Simulated MBE Flashcards
1
Q
Claim Joinder by D - Same Transaction/Occurrence - Use or Lose?
A
Compulsory counter claim. Must be raised or waived
2
Q
Claim Joinder by D - Different Transaction/Occurrence - Use or Lose?
A
Permissive counter claims. Not required to raise.
3
Q
Cross Claims - Use or Lose?
A
Claim against co-party, same T/O, not required to raise but may (not compulsory)
4
Q
What are cross-claims?
A
When parties on the same side (P or D) want to sue each other
Not compulsory, may raise later
5
Q
Federal Question Jurisdiction - Jurisdiction over Supplemental Claims
A
Federal court has discretion to exercise supplemental jurisdiction (like over state law claims) if they arise from a common nucleus of operative facts
6
Q
Diversity Jurisdiction - Aggregation of Amount
A
Plaintiffs can aggregate their claims only where they are seeking to enforce a single title or right in which they have a common or undivided interest
7
Q
General Personal Jurisdiction
A
Where person is domiciled
Plus typical requirements of PJ (statute authorizes and exercise is constitutional [pervasive contacts])
8
Q
How long does an individual have to object to personal jurisdiction?
A
May be asserted by first response (pre-answer motion OR answer [without pre-answer motion])
9
Q
Where is venue proper?
A
All Ds reside in same state: Any district where a defendant resides or where action occurred
Ds reside in different states: Any district where cause of action occurred
10
Q
Third Party Defendants - Claims against Plaintiffs
A
A third-party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim.
11
Q
Defendant - Claims against Third Parties
A
Third-party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third-party plaintiff’s own liability to the plaintiff.
You can’t drag in a third party defendant unless you are saying “yeah, I’m responsible, but so are they!”
You cannot do in situation like: “It wasn’t me, it was X! I would like to assert a claim against X.”
12
Q
Amended Complaint - When do they “relate back”?
A
Amendments substituting a new defendant for one originally named are allowed and the amendment will relate back to the time the original complaint was filed if (i) claims in the amendment arise from the same transaction or occurrence as the claims set out in the original pleading; and (ii) within the time allotted for serving the original complaint (90 days), the new defendant received such notice of the action that it will not be prejudiced in defending on the merits and knew or should have known that the action would have been against it (the new defendant).
13
Q
How long does an individual have to object to venue?
A
May be asserted by first response (pre-answer motion OR answer [without pre-answer motion])
14
Q
How long does an individual have to object to subject matter jurisdiction?
A
FOREVER!
15
Q
Whose rules apply for service of process?
A
Service may be made as provided by the rules of the state in which the federal court sits or the state in which service is to be effected, regardless of the basis of subject matter jurisdiction
Otherwise: personal, at abode with person of age residing there, or authorized agent
16
Q
Do we care about hearsay during discovery?
A
Nope! Just whether info is privileged or relevant.
17
Q
What must be disclosed prior to discovery request (initial disclosures)?
A
Names of individuals likely to have discoverable info that the disclosing party may use to support its claims or defenses along with subjects of information
18
Q
To what does the work-product doctrine apply (re discovery)?
A
Documents prepared in anticipation of litigation by a party or its representative are not discoverable unless the opposing party can show substantial need and that it cannot obtain the materials in an alternative way without undue hardship.
19
Q
What sanctions can a court impose after a motion to compel?
A
The court may not impose sanctions on the defendant, but it must require the defendant to pay the plaintiff’s reasonable expenses incurred in making the motion.
If nondisclosure continues > then sanctions
20
Q
What may a peremptory challenge NOT be based on?
A
A 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.
21
Q
Effect of failure to object to a procedural mistake?
A
Procedural mistakes must be objected to in a timely manner or be waived on appeal
22
Q
When may a default judgement be entered after a default?
A
A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside
However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages.
If the defendant has “appeared,” even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment.
23
Q
When can a clerk enter a default judgement?
A
When damages are for a certain sum + D has never appeared
24
Q
When may a motion for new trial be granted?
A
There is an error during trial (verdict against evidence, jury issues, admissibility of evidence, verdict is excessive)
25
When may a motion for judgement as a matter of law be granted?
A motion for judgment as a matter of law (formerly known as a motion for directed verdict) may be made by any party any time before submission of the case to the jury.
