Section 1
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A written stop payment order is binding on a bank for ____________________, but an oral stop payment order lapses after ____________________ if it is not confirmed in writing during that period.
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Date created
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Cards (341)
Section 1
(50 cards)
A written stop payment order is binding on a bank for ____________________, but an oral stop payment order lapses after ____________________ if it is not confirmed in writing during that period.
6 mos; 14 days
reliance damages
put the plaintiff in the position she would have been in had the contract never been formed. can use this if expectation damages are too speculative to calculate.
Expectation, consequential, incidental, and reliance damages are all forms of:
compensatory damages
consequential damages
Foreseeable damages that result from a party's breach of contract but are caused by special circumstances beyond the contract itself.
Negotiation is defined as:
the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who gains possession of the instrument and has the right to enforce it, i.e., to a holder. If the instrument is payable to bearer, any person who gains possession becomes the holder. If the instrument is payable to an identified person, that person must gain possession and indorse the instrument to become the holder. Accordingly, holder status and requirements of negotiation differ for bearer instruments and order instruments.
To recover full damages when an employer breaches an employment contract, the employee:
Must make a reasonable effort to find a new position of the same kind in the same locale
Property offenses
Larceny
Basis (tax)
The value that the property had when you assumed possession (usually what you paid for it, but can be fair market value).
do you need damages in order to enforce an order of liquidated damages?
No
liquidated damages must be an amount that is:
reasonable in view of the actual or anticipated harm caused by the breach.
if the employer breaches after a contract with an employee:
the employee is entitled to the full contract price
under the UCC, if the place for delivery is not specified:
the place is the seller's (not the buyer's) place of business if he has one; otherwise, it is the seller's house
under the UCC, if the time for payment is not specified:
payment is due at the time and place at which the buyer is to receive the goods
re: commercial paper, an alteration is:
an unauthorized change or addition that purports to modify the obligation of any party in any respect. The effect of an alteration depends on whether the alterer's intent was fraudulent or nonfraudulent. A nonfraudulent alteration does not discharge any party, and the instrument may be enforced according to its original terms. In contrast, a fraudulent alteration generally discharges every party obligated on the instrument, unless the party assents to or is precluded from asserting the alteration.
incidental damages
include expenses reasonably incurred by the buyer in inspection, receipt, transportation, care, and custody of goods rightfully rejected and other expenses reasonably incident to the seller's breach, and by the seller in storing, shipping, returning, and reselling the goods as a result of the buyer's breach.
F.A.S. stands for:
"free alongside." The term is generally used only when goods are to be shipped by boat. The risk of loss passes to the buyer once the goods are delivered to the dock.
in a noncarrier case where seller is a merchant, the risk of loss passes to the buyer:
does not pass to buyer until buyer takes physical possession of the goods
in a noncarrier case where seller is not a merchant, the risk of loss passes to the buyer:
upon tender of delivery. Tender of delivery occurs when the goods are ready for pick up at the agreed upon time.
Under Article 2, when a seller breaches a contract by refusing to deliver identified goods to the buyer, the buyer may replevy the goods if:
the buyer, after reasonable effort, is unable to secure adequate substitute goods.
Each member of a conspiracy is liable for the crimes of all other conspirators if:
(i) the other conspirators' crimes were committed in furtherance of the objectives of the conspiracy; and (ii) the other conspirators' crimes were a natural and probable consequence of the conspiracy.
Inchoate crimes
Solicitation, attempt, and conspiracy
Under the U.C.C., if the contract as modified is within the Statute of Frauds:
then the modification must be in writing
Proceeds (secured transactions)
Include whatever is received upon the sale, lease, exchange, license, collection, or other disposition of collateral or proceeds. This can include cash received from a lease of the collateral, an item traded for the collateral, and money received from an insurance company for damage to the collateral. Funds the secured party has agreed to loan the debtor in the future are future advances, not proceeds.
the implied warranty of merchantability is implied in every contract for the sale of goods by:
a merchant who deals in goods of the kind sold
when do we begin to measure damages in a breach of a sale of goods contract?
The buyer's damages are measured as of the time he learns of the breach, while the seller's damages are measured as of the time for delivery.
in a reformation action:
the original contract is valid, but the subsequent writing does not conform to the original contract. the court therefore changes the writing setting forth the agreement between the parties so that it conforms to the original intent of the parties.
In criminal cases, malice is established by:
showing that the defendant recklessly disregarded an obvious or high risk that a particular harmful result would occur. Crimes imposing a mens rea of malice generally do not require the proof of intent that specific intent crimes require. It is sufficient if the defendant recklessly disregarded an obvious or high risk that the particular harmful result would occur.
Simply by doing the act, a jury may infer that the criminal defendant:
Had general intent. It is not necessary that evidence specifically proving the general intent be offered by the prosecution. Cannot infer specific intent, but the manner in which the act was committed can provide circumstantial evidence for the issue of specific intent.
Under an F.O.B. (free on board) contract:
the seller has the risk of loss until the goods reach the location specified.
liquidated damages clauses are enforceable if:
(1) damages for contractual breach are difficult to estimate or ascertain at the time the contract was formed; and (2) the amount agreed on was a reasonable forecast of compensatory damages in the case of a breach.
marketable title
Absent a provision to the contrary, a contract for the sale of land contains an implied promise by the seller that she will deliver a marketable title at the time of closing. This promise imposes on the seller an obligation to deliver a title that is free from reasonable doubt; i.e., free from questions that might present an unreasonable risk of litigation. Title is marketable if a reasonably prudent buyer would accept it in the exercise of ordinary prudence. An inability to establish a record chain of title will generally render the title unmarketable. If the buyer determines, prior to closing, that the seller's title is unmarketable, he must notify the seller and allow a reasonable time to cure the defect. If the seller is unable to acquire title before closing, so that title remains unmarketable, the buyer can rescind, sue for damages caused by breach, or obtain specific performance with an abatement of the purchase price.
A PMSI in inventory has priority over a conflicting security interest in the inventory if:
(i) The PMSI in inventory is perfected at the time the debtor gets possession of the inventory (the filing must take place before the inventory is delivered to the debtor); and (ii) Any secured party who has filed her security interest in the same inventory receives an authenticated notification of the PMSI before the debtor receives possession of the inventory, and the notification states that the purchase money party has or expects to take a PMSI in inventory of the debtor described by kind or type. Attachment is a necessary requirement of perfection of a security interest.
Under the U.C.C., modifications are valid:
without consideration:
under the UCC, if the price is left open to be agreed upon later and the parties fail to agree:
the price is a reasonable price at the time of delivery
any affirmation of fact or promise made by the seller to the buyer, any description of the goods, and any sample or model creates:
an express warranty if the statement, description, sample, or model is part of the basis of the bargain
Inherently dangerous felonies
BARRK: Burglary, arson, rape, robbery, kidnapping.
if contracts have written, typed, or printed provisions that are inconsistent:
written or typed provisions will prevail over printed provisions
in contracts for the sale of goods, only a buyer may recover:
consequential damages
"garage sale" rule (secured transactions)
A purchase money security interest ("PMSI") in consumer goods is perfected automatically without filing. If the buyer of consumer goods with PMSI resells the goods to another consumer, the second buyer takes the consumer goods free of the security interest if he buys without knowledge of it, for value, and before a financing statement covering the goods has been filed. Basically an extension of the bona fide purchaser rule.
If both the buyer and seller are merchants, an additional term in an acceptance is included in the contract unless:
it materially alters the original offer terms, the offer expressly limited the acceptance to its terms, or the offeror objects within a reasonable time.
replevin
an action to recover possession of wrongfully withheld personal property
If an instrument states that it is payable with interest but does not state the rate:
it is payable at the rate on a court judgment.
A conspirator can be convicted of a crime committed by another conspirator if:
the crimes were committed in furtherance of the objectives of the conspiracy AND the crimes were foreseeable.
Elements of conspiracy
At common law, 2 elements: (1) specific intent to agree and (2) specific intent commit the target offense (must be unlawful). Plurality requirement; 2+ parties have a meeting of the minds and agree to commit the crime Note that most states also usually require some overt act (but no need for crime to be complete). This is part of the Model Penal Code. We assume that the bar is testing common law unless told otherwise. At common law, withdrawal is no defense to conspiracy. But it can be a defense to the subsequent crime.
Most courts will grant an order of specific performance to enforce a covenant not to compete if:
the services to be performed are unique and the covenant is reasonable.
expectation damages are also known as:
benefit of the bargain damages
Collateral is impaired if:
(i) a security interest is not perfected or otherwise filed; (ii) collateral is released without obtaining substitute collateral; (iii) there is failure to perform acts required to preserve the collateral's value; or (iv) there is failure to dispose of collateral as the law requires. The loss, damage, or destruction of collateral does not constitute impairment of collateral sufficient to discharge a guarantor to the extent of the impairment. Impairment of collateral securing a party's obligation on an instrument discharges an indorser or accommodation party having a right of recourse against the obligor to the extent of the impairment. However, the burden of proving the extent of the impairment is on the party claiming discharge.
compensatory damages
attempt to put the nonbreaching party where she would have been had the promise been performed
In general, if there is no evidence of the parties' intention, contracts will be construed ___________, and ambiguities in the contract will be ____________.
As a whole; construed against the party drafting the contract
If a buyer has made at least part payment of the purchase price of goods that have been identified under a contract, and the seller has not delivered the goods, the buyer may replevy the goods from the seller in two circumstances:
First, the right to replevy arises if the seller becomes insolvent within 10 days after receiving the buyer's first payment. Second, a buyer has a right to replevy if the goods were purchased for personal, family, or household purposes. In either case, the buyer must tender any unpaid portion of the purchase price to the seller.
Section 2
(50 cards)
Insanity tests
M'Naughten Irresistable impulse Durham--but for mental illness, would not have committed the crime MPC--combines M'Naughten and irresistable impulse
Search incident to lawful arrest
Allows for contemporaneous search of arrestee's wingspan. If constitutional arrest, cop can also search the passenger compartment of the car if the arrestee is unsecured and may still gain access to the vehicle, OR the police reasonably believe evidence of the arresting offense may be found. Can't get into the trunk.
What is a course of dealing?
Prior conduct between parties to a contract that establishes a common basis for their understanding.
once a contract is fully integrated, what evidence is barred under the parol evidence rule?
Any other expressions, written or oral, made prior to the writing, as well as any oral expressions made contemporaneous with the writing, are inadmissible to vary the terms of the writing
burglary
breaking and entering of the dwelling house of another at night with the intent to commit a felony therein. Breaking can be constructive (i.e. got in with use of threats or force). But if a window is already open (for example), there's no breaking (maybe just entering)
hearsay
an out of court statement being offered for the truth of the matter asserted. 4 step approach: (1) isolate statement (2) determine who said it. if it's a party, it's an admission (nonhearsay). If it's not, what purpose is it being asserted for? (3) (4)
Types of character evidence
ROSA: Reputation, Opinion, Specific Acts/Instances.
nonhearsay
3 types to worry about: (1) out of court statements being offered as verbal acts (i.e. tortious words, transactional statements). state of mind (circumstantial evidence offered to show knowledge, intent, attitude, or belief of declarant or of the listener), or statements made for impeachment. (2) admissions, prior sworn inconsistent statements, prior consistent statements, and prior identifications.
what does it mean when we say there is a defect in formation to a contract?
the contract was never validly formed because some impermissible condition existed at the time that the parties attempted to contract
to claim the benefits of an express warranty, a buyer must show:
that the warranty came at such a time that she could have relied on it when she entered into the contract. does not need to have actually relied on the warranty.
Hearsay exceptions
(1) Present sense impression (2) excited utterance (3) statement showing current mental/physical condition (4) statement made for medical diagnosis (5) recorded recollection (6) business records exception (7) former testimony* (8) dying declaration* (9) statement against interest* * unavailability is required by declarant at time of trial
what is parol evidence?
evidence regarding discussions about what a contractual agreement should contain before entering into the contract
Clerk of court can enter default judgment without judge if:
On request of the plaintiff, supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant if: (i) the plaintiff's claim against the defaulted defendant is for a sum certain; (ii) the default was entered because the defendant failed to appear; (iii) the defaulted defendant is not an infant or incompetent person; and (iv) the damages amount requested is not greater than the amount requested in the complaint.
Character evidence in civil cases
3 rules: (1) Character evidence is inadmissible unless directly in issue or is an essential element of the plaintiff's claim or defense. No propensity! Cannot introduce any evidence of a character trait of a party to show that the party acted in conformity with that trait during the event that gave rise to the litigation. note that the D CANNOT OPEN THE DOOR TO CHARACTER EVIDENCE IN CIVIL CASES. (2) If litigant has other purpose for introduction of character and it is relevant, then you can bring it in. Other purposes include: essential element of claim/defense, directly at issue (i.e. defamation, child custody, negligent entrustment/hiring/retention). (3) If a party testifies, they automatically place their character for truthfulness/untruthfulness at issue. don't confuse this with habit evidence. habit is ok!
Automobile exception
Applies only when police have probable cause to believe that there's contraband or evidence of a crime in the car. Can search anywhere in the car where they might find what they are looking for. but remember that cops can stop the car with just reasonably articulable suspicion; if that turns into probable cause once they are talking to the driver, the search is ok as an exception to the warrant requirement. also remember that you don't have to arrest anyone to search a car under the automobile exception.
Larceny
the taking and carrying away of another's property by trespass with the intent to deprive them of their property permanently. Intent to deprive must take place at the time that the property is carried away. Also think about doctrine of continuing trespass (only works if the original trespass is wrongful).
Requesting a jury trial in civil case
Must file a written demand and serve it on all other parties within 14 days that the last jury-triable pleading was served.
what are formation defects to a contract?
mistake, duress, fraud, and illegality
when is the parol evidence rule waived?
when there is uncertainty or ambiguity in the written agreement's terms or a dispute as to the meaning of those terms in order to reach a correct interpretation of the agreement
what are good excuses for nonproduction of the original document when defending against the best evidence rule?
original is lost or cannot be found with due diligence; original was destroyed without bad faith; original cannot be obtained by the legal process. the court must find by a preponderance of the evidence that an excuse has been established. then secondary evidence (oral testimony) is admissible.
Under Article 2's version of the parol evidence rule, a party may offer evidence of __________ to explain or supplement a fully integrated written contract's terms.
A prior course of dealing, usage of trade, or course performance
Habit (evidence)
Repeated response to a particular set of circumstances. Not the same as propensity evidence! Trigger words: invariably, automatically, always, regularly, customarily, habitually.
5 major types of impeachment
(1) prior inconsistent statement. comes in only to destroy credibility. Can only be offered as substantive evidence, if it was given under oath as part of a trial, depo, or other proceeding, or if it falls within a hearsay exception. (2) bias or motive to misrepresent. always material/admissible; will even allow extrinsic evidence if witness refutes. (3) prior conviction. If it's a crime involving dishonesty/false statement, it's good to impeach in any case regardless of whether the crime was a felony. Judge has no discretion to exclude. If crime doesn't involve dishonesty, it has to be a felony. If it is a serious crime punishable by 1+ yr, it's admissible, but judge has discretion to exclude. If more than 10 yrs have elapsed since date of release from confinement for conviction, crime is too remote and cannot be used to impeach. (4) specific act of misconduct bearing on truthfulness. (i.e. specific act of lying that did not result in a conviction). Can be inquired into on cross, but no extrinsic evidence allowed. (5) bad reputation for truth or veracity. May be proven by extrinsic evidence.
