writing needed to create a license
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What's a convenant?
The covenant is a promise to do or not to do something related to land. It is unlike the easement because it's not the grant of a property interest. Instead, it's a contractual limitation or promise regarding land
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What are the must frequent recording statutes?
(i) The Notice Statutes;
| (ii) The Race-Notice Statutes
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In a Notice Statute Jurisdiction...
A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded
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In a Race-Notice Jurisdiction...
A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded
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What's a Mortgage?
A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetary obligation. In other words, the owner of real estate gives the lender a lien in that real estate to secure backup the loan that the lender makes
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What are the five issues that indicate federal judges to apply state law if the issue to be decided is "substantive"?
("Erie Doctrine")
(1) Elements of claim or defense;
(2) SOL;
(3) Rules for tolling SOL;
(4) Conflict of law rules;
(5) Standard for whether to grant a new trial because jury damages determination is excessive or inadequate
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Motion to dismiss based on Rule 12(b) should be filed on which grounds?
(1) Lack of SMJ;
(2) Lack of PJ;
(3) Improper venue;
(4) Improper process;
(5) Improper service of process;
(6) Failure to state a claim;
(7) Failure to join indispensable party
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How can a defendant respond to a complaint?
(1) By Motion;
(2) By answer
To avoid default, this must be done no later than 21 days after being served with process (if waived service, the defendant has 60 days from when the plaintiff mailed the waiver form)
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What are the initial requirements for class actions?
i. Numerosity: Too many class member for practicable joinder;
ii. Commonality: There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke;
iii. Typicality: Rep's claims are typical of those of the class
iv. Representative adequate: The class Rep will fairly and adequately represent class
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What's ex-parte?
Whenever a court does something without giving notice to the other party, it's called "ex-parte"
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What's the objective of a Preliminary injunction?
Maintain the status quo until the court can adjudicate the underlying claim on the merits
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What's the right to Jury Trial in Federal Court?
The Seventh Amendement preserves te right to jury in "civil actions at law" but not in suits at equity
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What's the confrontation clause? ("Sixth Amendement")
The confrontation clause prevents an evidence from being admitted against a criminal defendant when the evidence is 1. a testimonial hearsay, 2. the declarant is not available, 3. the party against whom the evidence is offered did not have an opportunity to cross examine the declarant
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What's the definition of Trust?
An arrangement under which the trustee holds legal title to property for the benefit of the beneficiaries. Trustee has burdens and beneficiaries have benefits of property ownership
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What's the Trustee fiduciary standard?
He is not privileged to use trust property as his own
Harsh "self-dealing" rules preclude trustee from doing so
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What's the requirement of Trust Property? ("The Res Requirement")
Res is the corpus, the principal, the subject matter of the trust. In order to have a trust, there must be an specific interest in property to which the trustee's duties relate
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What are the intestate share of surviving spouse & children?
Survived by spouse with no descendants — surviving spouse inherits entire estate
Some states provide a certain portion to decedent’s parents and parent’s issue (i.e., decedent’s siblings)
Survived by spouse and descendants — surviving spouse inherits one-half or one-third of decedent’s estate, with remainder to surviving descendants (e.g., children)
Uniform Probate Code (“UPC”) — if decedent’s descendants are also surviving spouse’s descendants, entire estate goes to surviving spouse
Not survived by spouse — decedent’s surviving descendants inherit entire estate
Not survived by spouse or descendants — decedent’s surviving parents inherit entire estate
If no surviving parents — descendants of decedent’s parents (e.g., decedent’s siblings) inherit
I.e., decedent’s estate would go to siblings, then nieces and nephews, and continue down family line until there is a taker
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What's the Slayer Rule?
One who wrongly brings about the death of a decedent forfeits an interest in decedent’s estate
In such a case, property passes as though the killer predeceased the victim
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What are the most common method of transfer property?
(i) inter-vivos gift;
(ii) Joint tenant bank account;
(iii) Totten trust;
(iv) Life insurance
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What are the requirements of inter-vivos gift?