One after it is given to the jury is a renewed judgement as a matter of law and you must have first raised the judgement as a matter of law in a timely manner.
26
When may a judge use "remittitur"?
If the judge believes that the jury's compensatory damages award is so excessive as to "shock the conscience" the judge may order a new trial or may offer the alternative of remittitur.
Allowed in both state and federal cases.
27
When may a judge use "additur"?
If judge believes jury's damages award is inadequate, judge can order a new trial or offer the alternative of additur to D.
Allowed only in state cases.
28
When does issue preclusion take effect?
Can only be used against someone who was party to Case 1 or in privity AND by someone who was a party to Case 1 or in privity.
The relevant issue must have been actually litigated and determined in the previous case
29
Does issue preclusion apply to consent judgements or settlements?
NO! It was not litigated.
30
Content-Based Restrictions on Speech are Judged to be...
Presumptively unconstitutional!
Give strict scrutiny.
31
Federal laws which classify based on alienage are subject to which scrutiny?
Rational basis
32
State laws which classify based on alienage are subject to which scrutiny?
Strict scrutiny
State and local laws that classify persons based on alienage are subject to strict scrutiny unless the law is discriminating against alien participation in the functioning of the state government (rational basis if so)
33
To what does the contracts clause apply?
State laws that retroactively invalidate already existing contracts
The Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest.
34
When are private actors considered the state for the purposes of equal protection/due process?
Private action may constitute state action where the private actor is performing an exclusive state function or the government is significantly involved in the private actor's activities.
35
State laws which classify based on age are subject to which scrutiny?
Rational basis.
Because age is not a suspect or quasi-suspect class, government action based on age will be upheld if there is a conceivable rational basis for the classification.
36
When are state laws preempted by federal law?
Express preemption OR Implied preemption (intent of the federal government to occupy the entire field with its regulation, the state law directly conflicts with the federal law, or the state provisions prevent achievement of federal objectives).
For regulations involving health, safety, and welfare, the Court will presume that state police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law.
37
What is the current establishment clause rule/ask?
Is the government action neutral toward religion (aid or establish), and if not, is there a long history of the action being accepted or would the Founding Fathers have found the government action to be acceptable?
38
How to measure whether due process provisions are sufficient?
Fair procedure at a minimum requires an opportunity to present objections to the proposed action to a fair, neutral decisionmaker.
Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing (i) the importance of the individual interest involved, (ii) the value of specific procedural safeguards to that interest, and (iii) the governmental interest in fiscal and administrative efficiency.
39
May the press use an illegally recorded/gathered statement or information?
Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order.
The right applies even if the information has been unlawfully obtained in the first instance, as long as (1) the speech relates to a matter of public concern, (2) the publisher did not obtain it unlawfully or know who did, and (3) the original speaker's privacy expectations are low.
40
When may Congress spend to provide for common defense/general welfare?
This power allows Congress to spend for any public purpose as long as it does not infringe on other specific constitutional restrictions (such as the Bill of Rights).
PICK IT IF ITS COUPLED WITH TAXING AND SPENDING
41
Commerce Clause - Congress using it for noneconomic purposes
Congress must make a factual finding that the activity regulated has a substantial economic effect on interstate commerce.
42
When may a state discriminate against out of state businesses under Commerce clause?
When Congress authorizes it OR state is acting as a market participant
43
When can Supreme Court take on a state court case on appeal?
Final Judgement
Judgement from Highest State Court
Substantial Federal Question
& Decision did not rest on adequate and independent state grounds
44
Elements for Standing
Injury in fact (present)
Causation (suing person who caused harm)
Redressability (court can fix it)
45
When is a final court judgement advisory?
When the final review is subject to agency or political review after (can decide whether to listen to it).
46
When does a P have third-party standing on constitutional issues?
A person has standing only if she can demonstrate a concrete stake in the outcome of a controversy and that the governmental action at issue impairs her own rights.
A plaintiff may assert third-party rights if she has suffered injury and that injury adversely affects her relationship with third parties, resulting in an indirect violation of their rights.
47
Who bears the burden with intermediate scrutiny?
The state has the burden of proving that the program is substantially related to an important government interest.
Applies to gender/sex.
48
When can Congress use strings (conditions) on grants of money?