Judicial notice
Appropriate when indisputable or verifiable through scientific purposes. Court may take judicial notice of facts that are generally known within the jurisdiction of the court and facts that are capable of accurate and ready determination (i.e. can be looked up in an almanac or journal). Different rules for judicial notice in civil vs criminal. In criminal case, judge will tell jury that may (but are not required) to take fact judicially noticed as conclusive. Does not affect D's burden of persuasion. In a civil case, the finding is binding and conclusive on a jury.
accommodation under Art 2 of the UCC
you can ship nonconforming goods to buyer in an attempt to fulfill the k as long as you seasonably notify the buyer that a shipment of nonconforming goods is being offered only as an accommodation. if you don't tell them, then the shipment of offer to buy goods is BOTH acceptance of a bilateral k and breach of k.
restitution is:
either the value of the benefit conferred. this can be measured by either the benefit received by the defendant or the reasonable value of the work performed by the plaintiff. Restitution is based on preventing unjust enrichment when one has conferred a benefit on another without gratuitous intent.
Character evidence in criminal cases
Inadmissible unless/until the D opens the door. 5 rules: (1) No propensity evidence. Prosecutor cannot introduce any evidence of D's bad character if the purpose is to show that D probably acted in conformity therewith and committed the crime charge. (2) D is allowed to present evidence of relevant good character to show he acted in conformity with that character and did not commit the crime charged. But reputation or opinion evidence not allowed on direct. (3) If D presents good character evidence, D has opened the door and prosecution is allowed to rebut with bad character evidence. (4) Evidence of prior crimes/bad acts are never admissible to show propensity. But they can be admitted for other purposes (MIMIC; motive, intent, absence of mistake, identity, common plan/scheme). Always weigh prejudicial vs probative here. (5) If D testifies, he automatically places character for truthfulness in issue.
If both Seller and Buyer are merchants, different (not additional) terms in an acceptance may:
be knocked out and replaced by a gap-filler
quasi contracts are
formed by the court to prevent unjust enrichment. lets P bring an action in restitution to recover the amount of the benefit conferred on the D. also called quantum meruit.
When, pursuant to a contract for a sale of goods, a buyer accepts nonconforming goods, he may not recover __________.
the difference between the contract price and the market price. but buyer may still recover damages for the seller's breach of warranty (difference between the value of the goods as delivered and the value they would have had if they had been according to the contract)
tortious conversion of personal property does not:
deprive the true owner of her title
Who determines preliminary questions of admissibility?
Preliminary questions concerning the qualifications of a witness, the existence of privilege, and the admissibility of evidence. These questions must be determined by the judge, not the jury.
robbery
At common law, robbery = larceny + assault/battery (force/immediate threat of force). Property must be taken from person or in their presence (person must be in vicinity of property). Victim must give up the property BECAUSE OF the force. If there's no present harm, but instead a threat of future harm, the crime becomes extortion.
what does it mean to say that something is within the scope of the parol evidence rule?
means that the rule bars the admission of this kind of evidence because it inappropriately speaks to discussions prior to the integration of the contract
Best evidence rule
doesn't apply unless the contents of a writing are in issue. If the contents of a writing are at issue, have to either bring out the original writing or account for its absence. applies to legally operative documents or situations where the witness's sole knowledge comes from a document. does not apply to facts independent of the writing (i.e. personal knowledge), collateral documents, certified copies of public records, summaries of voluminous documents (if the originals would be admissible and are made available to the opposing party), and duplicates of originals. Basically just a preference for the original document.
collateral matter doctrine
if a witness testifies on a point that has very little to do with the outcome of the case, then opposing counsel cannot present testimony of other witnesses in order to prove that original witness testified incorrectly on a minor point. Concerned with wasting jury's time.
Sources of expert opinions during expert testimony.
FRE allow an expert to base an opinion on information received from any source, provided that it is the kind of information that is reasonably relied upon by other experts in the field. Can even be completely inadmissible evidence (don't have to offer the source material into evidence). Personal knowledge not required.
If a property owner breaches a construction contract during construction, the builder is entitled to:
either the profits he would have derived from the contract plus any costs he has incurred to date, or the contract price minus the cost of completion.
Warrantless search exceptions
(1) search incident to lawful arrest (2) automobile exception (3) plain view (4) consent (5) stop and frisk (6) hot pursuit, fleeting evidence and emergency aid/community caretaker exception
Difference between expert witness and lay witness testimony
Lay witnesses may testify to anything that is rationally based in the witness's perception (height, weight, speed, color), but cannot give a legal conclusion. An expert may base their opinion on personal observation, authoritative text, or facts that are reasonably relied upon by experts in the field.
a covenant not to compete is reasonable if:
(1) the covenant is reasonably necessary to protect a legitimate interest of the person benefited by the covenant (2) the covenant is reasonable as to its geographic scope and duration, and (3) the covenant does not harm the public.
Refreshing a witness's recollection.
Anything can be used to refresh a witness's recollection. Two primary ways are through use of a writing or by asking a leading question. Opposing counsel has a right to see the document used to refresh, can conduct cross-examination with the document, and can introduce relevant portions of the refreshing document to impeach. But opposing counsel cannot use the refreshing document as substantive evidence. Past recollection recorded comes in when someone's memory is NOT JOGGED by the document; the attempt to refresh fails. In that case, you can submit evidence to the record of a writing that was close in time to the actual event. Don't confuse these!
In a shipment contract, the risk of loss passes to the buyer when the goods are delivered to the carrier, unless:
the goods are defective; if goods are defective, the risk remains on the seller regardless of the type of shipping contract
when you are using the EPC to challenge an economic restraint:
the rational basis test applies (no suspect class, no fundamental right). the burden of meeting the rational basis test falls on the challenging party.
k concept of accommodation applies only to:
to offers to buy goods for current or prompt shipment.
if either party in a UCC contract for sale of goods is a nonmerchant, an additional term in an acceptance:
does not become part of the contract unless the offeror expressly agrees to it
Merger doctrine (criminal)
solicitation may merge into either attempt or conspiracy. Attempt may then merge into the crime itself. But conspiracy may NEVER merge into the crime itself. A person may be convicted of both conspiracy and the completed crime. A person may limit their liability for the completed crime by adequately withdrawing from the underlying crime. Adequate withdrawal requires that you affirmatively tell all the other parties that you are bailing and give them enough time to also bail.
Blockburger test
For lesser included offenses. Two crimes are considered the same unless each crime requires an additional element that the other does not.
embezzlement
fraudulent conversion/misappropriation of property by a party in rightful possession. Misappropriation of the property must occur while the D has lawful, not wrongful, possession of it. There is no need to take and carry away the property because the D is already in possession of the property. If the D intended to restore the exact property taken, it is not embezzlement.
What does it mean if a term is "collateral" to a written agreement?
The term is related to the subject matter of the agreement but is not part of the primary promise
Section 3
(50 cards)
laying foundation
must present additional evidence showing that the item is what it purports to be (authentication).
common law larceny
elements: (1) trespassory (2) taking (3) and carrying away (4) property (5) of another (6) with intent to steal/permanently deprive Note that it is possible to commit larceny of your own property if another person, such as a person with a lien, has a superior right to possession of the property at that time.
larceny by trick vs false pretenses
both involve use of fraud to obtain the property of another with intent to permanently defraud the other. Distinction depends on what victim INTENDED to give the thief. larceny by trick --> victim consents to defendant taking POSSESSION of the property, but that consent is induced by misrepresentation or deceit False pretenses --> D obtains TITLE to the property of another by intentional/knowing false statement of fact with the intent to defraud another. Transfer of cash w/o limitations is assumed to come with intent to convey title.
Offers to settle or pay medical expenses
offer to settle a dispute is inadmissible (entire statement! not just amount of settlement offer). offer to pay medical expenses; sever admission from offer to pay medical expenses, will allow admission into evidence. No evidence of liability insurance when offered to show fault or ability to pay.
mirror image rule
requires that the terms in the acceptance must exactly match the terms contained in the offer (absolute and unequivocal acceptance of each term). Any different or additional terms in the acceptance make the response a rejection and counteroffer. Additional statements or requests do not necessarily violate the mirror image rule. Does not apply to ks for the sale of goods.
For Terry STOP need:
reasonable suspicion
perfect tender rule for installment ks
a defective shipment in an installment contract cannot be rejected if the defect can be cured.
Felony murder
an UNINTENTIONAL killing resulting from commission or attempted commission of a serious or ~inherently dangerous~ felony. All participants in felony are liable for the murder. the killing must be committed during the course of the felony. The felony is deemed terminated when the D reaches "a place of temporary safety." the felony must be independent of the killing, and the death must have been a foreseeable result of the felony. the D does not need to be convicted of the underlying felony if the statute of limitations for the felony has expired. prosecution must still prove, however, the D committed or attempted to commit the underlying felony.
expert witnesses and hypothetical questions
experts may give opinion testimony in response to a hypothetical question, as long as the facts assumed in the question can be found by the trier of fact based on admissible evidence.
handwriting authentication
can be done by someone familiar with the handwriting before trial. Cannot become familiar with that handwriting for purposes of trial. Can also authenticate through use of a handwriting expert, through comparison by the trier of fact (jury), or through reply letter doctrine (letter may be authenticated by evidence that it was written in response to a communication sent by the claimed author).
a warrantless entry into the home can be justified by:
exigent circumstances. this includes reasonable belief that evidence is being destroyed.
proper tender of delivery in a noncarrier case for contract sale of goods:
seller must put and hold the goods at the buyer's disposition for a time sufficient for the buyer to take possession. seller doesn't have to actually deliver or give buyer notice. seller only needs to tender (offer) the goods at the seller's business place or residence.
restrictive indorsement
an indorsement limiting payment to a particular person or otherwise prohibiting further transfer or negotiation of the instrument. A restrictive indorsement cannot prevent further transfer or negotiation of the instrument.
Revealing information about plea bargains to a jury
Withdrawn pleas, nolo pleas, offers to plead guilty, and statements made in plea negotiations are inadmissible against the D who made the plea and are inadmissible against a participant in plea discussions. Accepted plea deals can be disclosed to the jury if it goes to bias or interest.
terminating a k by operation of law
3 ways: (1) death or insanity of offeror (but only works until k is accepted or irrevocable) (2) destruction of the subject matter of the k (3) subject matter of k is illegal
accomplice to a crime
with the intent that a crime be committed, aims or encourages the principal before or during the commission of a crime. mere knowledge that a crime might result from the sale of ordinary goods at ordinary prices is insufficient for accomplice liability.
Art 2 UCC gap fillers
price will be a reasonable price at the time of delivery if the price is not included in the contract. If one party had the power to fix the price but failed to do so in good faith, the other party may either cancel the contract or fix a reasonable price herself. gap fillers do not apply to vague terms.
depraved heart murder
UNINTENTIONAL killing that results from defendant's reckless conduct. depraved heart looks for a reckless indifference to life.
PMSI
purchase money security interest. can arise in several ways, one of which is when a consumer advances funds that are used by the debtor to purchase goods. A PMSI in consumer goods is perfected automatically; no filing is necessary. Normally, a perfected security interest in collateral is good against subsequent buyers. Exception to this: garage sale rule.
What must happen for a security interest to attach?
3 things: (1) parties must have a security agreement, and there must be evidence of the agreement. The agreement can be evidenced by recording (and signing!), possessing the collateral, or retaining control of the collateral. (2) Secured party (lender) must give value (3) Debtor must have rights in the collateral
Interest on commercial paper
No interest will accrue unless the instrument provides for payment of interest. IN VIRGINIA, if the instrument does not fix an interest rate, the court will imply a judgment rate, and interest will be payable from the date on the instrument (date of execution).
community caretaker exception
warrantless search when police are acting to protect a persojn from imminent physical harm
What makes a note negotiable?
Must be: (1) signed by its maker (2) an unconditional written promise to pay a fixed amount of money with or without interest (3) to order or to bearer (4) on demand or at a definite time (5) without any undertaking or instruction not authorized A negotiable instrument may be transferred by its holder to anyone.
police has right to use deadly force when:
necessary to stop a fleeing felon posing a threat of serious bodily harm to others
prior identification hearsay exception
you only get a hearsay exception for prior IDs if the declarant is testifying at trial and subject to cross. otherwise can't bring in prior ID; inadmissible hearsay.
buyer in the ordinary course of business
like a bona fide purchaser but for secured transactions. A buyer in the ordinary course of business is someone who buys goods from a seller who is engaged in the business of selling goods of the kind purchased. Under VA law, a buyer in the ordinary course of business who buys goods from a seller who is engaged in the business of selling goods of the kind purchased takes free of any security interest created by his seller unless (1) he knows of the security interest and (2) he knows that the sale is in violation of the terms of the security agreement.
in a shipment contract, the price for the goods sold is due:
when the goods are put in the hands of the carrier
For a real estate contract, a ________ is necessary; for a valid offer for a contract for the sale of goods, a ________ is necessary.
Price; quantity
Interlocutory Appeals Act
Review under the Interlocutory Appeals act is discretionary with the court and may be available when: (1) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and an appeal would materially advance the conclusion of the case, and (2) at least two appellate court judges agree to hear the appeal
a buyer accepts goods under UCC Art 2 if:
(1) after a reasonable opportunity to inspect the goods, she indicates to the seller that they conform to requirements or that she will keep them even though they are nonconforming; (2) she fails to reject within a reasonable time after tender or delivery of the goods or fails to seasonably notify the seller of her rejection; (3) she does any act inconsistent with the seller's ownership.
out of court statements with intention for the future
Admissible to show that the D might have carried out that intention--goes to state of mind. It's hearsay, but qualified for exception.
Types of manslaughter
3 types: (1) voluntary manslaughter (2) involuntary manslaughter (3) misdemeanor manslaughter (felony murder's little brother)
voluntary manslaughter
intentional killing in the heat of passion where the defendant acts with adequate provocation
spousal privileges
Two privileges: (1) marital privilege/confidential marital communications privilege: applies in both crim and civil cases. protects confidential communications between the spouses during marriage. does not protect communications made before/after marriage. Communications made during marriage remain confidential even after divorce or death. Both are holders; one can render the other incompetent from testifying against them. (2) spousal [testimonial/immunity] privilege: applies only in crim cases. Protects/blocks adverse testimony based on knowledge or communications made before or during marriage so long as the witness spouse and party spouse are married at the time of trial. Includes observations and impressions. Upon divorce, entire privilege is lost. Witness spouse is holder of this privilege. Communications vs testimony.
Serious or inherently dangerous felonies
BARRK Burglary, arson, robbery, rape, kidnapping
right to counsel at post-charge lineup attaches:
as soon as accused is within sight of the identification witnesses (any time the witnesses could see him)
involuntary manslaughter
the accidental killing of another during the commission of some unlawful but not felonious act.
admission of statements at trial and fairness considerations
Rule 106 of FRE says that when a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time.
evidence of subsequent remedial measures
Inadmissible to prove negligence, culpable conduct, design defect, or a need for a warning. Policy of encouraging repairs. Evidence of subsequent remedial measures will be admitted to show FDIC
passenger in a car has standing in criminal cases with respect to:
illegal stop of a car. But NOT for illegal search of the car because passengers do not have reasonable expectation of privacy when in another person's car.
common law embezzlement
misappropriation of the property of another by one who is in rightful possession of it
exclusionary rule at grand jury proceedings
doesn't apply; motions based on the exclusionary rule are premature in grand jury proceedings.