Gift is valid if
1) donor intends to make gift (intent)
2) donor delivers gift (can be actual or constructive delivery/delivery)
3) donee accepts (acceptance)
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What's a totten trust?
This is created when funds are deposit in one’s own bank account held in trust for another (e.g., A opens account for herself as trustee for B)
Creates a valid revocable trust, even though depositor has control
Funds pass to designated beneficiary upon trustee’s death
Revocable by trustee-depositor by withdrawing funds before death or revoking the trust by will
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What's a Trust?
A trust is a fiduciary relationship in which one party (trustee) holds legal title to property for the benefit of designated beneficiaries
Settlor = person who created the trust, giving trustee legal title to hold, manage, and administer trust property for beneficiaries
Revocability — trusts are generally revocable under modern statutes, unless the terms expressly state the trust is irrevocable
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What's the definition of Agency?
Agency is a fiduciary relation which results from the manifestation of CONSENT by one person to another that the other shall act on his BEHALF and subject to his CONTROL and consent by the other so to act
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What are agent duties to the principal?
The agent owe fiduciary duties to the principal, which includes:
a. Duty of care;
b. Duty of loyalty;
c. Duty of obedience.
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What's the definition of partnership?
A partnership is formed as soon as two or more persons associated to carry on as cp-owners a business for profit, regardless of whether the parties subjectively intend to form a partnership
No state filing or other formalities are required
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Which factors are important in determining whether as association rises to the level of partnership?
The most important factor in deciding whether an association rises to the level of a partnership is sharing the PROFITS
A person who receives a share of the profit is presumed to be a partner unless the profits were received in payment (1) of a debt, (2) as wages or other compensation, (3) as rent, or (4) as interest on a loan
If right to control and sharing of losses, presumption of partnership it's almost impossible to rebut
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What are the fiduciary duties that partners owe to each other?
1. Duty of Loyalty: This duty requires to each partner (1) to account to the partnership for any benefit derived by the partner in conducting the partnership business, using the partnership's property, or appropriating a partnership opportunity (2) to refrain from dealing with the partnership in the conduct of its business as (or on behalf of) a party having interest adverse to the partnership; and (3) to refrain from competing with the partnership in the conduct of business
2. Duty of Care: This duty requires the partner to refrain from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law
3. Duty of disclosure: This is a statutory duty rather than a fiduciary one. The partnership stature states that each partner and the partnership shall furnish to a partner (1) without demand any information concerning the partnership's business and affairs reasonably required for the proper exercise of the partner's rights and duties; (2) on demand, any other information concerning the partnership's business and affairs (except unreasonable or improper under the circumstances)
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Who owns the property of a partnership?
The partnership itself is an entity, therefore, the partnership not the owners owns the property
Note: A partner is not a co-owner of partnership interest and has no interest in partnership in the partnership property which can be transferred. The partner can only use the partnership property for partnership purpose
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What are the requirements for premarital agreements?
1. Must be in writing and signed;
2. Entered into voluntarily;
3. Full disclosure of assets OR proof that had independent knowledge
Many states have adopted Uniform Premarital Agreement Act (UPAA);
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What are the requirements of marriage?
1. License;
2. Ceremony with authorized officiant;
3. No legal impediments to marriage (i.e. too close related, married to someone else (bigamy));
4. Capacity to consent and age (more than 18 generally)
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What are the requirements of common law marriage?
1. Consent to marriage;
2. Cohabitation (usually for reasonable period of time);
3. Holding yourself our PUBLICLY as spouses
Note: In states that do not permit common law marriage, those states will regard marriage as valid if entered into under the laws of a state that permits common law marriage
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What are the main approaches to divide property at divorce?
1. Community property: All property acquired during marriage is owned one-half by each spouse and property owned before marriage is separated;
2. Equitable division of all property owned by either spouse;
3. Equitable division of marital property: The spouses takes his separate property and the property acquired during marriage is divided equitable
180
What's the duration of child support?
1. Generally until age of majority;
2. Death of child;
3. Emancipation of child;
4. Termination of parental rights;
5. Some states may allow child support after 18 if child continue education or disabled
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What's child custody?
