Evidence
What are the requirements for evidence to be admissible? (Hint: Relevance & when relevant evidence can be excluded)
For evidence to be relevant, it must be:
(1) Material—the proposition must be “of consequence” in the case (though it does not need to be the ultimate issue); and (2) Probative— the evidence has “any” tendency to make the proposition more or less likely. (i.e., Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.)
Relevant evidence is admissible but may be excluded if the probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Real, demonstrative, and experimen- tal evidence are permissible in the judge’s discretion.
• An original writing, recording, or photograph is
What are the burdens of proof and persuasion?
The prosecution must prove every element of a crime beyond a reasonable doubt. D may be required to prove any affirmative defenses.
Which motions must be brought in the first answer or motion, or else they are waived?
1) lack of PJ
2) insufficient process/service of process
3) improper venue
4) affirmative defenses
What are the three types of recording acts/statutes and who prevails under each type?
1) Race: first to record wins, notice is irrelevant (first in time, first in right)
2) Notice: subsequent BFP wins (value and no notice)
3) Race-notice: subsequent BFP who records wins
SHELTER RULE: a non-BFP who receives the property from a BFP is protected under the shelter rule
Note: People who get the property for free are NOT protected
Duty: generally, reasonably prudent person standard
Breach: D breached duty of care
Causation: (1) Actual (but-for) = factual connection between the breach and the injury suffered; AND (2) Proximate = harm is foreseeable result of the breach
Damages: P must suffer actual harm
What are the categories of out-of-court statements that are NON-hearsay?
1) verbal act or legally operative words
2) state of mind
3) effect on listener or reader
Even if offered to prove the truth of the matter asserted:
A. Prior statements of a trial witness
1) prior statement of identification
2) prior inconsistent statement
3) prior consistent statement (to rebut charge of fabrication)
B. Opposing party's statement
1) any statement made by OP offered against OP
2) adoptive admissions
3) agent/employee statement made during existence of relationship, concerning matter within scope
4) co-conspirator statements made during course of/in furtherance of conspiracy
Intentional killings: defendant (D) acts with intent to kill
1) First-degree murder (with malice aforethought): An intentional killing with premeditation and deliberation (e.g., poisoning someone).
2) Voluntary manslaughter (without malice aforethought): An intentional killing of a human being in the heat of passion due to adequate provocation (e.g., D finds wife in bed with another or D is punched in the face by someone and is enraged). (Tip: mere words do not count as adequate provocation under the majority view).
Unintentional killings: D does not always act with intent to kill, but can
3) Second-degree murder (with malice aforethought): (i) Extreme recklessness (e.g., D shoots his gun in a crowded room without intent to kill); or (ii) Intentional infliction of great bodily harm and death results (e.g., D cuts someone’s legs off without intent to kill him but he dies); or (iii) Catchall: D is not guilty of first-degree murder but acts with malice; D can intend to kill (e.g., D shoots and kills someone because he is enraged after being insulted by them). Tip: oftentimes this third category of second-degree murder looks like voluntary manslaughter but D is not adequately provoked.
4) Involuntary or misdemeanor manslaughter (without malice aforethought): (i) A killing due to gross negligence or recklessness (e.g., a parent does not take his extremely sick infant to the free local clinic and the infant dies), or (ii) A killing during a misdemeanor or felony that does not qualify for felony murder (misdemeanor manslaughter rule).
5) Felony murder (with malice aforethought): D commits a felony and someone other than a co-felon dies. The death can occur during the commission of the felony, the attempt to commit it, or the flight from it.
• The felony must be inherently dangerous (e.g., robbery, arson, rape, kidnapping, and burglary).
• There must be causation: Under the agency theory, the felon or his agent (co-felon) must cause the death. Under the proximate cause theory, the felon is liable so long as he “sets in motion” the acts that cause the death.
What are the requirements for a pleading/complaint? (Hint: different standard in certain circumstances)
The federal pleading rules generally require the pleader to 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.
However, there are certain special pleading rules that require a party to state more detail under special circumstances, including claims that assert fraud or mistake. Under such special circumstances the federal rules specifically require that a plaintiff assert the claim for relief with particularity.
