BAR PREP OCTOBER 17TH Need to do diagnostic, midterm exam, final exam. Need to slowly improve. Need to show up to class and participate
[email protected] ½ of exam multiple choice; NJ essays are thurs MBE: 200 multiple choice questions, 190 of which are scored Con law (31) o o Contracts (33) o Crim Law and Procedure (31) o Evidence (31) o Real Property (31) Torts (33) o Average raw score on MBE is 130-135 (60-65% correct) Contracts: o 60%- formation, conditions, remedies o 40%- consideration, 3rd party beneficiaries, SOF, etc. Con Law: 50%- individual rights (due process, equal e qual protection, first o amendment) 50%- other con law issues (fed/state relationships, judicial review) o Crim Law and Pro: o 50%- crimes o 50% procedure (due process) Torts 50%- negligence (also heavily tested area on the essays too) o o 50%- other torts Evidence o 33%- relevance, etc. 33%-40%- hearsay o o 44%- presentation Half of MBE questions: o Negligence o Homicide o LL/T and mortgages Formation o o Hearsay o DP/EP o First amendment Character/impeachment o Multiple choice approach: o Step 1: read the call- what is being asked? o Step 2: identify the players o Step 3: apply the law o Step 4: lose wrong answer choices Read negligence and defenses
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OCTOBER 24TH NEGLIGENCE Alex Ruskell,
[email protected]
Negligence accounts for roughly 40% of the Torts questions on the MBE (10% of entire exam) Distractors- m.c. answers that you don’t know what they mean so you assume it must be right and pick it anyway. Don’t do this! Elements of negligence: duty, breach, causation, damages, defenses Duty o Did D have a duty to P to conform to a certain standard of conduct? No general duty to aid others— others —unless some special relationship (contract, innkeeper, common carriers, school) Importantly, duty is owed only to foreseeable Ps o General class of people that one could reasonably foresee being hurt P’s injury must be within the general type that type that one could reasonably foresee occurring Duty to Control 3rd Party Generally no duty to control a 3 rd party unless: o D had control of, or authority over, AND Ability to prevent injury Parent/child Employer/employee Doctor/patient Teacher/student Respondeat Superior If an employee commits a tort during the scope of his/her o employment, his/her employer will be jointly liable with the employee. Is the person an employee? Were they acting within the scope of employment? Government Liability (doesn’t come up a up a ton) o Propriety— Propriety—doing something traditionally done by a private entity — same duty Discretionary— Discretionary—allocating resources— resources—no duty o o Ministerial— Ministerial—once government has started to act, has duty Standard of Care o What would a reasonable person have done under the circumstances? Mental characteristics of adult D irrelevant Children— Children—same age, experience, and intelligence, unless engaged in adult activity (ex: driving a car, hunting w/ gun)
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OCTOBER 24TH NEGLIGENCE Alex Ruskell,
[email protected]
Negligence accounts for roughly 40% of the Torts questions on the MBE (10% of entire exam) Distractors- m.c. answers that you don’t know what they mean so you assume it must be right and pick it anyway. Don’t do this! Elements of negligence: duty, breach, causation, damages, defenses Duty o Did D have a duty to P to conform to a certain standard of conduct? No general duty to aid others— others —unless some special relationship (contract, innkeeper, common carriers, school) Importantly, duty is owed only to foreseeable Ps o General class of people that one could reasonably foresee being hurt P’s injury must be within the general type that type that one could reasonably foresee occurring Duty to Control 3rd Party Generally no duty to control a 3 rd party unless: o D had control of, or authority over, AND Ability to prevent injury Parent/child Employer/employee Doctor/patient Teacher/student Respondeat Superior If an employee commits a tort during the scope of his/her o employment, his/her employer will be jointly liable with the employee. Is the person an employee? Were they acting within the scope of employment? Government Liability (doesn’t come up a up a ton) o Propriety— Propriety—doing something traditionally done by a private entity — same duty Discretionary— Discretionary—allocating resources— resources—no duty o o Ministerial— Ministerial—once government has started to act, has duty Standard of Care o What would a reasonable person have done under the circumstances? Mental characteristics of adult D irrelevant Children— Children—same age, experience, and intelligence, unless engaged in adult activity (ex: driving a car, hunting w/ gun)
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Emergency situation could lower standard, as long as D’s own negligence didn’t cause cause emergency Community custom relevant, not determinative Standards for Professionals (malpractice)— (malpractice)—minimum common skill of members in good standing Specialists held to national standard Negligence Per Se (statutory negligence) o Statute designed to: Prevent this type of injury Protect this class of plaintiff Duty of Care for Landowners o Trespasser Unknown No duty o Licensee Friend Warn of known dangers o Invitee Customer Have duty to: 1) Inspect 2) Make safe Duty to Plaintiffs on Adjacent Land o Reasonable care to prevent injury from activities on the land o Reasonable care to prevent injury from artificial conditions o Generally, no duty for dangers arising from natural conditions o Urban areas— areas —reasonable care to protect from trees Landlord/Tenant o Patent defect —no duty to warn or repair of obvious conditions Latent defect —duty to warn of conditions not reasonably apparent — o no duty to inspect o No duty if condition arises after possession has been transferred Sd Df Joint Tortfeasors o Where the combined negligent acts of 2 or more tortfeasors cause an indivisible injury (incapable of apportionment), apportionment), each tortfeasor is held jointly and severally liable Foreseeable intervening causes Negligence rescue o o Subsequent medical malpractice o Subsequent disease o General negligence
If foreseeable Defendant remains liable Unforeseeable or Superseding Causes o Acts of God o
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4 Lightening Floods Intentional torts of third parties Intentional crimes of third parties
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If unforeseeable Defendant not liable (superseding) “Firefighter” or “Professional Rescuer” Rule o This rule provides that a professional rescuer, such as a firefighter or police officer, generally cannot hold someone liable for negligence that creates a need for the rescuer’s services Eggshell Plaintiff Rule o Defendant is liable for the full fu ll consequences of Plaintiff’s injury, even though, due to the Plaintiff’s peculiar susceptibility to harm (of which the Defendant was unaware), those consequences were more severe than they would be… Damages o A Plaintiff must prove actual damages— damages —nominal damages are not available, and punitive damages are generally not allowed. Can recover for emotion distress— distress—but: o Must have been in the zone of danger danger —must be in the area in which he/she was at risk of physical harm. Have suffered some physical manifestation 2 Exceptions: Telegram announcing death of a loved one Mishandling a corpse Collateral Source Rule o Payment made by a collateral source does not decrease a plaintiff’s recovery against a negligent defendant Plaintiff’s insurance company ion Worker’s compensat ion Strict Liability o Abnormally dangerous activities o Strict products liability o Wild animals Abnormally Dangerous Activities o Flammable products Blasting o o Crop dusting o
Restatement 519: One who engages in an abnormally dangerous activity is subject to strict liability REGARDLESS of exercising the utmost care to prevent the injury Defenses o Contributory negligence Assumption of the risk o o
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Contributory Negligence o A negligent plaintiff is barred from recovery Minority rule o o Last Clear Chance Rule—a negligent plaintiff can still recovery if he can show the D had the last clear chance to avoid the injury and failed to do so Only use if fact pattern says this is a contributory negligence o jurisdiction! (not for comparative negligence jurisdiction) Last Clear Chance o Look for situations where the plaintiff is helpless to avoid his or her predicament, and the D discovers the predicament but negligently fails to use his/her opportunity to avoid the danger Comparative Negligence A negligent plaintiff’s recovery will be reduced by the percentage of o his/her own negligence o Majority Rule—Pure Comparative Negligence o No Last Clear Chance Doctrine o Pure (most common) Can recover even if Plaintiff’s negligence exceeds Defendant’s o Modified Recovery only if Plaintiff’s negligence is less than Defendant’s Assumption of the Risk o When the Plaintiff actually understands the risk to his or her safety and voluntarily subjects himself/herself to it (ex: sky diving) o Traditional View: Complete Defense o Express—signing a contract, etc. No change in comparative negligence jurisdiction o Implied—implying assumption of risk by conduct. Merged into comparative negligence THE END Remember, for the MBE, Practice makes perfect o
NOVEMBER 7TH 11/21: now Review for Essays 11/28: MBE review
[email protected]
CONTRACT FORMATION MBE: o Contract formation: 8-9 questions o Defenses to K Formation: 4 questions o SOF: 3 questions Modification: 3 questions o o Assignment/Delegation: 3 questions Remedies: 5-6 questions o
