Tests not in rules

Question 1

attorney/client privilege test

Answer 1

(1) a communication
(2) made between privileged persons,
(3) in confidence
(4) for the purposes of obtaining or providing legal assistance for client

Question 2

work product protection can be overridden if:

Answer 2

(1) substantial need, and
(2) info not otherwise easily available

Question 3

work product test

Answer 3

cts ask if the primary purpose in creating the document was to prepare for actual or potential litigation

Question 4

medical exam FRCP 35

Answer 4

1. in controversy
2. good cause
3. time, place, manner, conditions, and scope

Question 5

Newly created legal claims (right to a jury)

Answer 5

1. is the claim analogous to one that would have been brought in equity or at law under traditional practice
2. Does P seek relief that was traditionally available at law or in equity

Curtis v. Loether–> analogizes civil rights claim to torts claim

Question 6

What can be appealed

Answer 6

1. prejudicial–> caused harm
2. preserved–> objected to at trial (or exceptions)
3. presented–> presented on appeal in your brief

Question 7

standards of review

Answer 7

de novo–> Q of law or mixed Qs of law and fact (JMOL, MSJ, MTD)
Clearly erroneous–> fact finding by judge
Abuse of discretion–> discretionary orders: scheduling, discovery management, and trial management

Question 8

claim preclusion elements

Answer 8

1. same claim
2. same parties in same configuration
3. previous action must have resulted in a valid, final judgment on the merits

Question 9

Same claim (claim preclusion tests)

Answer 9

1. transactional–the assertion of different kinds of theories of relief still constitute a single cause of action if a single group of operative facts give rise to the assertion of relief (transaction/occurrence)
2. same evidence test–> second suit is barred “if evidence needed to sustain the second suit would have sustained the first, or if same facts were essential to maintain both actions”
3. primary rights–> different claim for each right invaded

Question 10

6 exceptions to same parties same config

Answer 10

1. person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement
2. pre-existing substantive legal relationships–> preceding/successors in property, bailee/bailor, assignee/assignor
3. adequate representation by someone with the same interests who was a party
4. if she assumed control over the litigation in which that judgment was rendered
5. when a person who did not participate in a litigtion later brings suit as the designated representative of a person who was a party to the prior suit
6. special statutory scheme may foreclose successive litigation by nonlitigants if consistent with due process

Question 11

issue preclusion

Answer 11

1. same issue
2. actually litigated
3. resulting in valid final judgment
4. necessarily decided
5. asserted against a party to earlier lawsuit or in privity
6. full and fair opportunity to litigate

Question 12

unfairness factors for offensive issue prec.

Answer 12

1. whether issue fairly fairly determined in prior action
2. adequate incentive to fully litigate
3. questionable result in prior action (e.g. multiple P anomaly)
4. procedural opportunities comparable, and
5. whether P could have joined the og action or waited in the wings.

Question 13

choice of preclusion law

Answer 13

the enforcing ct should apply the preclusion law that the rendering ct would apply.

Exception–> diversity case in fed ct–> apply law of state in which rendering district sits

Question 14

Right to jury (Am)

Answer 14

In suits at common law, where the value in controversy shall exceed 20 dollars, the right of trial by jury shall be preserved

Question 15

Fed cts are cts of limited jx…

Answer 15

Art III §2 says that federal courts are courts of limited jx and must have jx over the sm of a case or controversy. Among the types of cases over which federal courts have smjx are 1) diversity cases 2) federal question cases, and 3) exclusive jx matters…

Question 16

judicial power shall extend

Answer 16

Art III §2–> judicial power shall extend to all cases and controversies, in law and equity, arising under this Constitution.

Question 17

Congress’s authority

Answer 17

ART III §1–> judicial power vested in One Supreme Court, and in such inferior cts as Congress may establish

Art I §8–> Congress has the power to make all laws which shall be necessary and proper for carrying into execution the powers vested in it by the Constitution

Art VI §2–> laws made in pursuance of the Constitution are the supreme lawof the land

Question 18

finality principle

Answer 18

an order is final when it** resolves the contested matterm** leaving nothing to be done except execution of the judgment