Common law murder
"the killing of a human being with malice aforethought" Malice aforethought can be established in four ways: (1) intent to kill (2) intent to inflict serious bodily injury (wasn't trying to kill the victim, but was trying to hurt them) (3) intent to commit a dangerous felony (4) reckless indifference to an unjustifiably high risk to human life
Unless the contract provides otherwise, in a noncarrier case, payment is due __________.
in cash upon tender of delivery
common law attempt
2 elements: (1) specific intent to commit target offense (2) overt act (substantial step) in furtherance of that intent doctrine of transferred intent does not apply to attempt
in a destination contract, the price for the goods sold is due:
the price is due when the goods reach the named destination
duress is not a valid defense to:
murder
how detailed must a complaint be in order to withstand motion to dismiss?
pleader must assert short and plain statements in the complaint to put the other side on notice of the claim being asserted; detailed assertions of facts underlying the claim are generally not required. exception for claims of fraud or mistake.
what causes of action require a higher level of particularity in pleadings?
claims that assert fraud or mistake
Contrary terms on commercial paper
If an instrument contains contrary terms, words control figures unless the words are ambiguous or uncertain (aka illegible). If the words are ambiguous/uncertain, the figures control.
Section 4
(50 cards)
criminal acts of third parties (torts)
normally break the chain of causation because they are unforeseeable. But if the third party's acts are foreseeable (like parking in a high crime area), then chain of causation is not broken.
misuse defense to products liability claims
only a valid defense to products liability if it is unforeseeable
conversion vs trespass to chattels
conversion: serious deprivation/damaging/interference with someone else's chattel. Recovery is fair market value of chattel at time of conversion. Conversion will be found if the defendant was using the chattel without permission and it was accidentally damaged. trespass to chattels: less serous infringement of someone else's chattel. Recovery is repair cost (restitution) note that the intent involved in these acts focuses on the physical act that results in the conversion or the trespass, not to the D's desires regarding the ultimate disposition of property. If the damage accidentally is worse than you expected, that's still on you.
How many days to file notice of appeal?
30 days from entry of judgment at the district court. Filing period is extended to 60 days when the US is a party to the action.
A court can revisit and grant relief from final judgment on which grounds?
(1) mistake, inadvertence, surprise, or excusable neglect (2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial (3) fraud, misrepresentation, or other misconduct of an adverse party (4) the judgment is void (5) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. All must be within a reasonable time, but the first three must be within one year of judgment. On appeal, decision to grant relief will be reviewed on abuse of discretion standard.
how to reject defective shipment of goods:
The buyer only needs to notify the seller of her rejection; not obligated to return the goods within a reasonable time; she After rejecting the goods, the buyer has an obligation to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them. If the seller has no agent or place of business within the market area where the goods are rejected, a merchant buyer has an obligation to obey any reasonable instructions as to the rejected goods. If a seller gives no instructions within a reasonable time after notification of rejection, the buyer may reship the goods to the seller, store them for the seller's account, or resell them for the seller's account. The buyer has a security interest in rejected goods in her possession for any part of the price already paid and for expenses reasonably incurred in connection with handling them after rejection.
auction with reserve
An auction in which the seller retains the right to withdraw the goods from sale. Unless expressly stated otherwise, an auction is an auction with reserve.
joint and several liability
when 2+ tortious acts combine to proximately cause an indivisible injury to a P, each tortfeasor is jointly and severally liable to the P for the full amount of damages.
Shopkeeper's privilege
defense for false imprisonment (falls under protective privileges). When a shopkeeper or security guard reasonably believes that a theft is going to occur or has occurred, they are allowed to make a reasonable detention in a reasonable manner for a reasonable period of time. Anything over 30 min is probably unreasonable and counts as false imprisonment.
liability for injuries during rescue (tort)
as long as rescuer acts reasonably during the emergency, there's no liability
negligence per se only applies if
if statute on point is designed to prevent the harm that occurred and protect the party involved
A vague term in a contract can be cured by __________.
part performance
Appealing JNOV and motion for new trial
JNOV: reviewed de novo because the issue is one of law. Motion for new trial: abuse of discretion, more deferential because we have mixed in issues of fact, want to respect the jury.
appealing bad jury instructions
In order to preserve the right to appeal an error in jury instructions (or failure to give an instruction), the party must object on the record before the instructions are given. If the party properly preserves their objection, the jury instructions are reviewed using an abuse of discretion standard. But if the objection is not made, it is not preserved for full appellate review. The court's review is therefore limited to considering whether there was a plain error in the instruction that affected substantial rights.
An offer is terminated by the death of the offeror unless:
The offeree has paid consideration to keep the offer open
when does an ad become an offer?
when it includes language "first come first served."
battle of the forms, UCC Art 2
UCC rule stating that if both parties are merchants, then additional terms contained in the acceptance may become part of the sales contract if certain requirements are met
battery (tort)
2 elements: (1) intent to (2) cause the harmful or offensive touching to the person of another If a person knows with substantial certainty the consequences of his action, he has the intent necessary for this type of tort.
material benefit rule
if you did it in the past and you didn't intend for it to be a gift then it can be enforceable as consideration.
curing defective delivery of goods after contracted time
Ordinarily, the seller has no right to cure beyond the original contract time. However, in cases where the buyer rejects a tender of nonconforming goods that the seller reasonably believed would be acceptable "with or without money allowance," the seller, on reasonable notification to the buyer, has a further reasonable time beyond the original contract time within which to make a conforming tender. A seller will probably be found to have had reasonable cause to believe that the tender would be acceptable if the seller can show that trade practices or prior dealings with the buyer led the seller to believe that the goods would be acceptable, or the seller could not have known of the defect despite proper business conduct.
assumption of the risk
P has to actually know of the risk and voluntarily assume it.
pure comparative negligence
Majority rule. P can recover even if their fault is greater than the D's. Contrast with modified comparative negligence (P's fault must be less than D's to recover). This is a minority rule.
how do we interpret a k where a term in the k has 2+ possible meanings?
depends on the parties' awareness of the ambiguity. if both or neither party was aware of the ambiguous term, then there is no k unless both parties intended the same meaning. if only one party was aware, they are bound to the ignorant party's reasonable belief of what the ambiguous term meant. this is one of those areas where subjective intent is taken into account.
intentional torts
all have common denominator of lack of consent. Most common ones are false imprisonment and intentional infliction of emotional distress. Harm IS NOT PART of intentional torts Damages are not relevant for intentional torts, just for negligence.
duty owed by common carriers
owe duty to passengers not to act unreasonable with regard to passenger safety
If the contract between the parties provides for payment C.O.D.:
the buyer has promised to pay without inspecting the goods. When payment is due before inspection, the fact that the goods are defective does not excuse nonpayment, unless an obvious defect appears without inspection or there is fraud in the transaction.
In a single delivery contract, when a buyer rejects goods due to defects, the seller may cure within the time originally provided for performance in the contract:
by giving reasonable notice to the buyer and making a new tender of conforming goods, which the buyer must then accept. Whether the seller reasonably believed the goods would be acceptable with or without money allowance is the standard used in determining whether the seller should be granted time to cure beyond the original time provided for performance.
trespass to land
tort. intent to cause a tangible thing to enter the land of another. Intent requirement: intends to conduct an activity, knowing to a substantial certainty that the activity will cross the thing into the property. mistake of ownership is no defense. ONE good defense to trespass: necessity!
how to tender goods in destination contract:
seller must put and hold goods at the destination at the buyer's disposition. must give buyer notice and provide documents of title as reasonably necessary.
When can you appeal a decision against you if the case has multiple claims, and the remaining claims are not yet final?
The court's order against you is not yet final. But it can still be appealed if the court expressly determines that there is no just reason to delay entry of judgment.
child standard for negligence
if child is engaged in a childlike activity, that child will be held to a standard of care similar to another child of similar age, experience, or maturity. Objective standard. Exception: if child is engaged in an adult activity. Then will use typical reasonable person standard.
appealable interlocutory orders
(1) an order granting an injunction (2) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships (3) decrees in admiralty cases that find liability but leave damages to be assessed later (4) a patent infringement order where only an accounting is wanting, and (5) an order whereby possession of property is changed or affected
under an Art 2 UCC shipment contract, a seller is responsible for:
putting the goods into the hands of a reasonable carrier and making a reasonable contract for their transportation to the buyer; obtaining and tendering any documents required to enable the buyer to take possession; and promptly notifying the buyer of the shipment. seller is not responsible for seeing that the goods reach the buyer.
A valid offer for a real estate contract must include:
the identity of the property and the price
auction without reserve
once the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time
anticipated trespasser
invitee becomes anticipated trespasser when you cross into an area that you are not authorized to be in. Duty owed: Duty to be warned of known dangerous artificial conditions on the property. No duty to inspect!
duty owed to invitee
Two fold: (1) duty to inspect the premises (2) duty to make the premises safe
If a seller gives no instructions within a reasonable time after notification of rejection, the buyer may _________________ the goods.
Reship, store, or resell
abnormally dangerous activities
An activity is abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors. strict liability attaches to abnormally dangerous activities. If the plaintiff was not foreseeable, the strict liability claim is not established. The defendant's liability for an abnormally dangerous activity extends only to foreseeable plaintiffs, who are persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. Note, though, that the nature of the abnormally dangerous activity may create a large class of foreseeable plaintiffs.
Necessity is a defense to trespass to land. What are the kinds of necessity?
2 kinds of necessity: (1) private necessity--if you enter someone else's land to avoid a greater harm, and you are only saving yourself, your family, or one member of the community, you are not liable for trespass. But you are still liable for any damages caused. (2) public necessity--arises when you enter the land of another to avoid a greater harm, but you are saving members of the community who are not family members. This is an absolute defense; you are not liable for any damages.
Under Article 2, unless the contract provides otherwise, a buyer has a right to inspect the goods __________.
at the buyer's own expense before she pays for the goods. but the buyer's expense may be recovered from the seller if the goods do not conform and are rejected.
vague terms in contracts
look to the intent of the parties.
When a contract for the sale of goods is missing the price term, __________.
the price will be a reasonable price at the time of delivery
products liability
falls under a theory of strict/absolute liability. Have to show that product was dangerous AND defective at the time that it left the company's control. Don't care how much care they put into their product or whether they inspected it.
when can buyer cancel an installment contract based on a defective installment delivery?
In an installment contract, a buyer may cancel the entire contract due to breach only if the buyer can show that the nonconformity substantially impairs the value of the entire contract.
if a buyer notifies a seller that the shipment of goods was defective and keeps the goods:
the buyer has accepted the goods and cut off her right to reject them
perfect tender rule for single delivery ks
goods must conform perfectly with k. if goods are defective, buyer can reject the shipment of goods. can reject the goods even if the defect in the goods causes no monetary damage to the buyer.
withdrawing auction bid
can do it in auctions with or without reserve up until the auctioneer announces the sale. but withdrawal of bid does not revive any previous bid.
when can buyer reject an installment of goods in an installment contract?
buyer can only reject the installment if he can show that the shortfall substantially impairs the value of the installment and cannot be cured.
2 exceptions where we will allow recovery in negligence for only emotional damages
(1) mishandling of a corpse (2) false report of a death All other negligent infliction of emotional distress requires some physical injury (damages!).
Section 5
(50 cards)
gov't regulation of public forums
regs must be subject matter and viewpoint neutral; if not, strict scrutiny must be met. regs must be time/place/manner reg that serves an important gov't purpose and leaves open alternative places for communication. gov't regulation of public forums need not use the least restrictive alternative, but must be narrowly tailored. city officials cannot have discretion to set permit fees for public demonstrations.
exceptions to mootness
3 exceptions (1) class action (2) voluntary cessation (3) wrong capable of repetition but evading review
employer liability for intentional torts committed by an employee
Generally, an employer will not be liable for intentional torts committed by an employee. However, there are three exceptions. An employer will be liable if: (1) the employer/principal expressly authorizes the tort (2) the tort is inherent to the nature of the agent/employee's duties (3) the agent/employee commits the tort with the intent to serve the principal.
Privacy torts
4 privacy torts: CLIP Commercial appropriation Light (false light) Intrusions into one's seclusion/solitude Public disclosure of private facts C, L, and P require publication (showing them to someone else) in order to be liable for damages. privacy torts do not survive death. note that you only need general damages like mental anguish, not special damages (that's gravy).
name-calling and defamation
name calling will never be enough for defamatory language. defamatory language has to be about specific facts.
kinds of slander per se
(1) adversely reflect on one's conduct in a business or profession (2) someone has a loathsome disease (3) crime of moral turpitude (4) chastity
What facts must be true of a defendant in order to sue them in strict liability for a defective product?
Defendant must be a commercial supplier, distributor, seller of the product, and they must have put that item into the stream of commerce.
prima facie elements for defamation
(i) defamatory language on the part of the defendant; (ii) the defamatory language must be "of or concerning" the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer);(iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff.