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UCC? Applies to all sales of goods (not just merchants). “Merchants” come in for special rules—like “firm offer” o If asking you if UCC applies, question usually revolves around whether a good or service—ask what is main purpose of contract? Objective Theory of Contracts Secret thoughts of the other party are irrelevant unless they are o reasonably apparent to the other party Unilateral Mistake o Rule: If the non-mistaken party knows or should know of the other’s mistake, he or she will not be permitted to “snap up” the bargain and take advantage of the other’s mistake “Meeting of the Minds” Knowledge of the offer by the offeree is essential to acceptance o **Big question of MBE In cases involving cross offers, neither offer accepts the other. Since o neither party has expressed a willingness to be bound by the other’s terms, no contract exists despite the fact that the cross offers… o Ex: On the exact same day, Buyer sends to Seller a letter stating “I want to buy 100 widgets at $1 a widget,” and Seller sends to Buyer a letter stating, “I want to buy 100 widgets at $1 a widget,” – no K “Implied in Fact” Contracts o If the agreement or mutual assent is manifested in words (oral or written), the contract is said to be “express” o On the other hand, where the mutual undertaking of the parties is inferred from their conduct alone, without spoken or written words, the contract is said to be “implied in fact” Offer o (1) An expression of intent to enter a present contract; (2) A sufficient articulation of the essential terms of the proposed o bargain; and (3) Communication of that intent and those terms to another person o (the offeree) who has the capacity to form a contract by a timely and conforming acceptance Reviving an Offer o If, in the wake of a rejection/counter-offer, the offeror re-manifests an intention to trade on the terms of the… Special Offers o Advertisements Generally treated as invitations to offers, not actual offers (may exceed supply) So, if you limit it, can be offer Also, if too ridiculous, cannot accept o
Conditions: 2 questions 3rd Party Rights: 4 questions
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Rewards Treated as offers—acceptance determined by reward language—self-limiting or open fields Termination of an Offer Death of the offeror o o Revocation—direct (ex: I don’t want to make that offer to you) or indirect (ex: see a friend driving the car you were thinking of buying)—any time before acceptance—effective upon receipt o Rejection Counteroffer o o Lapse of time—depends on market or language Counteroffer “I am not willing to pay $10,000 for the car, but I would happily give o you $9,000”—counteroffer “$10,000 is a little high. Would you take $9000?” – not a counteroffer! o (this is more of a negotiation) o A counteroffer kills power of acceptance! Lapse of Time The factors determine a reasonable time are: o 1) The subject matter of the offer; 2) Its rate of price fluctuation (esp. true in stocks) 3) The period within which the offeror’s known purpose in inducing the contract can be effectuated; and of lesser importance… 4) The mode of communication of an offer o “Face to face” conversation rule—an offer expires at the conclusion of a face-to-face conversation (unless there is an acceptance) ***PROB ON THE MBE Unilateral or Bilateral? o Unilateral Contract Offeror makes an offer that calls for performance Looking for action Ex: ill give you $500 if you cross the Brooklyn Bridge Bilateral Contract o Offeror and offeree exchange mutual promises Looking for promise Revocation in Unilateral Contract o Modern Rule—once offeree begins performance, cannot revoke— question becomes whether person was making “mere preparations” o “Mere preparations,” no matter how detrimental, will not take away power to revoke Common Law Firm Offer 1) An offer o o 2) A subsidiary promise to keep the offer open o 3) Consideration for that promise o
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UCC 2-205: Firm Offer Rule (for merchants) o A signed writing by a merchant which by its terms gives assurances that it will be held open is not revocable for lack of consideration for the stated period of time not to exceed 3 months Option Contract Between General Contractor and Subcontractor o MBE usually likes to have a question on this o RULE: When a general contractor receives a bid from a subcontractor that he or she relies on in formulating a bid on a construction project, this creates an option contract Acceptance o An acceptance is an objective manifestation by the offeree to be bound by the terms of the offer o (keep in mind, if writing an essay, need to know the rule) Acceptance by Performance o When the offeree begins the performance contemplated, he or she impliedly promises to complete it. However… 1) The offer must be for an entire contract, and not for a series of separate contracts 2) What is begun must be a part of the actual performance bargained for, and not mere preparation for performance 3) Such implied acceptance is communicated to the offeror, or he or she had knowledge of it Mirror Image Rule Common law rule—acceptance must mirror the terms of the offer, o and any variation results in a counteroffer and rejection of the initial offer o A small difference may not create a problem—de minimus Acceptance o Unless the offer states otherwise, acceptance can be done by any reasonable means o Remember —in general, acceptance must be communicated to the offeror Acceptance by Silence—3 ways o 1) Offeree tak es benefit of offeror’s services o 2) Offeror has given the offeree reason to understand that acceptance may be communicated by silence (auto-renew) o 3) Previous dealings Mailbox Rule Acceptance by mail is effective upon dispatch o o Must be properly posted, with correct address and postage amount o Parties are bound even if other party doesn’t receive— if addressed correctly Racing Acceptance and Rejection o Occurs when the person mails a rejection first and then an acceptance—whichever is received by the offeror first wins
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The rejection may be a counteroffer UCC Acceptance Any reasonable manner o o Rejects mirror-image rule—recognizes binding K in the shipment of nonconforming goods and the “battle of the forms” UCC 2-206 Non-Conforming Goods o If non-conforming goods are shipped, the shipment serves as an acceptance and at the same time a breach Unless seller says this is just “accommodation” o UCC 2-601: Non-Conforming Goods (Perfect Tender Rule) o Buyer has three options: 1) He/she can accept the whole shipment 2) He/she can reject the whole shipment 3) He/she can accept any commercial unit or units and reject the rest Battle of the Forms (UCC 2-207) o 1) Applies unless acceptance expressly made conditional on assent to additional or different terms o 2) Between merchants, terms become part of K unless: offer expressly limits, materially alter agreement, or objection made within reasonable time o 3) Conduct by parties that recognize contract —terms where parties agree, plus supplementary terms Consideration o Consideration is bargained-for legal detriment Courts do not question adequacy of consideration—often hard to o quantify Past consideration is not good consideration o o Gift promises are not enforceable o
Inspection Section 2-512(2) of the UCC allows for payment to be made for goods o prior to inspection, but provides that such payment… Specific Performance (doesn’t come up much) o An action for specific performance is used to compel a breaching party to perform as required under a contract. However, specific performance is available only where a legal remedy (i.e., a claim for monetary damages) is insufficient to restore the buyer to his or her original position Often comes up in property issues o Promissory Estoppel o 1) A promise o 2) The promisee’s reliance must be reasonably foreseeable to the promisor at the time of the promise o 3) Actual reliance induced by the promise
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4) Injustice would result without enforcement Modification (usually 2-3 questions) Rule: A modification is a subsequent agreement that alters or changes o the parties’ duties and obligations…. Modification o UCC Good faith No consideration required Common Law o Pre-existing duty rule New consideration required Assignment and Delegation o Assignment —transfer of one’s rights under the contract—basically, the money o Delegation—a person has another person perform the duties under the contract —delegator remains liable, and can’t delegate if it requires particular skills Warranties in an Assignment o Assignor warrants (1) he/she will do nothing to defeat or impair the value of that assignment, and (2) the right that is assigned actually exists and is subject to no limitations or defenses Condition Precedent o Rule: A condition precedent is an act or an event (other than the lapse of time) that must occur first before a party is under a duty to perform Parol Evidence Rule o Once the parties have reduced their agreement to a writing, evidence of any prior oral or written or contemporaneous oral agreements is inadmissible to alter, vary, or contradict the terms of the writing Parol Evidence Rule Exceptions o Fraud Mistake o o Illegality o Duress o Partial Integration—if it seems like we didn’t finish the agreement o Conditions precedent Main Purpose Rule (usually on MBE) An oral promise to answer for the debt of another is enforceable if the o promisor’s main purpose is to further his or her own economic advantage Impossibility o Subjective—impossibility will not excuse duties of performance under a contract Objective—impossibility will excuse duties of performance under a o contract UCC 2-609: Right to Adequate Assurances o
