Civil Procedure
What is required to show that work-product material is discoverable?
When a federal and state law are mutually exclusive which law will govern?
The federal law preempts the state law.
How long may a merchant's firm offer be irrevocable?
A merchant's firm offer can be irrevocable for no longer than three months without consideration
What are the two elements of the actus reus element of conspiracy under the modern rule?
The modern rule for the actus reus element of conspiracy requires both:
1. an agreement between two or more parties
and
2. an overt act in furtherance of the conspiracy
What are the two elements of the "present sense impression" hearsay exception?
A "present sense impression" is admissible if a declarant makes a statement:
1. describing or explaining an event or condition
and
2. during or immediately following the event or condition
What are the two reasons a landlord may spend a security deposit?
A landlord may use a security deposit:
1. as a remedy for a tenant's failure to pay rent
and/or
2. to repair damage to the premises beyond normal wear and tear
What are the four elements of negligence?
The elements of negligence are:
1. duty of care
2. breach of duty
3. actual and proximate cause
and
4. damages
What seven pre-answer defenses are available under FRCP 12(b)?
The seven pre-answer defenses available under FRCP 12(b) are:
1. lack of subject matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficient process
5. insufficient service of process
6. failure to state a claim upon which relief can be granted
and
7. failure to join necessary parties
Which factors will the court balance in determining whether a regulatory taking has occurred?
To determine whether a regulatory taking has occurred, courts will balance the:
1. impact of the regulation on the claimant; diminution in value to the owner
and
2. extent to which the regulation interferes with distinct investment-backed expectations
When is a valid revocation effective?
A revocation is effective only when received by the offeree
What crimes require proof of specific intent
1. assault
2. attempt
3. burglary
4. conspiracy
5. embezzlement
6. false pretenses
7. first-degree premeditated murder
8. forgery
9. larceny
10. robbery
11. solicitation
Which two types of demonstrations are generally not permitted in the courtroom?
It is generally not permissible to allow in-court demonstrations that:
1. show the effect of a bodily injury, such as the existence of a limp or extreme pain, to avoid dramatizing the injury or inflame jurors' minds
and/or
2. would be under the sole control of the witness because they may not be subject to effective cross-examination
What three remedies are available to a buyer when the title is unmarketable at closing?
A buyer's three remedies for a title that is still marketable at closing are:
1. rescission of the contract
2. specific performance
and
3. damages
What are the common law defenses to defamation?
The common law defenses to defamation are:
1. consent
2. truth
and
3. privilege including absolute and qualified privilege
When may a party intervene as a matter of right?
Intervention allows a non-party to join an already pending lawsuit
A party may intervene as a matter of right if either:
1. an absentee's interest will be harmed if not joined and no existing party will adequately represent that interest
or
2. the absentee had an unconditional statutory right
Which three requirements will cause a person's affiliation with an illicit group to lose the freedom of association?
Freedom of association is not protected if the person is:
1. an active member of an organization participating in illegal activities
2. aware of the group's illegal activities
and
3. has the specific intent to further those illegal activities
What is the "merchant's confirmatory memo rule" and how does it affect the Statute of Frauds written requirement?
The UCC Statute of Frauds may be satisfied when two merchants enter an oral agreement and within a reasonable time one of them sends the other a written confirmation of the agreement. In such a circumstance, the Statute is satisfied against the recipient merchant if:
1. they have reason to recognize the confirmation's contents
and
2. fail to object to the confirmation within 10 days of receipt
What are the requirements for using deadly force in self-defense?
1. is not at fault (not the initial aggressor)
2. is confronted with unlawful force against them
and
3. reasonably believes they face an imminent threat of great bodily harm or death if they do not respond with deadly force
What are the elements of the "statements against interest" hearsay exception?
A "statement against interest" requires:
1. the statement to have been against the declarant's pecuniary, proprietary, or penal interest when made
2. the declarant to have had personal knowledge of the facts
3. the declarant to have been aware that the statement was against their interest and had no motive to lie
and
4. the declarant to now be unavailable as a witness
What are the requirements for the burden of a real covenant to run with the land?
The five elements for the burden of a real covenant to run with the land are:
1. intent by the original parties for the burden to run
2. horizontal privity
3. vertical privity
4. the burden touches and concerns the land
and
5. notice of the burden for subsequent purchasers
What are the requirements for the burden of a real covenant to run with the land?