4 per se violations in defamation (where damages are presumed)
LUMP Loathsome disease (i.e. VD) Unchaste (impugning a woman's chastity) Moral turpitude Profession
pleading colloquium
re: defamation where D is trying to be sneaky. if the statement doesn't refer to P on its face, you can use extrinsic evidence to establish that the statement refers to the P.
how similar in population size do state congressional districts have to be to one another?
variance in the number of persons included within the district must not be more than a few percentage
group defamation
if it's a small group, everyone can collect for defamation. if it's a large group, no one can.
state regulations of foreign commerce
Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments. The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce; any state attempts to regulate foreign commerce will be struck down.
elements of defamation by public disclosure of private facts:
(i) publication or public disclosure by defendant of private information about the plaintiff; and (ii) the matter made public is such that its disclosure would be highly offensive to a reasonable person of ordinary sensibilities.
what's the difference between libel and slander? Why does it matter?
libel--written. don't have to plead any special damages; general damages are pursued slander--spoken. have to prove special damages unless you have per se slander
defamation
false statement by the D published to someone other than the P that injures the P/reduces standing in community/harms P's reputation. Truth is a defense! If dealing with a public figure, have to show that the statement was false and that D published with malice. This means they knew the statement was false or spoke with reckless disregard for the truth. If dealing with a private figure, just have to show that D was negligent in publishing the defamatory statement. DPDPD Defamatory fact, publication, damages (general aka reputation or special aka pecuniary), plaintiff (public or private) remember that we assume general damages, but have to see proof of special damages.
difference bw limited public forums and designated public forums
limited public forums are gov't properties limited to certain groups or dedicated to discussion of only some subjects. designated public forums are gov't properties that gov't could close to speech, but chooses to open to speech (i.e. school gym).
profit
a nonpossessory interest in land similar to an easement that allows the holder to enter on the servient tenement and take the soil or the substance of the soil (e.g., minerals, timber, oil, or game).
dormant commerce clause vs. P&I vs. P or I
ASK: is law discriminating against out of staters? if not, then P & I of 5th Am is inapplicable. look instead at whether the law is burdening interstate commerce without properly benefitting the state; if so, law is struck down as violation of commerce clause. if law does discriminate against out of staters, ask if the discrimination is re: important economic activities or fundamental rights. if it is, this is a P&I (5th Am) issue--violates P&I if rights burden is not necessary to achieve an important gov't purpose. If does discriminate but no important economic activities/fundamental rights, then look at whether it violates the commerce cl by burdening commerce. 2 exceptions here: market participant exception and cong'l approval of the discrimination.
privacy protections encompass what stuff?
butt stuff marriage procreation contraception child-rearing abortion
elements of accomplice liability
2 requirements: (1) must have specific intent that the principal commit the target offense (2) accomplice must aid/abet/counsel/encourage the principal in the commission/attempted commission of the crime remember that there is no requirement that the principal be convicted in order to get accomplice liability
what is the fault requirement for a matter of public concern against a public figure?
actual malice
commerce power
3 manifestations: (1) Cong can regulate the channels of interstate commerce (2) Cong may regulate the instrumentalities of interstate commerce or people/things in interstate commerce (3) Cong may regulate economic activities that have a substantial effect on interstate commerce (Wickard v. Filburn)
defamation vs. privacy
defamation reduces reputation. privacy is about being left alone, even if the tort enhances your reputation.
can you defame a dead person?
no
fundamental rights that get you strict scrutiny
right to interstate travel privacy voting first amendment rights
defenses to defamation
truth and consent
what is the fault requirement for a matter of public concern against a private figure?
negligence
what is the fault requirement for a matter of private concern against a private figure?
no fault requirement! trick question!
determining the scope of an easement
The scope of an easement is determined by the reasonable intent of the original parties. Generally, courts assume that the parties intended the easement to meet the easement holder's reasonable present and future needs. When the scope or location of an easement has been specified, these specifics will govern. However, when the scope of an easement has been set out only in general language, courts assume that the parties intended a scope that would have foreseen reasonable changes in the use of the dominant estate.
what is the fault requirement for false light cases?
actual malice
Congress cannot appoint members of a commission that exercises enforcement powers because:
enforcement is an executive act
extra elements of defamation if it's a matter of public concern:
fault of the D and falsity of the statement
surcharge of easements and profits
An easement is said to be surcharged if the holder uses it in a way that exceeds its legal scope. If the servient estate is surcharged, the servient owner may enjoin the excess use and possibly sue for damages if the land has been harmed. A profit is similarly surcharged if the holder exceeds the legal scope of their interest. A surcharged profit is automatically terminated.
how similar in population size do federal congressional districts have to be to one another?
near mathematical equality
nuisance
A disturbance that poses a substantial interference with the P's use and enjoyment of her own property. Must be offensive/obnoxious to a reasonable, average P. Cannot just be part of the usual friction of living in a crowded society; has to be pretty intolerable. usually intangible (compare to trespass to property, which is usually tangible).
prima facie elements of false light invasion of privacy (defamation)
(i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the "false light" must be something that would be highly offensive to a reasonable person under the circumstances.
laws punishing membership in a group
law must meet strict scrutiny. to punish membership in a group, must prove that the person: (1) actively affiliated with the group (2) knew of group's illegal activities (3) had specific intent of furthering those illegal activities note that laws requiring disclosure of group membership must also meet strict scrutiny if disclosure would chill association.
the publication requirement of defamation is satisfied when:
there is a communication to a third person who understands it. the communication to the third person must be made either intentionally or negligently.
standard for actual malice
subjective. 2 elements: (1) knowledge that the statement was false OR (2) reckless disregard of whether it was false
wild animals
look for wild animal strict liability answer! Don't care how domesticated it is. Must suffer an injury related to the animals dangerous propensities, or from fleeing the wild animal. An owner is strictly liable for injuries caused by animal as long as the injured person did nothing, voluntarily or consciously, to bring about the injury. But strict liability generally is not imposed in favor of undiscovered trespassers against landowners in the absence of negligence, such as when the landowner knows that the trespassers are on the land and fails to warn them of the animal.
scope of employment (agent/principal relationship)
commuting to/from work usually does not fall within the scope of employment. usually not within scope of employment if you haven't commenced your duties or if you or on lunch. If you choose to leave the scope of your employment to do some action (called "abandoning the business of the employer"), you are on an independent venture.
mistake defenses
mistake of law is no defense to a crime. mistake of fact can be a defense. if the mistake of fact is reasonable, it's a defense to general and specific intent crimes. If the mistake of fact is unreasonable, it is only a defense for specific intent crimes. Mistake of fact is never a defense for strict liability crimes.
const'l protections for economic liberties
only use rational basis review; minimal protection. can use the takings cl, but make sure to distinguish between a possessory taking (physical taking) and a regulatory taking (gov't reg leaves no economically viable use for the property). note that gov't conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it's a taking. can challenge regs that existed when you acquired the property. temporarily denying an owner use of property is not a taking so long as the gov't's action is reasonable. reasonable if for public use + compensation paid to owner
is radio/tv libel or slander?
libel
who can be liable for defamation?
the speaker, the primary publisher, and the newspaper sellers
what is the role of falsity in common law defamation?
not part of the prima facie case, but truthfulness is always a defense for the P
how does someone become a public figure?
by achieving fame or notoriety or by voluntarily assuming a central role in a particular public controversy
treaties vs. executive agreements
if treaties conflict with fed law, whichever was adopted last prevails. treaty is invalid if conflicts with Const. executive agreements only need to be signed by president; unlike treaties, do not need to be ratified by senate. can substitute treaties, but they never prevail over fed laws (unlike treaties)
laws preventing movement across states
subject to strict scrutiny. includes durational residency requirements. but restrictions on foreign travel only need to meet rational basis test.
Section 6
(50 cards)
Trespass to land
2 elements: (1) D must commit a physical invasion. D doesn't have to be aware of invasion. (2) invasion must be of P's land. includes area above and below property (w/i reasonable limits)
criminal assault
either: (1) an attempted battery or (2) the intentional creation, other than by mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm
what result when a contract contains a clause prohibiting assignment of the contract, but a party assigns his rights in the contract anyway?
assignment is still valid, but assignor may be sued for breach of contract.
A promise not to sue on a claim can be considered valuable consideration only if:
the claim is valid or the claimant reasonably and in good faith believes the claim is valid. note that the reasonable person standard does not apply; the claimant herself must actually believe the claim is valid.
intentional infliction of emotional distress
this is the only intentional tort where D does not have to act intentionally, just recklessly. 2 elements: (1) D must engage in outrageous conduct conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society. mere insults are never considered outrageous. 3 hallmarks of outrageousness: (i) conduct is continuous/repetitive/frequent; (ii) D is a common carrier or innkeeper (more likely to be considered outrageous); and (iii) P is a member of a fragile class of persons (children, elderly, pregnant). it is always outrageous to target a person's specific sensibilities. (2) P must suffer severe emotional distress P doesn't have to offer any particular evidence of distress
exception to accomplice liability
members of a class who are protected by a statute that has been violated are exempt from liability i.e. minors that pay adults to buy them beer
An otherwise valid debt that is barred by a technical defense to enforcement (such as the statute of limitations) will be enforced if the debtor makes a new ____________.
promise to pay if it is in writing or has been partially performed
what kinds of suretyship contracts are there?
compensated and gratuitous.
material benefit rule
a modern trend where some courts will enforce a promise if: 1. it is based on a material benefit that was previously conferred by the promisee on the promisor, and 2. the promisee did not intend to confer the benefit as a gift. includes situations in which the promisee performed an unrequested act during an emergency.
in a third party contract, who is the promisee and who is the promisor?
The parties to the contract are the promisee and promisor. A promisor is the party who promised to perform and, thus, owes the duty to perform. The promisee is the party to whom that promise was made.
in the absence of an applicable federal law statute, whose applicable statute of limitations do federal courts ordinarily adopt?
For diversity (aka state law claims), fed courts apply the limitation period of the state whose law governs the merits of an action. For fed question claims, if the statute on which the claim is based has no specific limitations period, fed courts usually adopt the limitation period of the most analogous state law claim.
conversion
Taking or controlling of another's property without consent
A ratification is:
A promise to perform a voidable obligation
someone is a donee beneficiary to a contract if:
the benefits that they got from the contract were intended as a gift
mutuality requires:
that consideration exists on both sides of the contract
deposing expert witnesses
usually can only depose testifying witnesses, not consulting ones. But consulting expert witnesses can still be discovered on a showing of exceptional circumstances under which it is impracticable to obtain facts by other means.
affirmative defenses to intentional torts
consent, protective privileges, and necessity
specific intent crimes
Students Can Always Fake A Laugh, Even for Ridiculous Bar Facts Solicitation Conspiracy Attempt First degree murder Assault Larceny Embezzlement Forgery Robbery Burglary False pretenses
a legal detriment exists when:
you promise to give up a right that you legally have. doesn't matter if it's a right you planned on using; it's about whether you are giving up a right to do it.
elements of battery (tort)
(1) D commits harmful or offensive contact (2) contact is with P's person Contact is offensive if it is nonconsensual. P's person extends to things that P is holding or touching. Battery does not have to be instantaneous; can set off an event that fulfills elements (i.e. poisoning)
Under the U.C.C., if a sale is induced by fraud, the title that passes is:
voidable; the defrauded seller can rescind the sale and recover the goods from the fraudulent buyer. However, the defrauded seller may not recover the goods from a good faith purchaser for value who bought the goods from the fraudulent buyer.
to assert 4th am violation re: search/seizure D must show
that there was a reasonable expectation of privacy re: items searched and seized. Home has highest expectation of privacy.
Terry stop & frisk
police can stop you without probable cause for arrest if they have a reasonable and articulable suspicion that criminal activity is afoot. If after stopping and questioning you, police believe that you are concealing a weapon or contraband, they can frisk you (pat-down) for a weapon. Need plain feel to go in and extract weapon or contraband. If search is before arrest, it's a Terry stop. If the search is after arrest, it's search incident to lawful arrest. remember that the stopping of a car can be a Terry stop.
a promise to choose one of several alternative means of performance is illusory
unless every alternative involves some legal detriment to the promisor
When a party assigns "the contract" to a third party, it results in __________.
an assignment of rights and a delegation of duties to the third party. The assignor will be relieved of his rights, but not his duties under the contract.
naturally omitted terms doctrine
allows you to introduce evidence of terms that would naturally be omitted from a written agreement as long as the term doesn't conflict with the written integration and the term concerns a subject that similarly situated parties would not ordinarily be expected to include in the written instrument
how do we determine consideration in a gratuitous suretyship contract?
look for whether the surety makes his promise to pay before or at the same time as the creditor performs or promises to perform; care about whether the creditor has incurred a detriment in exchange for the surety's promise
arson
common law: malicious burning of the dwelling-house of another modern: malicious burning of any building or structure minimum requirement is charring.
how does a court determine whether someone is a third party beneficiary?
Look at the primary purpose of the promisee. if the primary purpose was to confer a right on another directly, that person is an intended third-party beneficiary.
How do we determine whether a promisor intended to make someone a third-party beneficiary to a contract?
looks at: (1) whether the third party is expressly designated in the contract; (2) whether performance is to be made directly to the third party; (3) whether the third party has any rights under the contract; and (4) whether the third party stands in such a relationship to the promisee that one could infer that the promisee wished to make an agreement for the third party's benefit.
trespass to chattels
relatively minor interference with personal property (i.e. some damage, temporary taking, etc.). Remedy is cost of repair. Mistake of ownership is no defense.
why would it matter if someone is a donee beneficiary to a contract vs a creditor beneficiary to a contract?
a creditor beneficiary can sue the promisee (deliverer) on the underlying obligation, but a donee beneficiary cannot. A donee beneficiary generally can't sue the promisee because there is no right to sue for nondelivery of a gift. But a creditor beneficiary can sue the promisee on the underlying obligation that the promisor's performance was meant to discharge. Note that both a creditor and donee beneficiary can sue the promisor for failure to perform
collateral agreement doctrine
parol evidence is admissible if the parol agreement is collateral to the written obligation and doesn't conflict with it. so if you have an agreement that is collateral to the agreement at issue, you can admit the collateral agreement as long as it doesn't conflict with the agreement at issue.
intentional torts
7 kinds: (1) battery (2) assault (3) false imprisonment (4) intentional infliction of emotional distress (5) trespass to property (6) trespass to chattel (7) conversion
elements of assault (tort)
(1) D places P in reasonable apprehension (2) of immediate battery apprehension = knowledge; P has to know that it's coming! Also only need reasonable apprehension; consider bluff rule. Verbal threat alone is not enough for apprehension of immediate battery; need some sort of physical action.
Once an obligor delegates his duties under a contract to a delegate, the obligee __________.
Must look first to the delegate for performance of the duties, but if he fails to perform, then may look to the delegator as a surety for the delegate's performance
someone is a creditor beneficiary to a contract if:
the benefits that they got from the contract were intended to pay off a debt owed by the promisor.
searching cars
if probable cause justifies the stop of a vehicle, it justifies a search of the entire vehicle including closed containers kept inside. As long as what police are looking for can fit in that space, cops can look there. After you've been arrested, cops can only search interior of car if: (1) there's a threat to officer safety (too many suspects, not enough handcuffs) (2) there's a fear that evidence will be destroyed (3) looking for evidence associated with your arrest (instruments incidental to what you're being arrested for)
laches
An equitable doctrine used by courts to bar a legal claim or prevent the assertion of a right because of undue delay or failure to assert the claim or right. Equity usually looks to the underlying legal action for a statute of limitations (which usually looks at monetary damages), so a court may apply that SoL. Laches can also cut short the limitations. Equity aids the vigilant and will not hear a cause of action of a party who has knowingly delayed in bringing his action IF THAT DELAY HAS CAUSED FURTHER HARM OR OTHERWISE PREJUDICED THE DEFENDANT'S CASE.
Conditional promises are enforceable unless:
the condition is entirely within the promisor's control.
types of consent for intentional torts
express--P explicitly grants P permission. But consent obtained through fraud or duress is ignored implied (2 kinds) (1) implied from custom and usage (i.e. sports) (2) implied consent that results from the D's reasonable interpretation of P's objective conduct (body language consent) remember doctrine of scope --> action has to be within the scope of the consent
Arial surveillance and 4th am
Curtilage of home has highest expectation of privacy, so police can conduct limited arial surveillance over your home without a warrant; can only fly over home and look down with binoculars. Over business, can use special equipment--infrared, whatever. Open fields are fair game; no real protection.
public vs. private nuisance
public nuisance is one that is common to the public generally private nuisance is one that implicates or interferes with a right or interest that is unique to an individual. Note that, when conditions creating a nuisance are gradual and cumulative, the nuisance is a continuing one and laches does not defeat it.
false imprisonment
2 elements: (1) D must commit an act of restraint. threats are sufficient. an omission can be an act of restraint if the D owes a preexisting duty to a P. Act of restraint only counts if the P knows of it or is harmed by it. (2) P must be confined by a bounded area. An area is not bounded if there is a reasonable means of escape that P can reasonably discover; you're not locked in if you can get out. a means of escape is unreasonable if it is dangerous, disgusting, humiliating, or hidden.
A clause prohibiting "assignment of the contract" is construed as barring:
only the delegation of the assignor's duties, not the assignment of the assignor's rights.