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When reasonable grounds for insecurity arise, one party may (in writing) demand adequate assurances from the other that the performance will occur o Assurances must be provided within a reasonable time (no more than 30 days) Failure to provide assurances is a repudiation of the contract o 3rd Party Beneficiary Analysis o Identify 3rd Party Beneficiary Contract —A and B make a promise that will benefit A, if A does something to benefit C rather than B Intent to Benefit Test o Is 3rd party incidental—then no rights Is 3rd party intended—then Step 3 o Has Third Party Vested? Learned of the contract and assented to it? Changed positions in reliance on the contract? Defenses to Contract Formation o Incapacity—minors (unless “necessaries”), mental incompetence o Misrepresentation—untrue statements or assertions that relate to existing facts Duress- threat o o Undue influence—vulnerable party (death bed) Unconscionability—grossly excessive price or consequences o o Public Policy o
NOVEMBER 21ST A week and a half to take out exam; 2 ½? Hours to sign out and return exam; Extra class next semester
WORKSHOP 1Challenges Won’t know every subject o o Thinking in much bigger picture—much broader NJ—single subject essays o Law School v. Bar Exam v. Legal Practice o Subject matter Start prep on heavily tested subjects Practice multi-subject/topic application o Reader Review sample answers Make answers easy to read Write like a lawyer Recipe for Success S—SPOT the issue o I—don’t discuss IRRELEVANT (less) relevant topics o C—CONVEY your knowledge clearly to the grader o
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K —get as many points as you can w/ the KNOWLEDGE you have
Reading Comprehension Tips Start w/ the call of the question o What is the assignment? What is being asked, specifically? o Read actively (write in margins, circle stuff) Identify parties Relationship between parties Dates, events, documents, transactions Key words Red Herrings o
Essay 1: July 2007 Q001 (from NJ Bar Exam) o Example 1 CALL: Civil suit (not criminal) Memo: prepared by associate to partner Only care about Lisa’s claims Any possible defenses Paragraph 1: Lisa and Todd—ID parties Best friends—relevance? Prob underline it; maybe state of mind? Todd is 19, celebrating 19th bday At a local pub (another party) In college, celebrating bday Friend (another party) is 22 Friend bought beer and refilled Todd’s glass ALL NIGHT Paragraph 2: Alan (another party)—Todd’s former roommate Arm around Lisa Todd heard them yelling (IIED? Can it lead to assault/battery?) sees Alan raise a hand Todd rushing over—is this defense? Was this reasonable? Did he believe Lisa was in imminent danger? Paragraph 3: Todd shoved Alan Lisa moved away—knew of bad temper when drunk; could tell he’d been drinking Lisa screamed when she saw the shove Alan fell over a chair, toppled onto Lisa, who fell to the ground and fractured her leg Paragraph 4 Dram Shop Act —no alcohol served to anyone under 21
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13 Negligence per se? Lisa has potential claims against: Todd, bar, friend, and Alan Then when talking about claims, talk about defenses each of those parties has o
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NOVEMBER 28TH MBE Review 180 m.c. questions 1.8 minutes per question? If there’s questions about mortgage, “IBM” or complicated shit, just skip over it and get back to it
Contracts and Torts Practice Consideration Consideration is bargained-for legal detriment o o Courts do not question adequacy of consideration—often too hard to quantify o Past consideration is not good consideration o Gift promises are not enforceable Acceptance by Performance When the offeree begins the performance contemplated, he/she o impliedly promises to complete it. However… 1) The offer must be for an entire contract, and not for a series of separate contracts 2) What is begun must be a part of the actual performance bargained for, and not mere preparation for performance 3) Such implied acceptance is communicated to the offeror, or he/she had knowledge of it Racing Acceptance and Rejection o Occurs when the person mails a rejection first and then an acceptance—whichever is received by the offeror first wins o The rejection may be a counter-offer Lapse of Time o The factors determining a reasonable time are: 1) The subject matter of the offer 2) Its rate of price fluctuation 3) The period within which the offeror’s known purpose in inducing the contract can be effectuated; and of lesser importance… 4) The mode of communication of the offer o “Face to face” conversation rule—an offer expires at the conclusion of a face-to-face conversation (unless there is an acceptance) Counteroffer o 1) “I am not willing to pay $10,000 for the car, but I would happily give you $9000”—counteroffer
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2) $10,000 is a little high. Would you take $9000?” o A counteroffer kills power of acceptance! UCC: 2-206 Non-Conforming Goods o If non- conforming goods are shipped, the shipment serves as an acceptance and at the same time a breach o Unless seller says this is just “accommodation” Statute of Frauds Marriage o Y ear (1) o Land o Executor o Guarantee o Sale of goods ($500+) o Promissory Estoppel o 1) A Promise o 2) The promisee’s reliance must be reasonably foreseeable to the promisor at the time of the promise o Actual reliance induced by the promise Injustice would result without enforcement o Modification o UCC Good faith No consideration required o Common law Pre-existing duty rule New consideration required Acceptance by Silence/Implied-In-Fact Contract If the agreement or mutual assent is manifested in words (oral or o written), the contract is said to be “express” o Where the mutual undertaking of the parties is inferred from their conduct alone, without spoken or written words, the contract is said to be implied-in-fact Duty to Plaintiffs on Adjacent Land Reasonable care to prevent injury from activities on land o o Reasonable care to prevent injury form artificial conditions o Generally, no duty for dangers arising from natural conditions o Urban areas—reasonable care to protect from trees (so inspection—if you know it’s rotted, unreasonable to just leave it) “Firefighter” or “Professional Rescuer” Rule A professional rescuer generally doesn’t have a claim based on the o negligence that creates Duty o Did D have duty to P to conform to a certain standard of conduct? No general duty to aid others—unless some special relationship (contract, innkeeper, common carrier, school) o
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The common carrier (railroad, airplane) has a duty to its passengers to take reasonable actions to protect them against unreasonable risk of physical harm. This duty to protect extends not only to risks arising out of the common carrier’s own conduct, but also to risks arising from third persons Comparative Negligence Comparative negligence only applies if there is a negligent plaintiff! o o Joint and Several Liability—Where the combined negligent acts of 2 or more tortfeasors cause an individible injury Duties of Care for Landowners Trespasser o Unknown No duty o Licensee Friend Warn of known dangers o Invitee Customer 1) Inspect 2) Make safe o
JANUARY 23RD Essay 1: Club Mayhem (Fred and Beyonce) o Prepare the memorandum—call of the question Start with “to” “from” et c Memo to fred and beyonce- your clients Rights of recovery and defenses raised by Ds Civil-not criminal Paragraph 1 o Club Mayhem= party—licensed server (gives them a certain duty) Peter= party Turning 21- legal drinking age At this “notorious liquor joint”—highlight this- why notorious? Paragraph 2 o Conditions—daylight on the highway On his way to “major pub crawl” Club= party Peter is already incoherent Bartender= party “Quickly learns” Peter is drunk Peter forgot his ID Bartender served him anyway o Paragraph 3 Peter “stumbles” out of club Sunday morning
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Fred= party= your client! Driving to church Has headache Took medication w/ warning about driving [drug maker= party??] Paragraph 4 o Fred doesn’t see Peter Peter “speeding up” Conditions= rainstorm- factor? Peter hits Fred’s car Damages: Injury: Fred sprains back Loss of consortium w/ wife, Beyonce= party (your client!) Fred can’t help around the house o Mirror Call of Question I) Fred’s Rights of Recovery Claims Defenses 2) Beyonce’s Rights of Recovery Claims Defenses o Break up the Mirror: By Party 1) Fred’s Rights of Recovery A) v. Peter Claims o o Defenses B) v. Bartender o Claims o Defenses C) v. Club o Claims Defenses o D) v. Drug Maker o Claims o Defenses 2) Beyonce’s Rights of Recovery IRAC/CRAC o Fred’s Rights of Recovery Fred’s Rights of Recovery v. Peter Claims o Issue #1: Negligence 1) Rule: Duty, breach, causation (actual and proximate), damages
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17 2) Application: Peter breached his duty to drive soberly and; but for drinking, accident wouldn’t have occurred (actual—but for). Foreseeable to have a traffic accident when drunk (proximate— legal), and Frank was injured (damages) 3) Conclusion: Peter is negligent Issue #2: Negligence per se o Rule: Person violates a statute and harm is type statute is seeking to avoid Application: DUI statute says cannot drive drunk, and is intended to prevent traffic accidents and injuries Conclusion: Injury was type statute was intended to protect, so Peter is liable for negligence per se Peter’s Defenses= Assumption of Risk and Comparative Negligence Assumption of Risk o Rule: Assumption of risk requires P to knowingly assume risk of injury from D o Application: by driving on road, Fred didn’t knowingly assume risk of Peter driving drunk o Conclusion: no defense of assumption of risk Comparative Negligence Rule: Comparative negligence reduces o negligence by percent P is negligent, and intervening force o Application: Fred was arguable comparatively negligent for driving on medication Conclusion: Peter’s liability may be reduced by o Fred’s own negligence and the percentage Fred is found to be at fault Fred’s Rights of Recovery v. Bartender Claims o Issue #1: Bartender’s negligence Rule: duty, breach, causation, damages (cite to earlier rule) Application: bartender duty to ID and stop serving—knew Peter was drunk, didn’t ID him, and served him alcohol. Doing so caused accident (and foreseeable) and Fred sustained damages Conclusion: bartender is negligent o Issue #2: Negligence per se