The five elements for the burden of a real covenant to run with the land are:
1. intent by the original parties for the burden to run
2. horizontal privity
3. vertical privity
4. the burden touches and concerns the land
and
5. notice of the burden for subsequent purchasers
What are the ways a new claim or defense may "relate back" to the date of a timely-filed pleading?
A new claim or defense will "relate back" to the date of the original pleading when:
1. the statute of limitations permits relation back
and
2. the new claim or defense derives from the same transaction, conduct, or occurrence that was described in the timely-filed claim
May Congress regulate noncommercial or noneconomic activity of intrastate commerce?
Yes. Congress may regulate intrastate noncommercial or noneconomic activity, but only if the activity has a direct and substantial effect on interstate commerce.
What are the exceptions to the suretyship provision of the Statute of Frauds?
The Statute of Frauds suretyship provision does not apply if:
1. the promise is made to the debtor
2. the promisor promises to be primarily liable for a third person's obligation
or
3. the promisor's main purpose in guaranteeing the obligation of another was to secure a pecuniary benefit for themselves
What is the standard for the Model Penal Code Test for insanity?
Under the Model Penal Code, a defendant may be acquitted if, due to a mental disease or defect, they lacked the substantial capacity to either:
1. appreciate the wrongfulness of their conduct
or
2. conform their conduct to the requirements of the law
What are the exceptions to the best evidence rule?
The best evidence rule does not apply (the original writing does not need to be produced) when:
1. the facts to be proved exist independently of the writing (e.g., a witness has independent knowledge of something that was memorialized in writing)
2. the writing is only of minor or collateral importance
3. the writing contains voluminous records that can be summarized
or
4. the writing is in the form of a certified public record
Is the presumption that a deed was delivered rebuttable? And when will delivery be presumed?
Yes. The presumption that a deed was delivered is rebuttable. Delivery will be presumed when:
1. the deed is handed to the grantee
2. the deed is acknowledged by the grantor before a notary
or
3. the deed is recorded
What is required to prove strict products liability on a manufacturing defect?
To prove strict products liability based on a manufacturing defect the plaintiff must establish that:
1. the defendant is a commercial supplier
2. the product is not in the condition that the manufacturer intended at the time it left the manufacturer's control
3. the defective product was the actual and proximate cause of plaintiff's injury
and
4. the plaintiff suffered damages
What are the two requirements for an appellate court to grant an interlocutory appeal?
An appellate court will grant an interlocutory appeal when:
1. the trial court certifies that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that na immediate appeal from the order may materially advance the ultimate termination of the litigation
and
2. the appellate court exercises its discretion to grant the interlocutory appeal
What are the ways a statute may constitute an "ex post facto" law?
In general, a statute is deemed an "ex post facto" law by retroactively altering the criminal law if it:
1. makes criminal an act that was not a crime when committed
2. prescribes greater punishment for a crime after its commission
3. decreases the amount of evidence required for conviction
or
4. extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired
What are the exceptions to the parol evidence rule?
Parol evidence may be introduced to prove:
1. defects in the formation of the contract (such as fraud, duress, mistake, or illegality)
2. parties' intent regarding ambiguous terms in the contract
3. problems with the consideration (e.g., the consideration was never paid)
4. a prior valid agreement that is incorrectly reflected in the written instrument in question
5. a related agreement, if it does not contradict or change the main contract
6. a condition that had to occur before contract performance was due
or
7. subsequent modification of the contract
What aggravating factors elevate assault to aggravated assault?
Assault may become aggravated if the defendant:
1. uses a deadly weapon
or
2. intends to rape or murder
When is evidence of liability insurance admissible?
Evidence of liability insurance is admissible:
1. to show ownership or control
2. for impeachment purposes
or
3. as part of an admission
What are the three duties of a life tenant?
The three duties of a life tenant include:
1. not committing waste
2. payment of all current operating expenses of the property
and
3. payment of the mortgage interest
What are the elements of qualified privilege under defamation law?
1. reasonable belief that an important interest is protected
2. the statement heard is reasonably relevant to the interest protected
3. a reasonable belief that the person to whom the statement is published can protect the interest
and
4. some relationship between the publisher and the person to whom the statement is published