When can an offer NOT be revoked before acceptance?
FOUR categories:
Firm offer by merchant in a signed writing under UCC (can be held open for max 3 months)
Option contract (with consideration)
Unilateral contract (if offeree begins performance, offer is held open for a reasonable time)
Reasonably foreseeable substantial reliance on the offer
What are the elements of defamation?
1. a defamatory statement about the plaintiff,
2. an unprivileged publication of the statement,
3. fault (at least negligence), and
4. damages.
In libel cases (cases where the defamatory statement is written or recorded), damages are presumed.
In slander cases, damages are presumed if the slander is in one of the four slander per se (CLUB) categories: (1) committing a crime of moral turpitude, (2) suffering from a loathsome disease, (3)unchastity if the plaintiff is a woman, or (4)something that reflects badly on the plaintiff’s businessor profession.
Public figure cases: If the plaintiff is a public figure, he also must prove that the statement is false and that the defendant acted with malice. Malice is present when the D knows the statement is false or acts with reckless disregard as to whether it is false.
What are the hearsay exceptions? Specify which apply regardless of declarant's availability, and which apply only when the declarant is unavailable.
Declarant must be unavailable (i.e., invokes a privilege, is absent from the jurisdiction, is ill or dead, lacks memory, or refuses to testify) - FFSDS
1. Forfeiture by wrongdoing (witness tampering): a party engages in wrongdoing for the purpose of making a witness unavailable for trial.
2. Former testimony: declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the motive and opportunity to develop the statement.
3. Statement against interest: declarant is unavailable and made a statement he knew was against his interest at the time the statement was made.
4. Dying declaration: Declarant is unavailable, the statement was made while he believed death was impending, it concerns the cause or circumstances of death, and it is used in a homicide or civil case. Tip: memorize these elements!
5. Statement of personal or family history (e.g., birthdate and marriage date)
Is it a CRIMINAL CASE? If so, if the statement is testimonial, the declarant is unavailable, and the defendant had no opportunity to cross-examine the declarant, the statement will generally not be admitted (pursuant to the Sixth Amendment Confrontation Clause).
Declarant may be available or unavailable - PET MR. BPL
1. Present sense impression: declarant describes or explains event as it is happening or immediately thereafter.
2. Excited utterance: there is a startling event, the declarant makes a statement while under the stress of excitement, and the statement relates to the event.
3. Then-existing mental, emotional, or physical condition: declarant states his then-existing feelings, physical conditions, or intent.
4. Statement for medical treatment or diagnosis: declarant makes a statement about past or present symptoms or the cause(s) to get diagnosed or treated.
5. Recorded recollection: a witness has insufficient recollection of the event, but he had personal knowledge of the event at a former time, made or adopted a statement while the event was fresh in his memory, and can vouch for the accuracy of the statement when made or adopted.
6. Business records: a record made in the regular course of business at or about the time the event occurred that contains information observed by employees of the business (or an independent hearsay exception exists).
7. Public records (made by an agency, but not police reports in criminal cases)
8. Learned treatises (read into evidence if an expert is on the stand)
9. “Catchall” exception (for trustworthy statements)
10. Others (reputation about character, familial relations, etc.)
Name and explain the exceptions to the warrant requirement?
ASPACE
1. Automobile exception: Officers can search an automobile if they have probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it. Tip: this includes the trunk if there is probable cause to believe evidence is in the trunk.
2. Search incident to arrest: At the time of a lawful arrest (or “contemporaneous” with it), an officer may conduct certain searches of the arrestee (including his person, clothing, and his “wingspan” or grabable space) without a warrant in order to keep the officer safe and to preserve evidence. Tip: the officer may not search the trunk under this exception.
Exception if the arrestee is in a vehicle: once the arrestee is secured, the police officer can only search the vehicle if it is reasonable to believe it contains evidence of the crime for which the suspect was arrested.
3. Plain view: An officer, who is lawfully present in the area that he is in, may seize an item if it is “immediately apparent that it is contraband or evidence of a crime.” Tip: this extends to other senses as well (plain smell and plain feel).
