UWorld Block 1 Questions Flashcards
1
Q
Between two merchants, if a seller ships the goods asked for by the buyer, and then later tries to add a term that was not in the buyer’s original offer, does the new term come in?
A
NO. Acceptance by shipment is is an immediate acceptance of the terms of the offer.
2
Q
If under supplemental jurisdiction, the court dismisses the original jurisdiction question, may the court still hear the supplemental claim?
A
it MAY but does not need to
3
Q
The forum defendant rule (which prevents removal by def if forum court is in state where defendant is a citizens) applies under which type of subject matter jurisdiciton?
A
ONLY DIVERSITY. If federal question –> can remove even if forum court is in defendant’s home state
4
Q
Does a defendant that fails to raise personal jurisdiction in their answer waive the defense if they raise it in an amended answer within 21 days without court’s permission?
A
NO
5
Q
May the court consider an objection made after the court instructs the jury?
A
Yes if instruction constituted plain error
6
Q
A party’s objection to jury instructions is timely if made when?
A
Before the court instructs the jury
Unless it is plain error then the court may hear the objection even if done after
7
Q
What substantive law rules must a federal court sitting in diversity jurisdiction apply?
A
the choice of law rules of the state in which it sits
8
Q
when a counterclaim arises out of the same transaction or occurrence and does not require adding additional parties that claim is
A
COMPULSORY
9
Q
By whom can a writ of habeus corpus be issued if the person is in federal custody
A
By a federal court judge
state courts are prohiited from doing this if federal custody
10
Q
Does the First Amendment freedom of the press shield the press from state law claims?
A
No. If they breached a contract, they can be sued for breach of contract even if incidentallya affects their ability to gather and publish news
11
Q
Courts lack judicially discoverable and managable standards to resolve diplomatic recognition except where
A
it concerns the validty of a federal statute
12
Q
To determine if congress can regulate an activity pursuant to commerce power bc substantial effect to interstate commerce, what do you consider?
A
- If the activity is economic in nature (substantial effect presumed)
- limits reach to activities in direct connection to interstate commerce
- express congressional findings that activity substantially affects interstate commerce and
- strong link between activity & effect on interstate commerce
13
Q
If an activity is non-economic and has no strong link to interstate commerce, can congress regulate it?
A
NO
14
Q
Does congressional participation in the removal of federal officers violate the separation of powers?
A
YES (unless congress is excercising power to impeach)
Removal belongs to the president except when the officer
* belongs to multimember body that is balanced along partisan lines and exercises no executive power or
* lacks policymaking or administrative authority
15
Q
If a state taxes an affilliate of federal government such as an employee or contractor, is the tax valid?
A
Yes unless
* congress grants immunnity or
* discrimination against fed gov or the affiliate or
* * if a law is generally applicable it does not discriminate
* substantial interefence with federal purpose or duties
16
Q
If you see a regulation by a state that is nondiscriminatory, is it barred by the dormant commerce clause?
A
NO unless the regulation’s burden on interstate commerce clearly exceeds its local benefits
17
Q
A
17
Q
When both parties are merchants additional terms are
A
added by the battle of the forms rule and are added
*unless *
a. the terms materially alter the agreement,
i. surprise or hardship if incorporated without the express awareness of the other
b. the offer expressly limits acceptance to the terms of the offer, or
c. the offeror objects to the new terms within a reasonable time after notice of the new terms is received
18
Q
When there is a nonmerchant, new terms are
A
merely proposed additions
19
Q
The price term is an essential term that is covered in the contract if
A
the terms are sufficiently certain and definite
20
Q
What is the difference between Duress and Undue Influence contract defenses?
A
Both render a contract voidable but
Duress occurs from
* improper threat or force that left party with no reasonable alternative but to succcumb
Undue influence result from
* Assent that stems from unfair or excessive PERSUASION by someone who dominates or holds a special relationship of trust and confidence with assenting party
21
Q
in an employment contract where the employees salary is not agreed upon, is the contract enforceable?
A
NO because salary is an essential term in an employment contract and is thus too indefinite to be enforced
22
Q
An agreement for lfietime employment is or is not subject to the statute of frauds?
A
IS NOT because it could be eprformed within a year if the employee retires or dies within one year
23
Q
When can a court reform a contract as a remedy?
A
MISREPRESENTATION
* one party makes untrue assertion of fact that is fraudulent or material and
* adversely affected party justifiably relies on that misrepresentation
MUTUAL MISTAKE
* both parties are mistaken as to contract’s contents or legal effect
* had a prior agreement either oral or written and when the parties put that prior agreement into writing they made a mistake which caused difference between the agreements
UNILTAREAL MISTAKE
* one party is mistaken bc other pty intentionally misrepresented contracts content or legal effect
* adversely affected party justifiably relies on that misrepresentation
24
Parol evidence will not bar admission of evidence for
* condition precedent
* trade custom dealing
* fraud
* grounds for reformation
25
Once an oferree accepts an offer by beginning performance, is there an enforceable contract?