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18 Rule: person violates a Bartender’s Defense —no causation Rule: D’s actions must be the actual (but -for) and proximate (legal) cause of the ibjury Fred’s Rights of Recovery v. Club Claims o Vicarious liability for bartender’s action Rule: employer is vicariously liable for e Application Conclusion: Defenses Fr ed’s Rights of Recovery v. Drug Maker Claim—Products Liability Rule: strict liability can be based on 1) failure to o warn or 2) for a dangerous or defective product o Application: medication had a all-caps warning stating that a person should not take it when operating a car; and it didn’t appear to be a dangerous or defective product o Conclusion: drug maker isn’t liable for any products liability claims Defenses—N/A
ESSAY #2—BETTY V. SALLY o Question Call 2 prongs—IN THIS ORDER 1) Enforceable contract (does Betty have…) 2) Negligence action (will Betty succeed…) Paragraph 1 o Sally= party Holds garage sale= Seller Signs in neighborhood= offers? Items, prices, date & time (12 PM- 4 PM) o Paragraph 2 Betty= party= Sally’s friend (relevance?) Stopped by at 1 PM (within range) “I’d love to buy that gown but can’t afford it” - not an offer “I’d hoped to get $400 for the gown… you’ve helped me out before… I’ve wanted to pay you back…” –consideration? “If I can’t sell it for $400 by 3:30, then gown is yours for free” – offer? Paragraph 3 o 3:30—Betty called—Sally replied, “I’m going to close up early. It looks like its yours” Betty says she’s going to
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Paragraph 4 3:45—Debbie arrives= another party—before 4 PM says she will buy dress for $300, plus art books, offer Paragraph 5 Betty arrive—shows shoes and bag (reliance?) Sally tells Betty Paragraph 6 Betty tripped over a price gun Sally carelessly left —negligence Price gun= bright yellow and obvi to casual observer— foreseeable Betty didn’t see it b/c she was talking on her cell phone— comparative negligence? Betty fall broken ankle damages Sues negligence claim Jurisdiction follows modified comparative fault analysis Mirror Call of Question 1) Does Betty have enforceable contract w/ Sally? 2) Will Betty succeed
IRAC/CRAC Does Betty have an enforceable contract w/ Sally? o Must it be in writing? Rule: SoF (MYLEGS) Application: S of F not applicable Conclusion: not necessary to be in writing Elements of enforceable K were likely not met o Offer: Rule: Offer is outward manifestation; can be oral; must signal acceptance closes deal; ads to multiple recipients are invitations for offers, not offers Signs are not offers but agreement to give for free if no other buyer is an offer There was an offer Acceptance Was there acceptance? Rule: must convey willingness to accept —in any o reasonable manner under the circumstances Application: the gown is yours “thanks” gets o shoes to match Conclusion: Sally accepted Betty’s offer o Did Sally revoke offer? Rule o o Application: Sold dress before Sally picked it up but 1) No effective communication; and 2) also, after acceptance o Conclusion: no revocation
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Consideration Rule: must be supported by consideration—gratuitous= unenforceable o MA distinction detriment or benefit (was buying shoes and bag a detriment?) o Past benefit/detriment isn’t enough Application: was purchase of shoes and bag enough of a detriment? Conclusion: likely invalid K b/c no consideration
Grading midterm: Each section (essay 1, essay 2, mcq) worth 300 o o Grades ranged from 60-205; 140-150 was average MCQ o
#1—An employee successfully negotiated a lucrative K for her employer… Which of the following is the legal effect of the employer’s promise to pay the bonus to the employee? C) It is unenforceable v/c it wasn’t supported by legally sufficient consideration A) is wrong b/c no present material benefit was conferred on the employer in exchange for the bonus; past consideration is not sufficient to support a contract #2—A man offered to sell his barbeque to his neighbor for $100… If the neighbor sues the man for breach of K, judgment for… A) the man, b/c the offer to the neighbor terminated when the neighbor learned of the sale to the brother B) is wrong b/c the fact that consideration wasn’t paid to keep the offer open speaks to why the offer was not irrevocable, but doesn’t state why the offer was terminated #5—A clothing store experiencing a downturn in their business… If the couple sues the clothing store for breach of contract, for whom should the court rule? C) The clothing store, b/c the ad will not be construed as containing a promise to sell a specific set of merchandise #8—On August 1, a manufacturer of portable drinking fountains mailed to the retailer of drinking fountains the following written offer… Before either party has received the other’s correspondence, which of the following accurately states the legal relationship between the manufacturer and the retailer? D) No contract exists b/c a poster offer has no legal effect
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21 B) is wrong b/c knowledge of the offer by the offeree is essential to acceptance. The retailer was unaware of the manufacturer’s offer #9—A farmer was constructing a new barn for his farm. In preparation for the project, he purchased 2,500 board feet of Grade-A lumber from a lumber company. Which of the following, if any, is the best remedy available to the farmer to address the nonconforming Grade-B lumber? B) A claim for damages, to be determined by the difference between the contract price and the cost of purchasing substitute lumber D) is wrong b/c buyer may choose to keep the non-conforming goods, in which case he is entitled to damages calculated by the difference of the goods as promised and the market value of the goods as actually delivered; but, for this option to be available, good must be kept. Here, buyer rejected the goods and shipped them back to the seller #17—If the shopper asserts a claim against the supermarket, she probably will A) prevail, because the supermarket failed to take adequate precaution to ensure the safety of its patrons against such an unreasonable risk of harm D) is wrong b/c posting signs may not be sufficient to constitute reasonable care under the circumstances
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JANUARY 30TH Talk to them if you want to discuss your exam Beginning next week, will have individual packets to start doing practice tests
EVIDENCE Hearsay- an out of court statement offered to prove the truth of the matter asserted Hearsay is deemed unreliable because: It was not made under oath o o The trier of fact cannot observe the demeanor of the declarant It is not subject to cross-examination that may expose: o Insincerity Impaired perception Defects in memory Defects in narration “Statement” defined: An assertion of some fact or event, can be oral or written. It can o include acts like a nod or a shake of the head and the pointing of a finger—so long as it was intended to communicate an assertion
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“Declarant” defined: o The person who made the out-of-court statement If person making the statement is in court, it’s still an out of court o statement! Dealing with Hearsay Questions on the MBE o 1) Identify the out-of-court “Statement” and determine who is the “declarant” o 2) If the declarant is a party, and the statement is being offered by the opponent, it is NOT hearsay—it is an admission o 3) If the statement is not being offered for its truth, it is NOT hearsay 4) If hearsay, is there an exemption or exception that will allow o admissibility? Admissions 1) A statement made by the party him/herself, offered by the o opponent o 2) A statement made by another but adopted by a party (Adoptive Admission) o 3) A statement of a party’s agent, employee, or co-conspirator (Vicarious Admission) Multiple Choiceo 1) D o 2) C o 5) C? 803 exceptions- availability of the declarant is immaterial 804 exceptions—in order for them to be admitted, must show the declarant is unavailable to testify 6) B o Prior inconsistent statements are used only when you’re cross examining o 7) A? Statements of warning are not hearsay o 8) C o 9) D 10) A o o 11) D 12) C o o 13) 16) B o o 17) 18) B o Hearsay Exemptions o 1) Prior sworn inconsistent statements of a witness o 2) Prior consistent statements of a witness (if offered to rebut a charge of untruth)
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3) Prior identifications by a witness (if the identifying witness has testified at trial) o All of these are considered NON-HEARSAY Hearsay Exceptions These are divided into 2 categories: o 1) Those 4 that require the declarant of the statement be unavailable to testify at the trial (Rule 804 exceptions), and 2) Those 24 where the availability of the declarant is irrelevant (Rule 803 exceptions) “Unavailable”: privilege; refusal to testify… o Rule 803(1): Present Sense Impression o A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter 803(2) Excited Utterances o Statement relating to a startling event made while declarant was under the stress of excitement caused by the event 803(3) Statement of Then Existing Mental, Emotional, or Physical Condition o A statement by the declarant of his/her then existing state of mind, emotion, sensation, or physical condition; and statements of belief and intent concerning the declarant’s will o Hillman case—guy wants to go somewhere tomorrow 803(4) Medical Diagnosis or Treatment Statements made for purposes of medical diagnosis or treatment and o describing medical history, or past or present symptoms, pain or sensations. Statements about who caused the injury are not admissible 803(6): Business Records o Report or record concerning act or event: Made at or near the time By a person with knowledge Kept in the regular course of business See question 12 o o Rule 803(7) Absence of a Record 803(8) Public Records and Reports o Reports, records, statements of public agencies or offices concerning (1) the activities of the agency/office, or (2) observations made under a legal duty as to matters which there was a duty to report o Rule 803(10) Absence of a Record—also admissible o See question 13 Police report isn’t a business record? Police report will appear a lot of MBE 803(18) Learned Treatises o Statements made in treatises may be read into evidence once authoritativeness is established by agreement, judicial notice, or expert testimony Treatise itself does NOT come before trier of fact o o