4. Administrative search: this tends to commonly come up in three ways on the MBE: (1) officers can search arrestees and impounded vehicles, (2) public school officials can search students and their personal effects (e.g., backpack, purse, lockers, etc.) upon reasonable suspicion, and (3) random drug testing is permitted for public school children involved in any extracurricular activity.
5. Consent: If one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand the consent to extend. Tip: a cotenant can consent to search of areas over which he has control but other cotenants who are present may revoke the consent.
6. Emergency circumstances: This comes up (1) when an officer is in hot pursuit of a suspect (Tip: there must be probable cause to believe that the suspect has committed a crime and he is in a particular place), (2) if there is a serious injury or threat of injury, or (3) if evidence of a crime likely will disappear before a warrant can be obtained.
A Terry stop and frisk is an exception where only reasonable suspicion is needed. For a Terry stop, the officer needs reasonable suspicion that criminal activity is afoot. For a Terry frisk, the officer needs a reasonable belief that the suspect is armed and dangerous. Tip: the officer can only frisk for weapon
Define and explain the difference between the Article IV Privileges & Immunities Clause, and the 14th Amendment Privileges or Immunities Clause.
The Article IV Privileges and Immunities Clause: States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means. (Tip: This is usually the issue when a state gives a hiring preference to its own citizens and discriminates against out-of-state citizens. Employment is only a fundamental right for purposes of Article IV.)
14th Amendment Privileges or Immunities Clause: States are not allowed to pass laws that would restrict access to vital governmental services (e.g., welfare benefits) to newcomers because such laws would interfere with a citizen’s fundamental right to travel from state to state.
• Dormant Commerce Clause: ► There are two kinds of discrimination:
(1) Laws that expressly discriminate for the purpose of favoring in-state commerce. These are automatically struck down. (E.g., state law imposes high taxes on out-of-state goods and low taxes on in-state goods.)
(2) Laws that discriminate against interstate commerce but are supposedly passed to promote the health, safety, or welfare of the state’s citizens. These are almost always invalid unless the state can show the law was necessary to serve a compelling state interest and there is no reasonable non-discriminatory alternative (strict scrutiny).
► If a state passes a non-discriminatory on its face law that is a burden on commerce (in-state and out-of-state parties are treated the same, e.g., “everyone driving through the state must have a certain kind of tire”), a balancing test is used (weigh the effects of the law on interstate commerce against the state’s interest served by the law). The law is more likely to be upheld.
Note: A commonly tested exception is where the state acts as a market participant—that is, where a state acts as a business rather than a regulator. Tip: Remember that these rules apply to the states. Congress can pass laws that discriminate against commerce.
When can a contract be rescinded/voidable on the basis of a mistake?
Unilateral Mistake: Where only one of the parties is mistaken about facts relating to the agreement, the mistake usually will not prevent formation of the contract. However, if the nonmistaken party is aware of the mistake made by the other party, he will not be permitted to snap up the offer; i.e., the mistaken party will have the right to rescind the agreement. To obtain rescission, the nonmistaken party would also have to establish that the mistake creates a material imbalance in the exchange (i.e., the mistake has a material effect on the agreed-upon exchange) and that he did not assume the risk of that mistake.
Mutual Mistake: If both parties are mistaken about existing facts relating to the agreement, the contract may be voidable by the adversely affected party if: (i) the mistake concerns a basic assumption on which the contract is made; (ii) the mistake has a material effect on the agreed-upon exchange; AND (iii) the party seeking avoidance did not assume the risk of the mistake.
Note: Mutual mistake is not a defense (does not make the K voidable) if the party asserting mistake as a defense bore the risk that the assumption was mistaken. Mistake in value is generally not a defense (because both parties assume such risk).
Identify and explain the strict liability torts.
P must prove duty (absolute), causation, and harm.
1) Abnormally dangerous activities: An abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community.
2) Wild animals: D is strictly liable for foreseeable harms caused by wild animals. (No strict liability to trespassers - can be sued for negligence)
3) Products liability: D must be a merchant. The product must be defective at the time it left the defendant’s hands.
