Timing Traps
In a federal civil case, when must a defendant file an answer after being served, and how does that deadline change if formal service is waived?
A defendant must respond within 21 days after service. If the defendant waives formal service, the defendant has 60 days to answer.
In a criminal case, what must the prosecution prove, and by what standard?
The prosecution must prove every element of the crime beyond a reasonable doubt.
What are the four types of opposing party statements that are treated as nonhearsay?
Statements made by the opposing party and offered against that party; adoptive admissions, including silence; agent or employee statements made during the relationship and concerning the scope of the agency or employment; and co-conspirator statements made during and in furtherance of the conspiracy.
What are the three types of notice under recording acts?
Actual notice, inquiry notice, and record notice.
What are the general components of expectation damages in contracts?
Loss of value of the breaching party’s performance, plus incidental damages, plus consequential damages, minus expenses saved as a result of the breach.
When does jeopardy attach in a jury trial and in a bench trial?
In a jury trial, jeopardy attaches when the jury is impaneled and sworn. In a bench trial, jeopardy attaches when the first witness is sworn.
In a civil case, what does a presumption do to the burden of proof and burden of persuasion?
A presumption may shift the burden of proof/production to the party against whom the presumption is directed, but it does not shift the burden of persuasion, which remains on the party who originally had it.
What must happen for a Miranda violation to occur?
There must be custodial interrogation by police without Miranda warnings, counsel, or a valid waiver. The Fifth Amendment Miranda right attaches during custodial interrogation.
What test applies to a content-neutral time, place, and manner restriction in a traditional public forum?
The regulation must be content neutral, narrowly tailored, and leave open alternative channels of communication.
What are the SIICK exceptions where evidence obtained in violation of the Fourth Amendment may still be used?
Evidence may still be used if Defendant lacks standing, for impeachment, if discovery was inevitable or there was an independent source or attenuation, in civil or other noncriminal proceedings, or if only the knock-and-announce rule was violated.
Seller and Buyer sign a contract for the sale of land. Before closing, a fire destroys the house. The contract is silent on risk of loss. Buyer refuses to close. Who bears the loss?
Buyer bears the loss. Under equitable conversion, once the land sale contract is signed, equitable title passes to the buyer, so the risk of loss is on the buyer before closing.
Plaintiff sues under negligence per se after Defendant violates a safety statute. Plaintiff is within the protected class and suffered the type of injury the statute was designed to prevent. What has Plaintiff established, and what must Plaintiff still prove?
Plaintiff has established duty and breach. Plaintiff must still prove causation and harm.
Defendant is in custody and says, “Maybe I should talk to a lawyer.” Police continue questioning, and Defendant confesses. Was the right to counsel clearly invoked?
No. Invocation must be explicit and unequivocal. Ambiguous language is not enough.
A state law requires all trucks driving through the state, in-state and out-of-state alike, to use a specific safety mudflap. The law burdens interstate commerce but does not discriminate on its face. What constitutional test applies?
Dormant Commerce Clause balancing applies. The court weighs the burden on interstate commerce against the state’s interest served by the law.
Buyer contracts to buy ordinary goods from Seller. Seller breaches. Buyer wants specific performance. Is specific performance likely available?
No. Specific performance is generally unavailable for ordinary goods. It is more likely available for unique goods or land contracts.
Defendant removes a state case to federal court 45 days after receiving the complaint, even though the case was removable when served. Plaintiff moves to remand based on procedural defect 20 days after removal. Should the case be remanded?
Yes. A defendant must remove within 30 days of being on notice that the case is removable. Plaintiff timely moved to remand because procedural objections to removal must be raised within 30 days after removal.
Plaintiff sues Defendant for breach of contract. Defendant argues that performance is impossible because an unforeseeable event after formation made performance impossible. Who is helped by the impossibility doctrine, and what must be shown?
Defendant may be excused from performance if an event after contract formation made performance impossible, the event was not reasonably foreseeable, nonoccurrence was a basic assumption of the parties, neither party was at fault, and neither party bore the risk.
During a civil trial, Plaintiff offers Defendant’s email saying, “I knew the stairs were broken before the accident.” Defendant objects that the statement is hearsay. Is the email admissible?
Yes. It is an opposing party’s statement offered against that party, so it is nonhearsay.
Owner conveys land “to A for life, then to B’s children.” At the time of the conveyance, B has no children. What future interest exists?
B’s children have a contingent remainder because the remaindermen are unborn or unascertained.
Plaintiff sues in negligence and proves Defendant breached a duty but suffered no actual harm. Can Plaintiff recover nominal damages?
No. A plaintiff must suffer actual harm in negligence. Nominal and punitive damages are not available in a negligence action without actual harm.
Defendant is formally charged with robbery. Before trial, police place Defendant in a lineup without counsel present. Defendant is identified. Later, police show the witness a photo array without counsel present. Which identification procedure creates a Sixth Amendment issue, and why?
The post-charge lineup creates a Sixth Amendment right-to-counsel issue because the right attaches after formal charges and applies to post-charge lineups and show-ups. The photo array does not create a Sixth Amendment counsel issue because there is no right to counsel for photo identifications.
In a products liability case, Plaintiff sues a merchant seller under strict liability. Plaintiff proves injury and causation but only shows that the seller acted unreasonably. What is missing, and why is the negligence showing not enough?
Plaintiff must prove the product was defective when it left the defendant’s hands. In strict products liability, the focus is not whether the defendant acted reasonably; the plaintiff must show a defect, such as manufacturing defect, design defect, or inadequate warning.
Police question Defendant in custody without Miranda warnings. Defendant confesses and tells police where stolen jewelry is hidden. At trial, the prosecution wants to use both the confession and the jewelry in its case-in-chief. What result?
The confession is excluded from the prosecution’s case-in-chief, though it may be used for impeachment. The jewelry, as physical fruit of the unwarned statement, may still be admissible unless the confession was involuntary under due process.
O conveys Blackacre to A by warranty deed, but O does not yet own Blackacre. Later, O acquires title. Before A records, O conveys Blackacre to B, a bona fide purchaser. Who prevails, and what doctrines matter?
Usually, estoppel by deed would cause title to pass automatically to A when O later acquires title. But if O later conveys to a bona fide purchaser, the BFP exception applies, so B prevails if protected by the recording act.
Police obtain evidence using a search warrant based on an affidavit containing deliberate lies by the officer. The prosecution argues good faith should save the search. Should the evidence be excluded, and why?
Yes. Good faith can save some defective warrants, but not when there are serious problems with the affidavit, such as officer lies, or serious problems with the warrant or magistrate. Because the warrant was based on deliberate falsehoods, good faith does not apply, and the exclusionary rule may bar the evidence from the prosecution’s case-in-chief.