Criminal Law
Introduction
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In a criminal case the prosecutor bears the burden of proving that the defendant committed the offense beyond a reasonable doubt. The defendant generally is required to prove affirmative defenses.
Sources for criminal laws
o State statute (each state has a criminal code)
• In re Banks: where a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning.
o Common law (created by caselaw)
o Model Penal Code (MPC) (this is the basis for approximately 40 state criminal codes)
Theories of punishment
o Utilitarianism: maximize the happiness of society by punishing those who break the law so as to deter future criminal conduct.
o Retributivism: punish those who break the law based on what they deserve.
o Mixed/denunciation: punish those who break the law and increase the happiness of society.
Elements of a crime: (1) actus reus, (2) mens rea, and (3) causation.
Actus reus
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Can be an act or omission, but it must be voluntary.
o MPC 2.01: it does not include a reflex or convulsion, unconscious movement, or conduct during hypnosis.
o Failure to act (i.e., omission) is only a crime when there is a legal duty to act.
• When is there a legal duty to act? Contract, special relationship (e.g., doctor-patient or parent-child), or there is a statute requiring performance. Moral obligation does not impose a duty.
Mens rea
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This element requires the actor to have a guilty mind or a wrongful purpose in order to be convicted of a crime.
Common law mental states: (1) intent (specific or general), (2) malice, and (3) strict liability.
o Specific intent: The defendant wishes or wants to achieve a specific result. He acts with a specific purpose in mind.
o General intent: the defendant is generally aware of what he is doing, even if he does not intend a specific result.
o Malice: the defendant acts recklessly or with intentional disregard of an obvious or known risk that a particular result will occur.
o Strict liability: No mental state is required. Applicable to small crimes (e.g., minor violations of liquor laws, food laws, motor vehicle and traffic regulations, etc.) and statutory rape.
• Public-welfare offense: Instances when mens rea likely is not required:
• punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question (e.g., statutory rape), or
• if the penalty is light, involving a relatively small fine (no imprisonment) (e.g., traffic offense).
MPC mental states: (1) purposely, (2) knowingly, (3) recklessly, and (4) negligently. MPC 2.02. The prosecutor must prove that the defendant committed each material element of the
charged offense with the state of mind required for that crime.
o Purposely: it is the defendant’s conscious object to engage in specific conduct or cause a result.
o Knowingly: the defendant is aware that he is acting in a certain way or that it is practically certain that his conduct will cause a result.
• Note: “Willful blindness” (a deliberate effort to avoid guilty knowledge) is not a defense under common law or the MPC (which states that the “knowledge” element is satisfied if the person is aware
of a high probability of its existence, unless he actually believes that it does not exist). MPC 2.02(7).
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Recklessly: the defendant consciously disregards a substantial and unjustifiable risk and grossly deviates from the standard of conduct that a law-abiding person would observe in his situation.
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Negligently: the defendant should have been aware of a substantial and unjustifiable risk and grossly deviates from the standard of conduct that a reasonable person would observe in his situation.
Causation
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Two types of causation are required: (1) actual cause and (2) proximate cause.
o Actual cause (also called but-for causation): The defendant’s conduct must be a cause in fact of the prohibited result, as the said result would not have occurred but for the actor’s conduct.
MPC 2.03(1)(a).
• In rare cases where two actors are a but-for cause (e.g., two people shoot the victim), apply the substantial-factor test—each Defendant’s conduct constitutes a substantial factor in bringing
about the result.
o Proximate cause: Determines who or what events among those that satisfy the but-for cause standard should be held accountable for the resulting harm. This is usually an issue when there is an
intervening force such as an act of God or an independent third party.
• E.g., Defendant shoots victim, who is taken to the hospital. At the hospital, victim contracts a disease, from which he dies. Defendant’s acts are probably the proximate cause of the death because
subsequent disease is foreseeable.
Concurrence principle: the defendant must have the guilty mind at the time that he commits the guilty act.
Defenses
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Failure of proof defenses: the defendant cannot be convicted because the conditions that form the basis of the defense prevent all the elements of the crime from being proven.
o Mistake of fact: A mistake of fact that negates the mens rea of a specific intent crime will be a defense so long as the defendant is mistaken in good faith (the mistake need not be reasonable).
For a general intent/malice crime, only a reasonable mistake of fact is a defense. Mistake of fact generally is not a defense to a strict liability crime.
• People v. Navarro: Defendant honestly believed that wooden beams were abandoned and could be taken. The mens rea of larceny was negated by this mistake of fact.
o Mistake of law: Generally not a defense (very narrow exceptions). See also MPC 2.04(1).