Types of defects: (i) Manufacturing defect: the product departs from its intended design and it is more dangerous than expected; (ii) Design defect: The product comes out exactly as the manufacturer intended. However, there is an alternative design that is safer, practical, and cost-effective; (iii) Lack of warning/instructions: No warning - If there’s a hidden risk, there should be a warning. If risk is obvious, no warning necessary. / Yes warning - examine the size of the warning, color, if there are pictures, etc. to see if it’s adequate. (Liability: Everyone in the chain of distribution is liable under a strict products liability) (Defenses: assumption of risk, comparative negligence, unforeseeable misuse of product)
Explain the completeness rule.
Completeness rule: When a party introduces part of a writing or transaction, the other party can ask that the rest of it be introduced as well if, in fairness, the rest ought to be considered contemporaneously with it.
By introducing the writing or transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc.
Explain the 5th Amendment Miranda rights (the right, the rule, exclusion, waiver, and invocation)
Fifth Amendment Miranda rights: The Fifth Amendment contains the right to remain silent and the right to counsel. This right attaches whenever there is a custodial interrogation.
• Rule: police cannot interrogate a suspect who is in custody without counsel or a waiver (exception: public safety).
• Exclusion: Any confession is excluded in the prosecutor's case-in-chief. Tip: the confession may not be admitted (except for impeachment), but if it led to physical fruits (e.g., evidence like the murder weapon), those fruits may be admitted.
• Waiver: a waiver must be “knowing, intelligent, and voluntary.”
• Invocation: An invocation must be explicit and unequivocal. Tip: Remaining silent is not enough. Ironically, one must speak.
APPROACH:
1) Was the perp in custody? (would a reasonable person feel free to leave/does the environment present the same coercive pressures as station-house questioning?)
2) Did the perp know the person questioning him was a cop? (if not, no Miranda warnings are needed)
3) Was there an interrogation? (incldues any words or conduct by the police that they should know are likely to elicit an incriminating response)
What is Congress' investigatory power? (Hint: includes when Congress can subpoena Presidential information)
Congress has a broad implied power to investigate to secure information for potential legislation or other official action (such as for gathering information relating to impeachment). Investigation must be expressly or impliedly authorized by the appropriate congressional house.
Subpoena of Presidential Information: Congress can subpoena the President’s personal information. The subpoena must advance a legitimate legislative purpose, but the Court will also balance Congress’s interests in obtaining the information against the burdens on the President.
Identify and explain what the future interests in transferees are (i.e., future interests held by someone other than the grantor).
Remainder = a future interest in a third person that can become possessory upon natural expiration of the preceding estate; always follows a life estate.
1) contingent remainder: the remainderman is unborn, unascertained, or if the remainder is uncertain to vest due to a condition (UUU).
2) vested remainder: the remainderman is ascertained, and the remainder is certain to become possessory - (i) indefeasibly vested = not subject to divestment; (ii) vested subject to total divestment = subject to condition subsequent; (iii) vested subject to open = class gift
3) executory interest: an interest that divests the interest of another - (i) shifting = when B divests a third party of his interest; (ii) springing = when B divests O of his interest
What are the 7 intentional torts and their elements?
To the person:
1) Assault: D acts with intent to cause a harmful or offensive contact (or imminent apprehension) and an imminent apprehension directly or indirectly results
2) Battery: D acts with intent to cause a harmful or offensive contact (or imminent apprehension) and a harmful or offensive contact directly or indirectly results.
3) False Imprisonment: D acts with the intent to confine or restrain the plaintiff to a bounded area, actual confinement occurs, and the plaintiff either knows of the confinement or is hurt by it.
4) Intentional infliction of emotional distress (IIED): Defendant intentionally or recklessly engages in extreme or outrageous conduct that causes the plaintiff to suffer severe emotional distress. Tip: The plaintiff does not need to show physical symptoms to prevail. However, the plaintiff must show she suffered “severe emotional distress.”
To property:
5) Trespass to land: D physically invades the land of another and intends to be where he is.
6) Trespass to chattels: D intentionally interferes with another’s personal property and harm results
7) Conversion: D intentionally interferes with another’s personal property and a serious and substantial harm results. The damages are the fair market value of the property.