Yes it creates an option contract that prevents offeror from revoking offer
26
Mutual mistake makes a contract voidable by the adversely affected party if (1) basic assumption of k (2) materially affects agreed upon exchange of performances--not fair to carry it out and (3) adversely affected party did not assume the risk of the msitake. When does 3 happen?
When the party proceeds with concious ignorance, when contract expressly allocated risk, or when court allocates risk to party bc reasonabel under circumstances
27
When is a party required to disclose a known fact?
When the nondisclosing party knows that disclosure is necessary to prevent previous assertion from being a misrepresentation --> nondisclosure of a known fact is treated as an untrue assertion if would prevent misrepresentation
## Footnote
also to correct mistake as to basic assumption of k or writing that embodies agreement, and when fiduciary relationship
28
When should the court instrut the jury on a lesser included offense? Can it do so even if prosecution does not bring the charge?
1. When the evidence presented at trial would allow a rational jury to acquit the defendant of the charged offense but convict them of the lesser offense
2. YES the court can instruct on a lesser offense even if the prosecution objects to it and did not bring the charge
29
Under attempt, is mere preparation to commit a crime enough to constitute an overt act?
NO.
* Under dangerous proximity test (common law) the defendant performs ana ct sufficiently close to completinf the crime -- an indispensable act to the crimes success an act close in time or physical proximity of the crime
* Under substantial step test D's conduct must exceed mere prepration and strongly corroborate the defendants criminal intent (surveiling place where crime is to occur)
30
An exigent circumstance justifies warrantless police conduct where there is probable cause of (list three scenarios)
* Evanescent evidence: imminent threat that relevant evidence will be destroyed
* Hot pursuit: a suspect is fleeing after a felony occured
* Emergency situation/aid: there is an immediate threat of harm to the police and/or public
* this exists even if the person requiring aid is the suspect
31
4th amendment search occurs when police
Physically intrudce upon a constitutionally protected area---a persons body hosue papers or effects to obtain info or
invade a persons reasonable expectation of privacy
32
Under the special government purpose warrant exception, can routine procedures include swabbing cheeks of individuals arrested to identify their DNA during routine booking procedures after an arrest?
Yes
33
If an attorney's representation fell bellow an objective professional standard of reasonableness and there is a reasonable probability of a different outcome but for deficiency in counsels assistance, was the assistance of counsel ineffective?
YES
34
What is the standard of care that an attorney representing a defendant charged with a capital offense has to follow?
The attorney has a duty to conduct a **reasonable invetigation** to determine if there are **mitigating facts** for the penalty phase that may lead to a different sentencing outcome i
Failure to investigate --> DEFICIENT PERFORMANCER
35
Is evidence showing conciousness of guilt relevant?
Yes
example: person flees country after being charged --tends to make material fact of guilt more or less probable than without the evidence
36
What two requirements must be met for expert witness testimony to be admissible?
Relevancy
* will help trier of fact (1) understand the evidence OR (2) determine a fact in issue AND
Reliability
* the testimony is (1) based on sufficient facts or data AND (2) the product of reliable principles and methods that the expert reliably applied to the facts of the case ---> must be proven by party seeking to admit by a *preponderance of the evidence*** for the court** not the jury
37
The hearsay exclusion of a co-conspirator as a party opponent statement is proper when
it was made by a party's coconspirator during and in furtherance of the conspiracy --> makes it attributable to that party BUT the statement must be part of the flow of information BETWEEN the coconspirators intended to help each other perform their role
38
When does statement against interest apply? Is trustworthiness important?
Statement against interest applies when an unavailable declarant makes a statement that exposes them to criminal liability and corroborating circumstances *clearly indicate the statements **trustworthiness***
If a statement was motivated by a desire to gain favor with police during interrogation --> not trustworthy
39
How must physical objects (mail, clothing, receipts) be authenticated?
By sufficient evidence (prima facie) that the objects are what the proponent claims them to be.
* can be done through testimony of someone w personal knowledge of object
40
Can a witness's trial trstimony on a material issue be impeached with a PSI instrinsically and extrinsically?
YES but extrinsic evidence of PSI is only admissible if witness has
* an opportunity to explain or deny
* opposing party can question the witness about the statement
41
Can a creditor accept a deed to a house that it has a morrgage on and relieve the mortgagor of liability?