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Justification defenses: the behavior causing harm is justified due to avoidance of an even greater harm or further harm.
o Self-defense/defense of others: The defendant may use deadly force in self-defense if he reasonably believes he is facing a threat of imminent death or serious bodily harm. MPC 3.04(1).
The defendant generally cannot be the initial aggressor. MPC 3.04(2). Exceptions include if the defendant withdraws or if the other party escalates the force used.
• United States v. Peterson: Defendant and victim got into an argument outside. Defendant went into the house, got a gun, came back outside, and shot victim. Defendant became the initial aggressor
when he returned to the scene with a gun.
• Common law imposes a duty to retreat if the defendant can do so.
• Exception: under common law, there is no duty to retreat if the defendant is in his own home (castle doctrine).
• Note: many states have a stand-your-ground law under which a defendant need not attempt to retreat before resorting to use of deadly force.
o Defense of property: one can use nondeadly force to protect property.
• People v. Ceballos: Property owner set up a spring-loaded trap gun to fire at intruders. Court held that a property owner cannot use deadly force to protect property.
o Necessity: This is a defense when the defendant reasonably believed his conduct was necessary to prevent a greater harm (there must be imminent harm/peril) and is not at fault in creating the
situation that required the necessity. MPC 3.02. It is traditionally not a defense to murder at common law (though some courts state it is a defense if the defendant had the knowledge that someone
would die but not the purpose to kill).
• Regina v. Dudley & Stephens: Defendants were shipwrecked, killed a third sailor on their boat, and ate his body to survive. Court held that the necessity of food did not justify their behavior
(killing an innocent person).
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Excuse defenses: the actor is not morally blameworthy.
o Intoxication: Involuntary intoxication is a defense if it was (1) coerced, (2) an innocent mistake, or (3) pursuant to medical advice while being unaware of the intoxicating effect. Voluntary intoxication
is only a defense to specific intent crimes if the intoxication causes the defendant to be unable to form the specific intent to complete the crime. MPC 2.08.
o Insanity: A court will use one of three tests:
• M’Naghten rules: the defendant must prove (1) he suffered a disease of the mind that caused a defect of reason, and as a result (2) he lacked the ability to know the wrongfulness of his actions OR
understand the nature and quality of his actions.
• Irresistible-impulse test: the defendant must prove that he was unable to (1) control his actions or (2) conform his conduct to the law.
• MPC 4.01: the defendant must prove that he lacked the substantial capacity to either (1) appreciate the criminality of his conduct or (2) conform his conduct to the requirements of the law.
• Note: Insanity looks at the defendant’s state of mind at the time of the commission of the crime. Incompetency to stand trial looks at whether the defendant is sane at the time of the legal proceeding.
o Duress: The defendant acted in response to a reasonable fear that if he did not perform the crime, either he or a third person would suffer imminent death or serious bodily harm. MPC 2.09. It is not a
defense to murder at common law.
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Inchoate Crimes
Mens rea
Actus reus
Merges with completed crime?
The specific intent to
complete the crime.
MPC: It must be the
defendant’s purpose to
commit the crime.
Knowledge is not enough.
• MPC/majority: A “substantial step” that is
“strongly corroborative” of the criminal purpose.
MPC 5.01.
• Common law: the defendant gets “dangerously
close” to committing the crime.
Yes. One cannot be convicted of both “attempt” and the completed crime.
Conspiracy
MPC 5.03
The specific intent to enter
into the agreement and
accomplish its objectives.
An agreement by two or more people to commit
a crime and an overt act in furtherance of the
crime (in some states). Note: an overt act is not
required at common law.
No. One can be convicted of conspiracy and the completed crime.
Note: The defendant is also liable for all other crimes committed by his
coconspirators so long as the crimes were foreseeable and in furtherance
of the conspiracy. (Withdrawal is not a defense but will cut off liability for
any crimes committed after the withdrawal.)
Solicitation
MPC 5.02
The specific intent that
the crime be committed.
The defendant requests, encourages, advises, or
commands that someone commit a crime.
Yes. One cannot be convicted of solicitation and the completed crime.
Attempt
MPC 5.01
Distinguishing between inchoate offenses: If the defendant asks another to commit a crime, it is solicitation. If the other person agrees, it is conspiracy. If a person tries to commit a crime and fails, it is attempt.
Defenses to inchoate crimes
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Impossibility: Factual impossibility is not a defense (e.g., the defendant thinks he is soliciting a 14-year-old for sexual intercourse, but it is an undercover police officer). Legal impossibility is a defense
(e.g., the defendant thinks it is illegal to possess a certain kind of firework but it is not actually illegal).