So long as those strings are not unduly coercive
49
Discrimination under a Federal law is looked at under...
Due Process Clause of the 5th Amendment
50
Discrimination under a State law is looked at under...
Equal Protection Clause of the Fourteenth Amendment
51
Commercial Speech regulation is allowed if:
Although commercial speech is protected by the First Amendment, it is subject to significant regulation. A state may outlaw commercial speech that proposes an unlawful transaction or that is misleading or fraudulent.
If commercial speech concerns a lawful activity and is not misleading or fraudulent, the government regulation, to be valid, must directly advance a substantial governmental interest and must be no more extensive than necessary to serve that interest.
The regulation must be narrowly drawn and there must be a reasonable fit between the legislation's end and the means chosen.
52
What gets intermediate scrutiny under free speech?
Zoning laws re adult theaters
Nude dancing bans
Symbolic speech
Content-neutral time, place, and manner restrictions
53
What raises an equal protection issue?
Whenever a law treats certain classes of people differently from others, a potential equal protection issue is raised.
If the governmental action classifies persons based on a suspect classification (such as race), a strict scrutiny standard.
Most classifications, including those based on income level, are reviewed under the rational basis standard and will be upheld unless they bear no rational relationship to any conceivable legitimate government interest.
54
For a non-public forum, government regulations reserving forum for intended use are upheld if:
(i) viewpoint neutral, and (ii) reasonably related to the intended purpose of the nonpublic forum
55
For a limited public forum, government regulations reserving forum for intended use are upheld if:
(i) viewpoint neutral, (ii) content neutral, and
(iii) tailored for an important gov interest
56
For a public forum, government regulations reserving forum for intended use:
May be regulated by time, place, and manner regulations that
(i) are content neutral (i.e., subject matter neutral and viewpoint neutral),
(ii) are narrowly tailored to serve an important government interest, and
(iii) leave open alternative channels of communication.
57
Contracts must have consideration, which is:
Consideration consists of: (i) a bargained-for exchange between the parties; and (ii) an element of legal value to that which is bargained for.
Legal value is present if the promisee has incurred a detriment
To have a "bargained-for exchange," the promise must induce the detriment, and the detriment must induce the promise. If something has already been given or performed before the promise is made, it will not satisfy the bargain requirement, because it was not given in exchange for the promise.
58
When does a contract offer remain open?
Common law: w/ consideration
UCC: Merchants firm offer rule (merchant + offer in writing) [if no time stated, <90 days]
59
What is the maximum "offer" contract timeline a court will enforce?
Three months.
If the stated period extends beyond three months, the firm offer will stand, but it will only last for the three-month maximum.
60
Remedy for Breach of Contract - Builder Entitled To:
Any profit he would have derived from the contract plus any costs he has incurred to the date of the breach.
61
When performance of a unilateral contract begins, the offeror may not
Cancel!
62
Does a unilateral contract terminate upon death of offeror?
No!
An offer will not be terminated by the death of the offeror if the offeror's power to revoke is limited by law, such as in the case of a valid unilateral contract.
63
Exception to the surety writing requirement under SoF
If we can show that the main purpose of the promisor is to secure an advantage or pecuniary benefit for himself, the contract is not within the Statute of Frauds, even if the effect is still to pay the debt of another.
64
Effect of a mutual mistake
If mutual mistake is at the essence of the agreement > recission
Place parties at point as if contract never happened
65
Effect of a unilateral mistake
Does not prevent contract formation UNLESS non-mistaken party knows or has reason to know of other party's mistake
66
Modifications - Common Law
Requires new consideration because there is a pre-existing duty in the contract
Where a modification would operate to the benefit of only one of the parties, it generally will be unenforceable unless some consideration is being given to the other party.
No consideration if: fair, equitable, and need for modification was unforeseeable when contract formed
67
Modifications - UCC
Allowed so long as they are in good faith!
68
Modifications - Does parole evidence rule apply?
NO!
69
Modifications - Statute of Frauds
For sale of goods contracts, a modification must be in writing if the contract as modified falls within the Statute of Frauds; i.e., if the contract as modified is for $500 or more.
70
Parole Evidence Rule
If a contract is reduced to an integrated writing (i.e., a writing reflecting the whole deal), a party may not introduce prior or contemporaneous oral statements (or prior written statements) seeking to vary the terms of the contract.