Yes that is a deed in lieu of foreclosure and is valid if it is volutnary and credtior would receive uencombered title --- allows mortgagee to take immediate possesion without formalities of a foreclosure sale
42
A time is of the essence contract requires strict adherence to the time of closing, what if a party gets into an accident, is their failure to close on the due date justified?
NO because time is of the essence contracts must be strictly adhered to
time is of the essence K's are created when
1. K states so
2. circumstances indicate that the aprties intend strict adhereance to closing date or
3. one party notifies the other within a reasonable time before closing
43
Does a promissory note need to be signed by a third party mortgagor in order for the mortgage that they granted be valid and allow foreclosure upon that mortgage?
NO. A promissory note allows for personal liability, but a mortgage is valid if voluntarily given and allows foreclosure on mortgaged property even if no promissory note.
44
Is consideration required to grant an easement?
NO that is IRRELEVANT
45
What is exoneration? is it abolished in most states?
Has to do with a devisee who receives real property subject to an encumbrance and uses testators estate to pay the encumberance
IT IS abolished in most states
46
Does assigning a note without a mortgage transfer both documents?
YES unless expressly prohibited, forbidden by statute or public policy, or if it increases the mortgagor's duties, burdens, or risks
Mortgage follows the Note
47
If a deed is made to a nonexistent grantee (they died), what is the effect of the deed?
It is VOID
48
A principal who retains control over any part of the independent contractor's work has a duty of
reasonable care if failed to do so --> direct liability for negligence
49
If an independent contractor does something in a dangerously deceptive fashion without posting a warning, even though they did it in this manner under the instruction of a principal, can the indpenedent contractor be found liable?
YES both can be found liable
50
When should a court deny a summary judgment motion?
When the evidence is legally sufficient for a reasonable jury to find against the moving party
51
Does a mistaken belief that a defendant legally possesed the chattel absolve a defendant from liability for conversion?
NO conversion occurs when the defendant intentionally
* deprives P of posession of chattel or
* interferes w chattel so that P is deprived of the chattel's use
it is sufficient that the person did the intentional act that caused the intereference
52
When is a defendant privileged to use reasonable force to protect an individual from self harm?
When
* individual is unable to understand the nature and consequences of his actions and
* defendant reasonably beleives that individual is about to commit act likely to cause death or serious bodily harm to himself
53
What is the traditional common law defense of assumption of the risk?
knowing about risk of harm and voluntary acceptance of risk of harm by plaintiff that BARS plaintiff's recovery
54
Under pure comparative negligence the majority view for assumption of the risk (majority rule)
is that
it reduces recovery by P's proportionate share of fault
55
When both parties’ obligations are conditioned on the other's performance, and neither condition for performance is satisfied, is there a breach of K? Example: Seller must deliver in order for Buyer to pay and Buyer must pay in order for Seller to deliver but neither one performs
No, the parties duties are discharged because neither condition for performance was satisfied.
56
If a party fails to suplement discovery without justification, can then they use that evidence that they failed to supplement to oppose a motion such as summary judgment?
NO use of evidence on a later motion is prohibited if the party failed to properly disclose or supplement earlier mandatory discovery materials.
As such, the court may not use the affidavit to determine whether a genuine issue of material fact exists in the record.
57
Can one co-tenant enter into a boundary line agreement without the other co-tenant's approval?
NO that would alter the co-tenants legal rights in the property without their permission which is NOT allowed
- it will only affect the legal rights of the co-tenant that did sign, not the other
58
Are states required to recognize an insanity defense? If a state does, can it shift the burden to the defendant to prove it as an affirmative defense?
States are NOT required to recognize an insanity defense
If they do they MAY shift the burden to the defendant
59
Are all administrative searches of commercial establishments constitutional without a warrant?
No, NOT ALL.
* The industry must be closely regulated
* the regulations allowing the searches must be necessary to further valid governmental interests and
* the discretion must be limited
60
Does impeachment evidence need to be turned in by the prosectuon?
Yes if it impeachment of a critical government witness
## Footnote
Brady: government must disclose any evidence favorable to the defendant that could affect the outcome of the case--> material exculpatory evidence includes this above
61
If prosecution fails to disclose exculpatory evidence, including imepachment evidence of its own cirtical witness, can D's conviction be overturned?
YES if the failure to disclose created a REASONABLE PROBABILITY of a different outcome ---> reverse
62
Counsel generally does not have to advise a D about all collateral conseuqneces of conviction, but do they have to advise about possibility of immigration consequences?
YES if they don't then that is deficient performance as counsel
63
Can a psychiatrist testify as to whether a defendant was legally insane?
