Civ Pro
The pleading standard.
Rule 8(a). A short and plain statement asserting jurisdiction, a claim for relief, and the relief wanted.
Gely promised to make the contracts exam one short question that would take about 20 minutes. He shook on it with everyone. We showed up and it was the full 3 hour shabang. We all sue for breach of contract. What remedies could we get? What are the types of remedies?
Four basic types:
- Expectation damages: make them whole
- Specific performance: make them do the thing
- Restitution damages: put the plaintiff back in the position it was prior to the contract by compensating for any benefit conferred upon the defendant as a result of the parties' contract
- Reliance damages: make them whole considering what costs they incurred in reliance on the contract
What is the hand formula, what is it used for, and what case does it come from?
B<PL: used to analyze breach in a negligence case
- Carroll Towing case
Jongmin accidentally orders a vial of COVID-19 on the black market while online shopping in Torts. Jongmin drops the vial when it is delivered and it mutates giving animals the ability to talk. Frankie and Tuppence ingest the virus (they are totally fine but now they can talk!) While hanging out one day, they go online and order a $1,000 cat tree but when it is delivered they get into a huge fight over who gets to keep it. After two weeks of silent treatment, Emily and Jennie drop them off at your office. They want to reach an agreement without going to court. How would you describe the difference between mediation and arbitration?
- mediation: nonbinding, don't need to come to a decision, formalized later
- arbitration: binding, must come to a decision, functions like a mini-trial, final decision made at the end
What case is this: 🚂📦🎇
Palsgraf
What are the possible responses to a complaint?
Settle the case, file a motion to dismiss under Rule 12(b)(6), file an answer, file a motion for summary judgment, request a more definite statement, do nothing (take a default judgment).
What are the problem areas regarding consideration?
Gratuitous promises, adequacy of consideration, pre-existing duties, past consideration, illusory promises, and satisfaction clauses.
You have a negligence case! Analyze causation (What are the parts? Explain each).
1. Cause-in-fact (but-for, concurrent causes, substantial factor, alternate causes)
2. Proximate case (Palsgraf! Majority: foreseeability, minority: all actions are foreseeable until there is a superseding cause)
How are positions and interests related?
Your position is what you want, your interest is why you want that thing.
Name three privileges/defenses to intentional torts (there are more than three).
Consent, self-defense, defense of others, defense of property, recovery of property, necessity, authority of law, discipline, and justification.
What is the difference between Rule 50(b) Renewed JMOL and a Rule 59 Motion for New Trial? What is the term for them that Sperino likes?
PEAS AND CARROTS!
Renewed JMOL 50(b): can give you a judgment in your favor
- Substantive standard is no reasonable jury
- Cannot weigh evidence/make credibility determinations
- Must have filed a Rule 50(a) motion before case was submitted to the jury
New Trial: gives you an entirely new trial
- Substantive standard is a long list of items to look at if there was a flaw in verdict or procedure
- Allowed to minimally weigh evidence if the verdict is against the clear weight of the evidence
Anna and Logan make a deal: Logan will sell Anna a square inch of her grass land if she does three jumping jacks on stage at graduation. They shake on it and talk through it thoroughly. The terms are certain and definite. Is the contract enforceable?
Nope, has to be in writing! Statute of frauds (land and over a year from now).
- Contracts to pay for the debt or obligation or another
- Contract of executors or administrators to answer for the duty of their decedents
- Contract made upon consideration of marriage (prenuptial agreements)
- Contract for the sale of land or transfer of an interest in land
- Contracts that cannot be performed within one year from the date they were made
- Contracts for the sale of goods over $500
Ethan is running late to deans fellows and is speeding in front of Hulston. Civ Pro Eric is jaywalking and texting and gets smashed by Ethan's car (he is okay)! Civ Pro Eric sues Ethan.
What type of comparative fault would you argue? Mention all types.
Pure: plaintiff's damages reduced by the percentage plaintiff contributed to damages
Modified: 49% and 50%
Multiple defendants: majority compares fault to all defendants
You're interviewing your client, Cookie, who keeps saying he forgot the details of his crime you're trying to get him out of (crime in question: Tripp identity theft). What can you do to try and help him remember/progress the interview?
Cognitive interviewing techniques:
1. Reinstate context (describe the scene)
2. Tell everything technique
3. Recall the event in different orders
4. Change perspectives (from Tripp's POV, which is ironic)
What is Sperino referring to when she references the chameleon?
Declaratory judgment: it becomes whatever it attaches to!
Explain the burden of proof for summary judgment.
The burden has two distinct components: burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party.
Cookie tells Amanda Marie that if all goes well in law school, he wants to get married and way later down the road build this huge sand volleyball court for them. It would take a lot of negotiating, so they just want to agree to work on it. Is this a valid complex transaction contract?
Three possibilities, seems like 3. They'd be married!