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Portions can only be read 804(b)(1): Former Testimony Testimony from the same or different proceeding, or in a deposition o o Opportunity and similar motive to develop the testimony on direct, cross, or redirect o Unavailable declarant See question 16 o 804(b)(2): Dying Declaration 1) Criminal homicide or any civil case o o 2) Declarant’s belief of imminent death 3) Statement must concern cause or circumstances of death o o 4) Unavailable declarant See question 17 o o Victim doesn’t have to die in order for it to be a dying declaration (can be in a vegetative state) 804(b)(3): Declaration Against Interest o Statement: 1) Against interest when made (penal, pecuniary, or propriety) 2) Non-party (generally; otherwise if they were a party it would be an admission) 3) Unavailable declarant o See question 18 804(B)(3) Statement of personal or Family History o A statement concerning declarant’s relationship by blood, adoption, or marriage or other similar fact of personal or family history 807: Residual Hearsay Exception o A hearsay statement not subject to any of the exceptions under Rules 803 and 804 may nevertheless be admissible if it has “circumstantial guarantees of trustworthiness” and o
So far no exam has had this on it Hearsay and the Confrontation Clause of the 6 th Amendment o “In all criminal prosecutions, the accused shall enjoy the right… to be confronted w/ the witnesses against him” o Ohio v. Roberts—if hearsay is admissible under an exception to the hearsay rule (803 and 804) then the 6 th Amendment is NOT violated o Crawford v. Washington and Davis v. Washington : “testimonial” hearsay statements, even if admissible as an exception to the hearsay rule, violate the 6th Amendment o
FEBRUARY 6TH Criminal law Next class- come in w/ rough outline of what the issues are Evidence multiple choice questions? Criminal law multiple choice questions- answers will be e-mailed next week
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Keith Sullivan—www.sullivangalleshaw.com Sources of Criminal Law—where these laws come from o Federal government States—each state can legislate its own crimes o o Municipalities (Cities/Towns/Villages) o Model Penal Code—set of guidelines/standards of what states should strive for Classification of Crimes o Misdemeanor—lesser offense; punishable by less than 1 year in prison o Felony – subject to incarceration of 1 year of more; serious crimes Purpose behind criminal law o Rehabilitation- make indiv. better for society o Restitution- have them pay back society o Punishment- teach lesson and send message to others Principles of Criminal Liability (elements of crime) Actus reus- act or conduct itself; can also be a failure to act when you o have a legal duty (ex: contract —lifeguard, creation of peril—kicking non-swimmer into a pool, by statute—doctor o Mens rea—mental state/guilty mind; 4 types of mens rea: Specific intent —have an intended purpose General intent —perform specific conduct regardless of what the outcome will be Many jurisdictions have done away w/ specific v. general intent Strict liability- no mental state required (statutory rape, serving alcohol to minor) Malice—reckless disregard of high risk that someone will be harmed Concurrence—actus reus and mens rea coming together at the same o time; Causation—getting desired result, but not by your causation; o proximate cause; my act must be the cause of his harm Defenses o Homicide—covers murder and manslaughter Murder: 4 types o Intent to kill-- BOOTHE Intent to cause serious bodily harm—BAT Depraved heart —BRIDGE Felony murder—BANK (BARRK) Intent to kill o Defendant consciously desires to kill another person and carries it out Won’t tell you if guy had an intent to kill on bar exam, have to look at surrounding facts and circumstances o Ex: John Wilkes Boothe
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Intent to cause serious bodily harm o Unintentional killing stemming from something the D did in hopes of hurting the victim o BAT—ex: coach in baseball yelled at son, get a bat and want to rough up coach a bit, go to his house and beat him up a bit, hit him in head a few times. Coach goes to hospital, later dies This is a homicide; murder. But what kind? Have to look at the mental state In most jurisdictions, this would be 2 nd degree murder (no intent to kill here) Depraved heart o **this is most difficult type of murder to identify Unintentionally killing coming from conduct involving wanton, o indifference to human life Conscious disregard of severe risk of death or serious bodily injury o “f the world” attitude o Ex: kid takes frozen turkey on top of bridge during rush hour, launches turkey down, goes throw windshield. If person dies from turkey hitting her, or swerving, whatever… the n person is guilty of depraved heart murder (unless kid intentionally threw it to a specific person) Felony murder o BARRK—burglary, arson, rape, robbery, kidnap o Unintentional killing caused during the commission or attempted commission of an inherently dangerous felony (of which there are 5— BARRK) o On bar exam—circle the felony if you spot it; doesn’t necessarily mean its always the answer o Ex: committing burglary on the bank Limitation—death has to be independent of the felony; not something o you intended to have happened Ex: rob bank w/ gun, guy drops on floor and accidentally shoot gun and guy dies; rob bank, leave, and zip away in car and accidentally kill girl skateboarding on the street o Once you get to a safe haven, felony murder “stops” Has to be while you were “fleeing” Safe haven—defined as a place of temporary safety Manslaughter—2 types o Voluntary—intentional killing mitigated by … 1) Adequate provocation—objective standard (“reasonable man” standard) Adequate provocation is where you lose total control— heat of passion Would reasonable man lose control in that set of circumstances?
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27 2) Mistaken justification—defending yourself against serious threat of death or serious bodily harm NOT when someone calls you names, shooting spouse when there’s no dinner on the table, shooting driver that cuts you off on highway Involuntary—unintentional killing 1) Gross or **criminal negligence—subjective **You’ll get caught up between crim. Neg. and intent to cause serious bodily hard Criminal negligence—D’s conduct creates a high degree of risk of death or injury Higher than just mere negligence standard 2) Misdemeanor—manslaughter (assault & battery) During an unlawful act Misdemeanor that results in a murder—commit lesser criminal offense (than felony-murder) such as stealing can of soda from deli, and employee gets so worked up he has heart attack and dies o Doesn’t matter how susceptible guy was to having a heart attack
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HOMICIDE
MURDER
INTENTIONAL
UNINTENTIONAL
Intent to kill
Felony murder Intent to cause serious bodily harm Depraved heart murder
MANSLAUGHTER
INTENTIONAL
UNINTENTIONAL
Voluntary manslaughter 1) Adequate provocation 2) Justified mistake
Involuntary manslaughter
Murder o Intentional Intent to kill Unintentional o Felony murder Intent to cause serious bodily injury
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Depraved heart murder
Manslaughter Intentional o Voluntary manslaughter 1) Adequate provocation 2) Justified mistake o Unintentional Involuntary manslaughter Tips o When attacking criminal problem dealing w/ homicide (killing or death), the first thing you should ask yourself is “is it in intentional killing?” (is this what they wanted?) o 2nd—did their actions cause the death? (concurrence) o If intentional—there’s only 2 types: intent to kill and voluntary murder If unintentional—then you have to assess “what is the conduct”—the o conduct then gives us the intent When you get to criminal law question, read the call of the question o Defenses—Mitigation (reduce punishment) o Heat of passion o Imperfect self defense—you think you have to defend yourself, but it’s a candy bar instead of a gun o Duress Has to be under the worst of circumstances “If somebody doesn’t have a gun to your head, it’s prob not duress” –Harvey Levin (TMZ guy) o Voluntary intoxication Will reduce from murder to manslaughter Defenses— Exoneration (D will walk away wish no punishment) Perfect self defense—shoot him, you think guy has candy bar and it o does turn out to be a gun Necessity—driving plane and engine goes on fire, sees open field w/ o farmer plowing field. Other option for landing is Yankee Stadium w/ day game going on. Take 1 life or 50,000 o Insanity—not guilty by reason of insanity Implies you’re unfit to stand trial or You were insane at time you committed the act (has to be this for exoneration)
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718-755-9432—cell phone E-mail:
[email protected] If you have questions about process and career advice
CRIM LAW PRACTICE ESSAY QUESTION GEORGE
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Is George guilty of felony murder? Is George guilty of any other homicide related offense?