Under the doctrine of promissory estoppel, a promise is enforceable even without consideration if
necessary to prevent injustice where the promisor should reasonably expect to induce action or forbearance, and such action or forbearance is in fact induced
reasonable expectation of privacy requires:
either: (1) right to possession in place searched (2) property interest in items seized if you don't have either, then you have no reasonable expectation of privacy. no reasonable expectation of privacy means you have no standing. no standing means you can't claim a 4th Am violation.
withdrawal from conspiracy
this is an affirmative defense to the underlying crime; it will not defend against the conspiracy charge. To be proper, withdrawal must be: (1) affirmative act notifying all other members of the conspiracy of intent to withdraw (2) in a timely fashion so other conspirators have a chance to withdraw as well But under the Model Penal Code, you can withdraw from a conspiracy! But you have to try to thwart the crime for it to count.
conversion
significant interference with personal property. remedy is full market value of the item, and D keeps original property--> you break it you buy it
if an assignee for value discovers that the assignor had previously assigned the same contract rights to another party, the assignee may:
sue the assignor for breach of warranty; always have implied warranty that the assignor has the right to assign
Section 7
(50 cards)
requirements for a search to be valid
must be pursuant to a warrant issues by a neutral and detached magistrate and based on probable cause to believe that seizable evidence or fruits of a crime will be found on the premises to be searched.
necessity defenses for intentional torts
only apply to the three property torts. 2 doctrines: public and private necessity. Public necessity doctrine--P commits a property tort in an emergency to protect the community as a whole or a significant group of people; behaving altruistically Private necessity--P commits a property tort in order to mitigate a danger against themselves or their property. this is only a partial defense; you cannot be kicked off the property and are not liable for technical violation, but you are liable for actual damages. If owner of property kicks you out and something happens to you, owner is liable.
over which cases does SCOTUS have original jurisdiction?
Under Art III, § 2, SCOTUS has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and in which a state is a party. Although a state may be a party, it may not be a party in the sense that SCOTUS has traditionally required to justify an exercise of original jurisdiction. For example, the state may be attempting to act parens patriae, meaning that it is asserting interests of citizens in a representative capacity rather than asserting any of its own interests.
res ipsa loquitor
have to show that the accident is of the type normally associated with negligence--would not have happened if someone hadn't screwed up. also have to show that the accident that occurred is ordinarily due to the negligence of someone in this D's position; want to reassure the court that you're suing the right guy. usually do this by showing that D had control over the instrumentality of the harm.
warrantless seizure/plain view doctrine
police must: (1) be legitimately on the premises where the item is found (2) the item must be evidence, contraband, or a fruit or instrumentality of a crime (3) the item must be in plain view and (4) it must be immediately apparent that the item is evidence, contraband, or a fruit/instrumentality of a crime
licensee
enters the property with express or implied permission, but does not confer any economic benefit on the property possessor (i.e. social guest)
negligent infliction of emotional distress
have to show that D was already negligent under some other standard and that D was emotionally upset 3 kinds: (1) near-miss cases--D's negligent act placed P in a zone of physical danger, and D physically manifested his distress (observable to others) (2) bystander cases--P is physically present and sees D negligently injure or kill a close family member and is upset. note that, in VA, P must also be in the zone of danger. (3) relationship cases--preexisting business relationship between P and D where nature of the business makes it foreseeable that carelessness will lead to distress.
if you have an assigned/sublet tenant who fails to pay rent/taxes:
the only parties that may be held liable are those that are in privity of contract with the landlord (the original tenant) and in privity of estate with the landlord (the current tenant). Be careful with subletters vs. assignees re: privity of estate
negligence cases where we don't use but-for test for factual causation
(1) merged causes: 2 Ds act independent of each other to release a destructive force into the environment. (2) unascertainable cause: 2 Ds act at the same time, but we don't know which one of them actually caused the harm
impossibility defense to a contract
only works if it is objective, meaning that no one could have completed the obligation (as opposed to subjective, meaning that this particular contractor could not have completed the obligation).
attachment vs. perfection
attachment secures a party's rights in the collateral against the debtor; aka the security interest is enforceable. VCR: value, rights in collateral, recorded agreement perfection secures a party's rights in the collateral against third parties. perfection is attachment + something else (some sort of publication of the interest/agreement}
premises liability
duty owed by owner of real estate depends on the kind of entrant that we are dealing with. 4 kinds of entrants: (1) unknown trespasser--don't owe them anything because they are an unforeseeable victim (2) known or anticipated trespasser--duty to protect entrant from hidden manmade death traps on the land (3) licensee--duty to warn or protect from all known traps on the land (4) invitee--duty to cure or warn against all dangers that possessor could have discovered through a reasonable inspection note that duties to warn do not extend to dangerous conditions that entrant should have reasonably discovered
elements of res ipsa loquitor
Res ipsa loquitur requires that: 1. The accident is of a type that normally does not occur in the absence of someone's negligence; 2. The evidence connects the defendant to the negligence (i.e., this type of accident ordinarily happens because of the negligence of someone in the defendant's position); and 3. The injury was not attributable to the plaintiff or any third person.
the burden of a real covenant will run to successors in interest if:
(i) the covenanting parties intended that successors in interest be bound by the covenant; (ii) the successor in interest has notice of the covenant; (iii) there is horizontal privity between the original covenanting parties; (iv) there is vertical privity between the covenantor and his successor in interest; and (v) the covenant touches and concerns the land. note that it is harder to get the burden on land in a real covenant to travel through successors than it is for a benefit to land. for the burden to run, vertical privity requires that the successor hold the covenantor's entire durational interest.
exception to the warrant requirement for searches incident to arrest
applies after any constitutional arrest (meaning any arrest that is reasonable and based on probable cause). It is not necessary that the police fear for their safety or believe that they will find evidence of a crime as long as the suspect is placed under arrest.
collateral (secured transactions)
almost any kind of personal property can serve as collateral, but certain Article 9 UCC rules vary depending on the type of collateral. 3 broad kinds of collateral: (1) tangible collateral or goods (2) intangible or semi-intangible collateral (3) proceeds
vicarious admission by member of conspiracy
admission must have been in furtherance of the conspiracy by a participant in it
perfection of a security interest
attachment + one of the following: (1) filing of a financing statement (2) taking possession of the collateral (3) taking control of the collateral (4) automatic perfection (PMSIs) (5) temporary perfection (i.e. debtor receives proceeds from sale of collateral)
invitee
enters land with express or implied permission to confer economic benefit or because the property is open to the public at large (i.e. business customer)
ways to satisfy duty in a premises liability case
either repair the hazard or give a warning (oral warning ok)
intangible/semi-intangible collateral
eight types: (1) instruments (2) documents (i.e. receipts) (3) chattel paper (records of monetary obligation) (4) accounts [receivable] (5) deposit accounts (6) investment property (i.e. stocks) (7) commercial tort claims (8) general intangibles (i.e. copyrights) type of collateral is determined by the collateral's nature, rather than its use.
duty to rescue
no duty unless there is a pre-existing relationship between the rescuer or unless you caused the danger. if there is no duty to rescue and you cause more harm through rescue, you are liable.
the rights of an intended third party beneficiary to a contract vest when:
(1) the beneficiary manifests his assent to the promise in a manner invited or requested by the parties (2) brings suit to enforce the promise or (3) materially changes his position in justifiable reliance on the promise
attractive nuisance
4 elements of attractive nuisance: (1) artificial dangerous condition exists (2) possessor knows/should have known that children are likely to trespass (3) child herself fails to appreciate the risk of danger because of her age/immaturity (4) utility of allowing the dangerous condition is slight compared to the risk involved note that a child trespasser that is injured by a dangerous artificial condition need not have been attracted onto the property by that condition.
covenant for title
covenant contained in a deed that gives the grantee and her successors certain assurances regarding the title conveyed. In a deed that contains covenants for title (i.e., a general or special warranty deed), a grantor covenants against title defects created by himself and/or all prior titleholders. Covenants for title are distinct from covenants relating to the use of the land.
first degree murder requires
deliberation, premeditation, OR that the killing occurred during an enumerated felony. Depraved heart murder is usually second degree murder.
special duties of care in negligence cases
(1) children sued as Ds. children under 5 yo have no duty of care. (in VA, age is 7 yo). children over 5 should act as a hypothetical child of similar age, experience, and intelligence under similar circumstances. Exception when child is engaged in adult activity--then child is back under reasonable person standard (2) professionals. standard of care is same as what you would get from an average member of the profession providing the same service. we do not imagine a hypothetical person; we go out and ask other professionals in that field what the standard of care is. Professionals have a duty to conform to the expectations of their field. Would need an expert witness to establish the duty of care in court.
real covenant vs equitable servitude
A real covenant is a written promise to do or not do something on the land. Real covenants run with the land at law, and thus the general remedy for their breach is damages. An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against assignees of the burdened land who have notice of it.
protective privileges (defense for intentional torts)
the privileges encompass 3 separate doctrines: (1) self-defense (2) defense of others (3) defense of property privileges have three requirements: (a) timing. has to be in the heat of the moment. preemptive or preventive action isn't self-defense. (b) accuracy about the nature of the threat. must have reasonable belief that the threat was genuine. remember shopkeeper's privilege. (c) degree of force must be proportional. deadly force is ok if there is a deadly threat to your person.
what do you need for the benefit of a real covenant to run to successors in interest?
The benefit of the covenant will run with the land if: 1. The covenanting parties intended that successors in interest be benefitted by the covenant; 2. There is vertical privity between the covenantee and her successor in interest; and 3. The covenant touches and concerns the land only need vertical privity! No horizontal privity needed for benefit to run--only need it for burdens to run.
exception to reasonable person standard in negligence cases
reasonable person usually has no physical attributes unless: (1) D has a particular and relevant expertise; then the reasonable person also has that expertise (2) reasonable person is always assumed to have the same relevant physical characteristics as D (meaning that the physical characteristic played some role in the injury) --> i.e. blindness
what title does a mortgagor bank have over a joint tenancy, where the mortgage was only taken out by one of the tenants?
most states (including VA) regard a mortgage as a lien on title. in these states, a mortgage of the property by one joint tenant does not by itself sever a joint tenancy until default and foreclosure proceedings have been completed. if the mortgaging tenant dies and the bank never forecloses, the interest that the bank has in collateral evaporates. But note that, in a title theory state, a mortgage is considered to be an actual transfer of title to the property, so a mortgage by a joint tenant severs the joint tenancy.
directed verdicts and res ipsa loquitor
one of the effects of res ipsa is that no directed verdict may be given to the D, because when the res ipsa element has been proved, the P has made his prima facie case for negligence.
statutory negligence
aka negligence per se. can use statute if P can show that he is a member of the class that the statute was intended to protect, and the harm is of the kind that the statute was intended to prevent.
common development plan
A common scheme for development is not required for the burden of a written equitable servitude to run to a subsequent purchaser. Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, reciprocal negative servitudes may be implied absent a writing if there is a common scheme for the development of a subdivision and the grantee had actual, record, or inquiry notice of restrictions that do not appear in his deed.
a liquidated damages clause in a contract is enforceable if:
(1) damages are difficult to ascertain at the time of the making of the contract and (2) the damages are a reasonable forecast of compensatory damages
covenants granted by a general warranty deed
6 covenants: (1) right of seisin (2) right to convey (3) covenant against encumbrances (4) covenant of quiet enjoyment: will not be disturbed in possession of the land (5) covenant of further assurances: will perform whatever acts are necessary to perfect the buyer's title (6) general warranty: will defend buyer's title against lawful claims
what do police need to search the interior of the vehicle incident to the arrest of the occupant?
(1) arrestee is unsecured and may gain access to the interior of the vehicle or (2) police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
running the burden to successors in interests; different elements equitable servitude vs. real covenant
the burden of an equitable servitude runs down to a successor in interest if: (1) covenanting parties intended that successors in interest be bound (2) purchaser had notice of the covenant (3) covenant touches and concerns the land for the burden of a real covenant to run down to a successor in interest, need all the elements for burden of an equitable servitude + vertical and horizontal privity.
general duty of care
general duty is to take risk-reducing precautions for the benefit of others. duty is only owed to foreseeable victims; unforeseeable victims always lose negligence lawsuits. rescuers are seen as foreseeable, even if they come over from really far away, because it's foreseen that people will try to help. risk-reducing precautions have to be of the same degree as the reasonably prudent person under the same set of circumstances.
defenses to equitable servitudes
estoppel--the suing/benefitted party acted so that a reasonable person would think that she abandoned the covenant and the burdened party relied on this unclean hands--the suing party is violating a similar restriction on her land. laches--benefited party failed to sue the burdened party within a reasonable period of time changed conditions--benefited party is attempting to enforce a servitude in a neighborhood that has changed significantly since the time the servitude was created
factual causation
but for the breach, P would not be injured. alternatively, ask: what would have happened if there was no breach?
exceptions to statutory negligence
compliance with the statute would have been more dangerous than a statutory violation, or compliance with the statute is completely impossible.
warrantless searches are ok in situations where quick action is needed, such as:
hot pursuit of a fleeing felon, evanescent evidence, and emergencies that threaten health or safety.
proceeds (re: collateral, secured transactions)
proceeds include whatever is received upon the sale, exchange, collection, or other disposition of collateral or proceeds. include 2d gen proceeds and insurance payable by reason of loss or damage to collateral.
special warranty deed
grantor only warrants that he did not personally create any title defects. grantor makes no warranties or representations about what prior holders of the title might have done.
dual status rule
a security interest in nonconsumer goods does not lose its status as a PMSI if: (1) the security interest also is secured by property that was not purchased with the loan money or credit (2) the collateral also secures advances that were not made for the purchase of the collateral OR (3) the PMSI has been refinanced, consolidated, etc. But if the goods are consumer goods, the courts must determine appropriate rules for PMSIs.
subjective impossibility defense to a contract
usually doesn't work, but will work if the contract is for a unique service that can only be performed by the specific party contracted (i..e. a portrait).
tangible collateral goods
5 types of tangible collateral/goods: (1) consumer goods (2) inventory (3) farm products (4) equipment (5) fixtures perfection of the security interest depends on the type of tangible collateral involved
exceptions to premises liability
(1) police/firefighters are not entitled to any duty of care because they have assumed the risk that is inherent to their job (2) child trespassers are owed duty of reasonably prudent person acting under similar circumstances. Pay attention to doctrine of attractive nuisance; if you have something on your land that's tempting to the kids, you have a duty to make sure the land is safe for them. If there's no real risk that kids will come on land, don't have to child-proof the land.
Section 8
(50 cards)
how many days to remove a case to fed court?
30 days after receipt of service or 30 days after dismissal of party that ruins fed jx
modified comparative negligence
defendant must be more than 50% at fault before the plaintiff can recover
relevant relationships re: vicarious liability
(1) employer-employee: employer is liable for the torts committed by the employee within the scope of employment. But presume that intentional torts fall outside scope of employment. (2) independent contractor and hiring party: no vicarious liability unless the contractor is acting on the premises of a business (nondelegable duty doctrine) (3) car owner and car driver: owner is not vicariously liable for actions of driver unless the driver is running an errand for the owner (4) parent and child: no vicarious liability for torts of your kids
filing statement is effective for
5 years
Where is venue proper in a civil suit?
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 omissions giving rise to the claim occurred.
merged causes in negligence cases
2 Ds act independent of each other to release a destructive force into the environment. don't use but-for test to determine factual causation. instead use substantial factor test--if each breach was substantial in causing the injury, factual causation is met. this usually means that the breach alone was enough to cause the injury, or the combined effect of both actors creates an injury that could not have resulted from just one of the acts at a time.
