Evidence
Name three hearsay exceptions when it is IMMATERIAL whether the declarant can testify or not
1. Present Sense Impression
2. Excited Utterance
3. Present State of Mind/ Then-Existing Mental State
4. Statement for Medical Diagnosis
5. Business Records
6. Public REcords
7. Recorded Recollection
8. Ancient Docs
Etc.
Which of the following is not a waviable 12(b) objection if not asserted in the first response?
A. Personal Jurisdiction
B. Improper Venue
C. Failure to State a Claim
D. Improper Service of Process
Failure to State a Claim
Which of the following is NOT a defense to performance of a contract?
A. Impossibility
B. Illegality
C. Frustation of Purpose
D. Constructive Revocation
E. Impraticablity
D. Constructive Revocation
Which of the following is NOT an exception to the fruit of the poisionous tree doctrine?
A. Independent Source
B. Temporal Proximity
C. Good Faith
D. Inevitable Discovery
E. Attenuation
B. Temporal Proximity
What are the three theories to prove factual/ actual casuation?
1. But for
2. Substantial Factor
3. Unascertainable Causes
Subsequent Remedial Measures
Attempts to Compromise or Compromises
Payments or Offers to Pay Medical Expenses
Plea Bargains or States Made During Plea Negotiations
Insurance for Liability or Lack Thereof
What two elements must be met to satisfy a "contact" under the constitutional requirement of minimum contacts for personal jurisdiction?
Purposeful availment and foreseeability
Name one aspect of a contract that is treated differently under the UCC and common law:
- modifications: consideration v. good faith
- counteroffers: mirror image v. knockout rule
- rules of construction
Name three specific intent crimes:
F - First Degree Murder
I - Inchoate Crimes
A - Assualt
T - Theft Crimes
What are the elements of false imprisonment?
1. intent
2. confine or restrain P
3. to a bounded area
4. causation
When is character evidence inadmissible?
A. In a civil matter, unless the character itself is at issue
B. When offered by Defendant to show a victim's pertinent trait
C. On cross, to impeach a witness with specific acts
A. In a civil matter, unless the character itself is at issue
Plaintiff, domiciled in State Z, sues Defendants 1 and 2 in state court in State W for a claim amounting $90,000. Defendant 1 is domicilied in State Y and W. Defendant 2 is domicilied in State W. The defendants timely and properly file a notice of removal asserting diversity jurisdiction.
How should the court rule?
A. Grant the motion
B. Deny the motion
Deny the motion - in state defendant limitation on removal
Which of the following is not an element of Promissory Estoppel?
A. If someone make a promise;and
B. The promise is made in good faith; and
C. No consideration is given in return of the promise; and
D. The promisor knows that the promisee is likley to rely on the promise to their detriment; and
E. The promisee does in fact rely on the promise; then
F. The promisee's reliance will substitute for consideration
B. The promise is made in good faith
What must a person have in order to assert a violation of their constitutional rights (and argue evidence is thus inadmissible)?
Standing
What is required to prove Res Ipsa Loquitor?
Defendant had exclusive control
What is one difference between Marital Communications and Spousal Immunity under Testimonial Privileges?
- Spousal Immunity only in criminal cases; Marital Communications in both
- Marital Communications isn't destroyed with divorce or separation
- Spousal Immunity is held by the witness-spouse; Marital Communications is held by both spouses
- Spousal Immunity is for almost everything (observations, etc.); Martial Communications is only about communication
- For Spousal Immunity, must have VALID marriage at time of testimony; for Marital Communications, only need to be married at time of communication
What is the standard for a judgement as a matter of law (JMOL)?
No reasonable jury could find otherwise OR no reasonable jury could find for the party opposing
Buyer and seller enter into a written contract for flowers for $1,000. The contract specifies that half of the flowers should be roses and half should be daisies. In the past, when Seller was unable to provide roses, they would send tulips and Buyer would accept. Sadly, all of Seller's roses died and, based on previous interactions, Seller sent Buyer tulips on the delivery date reasonably believing that Buyer would accept. Upon delivery, Buyer was furious and called Seller rejecting the delivery. What should Buyer do now?