Abandonment: Under common law, voluntary abandonment is not a defense. Under MPC 5.01(4), abandonment is a defense to attempt if the abandonment is complete and voluntary.
Accomplice Liability
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Parties to a crime: principal and accomplice
o The principal is the person who commits the crime.
o The accomplice is the person who assists or encourages the principal with the intent that the crime is committed. A victim of a crime (or “necessary party”) is not an accomplice.
o Liability: the accomplice is liable for all crimes committed that he aids or encourages and all “natural and probable results” of the crime that he intends to assist.
Mens rea: the accomplice must have the intent that the principal commit the offense.
o Majority: It must be the defendant’s purpose that the crime be committed. Knowledge is insufficient.
o Minority: knowledge is sufficient to establish that the accomplice intends the act to be committed.
Actus reus: the accomplice must do one of the following: (1) provide physical assistance (e.g., give the principal a match to burn down a house), or (2) encourage the principal
(e.g., the accomplice says, “You should burn down the house!”).
o State v. Hoselton: Defendant was acting as a “look out,” but once he realized the others were committing a crime, he went back to his car. Defendant was not guilty as an accomplice because he
did not act with the intent that the others commit the crime.
Homicide
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Murder: causing the death of another human being with malice aforethought.
o First-degree murder: the intentional killing of another human being with premeditation and deliberation.
• E.g., lying in wait, purposely poisoning another, and devising and executing a plan to kill.
o Second-degree murder (requires malice aforethought): Causing the death of another human being with one of the following mental states: (1) extreme recklessness
(e.g., the defendant shoots his gun in a crowded room without intending to kill anyone), (2) intent to cause serious bodily injury and death results (e.g., the defendant cuts the
victim’s leg off without intending to kill, but the victim dies), or (3) the catchall (the defendant acts with malice, but there is no premeditation/deliberation, so it is not first-degree murder).
o MPC 210.2: Causing the death of another human being purposely, knowingly, or recklessly under circumstances manifesting extreme indifference. (The MPC does not have degrees of murder.)
Felony murder: Death occurs during the commission/attempted commission/flight from a felony (death + felony = murder). It can be first- or second-degree murder.
o Mens rea: The intent to commit the felony. The prosecution need not show any intent that death occur.
o Actus reus: The defendant commits a felony. However, there are limitations on this rule:
• Limitation #1: Inherently dangerous felony. The underlying felony must be inherently dangerous (e.g., arson, rape, kidnapping, etc.).
• Limitation #2: Merger rule. The purpose of the conduct must be independent of the homicide (i.e., the felony must not be too dangerous!).
• People v. Robertson: Property owner fired gun at thief who was trying to take hubcaps, and thief died. Willful discharge of a firearm cannot be the felony underlying felony murder because
Defendant already intended to cause injury.
• Limitation #3: Causation rule. What if someone other than the defendant caused the death? Two approaches:
• Agency theory: Felony murder does not apply if the person who caused the death is a non-felon (e.g., a police officer). State v. Sophophone.
• Proximate cause theory: felony murder applies if the felon and/or cofelon(s) set in motion the acts that cause the death.
o MPC 210.2: Mens rea of murder (reckless and indifference) is presumed if the actor is engaged in the commission of the attempt to commit or flight from committing robbery, rape, arson, burglary,
or kidnapping. The prosecutor must still prove the actus reus.
Manslaughter: causing the death of another human being without malice aforethought.
o Voluntary manslaughter: an intentional killing of a human being in the heat of passion due to adequate provocation.
• Whether the defendant acted in the heat of passion is looked at from both an objective and subjective standard.
• Adequate provocation: the defendant was actually provoked (subjective) and the provocation was something that would tend to inflame the passions of a reasonable person and substantially
impair his capacity for self-control (objective).
• E.g., finding spouse in bed with another person and killing spouse is a classic example of voluntary manslaughter.
o Involuntary manslaughter: killing due to gross negligence or recklessness (e.g., parent does not take his obviously sick child to the free clinic and the child dies).
o MPC 210.3: that which is otherwise murder but is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable excuse.
Other Crimes
Specific intent crimes
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Assault: intentional infliction of apprehension (or an attempted battery).
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Larceny: trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof.
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Burglary: breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein.
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Robbery: larceny + taking from another’s person or presence + force or threat of force.
General intent crimes
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Battery: unlawful application of force to another resulting in bodily injury or offensive touching.
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Rape: unlawful sexual intercourse without consent using force or threat of force.
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A note on statutory rape: Statutory rape is sexual intercourse with a minor (no mens rea required). This is a strict liability crime.
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Kidnapping: unlawful confinement or restraint that involves moving the victim.
Malice crime
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Arson: the malicious burning of the dwelling of another.