Custody is an umbrella term that includes legal and physical custody
1. Legal custody includes the rights to make decisions regarding the child
2. Physical custody includes the possession and control of the child
NOTE: In custody and visitation case the hallmark is the BIOC ("Best Interest of the Child")
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When a security interest attaches to a collateral?
A security interest attaches to collateral when the parties agree to create a security interest, the creditor gives value, and the debtor has rights in the collateral
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What's Fed.R. 608(b)?
Regarding a witness character for truthfulness or untruthfulness "extrinsic evidence is not admissible to prove specific instances of a witness' conduct in order to attack or support the witness character for truthfulness. But the court may on "cross-examination" allow them to be inquired into if they are probative of the character for the character for truthfulness or untruthfulness of: (i) the witness, (ii) another witness whose character the witness being cross-examined has testified about
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Are child support orders enforceable in other states than those who dictated the order?
The Uniform Interstate Family Support Act (UIFSA) governs the enforcement and modification of child support orders; the Full Faith and Credit Clause (FFC) of the Constitution requires courts to enforce valid child support orders entered by courts of other states
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When can a court modify child support obligations?
A court may prospectively modify child's support obligation if there's a significant change of circumstances which support the modification, and the modification will not impar the child best interest (BIOC)
186
What are the steps required to determine the admissibility of evidence?
(1) Is the evidence relevant?
(2) Is there a proper foundation (e.g. has the competency of the witness, the authenticity of evidence, or the reliability of scientific test established?
(3) Is the evidence in the proper form (e.g questions are properly phrased, answers are within the requirement for lay and expert opinion)
(4) Is the evidence beyond the application of, or within an exception to one f the following exclusionary rules?
a. Discretionary exclusion (R. 403);
b. Policy based exclusion (e.g. settlement negotiations, etc);
c. Privilege;
d. Hearsay;
e. Parol evidence (i.e. contracts specifically)
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What's judicial notice?
Courts may take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accesible sources of unquestionable accuracy (manifest acts)
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How is judicial notice taken depending on the whether the case is civil or criminal?
The Fed.R. provide that a judicially notice may be taken for the first time on appeal, it also provide that a judicially noticed fact is conclusive in a civil case but not in criminal cases
In criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially notices facts
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What's the difference between (1) present recollection recorded refreshed and (2) recorded recollection?
(1) Present Recollection Recorded: (a) any witness may be used to refresh a witness's memory, (b) the witness cannot read from the writing while testifying, (c) there's no hearsay problem
(2) Recorded recollection: (a) Only a record that meets several foundational requirements (e.g. timely made by witness, witness cannot remember the event after reading the record) may be used, (b) the record itself is read into evidence (but not received as an exhibit unless offered by an adverse party), (c) this is hearsay but it falls within a specific exception to the hearsay rule
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What are the Federal Common Law privileges?
1. Attorney-Client privilege;
2. Spousal immunity;
3. The privilege for confidential marital communications;
4. The psychotherapist/social worker client privilege;
5. The clergy-penitent privilege;
f. Governmental privileges
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What are the suspect classifications? ("Subject to Strict Scrutiny")
(i) Race
(ii) National Origine
(iii) Sometimes alienage
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What are the Quasi-suspect classifications? ("Subject to Intermediate Scrutiny")
(i) Gender
| (ii) Legitimacy
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What's the test for Strict Scrutiny?
The Law is necessary to achieve a compelling government purpose - The Burden is on Govt.
194
What's the test for Intermediate Scrutiny?
The Law is substantially related to an important government purpose - The Burden is on Govt.
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What's the difference between INSUFFICIENT PROCESS and INSUFICIENTE SERVICE PROCESS?
Insufficient process refers to defects in the documents and their content
WHEREAS
insufficient service of process refers to the manner in which the documents were presented, delivered and/or served to the defendant.
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What's required to have a case for intentional misrepresentation or fraud?
To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove (i) misrepresentation by defendant, (ii) scienter, (iii) intent to induce plaintiff's reliance on the misrepresentation, (iv) causation (actual reliance on the misrepresentation), (v) justifiable reliance on the misrepresentation, and (vi) damages.