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Is Jeb guilty of any homicide related offense?
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Paragraph 1 o George= party o Devastated… state of mind? Barbara= party o o Rare disease no more than 3 months to live Experimental drug= only treatment o o Pharmex= party Drug being tested in university study o o Chief of university= party No openings in program o o
Paragraph 2 o Desperate Jeb= party (Pharmex empee) o o Steal supply Agrees to pay Jeb o o Jeb initially refused (relevant) but then agreed o Jeb gave George package o Pharmex label w/ recommended dosage George gave recommended dosage o o Cardiac arrest in reaction to drug died Paragraph 3 o State law!!! Receipt of stolen property= felony o o Unauthorized possession or distribution of controlled substance= felony Experimental drug= controlled substance subject to law Mirror Call of Question
George Felony Murder
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BARRK—burglary, arson, rape, robbery, kidnap Unintentional killing caused during the commission or attempted commission of an inherently dangerous felony (of which there are 5— BARRK) On bar exam—circle the felony if you spot it; doesn’t necessarily mean its always the answer Ex: committing burglary on the bank
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Limitation—death has to be independent of the felony; not something you intended to have happened Ex: rob bank w/ gun, guy drops on floor and accidentally shoot gun and guy dies; rob bank, leave, and zip away in car and accidentally kill girl skateboarding on the street Once you get to a safe haven, felony murder “stops” o Has to be while you were “fleeing” Safe haven—defined as a place of temporary safety Application Conclusion Other Homicide-Related Offenses Murder Involuntary manslaughter o
JEB Other Homicide-Related Offenses
Rule—homicide= murder or manslaughter MURDER o 4 types o Intentional Intent to kill o Unintentional Felony murder Intent to cause serious bodily harm Depraved heart murder MANSLAUGHTER 2 types o Intentional Voluntary manslaughter 1) Adequate provocation o o 2) Justified mistake Unintentional Involuntary manslaughter Conspiracy to commit murder o o Accomplice liability—vicarious APPLICATION o Jeb DID commit felony (distributed controlled substance property= drug) BUT no “fleeing”
FEBRUARY 13TH NY online app- available april 1 st -30th Essay Workshop Reading Comprehension Strategy Start w/ the call of the question o What is the assignment?
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What is being asked, specifically? o Read actively Identify parties Relationship between parties Dates, events, documents, transactions Key words Red herrings Writing Your Answer: 4 Step Formula o Mirror the call of the question Break the Mirror o o I G o Structuring your arguments: break up the mirror Break up the mirror—can do it in 4 ways o Legal concept Murder, manslaughter, negligence o Transactions Signing of contracts dated X, dated Y, dated Z Occurrences o The failure to mop up the spill, Joe’s arrest, the telephone calls People o Parties names, P v. D1, P v. D2, P v. D3 Essay Writing Workshop #2—Exercise 2 o Mirror the call of the question Lisa v. Todd Lisa v. Friend Lisa v. Pub Lisa v. Alan Lisa v. Todd o Negligence Battery IIED/NIED o Lisa v. Friend Negligence per se o Lisa v. Pub Negligence per se o Lisa v. Alan Assault IIED/NIED Defenses—2 ways to approach o Weave defenses in as counter argument in application o If defenses play a bigger role, have a separate section Exercise #3 1) Lisa’s Claims and Relevant Defenses o Products Liability
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Negligence o Battery o NIED 2) Mom’s Claims and Relevant Defenses NIED o o IIED RAC (Rule Application Conclusion)—3 kinds of combos—this is worth the least in every state Single sentence o Ex: Sam is guilty of 1 st degree murder because he fatally poisoned Dave with malice aforethought 1st - you cited the rule for murder 2nd- also applied the facts to that rule o Single paragraph Ex: A security agreement is an agreement where the debtor gives to the secured party a security interest in certain collateral. It must be in writing, contain a “granting” clause, contain a description of the collateral, and be signed by the debtor. Here, because Peter never signed the document purporting to grant the security interest, it does not meet these test and no security interest was created Multiple paragraph—use for essay question with not many issues or o prompts Writing Your Answer—Get in the Grader’s Face Keep paragraphs short o o Write clearly Short sentences Active voice No legalese Practice writing rules of law o Write legibly Leave white space on page (skip line) o o Punctuate key words and phrases by underlining Homework for next class—p. 18 in essay workshop 3—before next essay workshop class, read those essays and outline (mirror call of question, and break up mirror into chunks) o
FEBRUARY 27TH Essay 1; Essay Workshop #3 Start with the call of the question What is the assignment? o
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Read actively Question Call: “SS hires you to prepare a comprehensive memorandum outlining its rights, obligations, and liabilities”
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Memorandum format o You represent SS—memo addressed to SS o Rights, obligations and liabilities General Not vs. a specific party ID rights, obligations, and liabilities against all parties Important to note and consider all parties when outlining answer READ ACTIVELY Paragraph 1 o Sensation Sensors= SS= party Manufactures and sells pressure sensors For use in plane, car, and ship engines o December 2003= date o Buyer= another party Manufactures ship engines o WRITTEN request for price quotes 2,500 sensors “of a particular type” To be shipped by May 15, 2004 Paragraph 2 o SS representative (authority to bind) Confirms by telephone that SS can complete and deliver Buyer agrees to purchase (no indication if written) Sensors are sensitive to temperature extremes o Buyer asks for “delivery by climate-controlled airfreight” To arrive by May 25 o o Agree on a price $250/sensor= $625 including shipping Letter from Buyer to SS o Confirms agreement Manufacture and provide 2500 model T sensors Delivered F.O.B. at your plant On or before May 15 Shipping by climate-controlled airfreight Payment of $625K within 5 days of Buyer’s receipt Signed by Buyer Paragraph 3 Paragraph 4 On July 10 (40 days after receipt) o Quality control testing of engine containing sensors 40% failure rate o Buyer notifies SS It will sue for failure to deliver 2500 working sensors by 5/25 (no specific mention before this that order was short) Unless SS cures by August 15 o
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BREAKING UP THE MIRROR Break up mirror w/ parties Buyer v. SS o o SS v. All-Parts SS v. Trucking Co o Who can SS sue? o Prob all-parts, and trucking co Break down mirror even further: Legal Concepts/Occurrences o Buyer v. SS Contract formation Undershipment of sensors Defective goods o SS. V. All parts Undershipment of components o SS v. Trucking Company Breach of K
“RAC” up the Points Rule citation, applying facts to rule, then conclusion
Buyer v. SS A) Contract Formation o 1. Issue: K not enforceable b/c violates SoF 2. Rule: o a. Sale of Goods over $500—must be in writing b. Exception—between merchants where there is an oral agreement (part performance) and then 1 sends the other a written confirmation—both parties don’t need to sign if the other party doesn’t object in a timely fashion o 3. Application: SS didn’t dispute, starting mak ing items 4. Conclusion: valid and enforceable K o B) Undershipment of Sensors o Issue: Did SS breach the K by shipping only 1500 sensors? Rule: o a) UCC= Perfect tender rule (not substantial perf.) UCC requires that goods conform perfectly b) UCC Acceptance of nonconforming goods 1. Reject within reasonable time 2. Accept goods 3. Reject part and accept part (reduces amount due) c) Defense: Exception—impracticability non-completed duties are excused (***IMPORTANT CONCEPT) 1.Unexpected contingency after K formed (outside breaching party’s control) 2. Risk not allocated to party seeking excuse
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3. Performance commercially impractical (objective test)
Application Impracticability= SS was unable to perform contract and fulfill order b/c of: Government action; and No alternative vendor Buyer does not have the
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C) Defective Goods Issue: Is Buyer entitled to damages b/c 40% bad components? o o Rule: perfect tender rule (don’t restate, direct where you spelled out rule before) o Application—40% were defective= not perfect tender Defenses o FOB contract Issue: Did risk of loss shift to buyer? Rule: S must get goods to required location, provide shipping from there, notify Buyer goods are in transit when S delivers goods to location, risk passes to B o i. commercially reasonable method Application: Goods OK on 5/14—but there was a specified method in the K and the goods weren’t delivered per that method Conclusion: No FOB defense—risk of loss did not pass to B Higher cost of original method not defense b/c o SS assumed shipping risk in K—no unconscionable Buyer failed to do a timely inspection Issue: Buyer failed to promptly inspect and notify of defect in a timely fashion—so no right to sue Rule: B has absolute right to inspect goods before payment can be demanded or acceptance required— must exercise rights within a “commercially reasonable” time Application: 40 days probably not unreasonably—even if found to be so, B can revoke acceptance Conclusion: Unlikely defense: unlikely court would find inspection and revocation periods had lapsed SS. v. All Parts Issue: Can SS sue All-Parts for breach of K for failure to deliver all 5000 components? Rule: impracticability (don’t restate)