5 warranties on a negotiable instrument
(1) D promises that P has good title to the instrument (2) D promises that all signatures are good and authorized (so forgery would be a breach) (3) D promises that the instrument has not been materially altered (this promise is defective if the instrument looks like it's been tampered with) (4) D promises that there is no defense or claim good against D, meaning that the instrument is enforceable (5) D promises that she has no knowledge of any bankruptcy or insolvency action against the maker/drawer
action for deficiency judgment
happens when you sell the collateral but still come up short on cash. note that a bad faith creditor will likely lose the right to a deficiency judgment. if a secured party sells collateral at a low price to an inside buyer, we do not use the actual amount paid to calculate deficiency. instead, we use the amount that an independent 3rd party would have paid.
last clear chance doctrine
invoked by a P to counter an accusation of contributory negligence. works when you have either a helpless P or an inattentive P, and D could still have prevented the harm from occurring entirely by exercising reasonable care. helpless P--P negligently places himself in danger and is trapped in that danger. If D could have seen P and prevented the harm, P is not contributorily negligent. inattentive P--P is oblivious, doesn't realize that he is in danger.
in a properly removed case, venue is proper:
in the fed court of the state where the case was pending, even if venue would have been improper if the P had originally filed the action in the fed district court of that state.
unascertainable cause in negligence cases
2 actors act at the same time, but we don't know which one actually caused the harm. instead of using but-for test, we determine factual causation by shifting the burden of proof to Ds: Ds must prove that they were not the cause of the harm. If they cannot exonerate themselves, they are jointly and severally liable. note that this does not apply unless we know that all actors were negligent in acting; just are trying to figure out who caused the injury. pivots on causation when we KNOW that both have breached a duty.
definition of merchant
someone who routinely deals in goods of this type service provider doesn't count, but commercial lessors (rent products) do.
When a D attempts to remove a case from state court to fed court, the state court __________ have had SMJ over the case
need not. by statute, the state ct did not have to have SMJ. A fed ct may decide a claim in a removed civil action even if the state ct that the case was originally filed in had no SMJ.
Property Clause of Const
Congress has power to "make all needful rules and regulations respecting the territory or other property belonging to the United States." This power permits Congress to acquire and dispose of all kinds of property, and to protect its property under law
under what theory may an employer be held liable for negligent supervision of an employee?
directly liable for negligence! not respondeat superior--go for direct liability, not vicarious liability. similarly, a principal may be liable for the tortious acts of a negligently selected independent contractor, but only on direct liability, NOT vicarious liability. you are only vicariously liable for the torts of independent contractors if: (i) The independent contractor is engaged in inherently dangerous activities; or (ii) the duty, because of public policy considerations, is simply nondelegable.
signature liability
when you sign a negotiable instrument, you promise to pay it. If you don't or it bounces, you can get sued. exception: words "without recourse" accompany the signature
"due negotiation" means
there has been a proper transfer of the instrument (and the owner is a holder in due course!)
kinds of product defect
(1) manufacturing defect--product differs from all the other products that came off that same assembly line in a way that makes the product more dangerous than consumers would expect (2) design defect--there is another way that the product could have been built that would have been less dangerous (RAD) (3) informational defect--if there is a residual risk in the product that is not apparent to the consumer, the product is defective unless the product has adequate warnings/instructions
comparative negligence vs contributory negligence
comparative negligence--D can offer evidence showing that P failed to exercise reasonable care to protect themselves. D's liability gets reduced by the percentage of liability that the jury finds against P. contributory negligence--any showing that P was at fault completely eliminates recovery. VA does this!! includes last clear chance doctrine.
injuries caused by animals
if by domesticated animals, no strict liability unless the owner knew of the particular animal's vicious propensities. even if animal was vicious, not liable if the injured person is a trespasser on your property. strict liability if the animal was wild. don't care about precautions.
holder in due course
takes the instrument: (1) for value (2) in good faith and (3) without notice that it is overdue or has been dishonored or is subject to any defense or claim
perfection of security interest by filing
to perfect the interest, you must file a financing statement. Financing statement does not have to have all same info as security agreement; just serves to give notice that a security agreement exists. statement must contain: (1) debtor's name and address (2) secured party's name and address (3) description of the collateral covered (doesn't have to be specific) (4) if the financing statement covers collateral that is related to real property (i.e. timber), the statement must include a description of the real property to which the collateral is related and the name of the property's owner (5) authentication by the debtor (alternatively can be in the security agreement; extends to the financing statement) any seriously misleading error in the debtor's name invalidates the agreement because then third parties can't find it and can't be put on notice that an agreement exists.
strict foreclosure
occurs when the secured party keeps the collateral in full satisfaction of the debt owed. the creditor keeps the collateral property and the debt is cancelled.
failure of intermediary to catch product defect
the negligent failure of a retailer to discover a dangerous defect does not cut off the supplier's strict liability. On the other hand, when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. Hence, the conduct of a retailer who discovered a dangerous defect and then took no action (such as alerting the manufacturer, warning the consumer, or removing the product from sale) constitutes more than ordinary foreseeable negligence and may cut off the manufacturer's liability. note that this speaks to proximate cause, not actual cause, because we are looking at the foreseeability of an intermediary's negligence.
temporary perfection of security interests
only lasts for 20 days. works for security interest in proceeds from original collateral (interest perfected for 20 days from debtor's original receipt; can be extended by reperfecting); new value given for instruments; delivery of collateral to a debtor for disposition; and for perfected collateral that is moved to a new state.
elements of a negotiable instrument
WOSSUP writing order (payable to the order/bearer) signed sum certain unconditional promise payable on demand payable in currency
proximate cause
is the harm within the risks/was this harm foreseeable? in other words, would it be fair to make the D pay for the consequences of this breach? Should D have known that this could have happened?
how to strictly foreclose
secured party sends a written proposal the debtor and secondary obligors to retain the collateral in satisfaction of the debt. if the notified parties object within 20 days after the notice is sent, strict foreclosure will not be allowed.
Art 3 of the UCC
governs commercial paper
damages from multiple Ds
Ds are jointly and severally liable. jury assigns the Ds liability percentages that bind the Ds among themselves, but doesn't bind the Ds re: P. So P can get all his money from one D, and that D can turn around and get the rest from all the other Ds.
employer-employee liability for intentional torts
intentional torts are usually considered outside the scope of employment unless: (1) the job generates friction/animosity (2) the tort occurs during a job where force is part of the job (3) the tort is a misguided effort to serve the employer's interest
transfer liability
anyone who sells a negotiable instrument is liable for breach of warranty. but a donor is not liable. if you indorse the check, anyone who gets the instrument later can sue you if it bounces. but if you don't indorse, only the person you gave the check to can sue you.
commonalities between strict liability and negligence claims in products liability
both require that an injured bystander be foreseeable. both prohibit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages.
what law is applied when collateral is real estate?
law of mortgages
what can we do when the debtor has defaulted and we have a secured interest?
self-help repossession is permissible as long as the creditor doesn't breach the peace. can also repossess by judicial action by obtaining a judicial writ.
elements of strict liability for defective products
(1) D must be a merchant (2) P must show that product is defective (3) product was not altered since it left D's control (4) P was making a foreseeable use of the product at the time of injury
products liability cases in strict liability
unlike negligence cases for products liability, strict liability cases do not require that suppliers have an opportunity to inspect. for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer's product before selling it. contrast this with a negligence action where the supplier's negligence must be proved.
Art 9 UCC applies to:
voluntary or consensual collateralizations in personalty (aka goods) and fixtures. does not apply to statutory or mechanics liens.
abnormally dangerous activities
usually strictly liable. activity must create a foreseeable risk of serious harm even when reasonable care has been exercised (impossible to make it safe), and the activity must be uncommon in the area where it is being conducted. Note that liability only attaches if the activity actually occurred. no liability just for risk of harm from dangerous activity. usually get three scenarios: (1) anything involving blasting/explosives (2) use/transportation of extremely toxic chemicals or biohazards (3) anything involving nuclear energy or high dose radiation
retrial after reversal of conviction
The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial. note that, despite this limitation, retrial is actually permissible. so would be ok to convict D of a lesser offense.
types of indorsements
special--names a particular person as indorsee. can only be used by someone else if signed by indorsee blank--doesn't name specific indorsee. may be negotiated by delivery alone. restrictive--contains a restriction qualified--passes title to the instrument but limits the indorser's liability to later holders if the instrument is later dishonored ("without recourse")
well-settled quartet of proximate cause/foreseeability
still liable even those these happen because they were foreseeable events growing out of your negligent actions (1) intervening negligent medical treatment (2) intervening negligent rescue (3) intervening protective/reactive forces (like a stampede) (4) subsequent disease or injury
self-help repossession
self-help repossession is permissible as long as the creditor doesn't breach the peace. a breach of the peace occurs when the secured party's actions are likely to cause violence (or otherwise provocative). a repossession made over any protest by the debtor is a breach of the peace. constructive force (i.e. impersonating a cop) is also a breach of the peace because the debtor's capacity to protest has been chilled. criminal and civil penalties attach to creditor's misconduct. repossessor cannot enter debtor's home without voluntary and contemporaneous consent. But if the collateral is outside the home, the secured party can take the collateral so long as there is no debtor objection.
sale of collateral
the secured party may sell the collateral and apply the sale proceeds to the debt. the secured party chooses whether the sale will be public or private. 2 governing points: (1) every aspect of the sale must be commercially reasonable (2) prior to the sale, reasonable notice must be sent. Art 9 provides standard notice which, if used, are presumptively commercially reasonable. content of notice depends on the type of sale. If sale is public, must state time and place of sale. if sale is private, the notice must state the time after which the sale will be made.
eggshell skull principal
D is responsible for all of P's injuries, even if those injuries are surprisingly great in scope--"we take our Ps as we find them"
debtor's right to redemption
debtor's right to redeem collateral is cut off once the secured party has resold or completed a strict foreclosure. to redeem, the debtor must pay the missed payment + accrued interest and the creditor's reasonable expenses, including attorney's fees. if the security agreement contains an acceleration clause, the debtor can only redeem if he pays off the entire amount owed + interest and expenses.
loss of consortium remedy
applies when a victim's spouse sues the tortfeasor. spouse is liable to same counterclaims that victim would be subject to. spouse can raise claim for loss of services, loss of society, and loss of sex.
if no federal question is involved and diversity does not exist when a case is commenced, removal will:
be permitted: (1) if the parties ruining diversity are dismissed from the action (2) the requirements for diversity jx are then present (3) it has not been more than a year since the case was filed in state court and (4) D moves to remove the case within 30 days of the dismissal of the nondiverse party
60% rule
if the collateral is consumer goods and the debtor has paid 60% or more of the loan, strict foreclosure is not allowed. instead, the secured party must sell the collateral within 90 days or be liable in conversion. don't want any windfalls to creditors at consumer's expense!
where do we file a financing statement?
financing statements are filed centrally, in the state where the debtor is located. if the debtor is an individual, she is located in her state of principal residence. if the debtor is a corp, it is located in the incorporating state. Exception: if the collateral is timber, minerals, or fixtures, we file the statement in the county where the realty is located.
Section 9
(50 cards)
grounds that make marriage voidable
one of the parties was a minor (under 18), duress, mental incapacity, incurable impotence (total inability to have sex), fraud. all voidable grounds are also waivable. they are waived if you continue to cohabit (live together + sex) after the impediment is removed.
dismissal without prejudice
P can voluntarily dismiss his own case once without prejudice if he does so before D serves his answer. If D has already served his answer, it is up to the court to allow voluntary dismissal without prejudice.
holder in due course can only be defeated by
real defenses, which are MAD FIFIIII Material Alteration Duress Fraud In Factum Incapacity Illegality Infancy Insolvency
types of character evidence
(1) reputation (2) opinion (3) specific acts relevant to the character trait
foster kids
when child is removed from the home, the initial goal is to try to reunite the kid and the parent. if the problem can't be fixed, the state can terminate parental rights and try to find the kid a new home. if adoptee is 14+, kid also has to consent to adoption. if kid is in custody of someone other than the biological parent, they have to consent as well--usually means that state services have to consent. hearing to finalize adoption is more of a formality. aims to ensure that the child's placement is in their best interest.
relevance
evidence is relevant if it has any tendency to prove or disprove a material fact of consequence. evidence is relevant if it goes to pleadings, defenses, or credibility (Pretty Darn Clear). burden is on the offering party to show that the evidence is relevant; favors admissibility. general rule is that the evidence must relate to some time, event, or person in the present lawsuit.
habit evidence
describes one's regular response to a specific set of circumstances and is relevant to show that the person acted the same way on the occasion in question. critical words: always, instinctively, invariably, automatically ok to admit in criminal and civil cases!
terminating parental rights
grounds for terminating parental rights include neglect of the child, abuse of the child, and abandonment of the child. have to establish by clear and convincing evidence that the grounds to terminate exist and that it is not likely that the relevant condition can be corrected or eliminated, and that termination would be in the best interest of the child.
properly payable rule
drawee bank that honors a forged or materially altered check must recredit the drawer's account as long as the drawer was not negligent
under Art 3 of the UCC, what is the SOL fo actions on notes payable at a definite time or on demand?