Does NOT bar subsequent evidence
71
When can a minor sign a contract?
Minors will be held liable in restitution for the benefits they receive under contracts they make for necessities, such as medical care.
72
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 inferior bargaining power.
73
UCC - Merchants Confirmatory Memo
Oral contract and then one party sends the other party a written confirmation of their oral agreement that is sufficient to bind the sender, it also will bind the recipient if he has reason to know of its contents and does not object within 10 days of receipt.
Both parties MUST be merchants!
74
Modifying/Cancelling Contracts Benefiting an Intended Third Party Beneficiary
Contract can be modified or canceled w/o consent of third party beneficiary if their rights have not yet vested
Once rights have vested, parties cannot modify or cancel without beneficiary consent.
75
How/When do a Third Party Beneficiary's Rights Vest?
Vesting: (i) manifests assent to the promise in a manner invited or requested by the parties, (ii) brings suit to enforce the promise, or (iii) materially changes his position in justifiable reliance on the promise.
76
When may parties to a contract rescind the contract?
Both parties to a contract may agree to rescind and discharge their contractual duties as long as the duties are still executory on both sides.
77
Promissory Estoppel - Elements
Promise
Reasonable reliance on promise
Actual reliance
Interests of justice
Generally, a substitute for consideration
78
Shipping Contract - F.O.B.
Seller responsible for breach/loss
79
When a nonbreaching buyer does not receive the contracted goods, it may:
Can cancel the contract and recover any incidental damages, or it can purchase replacement goods and sue for the cost of replacement-"cover."
80
Assignments - Gratuitous vs for Value
Gratuitous - Revocable (unless reliance)
For Value - Irrevocable
81
Which contracts are not assignable/delegable?
Only unique personal service contracts and long-term requirement contracts
82
May assignments/delegations be oral?
YES! Oral or written.
83
What is an accord?
A new agreement between parties who are already under contract with each other.
An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that he is supposed to receive from the other party, some other, different performance.
Generally must be supported by consideration, but can be different type/value
84
Effect of an accord on prior contract
A valid accord, taken alone, does not discharge the prior contract. It merely suspends the right to enforce the contract until accord is satisfied (OG is satisfied too) or unsatisfied (party can sue you for breach under either).
85
Purpose of Contract Damages
Place non-breaching party in position as if contract had been performed
86
Qualification for Anticipatory Repudiation
Clear statement/indication of intent not to perform (not just doubt)
If just doubt: party must seek assurances OR wait until breach to sue
87
Failure to Perform: Material vs Minor Breach
Material Breach - Can cancel contract & sue for damages
Minor Breach - Sue for damages only
88
Is timing a minor or material breach?
Typically minor unless there is a time is of the essence clause.
89
Condition Precedent in Contracts
A condition that must happen before a party is required to begin performance
If it hasn't happened yet, party is not in breach for failing to begin performance
90
Recovery for Non-Breaching Party
Difference between the contract price and the total amount paid
NO QUASI-CONTRACT UNJUST ENRICHMENT FOR BREACHER UNLESS: non-breaching party ended up paying less in the end and breaching party is still owed money
91
Remedy for Non-Breaching Buyer Accepting Non-Conforming Goods
Warranty Damages.
Difference in value between goods accepted and goods ordered.
92
Remedy for Non-Breaching Buyer Rejecting Non-Conforming Goods
The difference between the contract price and the cost of buying conforming goods.
93
Calculation of Damages for Lost Volume Seller
Lost profits.
Difference between the contract price and the market price or the difference between the contract price and the resale price of the particular goods.
94
Murder - Definition
Unlawful killing of a human being with malice aforethought.
95
Malice aforethought
If the defendant has any of the following states of mind: (i) intent to kill; (ii) intent to inflict great bodily injury; (iii) awareness/reckless indifference to an unjustifiably high risk to human life; or (iv) intent to commit a felony.
96
Felonies which count for felony murder
Inherently dangerous felonies
BARRK (burglary, arson, rape, robbery, kidnapping) OR attempt of one
97
Elements for attempt
Specific intent (to commit target offense)
Substantial step (act)
98
Accomplice Liability - Elements
Specific intent that principal commit offense
Accomplice aided, abetted, etc.