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Application: foreign government ban o All-Parts Defense: All Parts may claim K is illusory b/c doesn’t specify quantity Rule: requirements contract is binding Application: this is a requirements contract Conclusion: binding Conclusion: All-Parts excused from full performance—you pay for only those delivered
SS v. Trucking Co. Issue: Is Trucking Co liable for damages for breach of K? Rule: Damages caused by breach must be foreseeable at K formation stage Application: Damages were foreseeable- A/C truck, temp. sensitive material Conclusion: SS can sue for damages
JUNE V. SAYRE MOTORS
Mirror Call of Question—SCHEME A 1) June’s causes of action against Sayre o Products Liability Negligence Breach of Warranty of Merchantability o 2) Defenses available to Sayre Product Liability: Negligence Statute of limitations Negligence: Breach of Warranty of Merch: Can also do claim/defenses within each cause
Product Liability Issue: Does June have a product liability claim against Sayre for design defect? Rule: Strict products liability: One who sells product in a defective condition that is unreasonably dangerous to user or consumer, or his property, is subject to liability for physical harm thereby caused to user or consumer or his property if: o Seller engaged in business of selling product; and It reaches user w/o substantial change to the condition when sold o Application: Test met. June can sue even though she didn’t buy car (user as well as consumer) Conclusion: June has a PL claim
Negligence Issue: Can Jane sue Sayre for negligence
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Rule: Negligence= 1) duty 2) breach 3) causation (actual and proximate) and 4) harm Application: 1) duty= contract to repair is sufficient to establish duty, notice of recall received 2) breach= not replacing the mechanism as required and contracted 3) causation
Breach of Warranty of Merchantability Issue: June may be able to sue Sayre for breach of warranty of merchantability Rule: Under UCC, there is an implied warranty of merchantability in every K for the sale of goods. Seller warrants that goods are generally acceptance and fit for ordinary purposes o Applies to goods but not to services o Merchant may expressly disclaim Application: Joan can claim that car sold w/ warranty of merchantability that it was fit for purposes used (driving). Car was used for the intend purpose. No express disclaimer Conclusion: Joan can sue for Breach of W of M
Sayre Motors’ Defenses Negligence—Defense to Products Liability Claim Issue: Sayre may attempt to prove that it is not liable in products liability b/c Merrill was negligent Rule: strict liability—misuse of product is no defense to SL where the misuse was foreseeable Application:
Defenses to Negligence Claim: 1) Negligence Per Se Issue: Sayre may attempt to prove that it is not liable b/c Merrill was o negligent per se Rule: Negligence: Driving above speed limit is negligence per se— o unexcused violation of statute Risk must be the kind the statute is meant to prevent Claimant is in class meant to be protected by statute Claimant suffered type of harm statute meant to prevent o Application: Sayre not within the zone of claimants the statute is meant to protect o Conclusion: No negligence per se defense 2) Negligence o Issue: Sayre may attempt to prove not liable b/c Merril was negligent
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If you don’t know rule, but you spot the issue write issue down anyone If you don’t know all elements on rule, will still get partial credit
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MARCH 5TH – PROPERTY Tenant Duties o 1) Pay rent 2) “Waste not” o o 3) Repairs Landlord Duties o 1) Deliver Possession 2) Covenant of quiet enjoyment o o 3) Implied Warranty of Habitability 4) Injuries o **Have main topic, and put common law rule vs. majority rule—most m.c. questions will address the diff rules 4 types of leases o Leaseholds – LL who maintains ownership of property and T who has been granted temporary possessions o 4 types of leaseholds—only 1 has to be in writing—lease for a term of years o TPAS—types of leases Take—term of years Peter—periodic tenancy And—tenancy at will Susan—tenancy at sufferance Term of years lease o Must be in writing b/c of statute of frauds Has definite beginning date and definite end date o o Not necessary to give notice b/c notice already been given Periodic Tenancy o Has definite beginning date but no definite end date Ex: month to month lease o o Can be in writing but don’t have to be How do you bring it to an end? Either party (LL or T) must give 1 o period’s notice of intent not to renew Ex: month to month lease, must give 30 days notice; week to week lease, must give 1 week notice Tenancy at will o At the will of the LL and at the will of the T o Has no fixed duration and can go on indefinitely o No notice is required to break it Why would you ever use this? This is what you get what you can’t get o anything else, and your credit rating is shit Tenancy at Sufferance o Not really type of tenancy, more of an interim period o Means tenant is there through the “sufferance” of the LL
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Pops up only when there’s a “hold over tenant”—tenant had other type of tenancy, but T decided to hold over and squat, he’s not leaving o LL has 2 choices: Go to court and have T evicted Have T remain and bind him over to new tenancy (the T required to make same rental payments that he would before lease expired) Now becomes periodic tenancy—month to month tenancy Has to pay same rent payment unless LL gave notice of rent increase occurring at certain date Knowing tenancies is important b/c of notice requirement —no notice for tenancy at will, but is for periodic tenancy CL—idea of tenancy was a conveyance of an estate and therefore covenant made in a written lease were said to be independent of one another Lease covenants were independent —means breach by 1 party doesn’t o excuse or condone breach by the other party Modern law—leases no longer seen as conveyances, instead seen as contractual agreements o So covenants are seen as dependent of one another and therefore breach by 1 party allows for a corresponding breach by the other aprty CL—T’s obligation to pay rent is absolutely—even if premises have been destroyed (ex: hurricane) the rent is not excused Modern law—no rent due by T if premises have been destroyed o 1 Exception—if T caused destruction In this case, LL has these rights: 1) LL has right to evict him 2) LL has right to sue for monetary damages **LL can do both if he wants 3) LL can place acceleration clause in lease—if you wanna stay here, have to pay out remainder of lease What happens if T prematurely abandons w/o paying rent? LL 2 choices 1) CL—Ignore abandonment and hold T liable for rent o o 2) ML—LL may reenter his premises and hold T liable if and only if LL makes good faith effort to mitigate his damages (aka get another tenant) it is LL burden of proof as to that good faith effort LL can only evict T by court order—no “self -help” now In most cases, LL are allowed to evict by any breach of the lease If no written lease, and it’s a tenancy at will, LL can evict for any o reason, any time Exception—LL can’t evict in retaliation (no retaliatory eviction)—if the T has turned in LL for breach of housing regs, LL can’t turn around and evict in retaliation o
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TENANT DUTY #2: “WASTE NOT” Doctrine of waste comes up in 2 circumstances—LL/T, and estates & future interests No waste allowed by the tenant 3 types of waste: o V—voluntary waste P—permissive waste o o A—ameliorative waste Voluntary waste o T does something recklessly or intentionally that causes destruction to the premises o Ex: punching a wall o T is responsible and has to pay Permissive waste o This waste is doing “dumb” T failed to take reasonable precautions to avoid destruction or o damage to premises o Dumbass, if you knew window was broken and storm coming, you should have replaced it… don’t bitch b/c carpet is damaged now. Tenant, you permitted it to happen and didn’t do anything Ameliorative waste Ts aren’t supposed to do it, but ironically, damages for ameliorative o waste can be tripled T is improving premises w/o permission from LL o o Ex: removing gross light fixture and replacing it w/ better lighting; by the time you leave you have to take it down o Why wouldn’t LL want you to make improvements? Increases LL’s costs and liabilities Duty to repair CL—T always responsible for any repairs, to prevent permissive o waste. But T and LL responsible for rebuilding in case of loss of premises, primarily act of god occurrences let them both off the hook ML—whatever covenants are in the lease cover repairs; if nothing o specific in lease, T responsible for general covenant to repair— meaning repairs fall on the T Exception—“normal wear and tear” Ex: time to repaint, recarpet, replace faucets—all LL responsibility But if T caused the damage, he has to pay—if not, T can deduct reasonable cost of repairs from his rent