A homeowner returned home from work one day to find a robber in her living room. After a brief physical altercation, the homeowner ran to a bedroom, hid in a closet, and called 911 on her cell phone. Police officers arrived in less than two minutes and were able to apprehend the robber as he tried to run out the front door. Once they made sure he was locked in the police car, one of the officers went to speak with the homeowner about what had happened. She was still crying and shaking when the officer found her, and she said, "Thank you for catching him! He punched me in the head as I was running away!" The robber was charged with robbery and assault. Traumatized, the homeowner left the country and cannot be traced, despite the efforts of the prosecutor. The prosecutor intends to call the officer to testify as to the homeowner's statement.
Should the court allow the officer's testimony?
No, because admitting the homeowner's statement would violate the defendant's constitutional rights.
Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him. A hearsay statement will not be admitted-even if it falls within a hearsay exception-when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant's "testimonial" statement prior to trial. The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Here, the homeowner's statement was hearsay because it was made out of court and is being offered for its truth-that the robber punched her in the head. It appears that the emergency had already resolved by the time the statement was made. Although only a few minutes had passed since the physical altercation and the homeowner was still upset, the robber no longer posed any danger because he was locked in the police car and the homeowner was aware of this ("Thank you for catching him!"). Therefore, the homeowner's statements to the officer were testimonial. Because the homeowner is unavailable to testify at trial and the robber has had no opportunity to cross-examine the statements, admitting them at trial through the testimony of the officer would violate the Confrontation Clause.
A gang member threatened to kill the defendant unless he robbed a convenience store and gave the proceeds to the gang member. The gang member also demanded at gunpoint that the defendant kill the clerk to prevent identification. In abject fear of his life, the defendant did everything that the gang member requested.
If the defendant is arrested and charged with murder and robbery in a common law jurisdiction, what result?
(A) The defendant should be convicted of murder and robbery.
(B) The defendant should be acquitted of the robbery and convicted of murder.
(C) The defendant should be convicted of robbery, and the killing will be reduced to voluntary manslaughter.
(D) The defendant should be acquitted of the robbery, and the killing should be reduced to voluntary manslaughter.
(B) The defendant should be acquitted of the robbery and convicted of murder.
The defendant should be convicted of common law murder, but acquitted of the robbery. At common law, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” exists if the defendant has any of the following states of mind: (i) the intent to kill (express malice); (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”); or (iv) the intent to commit a felony. In the instant case, malice could be found either by the intent to kill (because the clerk was intentionally killed to prevent identification) or by the intent to commit a felony (the killing was committed during the course of a robbery). Robbery is an aggravated form of larceny and consists of the following elements: (i) a taking; (ii) of the personal property of another; (iii) from the other’s person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it. Clearly, the elements for robbery are met here. Thus, at first glance, the defendant has committed both murder and robbery.
However, the fact pattern also raises the defense of duress. A person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act. In the instant case, the defendant committed the robbery under duress and thus should be acquitted of that charge, making (A) incorrect.
However, duress would not be effective against a murder charge based on an intent-to-kill theory, and here the defendant intentionally killed the store clerk under instructions from the gang member to prevent identification. Thus, because the defendant could be convicted of an intent-to-kill murder, but acquitted of the robbery charge based on duress, (B) is the correct answer.
(C) and (D) are incorrect. An argument could be raised that the killing should be reduced to voluntary manslaughter from murder, given that the defendant was acting under the provocation of a threat of deadly force. At common law, provocation would reduce a killing to voluntary manslaughter if (i) the provocation must have been one that would arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control; (ii) the defendant must have in fact been provoked; (iii) there must not have been sufficient time to cool off; and (iv) the defendant did not in fact cool off. Provocation includes being subjected to a serious battery or a threat of deadly force. However, the reduction to voluntary manslaughter occurs only as to the person who provoked the defendant (or the killing of a third person under the transferred intent doctrine). Thus, had the defendant intended to kill the gang member and unintentionally killed the clerk, he might have been able to claim “adequate provocation” to have the killing reduced to voluntary manslaughter (assuming that a straight self-defense issue could not have been raised). Here, the defendant intended to kill the store clerk, and it is unlikely that a claim of “adequate provocation” would succeed.