No, an expert in a criminal case may NOT state an opinion about wheteher the defendant was legally insane at the time of the alleged crime.
May testify that they suffered from schitzophrenia but not that they were legally insane at time of the crime
64
Is there a constitutional prohibition against testimony obtained under hypnosis?
NO
65
Can an expert state that a defendant had been in fear for her life at the time of a killing or any other mental state at isue?
NO an expert may not state an opinion as to whether the defendant did or did not have the mental state at issue (constitutes an element of crime or defense) ---> this is the exceptoon to being able to testify as to an ultimate issue because
66
Does a real estate broker have a fiduciary duty to the seller?
Yes, they must make full disclosure of anuy interest the broke or a family member of the broeker may have in purchase of the property.
If broker's family member purchaseres the property --> broker must disclose this to seller
If no disclosure --> broker forefits the commission
67
In determining whether to set aside a jury verdict, is it sufficient that the verdict is against the weight of the evidence to grant the motion?
NO being against the weight of the evidence does not matter so long as there is a substantial evidence
68
Can a conviction for a crime involving dishonesty come in against a witness or a defendant for impeachment?
YES
But if it is **more** than 10 years old (from date of release or date of conviction, which ever one is LATER) then NO unless
* probative value SUBSTANTIALLY outweighs the prejudicial effect and
* proponent gives adverse party reasonable notice
69
Are subsequent remedial measures admissible to show feasibility of a precautionary measure when such feasibility is disputed?
YES but not to prove negligence, defect, culpable conduct, or to show a need to include a warning or instruction
70
Are interrogatories only proper to discover facts?
NO The served party may also be asked to give opinions or contentions, even on the application of the law to facts
71
Can a party serve interrogatories with the complaint?
No because in a federal law suit a party may not seek discovery from any source before the parties have conferred for their initial conference
initial conference: as soon as is practicable
Within 14 days of this meeting parties must submit their initial disclosures and proposed discovery plan
72
What is circumstancial evidence of identity? Does it constitute hearsay?
A statement that is used as circumstantial evidence linking a person with an event, place, or object is not being introduced for its truth and therefore is NOT hearsay.
Example: A hotel receipt found on defendant’s person is circumstantial evidence that the defendant had been to the hotel and therefore is not hearsay; testimony by a prison guard that the inmates called the defendant by a nickname which the actual perpetrator of the crime also had
73
If one party makes a misrepresentation and the other party justifiably relies on it in entering into a contract, can that party rescind the contract?
YES because the contract is now voidable
74
May state courts may hear cases involving federal claims even if a federal court has not decided the issue?
YES State courts have the power to hear cases involving federal causes of action. Furthermore, a state court may not discriminate against a case solely because it arises under federal law.
75
Where there is both a senior mortgage and a junior mortgage, modifications to the senior mortgage that are detrimental to the junior mortgage, such as raising the interest rate or the principal amount, will have what effect on the junior mortgage?
will give the junior mortgage priority
76
When there is no evidence that multiple defendants contributed to Plaintiff's harm in a negligence suit, can a motion for directed verdict be granted?
Yes because there is no evidence that the defendant's are jointly and severally liable to the plaintiff.
If there was, then we would not need to know who did what and to which extent, as long as there is evidence that their acts together contributed (does not need to be simultaneous)
77
What is the doctrine of alternative liability in torts?
when the plaintiff’s harm was caused by one of multiple defendants, but the
plaintiff does not know which of them caused it --> shift the burden of proof as to who caused the harm to the defendants
SO LONG AS
(i) it was a small number of defendants,
(ii) each defendant’s conduct was tortious, and
(iii) the defendants are all before the court in the proceeding.
## Footnote
If no proof that each D was tortious --> not applicable
78
When deciding which jurisdiction's preclusion law applies, courts will apply the preclusion law of the forum whose court
rendered the earlier judgment
if earlier judgment by
* state court, that state preclusion law applies,
* federal court that had federal question jurisdiction, federal preclusion law applies
* federal court having diversity jurisdiction, federal preclusion law applies, BUT federal law calls for applying the preclusion law of the state in which the federal court sits
79
Can a motion for summary judgment be supported by matters outside the pleadings?
YES
a motion for summary judgment may be supported by affidavits, sworn statements, depositions, sworn pleadings, admissions, answers to interrogatories, or other materials in the record
80
The point of expectation damages is to put the non-breaching party in a position as if the breach had not occurred. Does this include attorney's fees?
NO
81
Are mortgage agreements that dictate prohibitions on prepayment and prepayment fees enforceable?
YES
example: no prepayment for first two years and 5% down for prepayment amount
82
When does a strict products liabiliy manufacturing defect occur?