A. Immediately sue because, under the perfect tender rule, Seller has breached the contract.
B. Provide Seller with a reasonable opportunity to cure because Seller reasonably believed Buyer would accept the tulips based on the parties' prior dealings.
C. Accept the tulips because the parties' prior course of dealing automatically modified the contract to permit tulips in place of roses.
B. Provide Seller with a reasonable opportunity to cure because Seller reasonably believed Buyer would accept the tulips based on the parties' prior dealings.
Police had probable cause that Defendant committed a felony. They arrested Defendant, but before Defendant could be arraigned they had to transport Defendant to another county's court. While in the car, Police officers spoke to one other about the facts of the case. They did not speak directly to Defendant, but hoped that he would chime in. Defendant eventually broke his silence and confessed to the crime. Under which of the following can the Defendant's attorney object to the admission of the confession?
A. 5th Amendment Miranda Rights
B. 6th Amendment Right to Counsel
C. Fruit of the Posionous Tree
A. 5th Amendment Miranda Rights because defendant was in custodial interrogation
A couple is crossing the street. Their pet komodo dragon suffers a heart attack in the middle of the street and is too heavy to carry. In addition to putting a traffic cone in the street to make the pet plainly visible to oncoming traffic, the couple yells at all passing cars to slow down and watch out for their pet. Dan, who is deaf, drives without his hearing aid in violation of a state statute requiring deaf drivers to wear a functioning hearing aid while operating a vehicle. When passing the intersection, he looks down to change the radio. As a result, Dan strikes the pet and the couple sues Dan.
What standard should the jury apply in determining whether Dan acted negligently?
A. Dan was negligent per se because he violated a safety statute.
B. Dan should be held to the standard of care of a reasonable deaf person under similar circumstances.
B. Dan should be held to the standard of care of a reasonable deaf person under similar circumstances.
When presenting their case, Plaintiff wants to introduce two pieces of evidence:
1. A previously executed affidavit by a witness who is no longer available to testify
2. A copy of a deed printed from a government website
What objections should Defendant make?
1. Inadmissible hearsay, former testimony exception would not apply because a party with a similar motive did not have an opportunity to cross
2. Unless certified, the documented is not authenticated
Plaintiff, domiciled in Northern District of State A, got into a car crash with Defendant while driving in the Western District of State C. The manufacturer negligently installed the brakes in the car. The Defendant is domiciled in the Southern District of State B and the manufacturer is incorporated in State B and has a PPB in the Nothern District of State B. Plaintiff sues both parties in state court in State C. Defendant files a notice of removal.
Which of the following lists the proper venue(s)?
A. Northern District of State A, Southern District of State B, Nothern District of State B, Western District of State C
B. Southern District of State B, Nothern District of State B, Western District of State C
C. Western District of State C
C. Western District of State C
On June 1, a homeowner contracts with a painter to paint her house on July 1. On June 15, the painter tells the homeowner, "I'm not sure I'll be able to do the job because I just took another project that week." The homeowner immediately hires another painter and sues the original painter for breach of contract. What is the likely result?
A. Homeowner wins, because the painter's statement was an unequivocal repudiation.
B. Painter wins, because a person can never sue before performance is due.
C. Painter wins, because the statement was not a clear repudiation.
C. Painter wins, because the statement was not a clear repudiation.
When can a third party be present at a warrant execution?
When identifying stolen items
Manufacturer sells a coffee maker with a defective heating element. Consumer purchases the coffee maker from a retailer and is burned when the machine overheats during normal use. Consumer sues Manufacturer under a theory of strict products liability. Which of the following must Consumer establish to prevail?
A. Manufacturer failed to exercise reasonable care in designing the coffee maker.
B. Manufacturer knew or should have known of the defect before selling the coffee maker.
C. The coffee maker was defective when it left Manufacturer's control, and the defect caused Consumer's injury.
D. Consumer was in contractual privity with Manufacturer.
C. The coffee maker was defective when it left Manufacturer's control, and the defect caused Consumer's injury.