A state statute makes criminal "all speechmaking, picketing, or public gathering of any sort on the steps of the supreme court courthouse Monday through Friday, between the hours of 8:30 a.m. and 4:30 p.m., when court is in session." A citizen is upset about a supreme court decision that was just released and stands on the steps of the courthouse at noon, while court is in session, handing out leaflets and exhorting passersby to vote the state supreme court justices out of office. The citizen is prosecuted for violating the statute.
If the citizen challenges the validity of the statute, which of the following best describes the applicable burden of proof?
(A) The state will have to show that there was a compelling need for the statute and that no less restrictive alternatives existed to meet that need.
(B) The state will have to show that the statute was narrowly tailored to serve an important government interest and leaves open alternative channels of communication.
(C) The citizen will have to show that there was no compelling need for the statute and that less restrictive alternatives were available to accomplish the same goals.
(D) The citizen will have to show that there was no reasonable basis for enacting the statute.
(D) The citizen will have to show that there was no reasonable basis for enacting the statute.
The citizen will have to show that the statute was not reasonably related to a legitimate government purpose. Other than streets, sidewalks, parks, and designated public forums, most public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum. The government can regulate speech in such a forum to reserve the forum for its intended use. Regulations will be upheld as long as they are (i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose.
Here, the statute prohibited public gatherings on the steps of the courthouse at specified times while the court was in session, which appears to be a reasonable, viewpoint neutral effort to preserve government property for its intended use. The citizen would have the burden of proving that there was no reasonable basis for the statute.
(A) and (C) are incorrect because the strict scrutiny standard enunciated in those choices applies only to content-based restrictions, and here the statute was not content-based. (B) is incorrect because it states the test for restrictions on speech in public forums. Unlike sidewalks and parks, a courthouse building and grounds are not a public forum even if they are open to the public during specified times.
As a result of a personal injury lawsuit, a victim obtained a judgment against a tortfeasor for $100,000. The tortfeasor, who had few assets, did not pay the judgment. On April 1 of the following year, the tortfeasor inherited a parcel of land from her uncle. On May 1, the tortfeasor entered into a contract with a buyer to sell the land for $120,000. The contract was not recorded. The buyer immediately applied to a bank for a loan of $100,000. The bank approved the buyer's loan, and on May 15, a closing was held. The tortfeasor deeded the land to the buyer, and the buyer executed a mortgage for $100,000 to the bank. Due to an error by the title company, the deed from the tortfeasor to the buyer was not recorded, although the mortgage to the bank was recorded. Neither the buyer nor the bank had any knowledge of the victim's judgment. On May 20, the victim recorded his judgment in the county recorder's office where the land was located. At that time, he had no knowledge of the buyer's or the bank's rights. When he learned about them, he immediately brought a proceeding to foreclose his judgment lien, naming the tortfeasor, the buyer, and the bank as parties.
The jurisdiction has a typical grantor/grantee recording index, and has enacted the following statute:
"Any judgment properly filed in the county recorder's office shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered. No conveyance or mortgage of real property shall be good against subsequent bona fide purchasers for value and without notice unless the same be recorded according to law."
As between the victim and the bank, which party's interest in the land will be given priority?
(A) The bank, because the bank recorded its mortgage before the victim recorded his judgment lien.
(B) The bank, because the victim is not protected by the recording statute.
(C) The victim, because the victim's judgment was filed in the recorder's office before the buyer's deed was recorded.
(D) The victim, because the judgment lien extends to after-acquired property.
(B) The bank, because the victim is not protected by the recording statute.
The victim will not likely prevail against the bank because a majority of courts hold that the judgment lienor is not protected by the recording statute. If the statute here, which is a notice statute, were applicable to protect the victim, he would have priority over the bank because his judgment lien was recorded before the buyer's deed was recorded. Under this view, the bank's mortgage would have been considered "wild" and would be deemed unrecorded because the preceding conveyance, the buyer's deed, was actually unrecorded. A searcher in the public records would therefore have been unable to find the mortgage. Hence, if the statute were applicable to protect the victim, he would have priority over the bank.