Civil Procedure
Jurisdiction and Venue
Personal jurisdiction (PJ): this is all about fairness to the defendant
Tip: On an exam, first discuss whether general jurisdiction is present. Then, if it isn’t, discuss whether specific jurisdiction is present.
Question 1: Does the court have general jurisdiction?
• General jurisdiction: the plaintiff can sue the defendant for anything generally.
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Pennoyer v. Neff: no PJ over Defendant who neither lived in nor owned land in state where lawsuit was filed.
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Carnival Cruise Lines, Inc. v. Shute: choice-of-law clause in contract is constitutional and enforceable.
Methods of obtaining general PJ:
(1) Consent: express or implied due to failure to properly object (Hess v. Pawloski: driving car in MA equates to implied consent to be sued).
(2) Presence: continuous and systematic contacts with the state (Helicopteros Nacionales De Colombia, S.A. v. Hall) or present in state when served.
(3) Domicile: a person or corporation can be sued wherever he or it is domiciled.
A person is domiciled in the state that is her permanent home where she intends to stay indefinitely.
A corporation is domiciled in the state where it is incorporated and where its principal place of business is located.
Question 2: If there is no general jurisdiction, does the court have specific jurisdiction?
• Specific jurisdiction: The lawsuit must arise out of the specific contacts with the state (e.g., a tort committed in the state or a contract or business transaction arising out of contacts with the state).
It must be both constitutional under the state constitution (e.g., a long-arm statute) and constitutional under the Due Process Clause of the U.S. Constitution (there must be minimum contacts with the
forum state so as not to offend “traditional notions of fair play and substantial justice”—International Shoe Co. v. Washington).
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World-Wide Volkswagen Corp. v. Woodson: WWV did not purposefully avail itself of the privileges and protections of OK law by selling one car that happened to be driven through OK.
Therefore, OK did not have PJ over WWV.
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Burger King Corp. v. Rudzewicz: MI residents contracted with Burger King (HQ in FL) to open a franchise in MI. Burger King filed breach of contract lawsuit in FL. The MI residents
purposely availed themselves of FL law (choice of law provision and substantial contacts).
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Asahi Metal Industry Co. v. California: Mere awareness that goods were going into the stream of commerce was not enough. There must be clearer evidence (such as marketing to that state
or advertising in it).
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Calder v. Jones: when the effects of the damage are felt in the forum state, jurisdiction is proper.
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McGee v. International Life Insurance Co.: CA resident had life insurance policy from TX company. Company issued one policy in CA. CA had jurisdiction over insurance company. The company
did business in CA (one insurance policy) and CA had an interest in hearing the case.
Internet contacts and PJ: ALS Scan, Inc. v. Digital Service Consultants, Inc.: Three levels of internet contacts: (1) interactive websites used to conduct business (PJ is proper in consumer’s state), (2)
semi-interactive sites allowing exchange of ideas (examine quantum of activity to determine if PJ exists), and (3) passive sites allowing access to information (no PJ).
Subject matter jurisdiction (SMJ): this is all about the power of the federal court to hear a certain kind of case
Federal courts are courts of limited jurisdiction. They can only hear a case if they have SMJ by one of the following methods:
• Federal question: The case must arise out of federal law. The federal issue must be on the face of the well-plead complaint. 28 USC § 1331.
o Louisville & Nashville Railroad Co. v. Mottley: Plaintiffs asserted a contract claim; Railroad Co. asserted a federal defense. Federal question jurisdiction only exists where the complaint raises a federal
claim. A federal defense is not sufficient.
• Diversity jurisdiction: There must be complete diversity at the time the case is filed and the amount in controversy exceeds $75,000. 28 USC § 1332.
• Supplemental jurisdiction: State claims may be brought in a federal case if they arise out of a common nucleus of operative fact. Further, courts often allow a defendant to implead or sue a nondiverse party
in a diversity case. 28 USC § 1367.
o Courts may decline to exercise supplemental jurisdiction if “(1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.” 28 USC § 1367(c).
Removal: A defendant may remove a case within 30 days of when the defendant is on notice that the case is removable (but not over a year in diversity cases unless the plaintiff acted in bad faith). Defendants
cannot remove on diversity grounds if any defendant is domiciled in the state in which it is sued. 28 USC § 1441. Tip: when a defendant removes a case, a defendant only has one venue option—it may
remove the action to the federal court that geographically embraces the state court where the suit was filed.
Remand: if a plaintiff wishes to file a motion to remand to state court due to failure to comply with procedure requirements of the rule, it must do so within 30 days after removal.
Venue: The state has PJ over the defendant. Where in the state does the plaintiff sue?