1. That the parties intended the preliminary agreement to constitute a binding agreement, yet knowing that terms would be negotiated later
2. That the parties intended the preliminary agreement to only bind them to a promise that they will continue to negotiate in "good faith" with the goal of reaching a final agreement
3. That the preliminary agreement did not commit the parties to anything, but it was merely a gesture or communication
Someone zooms through an intersection and is an inch away from hitting Myers with their car. You are standing a foot away. You gasp but eventually move on with your day. Would you be successful arguing negligent infliction of emotional distress? Run through the list.
Impact Rule: needs physical impact
Zone of Danger: You are really close to the danger and get panic attacks, Myers could maybe argue this
Dailey Test: You suffer physical injury from the emotional damage (hair falling out, vomiting, etc.)
Thing Rule: can recover as third party if closely related, present at the scene, and suffer SERIOUS emotional distress. MUST MEET ALL ELEMENTS
Dillon Foreseeability Test: Same as Thing but factors
- Probably no. You didn't suffer extreme emotional stress and aren't besties with Myers like that.
Logan comes in for a client interview. During the interview, you find out that Anna, your other client, is threatening to kill Logan. Logan wants your help in suing Anna for battery. Logan's court date is set for 11/20/2024. When you agree to take the case, you look out the window and see Anna standing outside with a baseball bat. You usher Logan out the door and go back to work. What three things did you fail to prevent?
1. A conflict of interest
2. Missing a statute of limitations or other deadline
3. Not taking emergency action to protect a client who is threatened with an immediate harm
What did Gely mean when he made a joke about "ory estoppel"?
Promissory estoppel requires a promise! So does consideration and material benefit.
When do we analyze relation back and what are the three types of relation back?
ONLY WHEN WE HAVE A STATUTE OF LIMITATIONS ISSUE! Used to amend the pleadings under Rule 15. Three kinds: when it's allowed by law, when we're adding a claim (same transaction or occurrence), and when we're adding a party.
Anna offers to sell her car to Logan. Logan says she is interested so Anna sends her a pre-printed form with the make/model and price of the car filled in the blanks. At the bottom of the PPF it says "the car will be exchanged at midnight on Dec. 24th. Logan immediately sends back her own PPF accepting the offer, except it also says "I only accept if we exchange the car on Dec. 23rd." Anna reads the acceptance, and texts Logan "everything looks great! I agree!" Is there a contract, and what are the terms?
Yes there is a contract and the car will be exchanged on December 23rd.
2-207 analysis
1. This is for a sale of goods
2. Logan made a definite and seasonable acceptance
3. Logan's acceptance was conditional
4. Anna Accepted
Therefore, there is a contract on the agreed upon terms.
Myers tells the class he's created a fabulous new product: the Gluck Gluck 3000, a chicken shredder that shreds chicken in 0.3 seconds. Emily tries it out and it shreds her fingers (she gets them fixed). Emily wants to sue. Is it defective? Analyze risk utility.
1. Usefulness and desirability; utility to the user and public as a whole
2. Likelihood that it will cause injury and the probable seriousness of the injury
3. Reasonable alternative design available?
4. Manufacturer's ability to eliminate unsafe character without degrading the utility (reasonable alternative design)
5. User's ability to avoid danger by exercising due care
6. User's anticipated awareness of inherent dangers and avoidability of such dangers based on warnings or public knowledge
7. Feasibility of manufacturer of carrying liability insurance, etc.
Coleson and Cookie buy Oura Health but they end up in mediation because they cannot determine how to split the company and earnings. During private caucuses, Coleson claims that he wants to be filthy rich and free to travel the world and have control over his own life. Cookie says that he doesn't care how much money Coleson makes, Cookie just wants the deal to be over because he feels really anxious not having this dispute resolved. Eventually, Coleson reveals that he will accept a 50/50 split of all proceeds as long as his name goes first on the press release and he can guarantee that Cookie won't hold a grudge so they can still work together. What types of interests did Cookie and Coleson express.
1. Financial (Coleson - I want to be filthy rich)
2. Performance (Cookie - I just want the deal done)
3. Psychological (Cookie - He will feel less anxious after the deal is done)
4. Reputational (Coleson - His name is first on the press release)
5. Relationship (Coleson - Doesn't want Cookie to hold a grudge)
6. Liberty (Coleson wants freedom to travel the world)
7. Basic Human Needs (Coleson wants to have control over his own life)
Scott has returned from deployment! He hires your firm to represent him in his claim that he was wrongfully discharged from the army. In his complaint, he asks for $100,000 in damages and demands a jury trial. The right to a jury trial is not provided for by a statute. Ignoring any special military law, should he get a jury trial?
7th amendment analysis
1. Step One: is the right given in a statute?
No, go back to 1791 with your modern civ pro book
2. Step Two: ask how the cause of action would have been treated
We don't know enough about how it would be treated but court of equity = no jury trial; court of law = jury trial
3. Was the remedy monetary or equity?
Here it is money which means jury trial