99
Specific Intent Crimes
Solicitation
Conspiracy
Attempt
First degree premed murder
Assault
Larceny
Embezzlement
False Pretenses
Robbery
Burglary
Forgery
100
Who is exempt from liability for accomplice liability?
Members of the class sought to be protected by the statute that has been violated
101
Withdrawal - Defense to Conspiracy - Common Law
Not a defense to conspiracy at common law
May absolve person of subsequent crimes IF: affirmative act (notifying members of conspiracy) & done in time for others to abandon plans
102
Withdrawal - Defense to Conspiracy - UPC
Yes, a defense to conspiracy
Must attempt to thwart the crime
103
Conspiracy Elements
Conspiracy consists of: (i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the objective of the agreement.
104
Robbery vs. Larceny
Robbery is larceny from the person or presence of the victim by means of violence or intimidation. Larceny is the taking and carrying away of the tangible personal property of another by trespass with the intent to permanently deprive the person of his interest in the property.
105
Assault - Common Law
An attempt to commit a battery OR
Intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm
106
Arson - Defined
Modern: Malicious burning of structure/dwelling
Common Law: malicious burning of the dwelling of another (intent satisfied by intentional burning or reckless disregard)
Just need charring
107
Which inchoate crimes merge?
Solicitation and attempt
108
False Pretenses - Elements
When a defendant (i) obtains title; (ii) to the property of another; (iii) by an intentional (or knowing) false statement of past or existing fact; (iv) with the intent to defraud another.
109
Embezzlement - Elements
(i) the fraudulent; (ii) conversion; (iii) of the property; (iv) of another; (v) by a person in lawful possession of that property.
110
Forgery - Elements
(i) a making or altering; (ii) of a false instrument; (iii) with the intent to defraud. The falsity must be about the instrument itself, not about the contents of the instrument
111
Larceny by Trick - Elements
Possession of property was conveyed rather than actual title.
112
Does exclusionary rule apply in grand jury proceedings?
NO!
113
Executing an arrest warrant in third party's home
The police may not execute an arrest warrant in a third party's home without a search warrant or exigent circumstances.
114
Automobile Exception - Stop w/ Probable Cause
If probable cause (contraband or evidence of crime) justifies stop of vehicle, it justifies search of entire vehicle including closed containers therein
115
Search Incident to Arrest - Allowed when
Directly connected to arrest
Trying to preserve evidence
Officer safety
116
Standard for a Terry Stop
Reasonable and articulable suspicion of criminal activity
117
Standard for a Terry Stop Protective Frisk
Officer reasonably believes that the person may be armed and dangerous
118
Scope of Terry Stop Protective Frisk
Patdown of the outer clothing for concealed instruments of assault, but the officer may reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its "plain feel," is a weapon or contraband
119
Standing to challenge an illegal search
A person must have a reasonable expectation of privacy in the place searched or the item seized
120
For a confession to be admissible, must be:
Voluntary (knowing + intelligent)
ONLY SUPPRESS IF COERCED!
121
Is Miranda offense-specific?
NO! It is general.
Only 6th amendment right to counsel is offense-specific (post-indictment)
122
What if, after invoking Miranda, a D is "questioned" by someone who they think is not police (like informant at station)?
It is not a coercive interrogation, so no violation.
123
Can a statement in violation of 6th amendment right to counsel (post-indictment) be used in court?
Yes, for impeachment purposes.
124
Burdens for Elements versus Defenses
Due process of law requires a state to prove each element of the crime charged beyond a reasonable doubt.
As to affirmative defenses to the criminal charge, the Supreme Court has held that the state can place the burden of proof on the defendant without violating the defendant's constitutional rights.
125
Double Jeopardy applies to:
Convictions, acquittals, and evidence of prosecutorial misconduct
126
What is the effect of judicial notice?
When a court takes judicial notice of a fact under the federal rules in a criminal case, the jury may, but is not required to, accept the fact noticed; thus, its effect is only to relieve the prosecutor of her burden of producing evidence on that fact.
Judicial notice operates as a substitute for proof as to facts that are matters of common knowledge or verification
127
Which facts are decided by judge versus jury?