However, most courts reason that either (i) a judgment creditor is not a bona fide purchaser because he did not pay contemporaneous value for the judgment, or (ii) the judgment attaches only to property "owned" by the debtor, and not to property previously conveyed away, even if that conveyance was not recorded. Under the statute in the present question, a judgment does not attach until it is recorded. Here, the victim's judgment did not attach to the land until after the bank obtained a mortgage on it, and the recording statute does not change that result. The failure of the buyer to record, and the resultant treatment of the bank as unrecorded, is irrelevant. Thus, the bank's mortgage is superior to the victim's lien.
(A) is wrong because it does not matter whether the bank's mortgage was recorded, as against a subsequent judgment lien creditor. The judgment lien creditor is not protected by the recording statute, so the bank prevails even though its mortgage would be deemed unrecorded, as discussed above. (C) is wrong because, as discussed above, a majority of courts hold that the judgment lienor is not protected by the recording statute. (D) is wrong because the land was not after-acquired property, because the judgment lien was not filed until the tortfeasor had obtained-and conveyed away-an interest in the property. However, if the victim had in fact recorded his lien before the tortfeasor inherited the land, the after-acquired property provision of the statute would have applied, the victim would have had a recorded lien on the land as soon as the tortfeasor acquired it, and the victim would have gained priority over the bank.
A jogger not paying attention to where he was going collided with an elderly woman in a wheelchair, injuring her. The woman, who was mentally incapacitated, was being pushed down the sidewalk by her daughter, who was also her legal guardian. After the accident, the daughter did not take the woman to the doctor for treatment because the daughter had an unreasonable fear of catching a virus at the doctor’s office. As a result, the woman’s wounds became infected and took longer to heal.
What argument provides the woman with her best chance to recover against the jogger for all of her injuries?
(A) The doctrine of mitigation of damages does not bar recovery for the original injuries caused by the jogger.
(B) Any unreasonable conduct on her daughter’s part is not to be imputed to the woman.
(C) Neither the woman nor her daughter were contributorily negligent in causing the collision.
(D) Defendants must take their victims as they find them, including the unreasonable behavior of their legal guardians.
(B) Any unreasonable conduct on her daughter’s part is not to be imputed to the woman.
The woman’s best argument is that her daughter’s refusal to take her to a physician, if deemed to be negligent, is not imputed to her. A plaintiff has a duty to take reasonable steps to mitigate damages. Thus, in personal injury cases, there is a duty to seek appropriate treatment to effect healing and to prevent aggravation. Failure to do so will preclude recovery for any particular item of injury that occurs or is aggravated due to the failure to mitigate. Thus, the woman’s not consulting a doctor could limit her recovery to the damages for the original injury only. However, she is incapacitated and in the care and control of a legal guardian (her daughter), who decided not to bring her to a doctor. In actions against a third party, a legal guardian’s negligence is not imputed to the person under her care. Thus, using the argument in choice (B) that any negligence on the part of the woman’s daughter will not be imputed to her, she should receive a full recovery for all of her injuries if she prevails in an action against the jogger.
(A) is incorrect even though it is a true statement. The doctrine of mitigation of damages requires a plaintiff to take reasonable steps to mitigate damages, which in personal injury cases means seeking appropriate treatment to effect a cure or healing and to prevent aggravation. Hence, it does not bar recovery for the plaintiff’s original injuries. However, choice (B) gives her a chance to recover for all of her injuries, and choice (A) does not. (C) is incorrect because a plaintiff’s contributory negligence as to the accident itself is relevant only as to the amount of damages recoverable for the original injury; it does not affect the rule that a plaintiff must take all reasonable measures to mitigate damages after the original injury is inflicted. (D) is incorrect because it misstates the concept of “taking your victim as you find her.” This concept refers to the physical or mental condition of the victim at the time of the injury (e.g., the “eggshell skull plaintiff”); it does not cover the victim’s relationship to others and their attitudes or actions. Thus, the attitude of a victim’s legal guardian toward medical treatment is not included in “taking your victim as you find her.”