Venue is proper where any defendant resides if all defendants reside in the same state or where a substantial part of the events or omissions giving rise to the claim occurred. 28 USC § 1391.
A court may transfer a case to a different venue in certain circumstances:
Transfer to proper venue: Occurs if the case is filed in the wrong venue. The law of the transferee court applies.
Transfer to more appropriate forum: Occurs when there is a more convenient forum for the case. The federal court may transfer it in the interest of justice. The law of the transferor court applies.
Forum non conveniens: If a case should be litigated in a different forum (e.g., a different country) a court may dismiss the case. The court has the discretion to dismiss a case when (1) the oppressiveness and
vexation to a defendant is out of proportion with the convenience to the plaintiff and (2) the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal problems.
Piper Aircraft Co. v. Reyno.
The Erie Doctrine
State law in federal court: if a case is in federal court under diversity jurisdiction, federal law generally applies to procedural issues (e.g., the FRE, FRCP, and the right to a jury trial).
State law generally applies to substantive issues. Tip: This includes which party has the burden of proof, which statute of limitations applies, caps on damages, elements of claims, and choice of law
rules. Erie R.R. Co. v. Tompkins.
Erie is an issue only if there is a real conflict between a state and federal rule or practice. If you see an Erie issue, follow these steps:
Step 1: Is there a real conflict between a state and federal law? If yes, proceed to step 2. If no, no Erie analysis needed!
Step 2: Classify the federal law—is it from the FRCP, a federal statute, or a constitutional provision? If no, the law is federal practice, so proceed to step 3. If yes, apply that law! (Note: If it is from the FRCP, as long
as it does not “abridge, enlarge, or modify” a substantive right (Hanna v. Plumer), apply that law! But if it does, proceed to step 3.)
Step 3: Is the issue substantive or procedural? If it is substantive, apply state law. If it is procedural, apply federal law. If it is mixed, proceed to step 4.
Step 4: Analyze the results of each of these three tests together to arrive at a likely answer:
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Outcome-determinative test: If applying state law will significantly affect the outcome of the case, apply state law. Guaranty Trust Co. v. York.
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Balance of interests test: Consider whether the federal or state system has a greater interest in having its law applied, and apply the system’s law with the greater interest. Byrd v. Blue Ridge
Rural Elec. Coop., Inc.
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Forum-shopping test: if following federal law will lead to forum-shopping, apply state law.
Claim Preclusion
SAME CLAIM
Use the transaction or occurrence
test: If it was or could have been asserted
because it was part of the same transaction
or occurrence, it is the “same claim.”
Tip: compulsory counterclaims are also barred.
SAME PARTIES
The parties must be the
same or in privity.
FINAL JUDGMENT
This means it is not modifiable
(e.g., child custody, alimony, etc.).
ON THE MERITS
This includes a full trial, a dismissal with prejudice, claims
decided on summary judgment or JMOL, or default or
consent judgments. Tip: a judgment may not look like it is
“on the merits,” but it may still be considered to be for
these purposes (e.g., a dismissal with prejudice for failing
to comply with a discovery order is “on the merits”).
Effect of preclusion: The Full Faith and Credit Clause requires that judgments from state courts be given the same effect in any other court that they would be given in the state in which they were handed down. When
determining the preclusive effect of a prior judgment, look to the law of the court that decided it. So, if a judgment would be held to have a nonpreclusive effect in the state it was handed down in, then it cannot have a preclusive
effect in any other court. Car Carriers, Inc. v. Ford Motor Co.: Plaintiff asserted antitrust claims against Defendant and case was dismissed. Plaintiff brought another case arguing violation of RICO. Second case arose from same
common nucleus of operative fact. Therefore, second case was dismissed on claim preclusion theory.
Issue Preclusion
SAME ISSUE
The issues must be exactly the same.
ACTUALLY LITIGATED
ACTUALLY DECIDED
The issues need to be actually
raised and litigated.
The issues need to be actually
decided in trial.
“NECESSARY”
The decision must be “necessary” to the court’s judgment.
Note: Nonmutual collateral estoppel allows a party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action. Defensive nonmutual estoppel means issue preclusion may be raised as a shield
by a new defendant. Some states do not allow offensive nonmutual collateral estoppel where it can be used as a sword by a new plaintiff (but federal law allows this).
Pretrial procedures—what to file and how to prepare your case
Complaint and answer
• A complaint must contain sufficient facts to place an adversary on notice of plausible claims. FRCP 8; Ashcroft v. Iqbal.
• Pleading special matters: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. “Malice, intent, knowledge, and other conditions of a person's mind may be
alleged generally.” FRCP 9(b).