Whether the rules have been met (like whether expert is an expert, whether records meet the requirements,
NOT questions of fact (like whether a person was acting as an agent)
128
When does best evidence rule apply?
RARELY!
Proving contents of writing or witness's sole memory is the writing
129
What is character evidence?
About party or victim's trait (disposition or propensity)
130
When do we exclude character evidence?
ALWAYS unless an exception applies
131
What are exceptions for excluded character evidence?
Criminal D can offer character (trait pertinent to the case)
Character is element (like defamation) (rare)
Habit (regular response to repeated specific stimulus)
MAY ONLY BE REPUTATION, NOT SPECIFIC ACTS
Note that reputation evidence is a hearsay exclusion.
132
Exception: Criminal D offering Character Evidence
Must be a pertinent trait
For violent crimes: violence; for crimes re: lying: truthfulness
Truthfulness is also pertinent if D testifies (impeachment purposes)
This is done by calling a qualified witness to testify to the defendant's good reputation for the trait involved in the case, or to give his personal opinion concerning that trait.
133
Type of Character Evidence Allowed if Exception Applies
Reputation or opinion testimony of a witness. Testimony must relate to the trait involved in the case and the witness cannot testify to specific acts of conduct.
134
Allowable evidence for impeachment
Felony (less than 10 yrs)
Misdemeanor dealing with truth/veracity
Prior untruthful acts (not arrests)
135
Extrinsic Evidence Allowed for Impeachment of Witness
Must be non-collateral (bias, capacity, convictions, reputation/opinion) OR at issue in case
136
Statements NOT offered for truth of matter asserted (so not hearsay)
Prior inconsistent statements
Words of declaration (contracts, etc.)
Words of notice/warning (effect on listener)
137
Statements which are not hearsay because an exemption
Prior statement of testifying witness (identification, inconsistent statement under oath at previous trial, or to rebut charge of lying/motive/impeachment)
Statement of opposing party
138
When is silence attributable as a statement?
When a reasonable person would deny such a statement under the circumstances and the person does not.
139
What hearsay exceptions require the witness be unavailable?
(i) the former testimony of the declarant
(ii) a statement against interest
(iii) a dying declaration
(iv) a statement of personal or family history, or
(v) a statement offered against a party procuring the declarant's unavailability
140
Evidence of a prior statement of testifying witness may be offered for:
Both impeachment and substantive purposes
Substantive allowed only if was under oath at prior proceeding; impeachment allowed regardless of oath
141
For which cases can a dying declaration be used?
Homicide or a civil case
142
When to use the "present state of mind" exception to hearsay?
Declarations of an existing state of mind are admissible not only when the declarant's state of mind is directly in issue and material to the controversy, but also when the declarant's state of mind is not directly in issue, but the declarations of intent are offered to show subsequent acts of the declarant; i.e., a declaration of intent to do something in the future is offered as circumstantial evidence tending to show that the intent was carried out.
143
When are subsequent remedial measures admissible?
Typically inadmissible per public policy and not admissible to show negligence
Admissible if it is relevant to some other issue in the case, such as ownership or control.
144
When are offers to compromise admissible?
When they are made before P makes any claim (not yet a dispute)
145
When are plea deals or police deals admissible?
Evidence that a witness is biased or has an interest in the outcome of the suit tends to show that the witness has a motive to lie.
A witness may always be impeached by evidence of interest or bias, either on cross-examination or, if a proper foundation is laid, by extrinsic evidence.
In a criminal case, it is proper for the defense to ask a prosecution witness whether she has been promised immunity from punishment or a reduction of punishment for testifying. This shows a motive for the witness to curry favor with the state.
146
Satisfying authenticity requirement for evidence
Federal Rule 901 does require, as a prerequisite to the admission of real proof, evidence sufficient to support a finding that the item is what the proponent claims. However, real evidence is commonly authenticated by recognition testimony
147
Authentication for Writing
Expert witness or the trier of fact can determine the genuineness of a writing by comparing the questioned writing with another writing proved to be genuine.
Lay witness who has personal knowledge of the handwriting of the supposed writer may state her opinion as to whether the document is in that person's handwriting
148
When best evidence rule applies:
When person is testifying and their sole knowledge is based on the document or
Writing is central to the case
149
Exceptions to best evidence rule
Duplicate (no questions on truthfulness)
Large # of docs
OG lost/stolen & good faith
Opposing party admitted to contents of doc
150
Fee simple determinable - Defined
A fee simple determinable is an estate that automatically terminates on the happening of a stated event and reverts to the grantor.