6 years
good faith means
(1) honesty in fact (the subjective prong) (2) observance of reasonable commercial standards of fair dealing (objective prong)
uniform child custody and enforcement act
when multiple states are involved, jx over the custody case goes to the child's home state, meaning where the child lives and has been living for 6 mos. if no home state, you check backwards six months ago. if no home state 6 mos ago, jx goes to the state that has the greatest connection with the child.
course of performance
A sequence of conduct between the parties to a particular transaction that exists if: (1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and (2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.
business routine
the established routine/practice of an organization is admissible just like habit.
mercy rule
applies re: character evidence. if the D's character is not baked into the case itself, then D gets to decide if she wants to open the door to character evidence--it's D's call.
stop payment orders
oral order is binding on a bank for 14 days. orders in writing are binding for 6 mos and can be renewed indefinitely. if the bank pays in spite of order, the customer has the burden of proving that the loss occurred.
habit vs. character evidence
habit is determined by frequency and particularity; a regular response to a specific set of stimuli character evidence instead refers to a person's general disposition or propensity. basically specific (habit) vs general (character)
holder in due course and the shelter rule
you take whatever rights your transferor has. if they are legit (even if you aren't), then you take shelter in their legitimacy.
claim preclusion
also called res judicata. For res judicata to apply, it must be shown that: (i) the earlier judgment is a valid, final judgment on the merits (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same cause of action is involved in the later lawsuit. When the claimant won the earlier lawsuit, the claim is said to be merged into the prior suit. Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.
evidence of subsequent remedial measures
Can only be admitted to show: FDIC Feasibility (if in dispute) Destruction of evidence Impeachment Control or ownership (if in dispute)
employee indorsement rule
employer is liable for forgeries by an employee who was entrusted with responsibility for handling checks. employer must monitor employees!
under Art 3 of the UCC, if no one demands payment on the maker of a note payable on demand or at a definite time, an action to enforce the note is barred if no interest or principal has been paid on the note for:
10 years
obstruction of justice
knowingly and willfully making a material false statement to a law enforcement officer who is investigating a crime.
accessory after the fact
a person who knows that an offense has been committed and receives, relieves, comforts, or assists the felon in escaping punishment.
divisible divorce
state has SMJ over marriage and can grant divorce, but hav to travel to spouse's home state (PJ over spouse) to litigate collateral issues.
bank statement rule
a drawee is negligent if she fails to examine her bank statement. if a customer fails to report a forgery or alteration within a reasonable time, she is estopped from demanding recredit from the bank.
annulling a marriage because of fraud
prior to the wedding, one party misrepresented or concealed from the other facts that go to an essential aspect of the marriage. statutory fraud: failing to disclose that you were convicted of a felony, carrying another man's child/impregnated another woman, previously a prostitute material enough to be fraud: misrepresentations concerning religion, lying about procreation or sex (have to tell them that you can't have kids, carrier for some awful disease, or are into really weird shit). misrepresentation re: money, property, or social status is not considered fraudulent enough for an annulment
kinds of annulment
2 kinds (1) marriage is void; aren't actually married, annulment is optional. might do it anyways to resolve collateral issues or for clarity of the record. (2) marriage is voidable. need a lawyer to affirmatively annul the marriage.
mutuality rule
traditionally, means that only someone who was a party in the previous case can use issue preclusion. However, this rule has been modified to allow nonparties to use issue preclusion in certain circumstances. When a nonparty wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to allow the nonparty to do so.
redaction rule
if a party makes a statement of fault in a statement mentioning insurance of offering to pay medical expenses, the statement of fault is an admission, but the insurance/offer to pay is redacted because it is inadmissible.
school searches
school search will be upheld only if it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search, and the search is "not excessively intrusive in light of the age and sex of the student and the nature of the infraction."
issue preclusion
also called collateral estoppel. A party is bound by issue preclusion if: (i) there was a final judgment; (ii) the issue was actually litigated and determined; (iii) the issue was essential to the judgment; and (iv) the party to be bound by the prior judgment was a party to the prior action or in privity with a party to the prior action.
compare FOB contracts to FAS contracts
FOB = free on board FOB point is the delivery destination FAS = free alongside ship seller must deliver the goods alongside the vessel in a manner usual in the port of delivery and obtain and tender a receipt for the goods
what is the difference between consideration and value?
promise is not enough for value (but can constitute consideration) old value is good value! but wouldn't be enough for consideration
merger re: civ pro
Merger occurs when the plaintiff wins; her cause of action is said to "merge" into the judgment such that she cannot relitigate the cause of action later. The court would hold that all of the personal injuries received by the pedestrian in one accident constitute a single cause of action, and that claim preclusion principles forbid relitigation.
adopting children
need consent of biological parents. if you don't know identity of parents, don't need consent. if you do know identity and serve the papers for consent and don't hear back for 21 days, consent is assumed. don't need consent if rights have been terminated and kids are in foster care.
pragmatic relevance
relevant evidence may be excluded by the court if the probative value is substantially outweighed by the danger of six trial or pragmatic concerns: (1) unfair prejudice (2) confusion of the issues (3) misleading of the jury (4) waste of time (5) undue delay (6) unduly cumulative there is a heavy burden on the objecting party to convince the court that relevant evidence should be excluded because its probative value is substantially outweighed by one of these.
terminating a marriage
2 ways: (1) annulment--something was wrong when you walked down the aisle; problem of capacity. can make it like you were never married. (2) divorce--problem arose after wedding
kinds of fraud under the UCC
2 kinds; real and personal real fraud (fraud in factum)--don't understand that nature of what you are signing, or that it's a contract. personal fraud (fraud in the inducement)--you know you're signing a contract for X or Y, but you're are induced into signing it by some misrepresentation.
evidence of similar occurrences
exception to general rule of relevance. may be admitted sometimes even though it involves some other time, event, or person not directly involved in the litigation. can generally admit this evidence to prove: causation that the P's injuries were part of a common plan/scheme intent or state of mind (inferred from prior conduct Cannot be admitted to show that P is accident-prone or careless.
fictitious payee rule
if an imposter induces the drawer to write a check, the drawer is negligent.
uniform interstate family support act
provides that support orders can be directly enforced across state lines. can just mail the court order to the other parent or to the state court and make the other state enforce and honor your state's order. state the issued the original support order retains original jurisdiction as long as one of the parents lives there; can't modify the child support award in a different state.
offers to pay medical expenses
general rule is that evidence that a party furnished or offered to pay hospital, medical, or similar expenses is inadmissible. if a party makes an admission of fault during an offer to pay medical expenses, it's admissible as an admission/opposing party statement.
UCC default limitation on suits for breach of contract
four years
rebutting character evidence in criminal cases
if the D has opened the door by calling character witnesses, the prosecution may rebut in two ways: (1) calling its own witnesses to testify to the Ds relevant bad character (2) cross-examining D's character witnesses by questioning their knowledge of specific acts that the D has engaged in that are relevant to the character trait at issue--goes to credibility of witness, not substantive value of the character evidence. even though the prosecutor is not proving the specific act, it must have a good faith basis to believe that the specific act took place.
admission of settlement offers in civil cases
if the claim is in dispute, evidence of settlement offers, actual settlements, or admissions of fault during settlement negotiations are inadmissible if offered to prove fault, amount of damages, or impeach a witness with prior inconsistent statements or contradictions settlement can be admitted to show bias of the witness
under the UCC, parties can contract and reduce the limitations to sue for breach of contract to not less than _________________ from the contract date
one year
character evidence in criminal cases
only allowed to introduce reputation or opinion evidence that speaks to a pertinent character trait. character evidence that goes towards propensity NEVER allows evidence of specific acts!
grounds that void marriage
bigamy and consanguinity (incest). it is incest to marry ancestors, descendants, siblings (blood or adopted), aunts, or uncles. Step-siblings and cousins are ok. cannot waive grounds that void marriage; once you learn about it, you are not married.
unfair prejudice (relevance re: evidence)
appeal to bigotry, hatred, sympathy, or passions
Section 10
(50 cards)
direct cause of injury (torts)
A direct cause case is one where the facts present an uninterrupted chain of events from the time of the defendant's negligent act to the time of plaintiff's injury. If a particular harmful result was at all foreseeable from the defendant's negligent conduct, the unusual timing of cause and effect or the unusual manner in which the injury occurred is not relevant to the defendant's liability. In indirect cause cases, another force comes into play AFTER the defendant's negligent act and combines with it to cause the injury.
impeachment by contradiction
the cross-examiner is bound by answers given to collateral matters; can't bring in extrinsic evidence to impeach on a collateral (aka nonessential) matter. An issue is considered collateral if it would not be admissible other than to contradict the testimony.
foundation to show that something is a learned treatise
can use judicial notice, opponent's expert on the stand or your expert can say it's a learned treatise, other party can stipulate that it's a learned treatise.
can you present extrinsic evidence of witness bias?
Yes! You can generally present extrinsic evidence to show witness bias. But it is up to the court to decided whether the witness needs to be confronted with the alleged bias while on the stand.
in what civil cases is character usually baked in as an essential element of a claim or defense?
defamation, negligent entrustment/hiring, and child custody cases.
prior consistent statement
a witness's prior consistent statement may only be used if: (1) it rebuts a charge of recent fabrication (statement must have been made before motive to fabricate existed) or (2) the statement tends to rehabilitate a witness who has been impeached on some other ground. in addition to rehabilitation, prior consistent statements are considered nonhearsay and may be admitted for the truth of the matter asserted. the statement does not need to be sworn.
what are some common nonhearsay purposes (meaning statement is not offered for the truth of the matter asserted)
impeachment, verbal acts (legal significance), show effect on the listener, and as circumstantial evidence of state of mind.
when can you use leading questions on direct?
to establish preliminary matters (i.e. name, address, occupation); where the witness has some challenge (i.e. language barrier); and where the witness is hostile.
credibility
defined by PMS Perception Memory Sincerity
expert witness testimony
must be qualified through education, experience, and/or training re: scientific, technical, or specialized knowledge that will assist the trier or fact. expert opinion must be based in three sources: (1) personal knowledge (2) other evidence made known to the expert at or before the hearing (3) facts outside the record if the facts are of a type reasonably relied upon by the experts in the field (includes inadmissible hearsay!) expert op must also be sufficiently reliable.
impeachment methods
7 techniques: (1) prior inconsistent statements (2) bias, interest, or motive to lie (3) sensory defects (ability to perceive) (4) bad reputation or opinion testimony about a witness's character for truthfulness (5) criminal convictions (6) prior bad acts (not conviction!) involving witness's character for truthfulness (7) contradiction
hearsay analysis checklist
(1) where was the statement made? (2) what is being said? (3) what is the statement being offered to prove? remember that hearsay is an out-of-court statement offered for the truth of the matter asserted
lay witness opinion testimony
lay witness opinion testimony is admissible if: (1) it is rationally based on the witness's perception (personal knowledge) (2) it assists the jury in deciding the facts and (3) not based on scientific, technical, or otherwise specialized knowledge (that's for experts)
ultimate issue testimony from an expert witness
expert may testify as to the ultimate issue exception: in a criminal case, an expert may not state an opinion as to whether the accused had a mental state at issue (like intent or duress).
a confession is involuntary if the police use any of the following actions to get the confession:
(1) force (2) threats of violence (3) use of drugs (4) lengthy periods of being held incommunicado (5) engendering hope of benefit (6) artifice or trick and (7) threats of worse treatment
self-authenticating documents
documents generally aren't self-authenticating. exceptions for: (1) certified copies of business records (2) certified copies of public records (3) official publications (4) newspapers or periodicals (5) trade inscriptions or labels (6) acknowledged documents (aka notarized) (7) certain signed commercial documents
when can you introduce evidence of a criminal conviction?
any crime (felony or misdemeanor) may be used to impeach if it involves lying, deceit, or false statement. the court has no discretion to keep these convictions out of evidence (unless the conviction is too old). if a conviction does not involve dishonesty or false statement, it must be a felony to be admitted against a witness. the court does have discretion to exclude these convictions. the conviction cannot be too remote, meaning that it cannot be 10+ years from conviction or release from prison (whichever is later). evidence of past convictions is presented by introducing a certified copy of the conviction. the witness does not need to be confronted with the conviction in order to introduce extrinsic evidence.
character evidence in civil cases
generally inadmissible to prove propensity in civil cases exception exists where character is an essential element of a claim or defense. why doesn't this exception exist in criminal cases? because criminal statutes never bake character in as an essential element of a crime.
burden of proof for prior bad acts
prosecution must produce sufficient evidence for a reasonable jury to conclude that the D committed the prior act by a preponderance of the evidence.
what are verbal acts?
out-of-court words that have independent legal significance. the words themselves create, alter, modify, or terminate legal rights of a person. generally tortious or transactional language.
impeachment
the process of trying to show that the witness is not credible. a party may impeach its own witness.
awarding spousal support
a court can, in its discretion, award spousal support in periodic payments for a defined or undefined duration, or in a lump sum. In making it's determination, the court must consider the earning capacity, obligations, needs and financial resources of the parties, education and training of the parties, marital standard of living, duration of the marriage, the age and physical/mental conditions of the parties, monetary and nonmonetary contributions of each party, property interests of parties, distribution of marital property, and tax consequences. Can consider other things as well.
authenticating evidence
any rule offered into evidence must first be authenticated. a foundation must be laid to show that the writing is authentic, and that it is what it appears to be. proponent must produce sufficient evidence to support a finding that the writing is what the proponent claims it is. methods of authentication include direct evidence in the form of D admissions, eyewitness testimony, and handwriting proof.
charity-to-charity exception
exception to the RAP; doesn't violate the RAP if it's going from one charity to another.
rehabilitation
the process of trying to repair a witness's credibility after the witness has been impeached. generally, a witness cannot be rehabilitated until after impeachment. introducing evidence to support a witness's credibility before credibility is attacked is called bolstering and is not allowed. exception: prior statement of identification of a person note that rehabilitation must meet the attack--this means that you have to rehabilitate on the same grounds that you were attached on.
evidence of prior bad act relating to the witness's character for truthfulness
can only bring this in by confronting on cross. no extrinsic proof is permitted. cross-examiner must have good faith basis. cross-examiner can ask about the bad act, but not about the consequences of the act. it is within the court's discretion to allow the inquiry.
refreshing recollection
witness cannot read from any notes that they have prepared for trial testimony; witness must testify based on her current recollection. but if the witness can't recall, you can use absolutely anything to jog the witness's memory.
learned treatise in examination of expert witness
a learned treatise may be relied on by an expert during direct examination or used to impeach an expert on cross-examination. once established as reliable authority, it can also be admitted as substantive evidence for the truth of the matter asserted. but note that the learned treatise cannot be offered as an exhibit; it can only be read into the record.
victim's character in self-defense cases
A crim D may offer reputation or opinion evidence of the victim's violent character to prove that the victim was the first aggressor. prosecution may rebut this evidence by showing the victim's good character for the pertinent trait. alternatively, the prosecutor can come after the D; by attacking the victim's character for violence, the D opens the door for attack on the same trait.
other crimes for non-character purposes
D's other crimes or bad acts MAY (note discretionary) be admissible by either side in either civil or criminal cases only if offered for some non-character purpose (meaning no propensity). These purposes are captured in OK I A PIMP: Opportunity Knowledge Intent Absence of mistake/accident Preparation Identity (aka MO) Motive Plan
can you ever use a confession obtained in violation of Miranda?
Yes, only if you are impeaching a witness/the defendant. note that this still has the backstop of voluntariness; you can't ever use an involuntary confession for anything.
admitting expert testimony
must be GRREAT: Gatekeeper trial judge determines if EW is qualified Reliable Relevant Evidence that will Assist the Trier of fact
prior inconsistent statements
any witness can be impeached by showing that, on some prior occasion, the witness made an oral or written statement that is inconsistent with the witness's trial testimony. note that this is limited; can only be used to impeach, not for the truth of the matter asserted. prior inconsistent statements can only be admitted for the truth of the matter if they were given under oath at a prior proceeding.
can you get spousal support if you cheated?
usually, adultery is an absolute bar to spousal support unless the court determines from clear and convincing evidence that the denial of support would constitute a manifest injustice. note that, if both spouses are guilty of adultery, the needy spouse may request support, provided that the divorce separation is sought on no-fault grounds.
admitting writings into evidence
consider OPRAH: Original writing/best evidence rule Privileged Relevant Authenticated Hearsay
in order to testify before a jury, all witnesses are required to:
(1) have personal knowledge of what they are testifying to. this means that they perceived, remember, and can communicate what they perceived. (2) take an oath or affirmation to demonstrate an appreciation of the obligation to tell the truth.
right to cross-examine
parties have absolute right to cross-examine a witness who testifies live. if a witness refuses to answer questions on cross, the direct examination must be stricken.
identity evidence
aka MO evidence. Admissible to show that D committed the crime if it is (1) unique and (2) associated with the accused. Unique = like a signature. think zodiac killer.
foundation requirements to introduce past recorded recollection
(1) witness once had personal knowledge of the facts in the document (2) witness now cannot recall well enough to testify fully and accurately (3) the document was either made by witnesses or adopted by the witness (4) making or adoption of the document occurred when the event was fresh in witness's memory (5) witness can vouch for accuracy of the document when made or adopted
elements of adverse possession
COAH: For possession to ripen into title, it must be: i) Continuous - Uninterrupted for the given statutory period. ii) Open and Notorious - Possession the usual owner would make under the circumstances. iii) Actual and Exclusive - Entry CANNOT be symbolic, hypothetical or fictitious; Literal physical entry. cannot share with the owner or the public. iv) Hostile Use - Possessor doesn't have the true owner's permission to be there. *NOTE: POSSESSOR'S SUBJECTIVE STATE OF MIND IS IRRELEVANT. Any subjective determination as to what the possessor WAS or WAS NOT thinking. Irrelevant that the trespasser believed that she was on her own land.
impeaching a hearsay declarant
a hearsay declarant is the person whose speech is being conveyed by the testifying witness. although the declarant is not present, the declarant may still be impeached just like anyone else.
novation
A novation arises when the parties enter into an agreement to substitute a third party for one of the parties in a contract, releasing the party who was substituted. All parties must agree to the substitution.
if you are going to introduce evidence of a prior inconsistent statement, do you have to show the witness the statement before introducing the evidence?