• A complaint must be served within 90 days after it is filed. FRCP 4(m). A response (answer or motion) must be served within 21 days (or 60 if formal process was waived) after the complaint is served. FRCP 12(a)(1)(A).
• A pleading may be amended as of right within 21 days after service (or if the pleading requires a responsive pleading, 21 days after service of the responsive pleading or motion). FRCP 15(a)(1). After 21 days, a party may
amend its pleadings with consent of the other party or the court. FRCP 15(a)(2). The court will freely give leave when justice so requires.
Joinder of claims and parties
• Joinder of new claims: Once a party has one properly filed claim, it can bring all claims if the court has jurisdiction. FRCP 18(a). This applies to the plaintiff’s claims as well as the defendant’s counterclaims (e.g., suing the
plaintiff) or cross-claims (i.e., D v. D or P v. P).
• Counterclaims: Federal law recognizes compulsory counterclaims where the defendant must bring a counterclaim if it arises out of the same transaction or occurrence or the defendant loses the right to bring the claim later.
FRCP 13(a). A permissive counterclaim (i.e., one not arising out of the same transaction or occurrence) may be filed but does not have to be filed. FRCP 13(b).
• Cross-claims: A cross-claim is a claim asserted by one party against a coparty (i.e., D v. D or P v. P). It must arise out of the same transaction or occurrence as the initial claim. A cross-claim is not compulsory. FRCP 13(g).
• Joinder of parties
Plaintiffs joining plaintiffs: Plaintiffs may sue together if they assert a right to relief jointly, severally, or in the alternative with respect to claims arising out of the same transaction or occurrence and involving a
common question of law or fact. FRCP 20(a)(1).
Defendant adds defendant: A defendant may “implead” a new claim against a new party if that party may be liable to the defendant for part or all of the recovery. This must be filed within 14 days of serving the answer,
otherwise leave of court is required. FRCP 14(a)(1).
Intervention: A movant may intervene as a matter of right if (1) it has an interest relating to the property or transaction that is the subject of the action, (2) disposition without the movant may impair or impede the movant’s
ability to protect its interest, and (3) its interest is not adequately represented by the existing parties. The motion must be timely made. FRCP 24(a). A court may grant permissive intervention if the party has a claim or
defense that shares a common question of law or fact with the main action. FRCP 24(b).
Interpleader: The holder of a property subject to conflicting claims (usually an insurance company that holds a common fund) may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability.
FRCP 22. Under statutory interpleader, $500 plus minimal diversity is enough (i.e., there is diversity between any two claimants) to get into federal court. 28 USC § 1335.
• Class actions: Requirements include commonality, adequacy, numerosity, typicality, and (with common question suits) the plaintiffs need to show superiority and that common questions predominate. FRCP 23.
The Class Action Fairness Act (CAFA) allows a federal court to have jurisdiction over a class action if there are 100 or more plaintiffs seeking over $5 million and they have minimal diversity.
Preliminary measures: For a temporary restraining order, notice to the other party is not needed. This is a stopgap measure that should not last longer than 14 days unless good cause is shown. FRCP 65(b).
For a preliminary injunction, notice must be given to the adverse party. A preliminary injunction is equitable relief with the object of preserving the status quo. FRCP 65(a).
Discovery: Parties may discover anything that is relevant and not privileged. Parties can use interrogatories (25 per side) (FRCP 33), depositions (FRCP 30), and requests to admit (FRCP 36). Tip: depositions and
subpoenas are the only discovery methods that may be used on a nonparty.
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A party may ask the court for an order compelling discovery if it is not produced. FRCP 37(a)(1).
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If a party moves to compel discovery and the court denies the motion, the court may grant a protective order over the sought discovery. FRCP 37(a)(5).
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Failure to comply with court-ordered discovery could result in sanctions. FRCP 37(b).
• Work product (prepared in anticipation of litigation) is not discoverable unless there is a substantial need and undue hardship. FRCP 26(b)(3). However, an attorney’s mental impressions are never discoverable.
• Conferences and disclosure
26(f) conference: In federal court, the 26(f) conference is where initial disclosures of (DISS) damages calculation, insurance agreements, the identity of supporting witnesses, and supporting documents are made
and a discovery plan is outlined. Tip: unfavorable witnesses or documents do not need to be disclosed.
16(b) conference: Next, the 16(b) scheduling conference is held. The court enters a scheduling order and deadlines for motions.
Pretrial disclosures: Thirty days before trial, a party must disclose the identity and reports of experts, the names of witnesses to be called at trial, and documents and depositions the parties plan to offer at trial.
FRCP 26(a)(3).
• Sanctions may be imposed if an improper paper is submitted to the court. FRCP 11. FRCP 11 sanctions are only for written documents, not improper actions.