151
Rule Against Perpetuities - Applied to Gifts
It applies to executory interests created in third persons but not to reversionary interests of the grantor.
Like any other gift, a gift for charitable purposes is void for remoteness if it is contingent on the happening of an event that may not occur within the perpetuities period.
The only exception is when there is a gift to one charity followed by a gift over to another charity upon a possibly remote event (the charity-to-charity exception).
152
Fee simple subject to condition subsequent - Defined
A fee simple 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 specified event.
153
Holdover Tenants - Period of New Tenancy
Residential - month to month
Commercial - mirrors terms of prior written lease (can't exceed one year bc SoF)
154
When there is an assignment or sublease, who is responsible for non-payment of rent?
Original contracted renter (bc privity of contract) AND whoever is in privity of estate (bc covenant to pay rent runs with land)
This means if A assigned to B for one year & B then sublet to C for one year: A+B liable for first year, A+C liable for second year.
155
What is a "profit"?
Nonpossessory interest in land that allows holder to enter onto land to remove resources
Differs from license because a license may be revoked at the will of the licensor and does not create an estate or any other interest in land (and doesn't give permission to remove resources)
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Types of Profit Defined
Profit appurtenant - Designed to benefit dominant estate; cannot be transferred independent from dominant estate
Profit in gross - Profit does not exist to benefit a dominant estate, it is a profit in gross and may be transferred separate and apart from the dominant estate
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When is a new owner bound to a previous covenant?
When they have notice!
A court will imply a covenant-known as a reciprocal negative servitude-where evidence shows that the developer had a scheme for development when sales began and the grantee in question had notice of the plan.
Evidence of the scheme can be obtained from the general pattern of other restrictions, and notice can be from actual notice, record notice, or inquiry notice.
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What is a "fixture"?
Personal property attached to real property
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When can someone remove a fixture from rented property?
Residence - Consider nature of the item, intent of person, and damage to property if it is removed
Commercial - Trade fixtures doctrine (can remove all trade fixtures prior to expiration of lease EXCEPT for accessions [structural additions]) (test: installed for commercial benefit and person did not intend for it to stay)
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Impact of death of purchaser in land transaction
Once the parties have entered into a valid land sale contract, the rights of the parties are fixed according to the doctrine of equitable conversion.
The purchaser is regarded as the owner of the real property, and the seller is regarded as having a personal property right to the proceeds of the sale.
The doctrine of equitable conversion governs when the purchaser dies before the sale is completed at closing.
A deceased buyer's interest passes as real property to the taker of the buyer's real property interests, who can take money from the estate to buy the property.
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When is a seller liable for problems with a house after sale?
Although the general rule is that a sale of real property carries no implied warranties of quality or fitness, a seller may be liable where she has actually concealed conditions on the property.
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When does the seller's implied warranty that the house was constructed in a reasonably workmanlike manner apply?
When the seller is the builder and it is new construction
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How to create a marketable title with property gained through adverse possession?
File suit to quiet title
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Elements for Adverse Possession
Actual and exclusive, open and notorious (sufficient to put the true owner or the community on notice of the fact of possession), hostile (without the true owner's permission), and continuous (used in a way that the actual owner would use it).
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Elements for Prescriptive Easement
Open and notorious, adverse, and continuous and uninterrupted for the statutory period
No exclusive requirement
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When does tolling of adverse possession occur?
Beginning of possession!
If person against whom adverse possession would be applied is minor, incompetent, disabled, etc at INCEPTION of possession, it doesn't start to run. But if it happens in the middle, time continues to run.
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Anti-Lapse Statute
At common law, if a will beneficiary died before the testator, the gift to the beneficiary was void. However, this jurisdiction has an anti-lapse statute, which saves the gift for the predeceasing beneficiary's descendants if the beneficiary herself is a descendant of the testator.
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Mistake in Deed - Description of Property
Physical description of location takes precedence over the quantity description unless there are grounds for reformation of the deed.