LL DUTIES
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LL first has to deliver possession—diff meaning depending on American vs. English jurisdiction English rule—majority rule in this country—as of first day of lease, LL o must turn over legal possession and actual possession of premises If you have holdover T, LL has responsibility to get him out and new T doesn’t have to pay rent until holdover is gone o American rule—minority rule—LL must only turn over legal possession Legal possession—just means here is your signed lease, you have right to occupy apt 202. So it’s T’s responsibility to get rid of holdover tenant Rule developed from LL who don’t live near the leased premises
LL DUTY #2 Covenant of Quiet Enjoyment LL can’t get around this duty, even at CL Even if not written into lease, LL still has duty Covenant of quiet enjoyment —there can be no disturbance of T’s use and enjoyment of premises by LL or an agent of the LL o No peeping toms, no hidden cameras, no unwarranted intrusion (no repairman showing up w/ no notice) etc. Nothing says LL has to protect T from 3rd party actions o Cannot hold LL accountable if somebody attacks you in parking lot and steals your wallet UNLESS LL had reason t o know and didn’t take sufficient steps to prevent crime o We don’t hold LL accountable b/c actions by 3 rd parties can’t even be prevented by police What happens if LL breaches? T can treat lease as terminated and withhold rent T can remain where he is, repair whatever quiet enjoyment has been o ruptured, and deduct that from his rent How can T claim termination based on cov. Of quiet enjoyment o Must be able to show unwarranted intrusion or actual or constructive eviction Actual eviction—can be complete or partial—happens when LL o prevents T from using the premises Ex: locking him out, bolting door to spare room o Constructive eviction—some form of material and permanent interference w/ T’s use of his facilities Ex: permanent loss of heat, hot water, clean water, maybe AC if necessary to make place livable in hot places
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REMEMBER—T cannot use constructive eviction as a defense for breaching the lease unless he moves out He can’t stay in apt and say hes been constructively evicted but will just stay and live there for free; so if he’s going to terminate, it has to be bad enough that he moves out Partial constructive eviction—is he entitled to terminate if only 1 of 2 o bathrooms isn’t functioning? No—but he can abate rent (reduce it accordingly Are there other ways for LL to constructively evict? Yes, occurs when: 1) Latent defects on premises that LL knows about and doesn’t o disclose 2) LL fails to maintain the common areas (lobby, stairwell, elevators) o o 3) If LL is a liar—he makes fraudulent misrepresentations about the premises o In some jurisdictions 4) Aiding and abetting nuisances Ex: LL owns 2 unit piece of property (duplex)—1/2 first rented to family w/ small kids, then other ½ rented to country western bar; noise is so great, family can’t have quiet enjoyment in their house T can sue to get money damages, can terminate his lease o If partially constructively evicted—can abate rent, can make repairs and deduct from rent
LL DUTY #3—IMPLIED WARRANTY OF HABITABILITY Implied by law even if nothing is said in lease Has to do if premises is up to speed w/ housing code In most jurisdictions, violation of housing code is immediately breach of implied warranty T’s remedies— can then vacate, remain and withhold or abate rent, or seek monetary damages for his own repairs Even if there is not housing code in jurisdictions, defects will be subject to reasonableness standard There must be a material breach o Repainting when he said he would is not a material breach o Material breach—involves heat, hot water, infestation, etc. If there is material defect, T must do 2 things before vacate: o 1) Give LL notification (preferably in writing) o 2) Give LL reasonable time to cure Look at surrounding circumstances to see what constitutes reasonable period of time
LL DUTY #4-- INJURIES Involve injuries to the T and T’s guest/family members; anyone who is legally on property—what is LL’s liability for injuries
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There is no liability for the LL except for: o 1) Latent dangerous conditions—conditions T wouldn’t know about from observation o 2) Premises are open to the public (ex: movie theater, casino, amusement park) o 3) Injuries that occur after LL has contracted for repairs (LL calls plumber and plumber screws up, LL will be liable to tenant) o 4) If repairs involved are repairs the LL himself voluntarily undertook and then negligently repairs whatever was broken and then someone is hurt as a result
**(will be on bar!) TRANSFERS OF INTERESTS INVOLVED Any LL is fully entitled to transfer his interest to someone else, and T will owe same duties to LL #2 as LL #1 Tenant transferring—can do 1 of 2 things: o 1) Can assign interest to another tenant LL rents to T1, partway through lease term, T1 assigns lease term to T2; with 3 months left on lease, T2 stops paying—who can LL sue? He can sue EITHER ONE—T1 or T2—but he can only get 1 recovery 2) Can sublease to another tenant o LL rents to T1, T1 sublets to T2; if rent isn’t maintained (T2 stops paying), LL can ONLY sue T1 T2 has no privity of estate w/ LL b/c T2 pays T1, and T1 pays LL If LL sues T1, T1 can bring action again T2 for payment How to tell apart —1) who is paying who 2) see below o ** exam tip—on bar they will try to trick you If T1 transfers to T2 the rest of the entire lease term, the it’s an o assignment; sublease can occur however, for only a portion of remaining lease term LL may assert “no assignment clauses” in leases—these clauses are heavily disfavored by courts b/c law favors free alienability of land w/ no restrictions Many jurisdictions say LL must use reasonableness standard if he o refuses no assignability—he must have good faith reason for refusal Dumper’s Law—majority rule in US—says if LL has no assignment clause and then he waives that clause by allowing an assignment, once that clause is waived it is forever waived and he cannot object to 2 nd, 3rd, 4th, etc. assignment Minority rule—each waiver applies only to that particular assignment o and nothing else
FIXTURES
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Ex: personal property that is permanently affixed to real estate in such a way that it uses its true identity Whether its residential or commercial fixture—T CAN take fixture with him if: o Theory is if T doesn’t improve place for LL benefit, so we allow T to remove their fixtures if 2 things are true: Can remove if: 1) Do it prior to the end of your lease o o 2) Removal will not do any material damage to the structure
MARCH 12TH Final—April 2nd March 26th—review session Best thing to do for MBE is practice Crim Law o Always look at INTENT Specific intent General intent Voluntary intoxication isn’t a defense to general intent crimes Strict liability o 4 Forms of Mens Rea Intent to kill Intent to cause serious bodily harm Depraved heart —someone doing something so crazy they’re likely to kill someone, but they didn’t mean to Unintentional Wanton/reckless Felony murder—BARRK Inherently dangerous o Manslaughter Voluntary—intentional killing Adequate provocation (objective) Sex/infidelity—see wife in bed w/ someone o o Threat of assault or battery Mistaken justification Involuntary—unintentional Gross or criminal negligence—subjective (can depend upon what situation was actually happening) Misdemeanor o Applies when there’s something inherently wrong—speeding, driving motorcycle on sidewalk (malum in se) MC Question—always look at call of the question first
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Whenever you see that couple is “separated”—immediately think “heat of passion”! Malum in se or malum prohibitimMalum prohibitim is a regulatory thing (not getting inspection done o when you’re supposed to, not licensing your dog) o Malum monse—doing things you’re not supposed to—speeding (not supposed to do it, but we all do it anyway) o Ex: beginning of Legally Blonde Depraved heart murder—remember it’s unintentional!
EVIDENCE Approach to Evidence o Important to situate proceeding Direct or redirect Party or witness Purpose— o Substantive use? Impeachment use? Admissions—“EMIT” o Statement of the party o Used by opponent Can be anything o Approach to hearsay o Isolate statement Who is declarant o o Purpose for its truth= hearsay o Apply hearsay exceptions 17 out of 34—national average—ties with property as hardest on bar exam Most of evidence questions will be hearsay Keep in mind when studying—remember what rules require person to be unavailable, etc. Con Law questions— Think of the right being challenged and the level of reason the o government has to have o Looking at different levels of review o Abortion—will be on exam If answer choice says it unduly burdens woman’s right to an abortion—that’s the correct answer Might throw in something about privacy rights—but its about unduly burden o Know different rights and what level of scrutiny they get
MARCH 26TH Bring pencil for exam Exam is 33 multiple choice and 1 essay
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