Service: The plaintiff is ready to start the lawsuit. How does the plaintiff let the defendant know about it?
The plaintiff must serve the defendant with a summons and copy of the complaint. The process server must be at least 18 years old and not a party to the case. A plaintiff can use the following (
) methods
to serve an individual:
State law Follow the state law methods where the federal court is located or where service is made. FRCP 4(e)(1).
Agent: Deliver a copy of summons and complaint to an agent appointed (by the defendant) or law. FRCP 4(e)(2)(C).
Individual: Deliver a copy of the summons and complaint to the individual personally. FRCP 4(e)(2)(A).
Dwelling: Leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there. FRCP 4(e)(2)(B).
Serving a corporation: To serve a corporation, a plaintiff may use the state law methods where the district court is located or where service is made, or it may serve an officer, a managing or general agent,
or any other agent authorized to receive service. FRCP 4(h).
Waiver: A plaintiff may ask a defendant to waive formal service of process by sending the complaint, two copies of a waiver form, and a prepaid means for returning the form via first-class mail or other
reliable means. FRCP 4(d)(1). If the defendant waives formal service, it has 60 days to answer the complaint (rather than 21). FRCP 4(d)(3). If the defendant does not, it must pay for formal service of process. FRCP 4(d)(2).
Judgment as a matter of
law (JMOL) (directed verdict)
Renewed JMOL
New trial
Relief from judgment
Appeal
Standard
If there is no substantial evidence to
support a verdict for the nonmoving
party, a directed verdict will be given.
The court looks at whether the plaintiff
has met its burden of production.
FRCP 50(a)(1).
Under federal law, the party must
have already made a motion for
JMOL at some point. Here, the
party is renewing it and must show
the evidence is insufficient as a matter
of law to support the jury’s verdict.
FRCP 50(b).
A new trial is granted if there were errors
in the trial that tainted the jury’s
decision-making or if the jury’s decision
was against the great weight of
evidence. It may also be granted if the
verdict is excessive (i.e., remittitur) or
inadequate (i.e., additur, which is not
recognized by federal courts).
FRCP 59(a).
If there are circumstances like mistake,
fraud, or new evidence that could not
have been discovered, the court may
grant relief from judgment.
FRCP 60(b).
In general, only final judgments are
appealable. However, orders involving
injunctions, interlocutory orders by
leave, and collateral matters (e.g., a
court denying immunity to a party) may
be appealable. Further, orders granting
a directed verdict or denying a new
trial are appealable.
Timing
PRETRIAL MOTIONS: THE TIMELINE FOR BRINGING MOTIONS
The defendant may file motion after
the plaintiff rests its case. Either party
may file it after the defendant rests its
case. FRCP 50(a)(2).
Within 28 days of entry of the jury’s
verdict. The court may even order a
new trial on its own. FRCP 59(b).
Generally, within one year of the
judgment (but there are exceptions,
e.g., fraud). FRCP 60(c).
Within 28 days of entry of the
jury’s verdict. FRCP 50(b).
Answer or motion
Complaint
Bring in preanswer motions:
- For a more definite statement
- To strike
Bring in first answer or motion:
- Lack of personal jurisdiction
- Insufficient process/service
- Venue
- Affirmative defenses
Trial
Anytime through trial, the following
motions may be brought:
- Failure to join a necessary party
- Judgment on the pleadings
- Failure to state a valid claim or defense
Generally, within 30 days after
entry of judgment.
Appeal
Bring any time at all, even
on appeal:
- Lack of SMJ
MOTIONS FOR SUMMARY JUDGMENT AND FRCP 12(b)(6) MOTIONS
• Motion for summary judgment (FRCP 56): The question is whether there is a genuine issue of material fact. The moving party must show there is no genuine issue of material fact. The burden then shifts to the nonmoving
party, which must show there is a genuine issue of material fact. The motion is looked at in the light most favorable to the nonmoving party. Tip: the court will deny the motion if the case involves something subjective
like motive, intent, or credibility.
• Failure to state a claim upon which relief can be granted (FRCP 12(b)(6)): a defendant brings this motion, which essentially states that even if everything the plaintiff says in its complaint is true, there is no
recognized violation of any legal rights.
JURY TRIALS
• Jury trial (Seventh Amendment): A jury pool must be taken from a cross-section of the community. Tip: the jury itself need not be diverse.
• Request for a jury trial: A request for a jury trial must be made within 14 days of service of the complaint, answer, or document that shows an issue triable by a jury. FRCP 38(b). A proper demand may be withdrawn only
if the parties consent. FRCP 38(d).