You don't have to show the witness the statement before introducing extrinsic evidence of the statement. But fairness does require that the witness get some opportunity to explain or deny the evidence at some point during the proceeding. Note that you do not need to lay a foundation for an inconsistent prior statement if the witness being impeaches is a party opponent, or if you are impeaching a hearsay declarant (a person whose testimony is being relayed by a witness).
who can be a hearsay declarant
only people! no animals, no machines.
bad reputation or opinion about witness's character for truthfulness
any witness can be impeached through reputation or opinion evidence on the witness's character for untruthfulness. the only way to do this is by bringing in another witness to testify, so extrinsic evidence is naturally permitted. the witness does not need to be confronted with the bad character evidence to introduce extrinsic evidence.
Daubert factors
used to determine whether expert opinion is sufficiently reliable to present to the jury. considers: (1) whether the theory or scientific technique has been tested (2) whether technique is subject to peer review and publication (3) the known or potential error rate (4) whether it's generally accepted in the scientific community
can you present extrinsic evidence of sensory defects?
yes, you can present extrinsic evidence of sensory defects. sensory defects are anything that could affect the witness's perception or memory. poor eyesight, mental defects, alcohol, or drug use at the time of the event or while on the witness stand. the witness does not need to be confronted with the sensory defect in order to introduce extrinsic evidence?
when can a D present evidence of his own perception of victim's character for violence?
D can offer evidence of his own perception of victim's character for violence if it's for the purpose of showing the D's state of mind. it's not propensity evidence, it is evidence of D's state of mind. because it isn't propensity evidence, D can offer this evidence in any form; reputation, opinion, or specific acts.
scope of cross-examination
may cross on: (1) issues raised on direct (2) issues of credibility
what out of court statements are excluded from the hearsay definition?
COPPP Co-conspirator statements Opposing party statements Prior consistent statements Prior inconsistent statements Prior statements of identification
Section 11
(50 cards)
When can a trial judge exclude relevant evidence?
Under R 403, there are four grounds: (1) evidence is more prejudicial than probative (2) cumulative evidence (3) waste of time (4) likely to confuse the issues
excited utterance
(1) startling event (2) causes declarant to be excited or shocked (3) statement relates to the event (4) and is made while the declarant is under the stress of the event
when can trials be closed to the public?
In the context of criminal cases, the Supreme Court has held that trials and pretrial proceedings can only be closed if: (1) closure is necessary to preserve an overriding interest and (2) the closure order is narrowly tailored to serve the overriding interest. While the Court has not yet established the standard for civil matters such as the case here, several Justices and commentators have suggested that the same standard will be applied in civil cases since they too have historically been open to the public.
co-conspirator statements
statements made by a co-conspirator are always admissible against a party opponent for the truth of the matter asserted; not hearsay in order to be admitted as a co-conspirator statement, the court must find by a preponderance of the evidence that: (1) a conspiracy existed (2) declarant was a member of the conspiracy (3) the statement is offered against a member of the conspiracy (4) the statement was made during the course of the conspiracy (5) statement made in furtherance of the conspiracy
prior felony judgments (hearsay exception)
evidence of a final judgment of felony conviction. evidence is admitted to prove any fact essential to the judgment. good for civil and criminal cases. But if offered by the prosecutor in a criminal case, the felony must be against the D (not against a third party)
what is judicial notice and when can a judge do it?
this is the recognition of a fact as true without formal presentation of evidence. court can do this for facts that are not subject to reasonable dispute because: --the fact is generally known within the trial court's jx --the fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
what are presumptions?
a rule that requires a particular inference to be drawn from an ascertained set of facts. can be destroyed in civil cases when the adversary produces evidence to rebut the presumption. Note that there are no mandatory presumptions against criminal defendants. So D in a crim case does not need to produce evidence to rebut a presumption.
exceptions to atty-client privilege
--future crime or fraud --client makes an issue of legal advice (claims to have acted on bad legal advice) --dispute between atty and client note that the difference between the second and third exception is that the client is asserting deficient performance of atty to a third party, as opposed to asserting the deficient performance against the atty himself.
how do we know what law applies re: privileges?
in a case that's governed by state law (i.e. diversity case), state law extends to privileges as well. in a case where federal law applies, we extend fed common law to privileges
when does the atty-client privilege attach?
attaches when there is a professional legal relationship, meaning that the client intends to establish a professional legal relationship. this includes fee negotiations. predominantly legal services must be sought--not business or social advice.
statement for purpose of medical diagnosis or treatment
made by patient, family member, or good samaritan to a medical professional for the purpose of diagnosis or treatment. statement must describe medical history, symptoms, pain/sensation, or the cause (but not the fault!) of injury insofar as the description is pertinent to diagnosis or treatment
when is content-based regulation of speech ok?
the government must show that the regulation is necessary to achieve a compelling state interest that cannot be satisfied by less restrictive means.
Crawford rule
re: 6th Am Confrontation Cl In criminal cases, prosecution cannot offer in testimonial hearsay (even if it falls within the hearsay exception), unless: --D has the opportunity to cross declarant at trial or --declarant is unavailable and D had a prior opportunity to cross declarant
agent/employee statements and admissions
statements by an employee are admissible against her employer as an admission if: (1) the statement was made within the scope of employment (2) made while declarant was employed by party-opponent (note that employee doesn't need to be authorized to speak by the company) but note that, although the statement itself is some evidence that you have an employee/employer relationship with the party, you may need additional independent evidence to prove the relationship if the relationship is disputed.
Rule 804 hearsay exceptions vs. Rule 803 hearsay exxceptions
Rule 804 requires unavailability of the declarant Rule 803 exceptions are sufficiently reliable and do not require unavailability of the defendant
what are the requirements to use the former testimony hearsay exception?
(1) statement is made under oath at a prior proceeding (2) statement is now being offered against a party to the prior proceeding (3) party against whom the statement was offered had a prior opportunity to examine the declarant at the prior proceeding (4) the prior proceeding was conducted for essentially the same reason as the examination at the present trial (5) the declarant is unavailable
what is the Lemon test?
The Establishment Clause prohibits the government from taking action respecting the establishment of religion. The Lemon test determines whether gov't action constitutes an establishment of religion. Where no sect preference is involved, the Lemon test upholds government action if: (1) it serves a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not produce excessive government entanglements with religion.
hearsay exceptions only extend to cases where:
the declarant is unavailable. the declarant is unavailable in 5 instances--trapped in a PRISM Privilege Refusal to testify Infirmity or death Service in the military Memory is garbage
requirements for statement against declarant's interest
(1) statement was against declarant's interest when it was made (2) reasonable person would not have made the statement unless she believed it true when she made it and (3) declarant is unavailable special rule for criminal cases: if the statement tends to incriminate the declarant, the rule requires corroborating circumstances to indicate trustworthiness
defining testimonial re: evidence
we need to know whether evidence is testimonial to know whether it creates a Confrontation Cl issue under the Crawford Rule We know if a statement is testimonial by looking at the primary purpose of the statement. Calls for help are not testimonial. Statements that provide information to the police after the emergency ends are testimonial. Note that nontestimonial statements can become testimonial as soon as the emergency turns into information. Under the Crawford Rule, we have to exclude testimonial statements that are made without the opportunity to cross the declarant; otherwise we create a Confrontation Cl issue forensic analysis reports that have the effect of accusing a person of criminal conduct are testimonial. If the analyst who drafted the report is unavailable to testify, there may be a Confrontation Cl violation.
absence of business records
requirements: (1) transactions recorded per business records exception--contemporaneous, person with knowledge, ordinary course of business (2) all transactions of this type are recorded (3) custodian or person familiar with records authenticates (4) diligent search of records fails to show that the transaction occurred
out of court opposing party statements
admissible because they are not hearsay--they are admissions. no personal knowledge required. can state facts, opinions, or legal conclusions. can be harmful or self-serving when it was made (doesn't have to be just about bad stuff). a party need not testify in order to introduce the statement.
absence of public records or vital statistics
requirements: (1) evidence that a diligent search failed to reveal a public record or vital statistic (2) testimony by qualified witness or certification from the custodian of public records
what are the 804 hearsay exceptions (declarant must be unavailable?
exceptions for: (1) former testimony (2) dying declarations (3) statements against interest
Prior statements by testifying witnesses
2 requirements apply to all three prior statements exclusions from hearsay: (1) hearsay declarant must testify (2) hearsay declarant must be subject to cross re: the prior statement
prior statement of ID
a prior statement of ID is admissible even if the witness identifies the wrong person at trial, as long as the witness testified and is subject to cross. prior IDs may include show-ups, line-ups, photo arrays, sketch by police artist, or in-court IDs at prior proceedings. prior ID doesn't need to be recent or under oath.
atty-client privilege
confidential communications between an atty and client (or representative of either) made during professional legal consultation are privileged from disclosure unless waived by the client or an exception applies. the privilege survives the client's death. client must intend confidentiality. the client holds the privilege, but the atty can claim the privilege on behalf of his client; we assume the atty can do this unless there is evidence to the contrary. privilege does not cover physical evidence or physical observations. it only applies to communications.
The Property Cl of the Const
Congress has the power "to make all needful rules and regulations respecting the territory or other property belonging to the United States."
spokesperson statements and admissions
statements by a person authorized to speak on behalf of a party = admissions
is judicial notice conclusive?
in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive in a criminal case, the court may instruct the jury that it may or may not accept the judicially noticed fact as conclusive.
spousal immunity
only applies in CRIMINAL cases. one spouse cannot be forced to give adverse testimony against the other in a criminal case. privilege belongs to the testifying spouse. spouses must be married at the time of the trial, but privilege extends to matters that pre-date the privilege. protects against all adverse testimony.
requirements for dying declaration hearsay exception
CUBA Cause of death (statement must relate to death) Unavailable Belief that death is imminent Allowed in all civil cases (only in homicide cases if criminal) personal knowledge of the statement is required.
big three privileges
atty-client spousal immunity and marital communications psychotherapist/social worker-client
duty to mitigate in construction contracts
In construction contracts, the builder's duty to mitigate generally dictates only that he not continue work after the breach and not incur further expenditures. builder may also have a duty to apply any usable materials that he purchased to other jobs or to attempt to resell them to another contractor.
what are preliminary issues of admissibility?
--whether a witness is qualified to testify --existence of a privilege --admissibility of evidence judge's call. judge is not bound by the rules of evidence in making this determination (except re: privilege)
adoptive statements
a party cannot get HURT by silence as an adoptive statement unless: Heard the statement Understood the statement Reasonable person would Take exception note that you cannot get HURT by silence after Miranda warnings.
records of regularly conducted activity (business records)
requirements: (1) record must be authenticated by a custodian or otherwise qualified witness familiar with the records (2) records made contemporaneously with business transaction (3) record made by person with knowledge of facts (4) made and kept in the ordinary course of business (5) admissible hearsay to prove the contents of the record unless the opponent shows that the record is suspicious or unreliable
then-existing mental, emotional, or physical condition
(1) statement of (2) then-existing state of mind, emotion/sensation, or physical condition admissible to prove intent, plan, motive, mental feeling, and pain can include a statement of intent to perform future acts. unless we are using the will exception, no statements of memory or belief; statements must look forward.
can a P enforce judgment against a D if a post-trial motion (like motion for new trial) is pending?
Yes, judgments are enforceable during pendency of post-trial motions unless the court otherwise orders and on such conditions for the security of the adverse party as are proper.
when is a successor in interest in a burdened estate bound by a covenant on the land?
To be bound: (i) the parties must have intended that the covenant run with the land; (ii) the original parties must have been in horizontal privity; (iii) the succeeding party must be in vertical privity with the original promisor; (iv) the covenant must touch and concern the land; and (v) generally, the burdened party must have actual or constructive notice of the covenant. Notice is not required for the benefit to run.
confidential marital communications privilege
Applies to both civil and criminal cases. spouse is not required, and is not allowed without other spouse's consent, to disclose a confidential communication made by one to the other during the marriage. Both spouses hold the privilege. spouses must be married at the time of the communication, not the trial. only protects confidences, not the spouse's own observations, physical evidence, etc. note that this is a TESTIMONIAL privilege; can stop your spouse from taking the stand, but can't stop spouse from spilling her guts to the cops.
flipper witness
this is when a witness who was supposed to testify at trial re: a prior identification recants prior to making a statement or cannot recall their ID. In this case, a third party witness can testify as to a prior statement of ID
exceptions to both spousal privileges
(1) communications or acts in furtherance of future crime or fraud (2) communications or acts destructive of family (i.e. spousal or child abuse) (3) one spouse suing another (i.e. divorce)
present sense impression
(1) statement that describes or explains an event or condition (2) made while the declarant is perceiving the event or immediately thereafter
will exception for statements of then-existing mental, emotional, or physical condition
normally, statements of then-existing mental, emotional, or physical conditions would not allow for statements of memory or belief. but the will exception allows us to look backward. where there's a will, there's a way.
recorded recollection
only good if the witness cannot recall, despite refreshing their recollection. requirements: (1) document of an event, and the document (2) relates to facts witnesses cannot presently remember, but did know earlier (3) written or adopted by witnesses (4) when facts were fresh in witness's memory (5) but contents can only be read into evidence; jury cannot receive the document as an exhibit from the proffering party (6) but the adverse party can introduce the document into evidence
most tested 803 hearsay exceptions
present sense impression excited utterance then-existing state of mind statement for purposes of medical treatment recorded recollection business records/absence of business records public records/absence of public records prior felony judgments learned treatises
public records and reports
records, reports, statements, data compilations of a gov't agency that describes one of three areas, unless the opponent shows that the sources appear untrustworthy: (1) the activities of the agency (2) any matter observed by a public official with a duty to observe and report (3) investigative reports in civil cases, and against the gov't in criminal cases, including factual findings and opinions and conclusions law enforcement reports against a D in a criminal trial are inadmissible
psychotherapist/social worker privilege
client has privilege against disclosure of confidential information acquired by the psychotherapist or social worker in a professional relationship entered into for the purpose of getting treatment. elements: (1) patient must be seeking treatment (2) information acquired must be confidential and necessary to facilitate treatment waived if patient sues the psychotherapist, or if the patient puts his own condition at issue.
joint client rule
applies to atty-client privilege. if 2+ clients with common interest consult the same atty, their communications with counsel about the common interest are privileged as to 3rd parties. But if the joint clients later have a dispute with each other about the common interest, the privilege does not apply as between them.
Section 12
(3 cards)