Example: the western half of the parcel from the western boundary to the grove of apple trees, comprising 220 acres (physical description of western boundary to trees prevails over 220 acres)
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Doctrine of Part Performance
If land agreement wasn't in writing, may still be enforced if: acts of part performance unequivocally prove the existence of the contract (bc they are consistent with person owning the property)
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Guarantees in General Warranty Deed
6 covenants (3 present, 3 future)
Seisin - "I own this land"
Conveyance - "I can sell it"
Against Encumbrances - "I can sell it without any strings attached"
Quiet enjoyment - "No one will disturb you"
Warranty - "If someone disturbs you, I will defend you"
Further assurances - "After i defend you, I will take further steps necessary to ensure it doesn't happen again"
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When is a deed effective?
Executed, signed, and delivered
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If buyer buys property & assumes the mortgage on the property, who is liable to mortgagee (bank)?
Both the buyer and the original mortgagor
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If buyer buys property subject to a mortgage, who is liable to mortgagee (bank)?
Only original mortgagor
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What is a deficiency judgement?
If a sale of foreclosed property does not bring enough to satisfy the mortgage debt, the mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency
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Shelter Doctrine - BFP
Allows a person who takes from a bona fide purchaser to prevail against any interest that the transferor-bona fide purchaser would have prevailed against, even if the transferee had actual knowledge of the prior unrecorded interest
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Who can invoke a statutory right of redemption?
A statutory right of redemption, available in about half the states, gives the mortgagor and sometimes junior lienholders a statutory right to redeem for some fixed period after the foreclosure sale has occurred; the amount to be paid is generally the foreclosure sale price, rather than the amount of the original debt.
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Elements of Intentional Torts
Act + intent + causation
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Shopkeeper's Privilege
Reasonable detention for reasonable time for reasonable suspicion
Anything exceeding 30 minutes is too long
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Remedy for Intentional Torts - Conversion
Value of the chattel at time of conversion
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Is mistake of ownership a defense to trespass of land?
No!
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Elements for Trespass to Land
Act + intent + causation
(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; and (iii) causation
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Intentional Infliction of Emotional Distress - Elements
(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, and (iv) damages-severe emotional distress
Conduct beyond bounds of decency
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Intentional Infliction of Emotional Distress - Elements for Bystanders
Must show elements of emotional distress OR
Presence + bodily harm OR person was close relative and D knew that
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Negligent Infliction of Emotional Distress - Elements
D creates foreseeable risk, P is in zone of danger and P suffers physical symptoms from the distress
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Negligent Infliction of Emotional Distress - When damages are NOT required
Mishandling of corpse
False report of a death
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Negligent Infliction of Emotional Distress - Elements for Bystanders
P and injured person related, P present, P observed
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When can you break a statute & not be liable for negligence per se?
Emergencies!
When following statute would cause more harm
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Vicarious Liability - Employer/Employee
Within scope of relationship
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Negligent Hiring - Employer/Employee
Employer may be liable for its own negligent selection if it has some reason to be on notice that the actions that resulted in harm were likely to occur
Employer is negligent in their own right!
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Criminal Acts of Third Parties - Foreseeable?
Not typically, typically cuts off foreseeability and therefore causation.
UNLESS its a high-crime area or person had reason to know of risk generally
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Negligence - Products Liability
To establish a prima facie case of negligence in a products liability case, the plaintiff must show: (i) the existence of a legal duty owed by the defendant to that particular plaintiff; (ii) breach of that duty; (iii) actual and proximate cause; and (iv) damages.
To prove breach of duty, the plaintiff must show (i) negligent conduct by the defendant (like failure to inspect) that leads to (ii) the supplying of a defective product (bc defect was discoverable!)
Defect must be DISCOVERABLE! Look for this in answer.
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Strict Liability - Products Liability
Item in defective condition unreasonably dangerous to users.
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Who can you sue for products liability?
Anyone in chain so long as it was defective when it left their control!
Intermediate party's failure to discover defect is not a superseding cause
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Strict Liability - Claiming Indemnification
Where strict liability rules apply, each supplier of a defective product is liable to an injured person, but each supplier has a right of indemnification against all previous suppliers of the defective product in the distribution chain.
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Strict Liability - Wild Animals
An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for the damage caused by the animal.
Strict liability for wild animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal.
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Which privacy tort does not require publication?