When a product emerges from the manufacturing process
1. different from other products and
2. unreasonably dangerous or dangerous beyond the expectations of the ordinary consumer
83
Pursuant to a valid treaty, can a president nullify state laws to comply with the terms of that treaty?
Yes because treaties are the supreme of the law and any state action or law cannot contradict that treaty
as long treaty not prohibited by any provision of the Constitution ---> it is the supreme law of the land.
84
What is required under a mutual discharge of duties as an account stated?
An account stated is when the parties agree to an amount as a final balance due that discharges all claims and mutual duties based on a good faith (honestly disputed) amount owed. Enforceable even if settlement amount is LESS than original K price
85
Can parties stipulate to a five person jury?
Yes in exceptional circumstances, when the jury has suffered **depletions past its alternates**, the parties may agree to be bound by a verdict rendered by fewer than six jurors
86
Individuals fundamental right to travel between states is protected by which amendment?
14th amendment privileges and immunities
people have a right to
(i) to leave and enter another state; and (ii) to be treated equally and enjoy the same privileges and immunities as other citizens of that state if they become permanent residents.
87
Does a modification of a written K need to be in writing? What about a rescission?
yes a contract in writing may be altered or modified only by a subsequent writing but that does NOT apply to a subsequent agreement to rescind or abandon the contract
88
Does a landowner owe a duty to an undiscovered trespasser?
NO
89
If a state supreme court decides a case on its own independent grounds, but it cites the US constitution without relying on it, can the supreme court hear the case on appeal?
NO simply mentioning federal law does not mean that there is no AISG
The court will not hear a case if it finds adequate and independent non-federal grounds to support the state decision.
* The grounds must be adequate, meaning they are fully dispositive of the case,
* so even if the federal grounds are wrongly decided, it will not affect the outcome of the case.
* The state grounds must also be independent. Meaning, it is not based on any federal law.
90
Which type of manslaughter did not exist at common law?
Involuntary manslaughter
91
Once a witness has denied it, which of the two CANNOT be proved by extrinsic evidence, a prior bad act, or a prior inconsistent statement?
A prior BAD ACT CANNOT be proved by extrinsic evidence. Once denied, must accept the answer.
But a prior INCONSISTENT STATEMENT CAN be proved by extrinsic evidence once denied if
* witness has oppotunirty to be heard regarding it AND
* opposing party has opportunity to interrogate witness on it
92
If a person both supplies a product and installs it, and the product is defective, can they be held strictly liable?
YES just becuase they provided a service does NOT preclude them from being held strictly liable if they supplied it in their ordinary course of business
a products liability claim based in strict liability includes (i) a commercial supplier of a product; (ii) producing or selling a defective product; (iii) actual and proximate cause; and (iv) damages.
93
What does vicarious liability for an employers acts require?
Vicarious liability requires that an employee is acting within the scope of employment or that the tortious act was authorized or instructed by the employer
94
What types of misrepresentation are grounds for rescission of a k?
both fraudulent and material misrepresentations
* A material misrepresentation can be innocent, but it is still grounds for recission
95
"The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it." this is different from admitting extrinsic evidence of a witness's prior inconsistent statement through extrinsic evidence because for a WITNESS it requires that
* witness has opportunity to be heard regarding it AND
* opposing party has opportunity to interrogate witness on it
AT ANY POINT
## Footnote
in florida: witness must FIRST be given opportunity to deny or explain it
96
Assignment of a NOTE automatically assigns:
the MORTGAGE
97
If after being properly requested to waive service, a party chooses not to waive service and does not show good cause, the court MUST order them to incur
costs imposed by the court based on making service and any motion associated with collecting costs
98
Under the Fair Housing Act must a landlord make reasonable accommodations for such a disability and thus allow pets even if it is a "no pets" building?
YES
99
Can a court dismiss a case for an invalid arrest under the fourth amendment?
NO
Although any evidence collected as a fruit of an unlawful arrest may be inadmissible at trial, dismissing the indictment would be an improper remedy. An invalid arrest not does preclude criminal prosecution
100
Is an extension of time for filing a renewed JMOL allowed?
NO it is expressly prohibited
101
To establish a claim of ineffective assistance of counsel, a defendant must show two things:
(1) that defense counsel’s performance was deficient (below objective standard of reasonableness) and (2) that the deficiency was prejudicial.
102
In the penalty phase of a capital case, does defense counsel have a duty to conduct a reasonable investigation to determine whether there are mitigating facts for the penalty phase?
YES and failure to do so falls below standard
an attorney's actions can only be defended as strategic if based on a REASONABLE investigation
103