• Number: A jury must begin with at least six and no more than 12 members. Unless the parties agree otherwise, the verdict must be unanimous and returned by a jury of at least six. FRCP 48.
• At the close of evidence, a party may file and furnish to every other party written requests for the jury instructions. FRCP 51(a).
• Plain error: An appellate court may consider a plain error in the instructions, even if it has not been properly preserved or objected to, if the error affects substantial rights. FRCP 51(d)(2).
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Constitutional Law
Judicial Review: Power of the Judiciary
Background: Marbury v. Madison established the principle of judicial review. Martin v. Hunter’s Lessee held that the Supreme Court has authority over state courts in matters of federal law. Federal courts have the power
to hear (1) cases and controversies that are based on a federal question, (2) diversity cases, and (3) cases involving federal lands and waters. A court will not render advisory opinions!
• Standing: An individual must show (1) a present or clearly threatened injury in fact (2) having a fairly traceable causal connection to the challenged law or governmental action (3) that is likely to be redressed by a
favorable decision invalidating the law or action. Lujan v. Defenders of Wildlife (a general public interest is insufficient to create standing).
Watch out for special standing issues. E.g., organization standing, taxpayer standing, and third-party standing.
• Organization standing: for an organization to have standing, it must show that a member has standing, the member’s injury is related to the purpose of the organization, and individual members are not required
to participate in the lawsuit.
• Taxpayer standing: Federal and state taxpayers do not have standing to challenge government spending but can challenge the expenditure of funds as being violative of the Establishment Clause.
Flast v. Cohen. However, municipal taxpayers may challenge how funds are spent.
• Third-party standing: third-party standing is not permitted unless there is (1) a special relationship (e.g., doctor-patient) and (2) the party is unable to raise its own claim.
• Mootness: DeFunis v. Odegaard: Student challenging admission to law school was in the last semester of law school when the case got to the Supreme Court so the case was moot. Ways to avoid mootness: (CCCC)
class action, collateral consequences, capable of repetition yet evading review, or showing a voluntary cessation of the challenged activity.
• Adequate and independent state grounds: The Supreme Court can review decisions of the federal courts of appeals and federal decisions made by state courts. The Supreme Court can hear the latter type of case if
the case involves a matter of federal law, it is a final judgment from the highest state court authorized to hear the case, and there are no adequate and independent nonfederal (state) grounds on which the state court
decision is based.
• Political question: Federal courts will not hear political questions (those given to another branch of government by the Constitution or relating to conflicts between Congress and the President).
Examples include “republican form of government” clause challenges (Luther v. Borden), military or foreign affairs decisions, or impeachment (Nixon v. United States).
Presidential Powers
Domestic powers
• Veto power: the President can veto a law (but this can be overridden by a 2/3 majority vote by Congress).
• A line item veto (crossing out certain portions of the bill that the President does not approve of) is not permitted. Clinton v. New York.
• Appointment and removal power: the President may appoint principal officers and remove officers.
• Pardons: the President may grant pardons for federal crimes.
• Enforcement: The President must enforce congressional laws, even if he disagrees with them. The President has the power to issue executive orders but cannot infringe on powers of another branch.
• Youngstown Sheet & Tube Co. v. Sawyer
(1) Where the President acts with express or implied authority of Congress, his authority is at its maximum.
(2) Where the President acts where Congress is silent, his action will be upheld as long as it does not take over the power of another branch of government or prevent it from carrying out its tasks.
(3) Where the President acts against the will of Congress, his action is likely invalid.
War and foreign affairs powers
• War power: The President can respond to attacks or emergency situations. The President has broad powers as commander in chief, but the President cannot declare war—only Congress has this power.
• Foreign affairs: The President has broad foreign affairs powers. United States v. Curtiss-Wright Export Corp.
• Treaties and executive agreements: The President may enter into treaties with 2/3 Senate approval. The President may enter into executive agreements with the heads of foreign countries.
Limitations on executive powers
• Impeachment and removal: The President, vice president, federal judges, and U.S. officers can be impeached and removed for treason, bribery, and high crimes and misdemeanors. Process: The House passes
articles of impeachment (by a majority vote). The Senate holds a trial and votes on removal (requires 2/3 majority vote to remove).
• Immunity: The President is absolutely immune from civil suits for damages for any official acts as President (but not purely personal or prepresidential acts). Nixon v. Fitzgerald.
Powers of Congress
Congress makes laws but needs bicameralism (approval by both houses) and presentment (approval by the President) to pass a law.
Congress gets its power from the Constitution. These powers include the following:
• Necessary and proper power: Tip: This is not an independent power. It must be combined with another power.
• Under the Necessary and Proper Clause, Congress can rely on a combination of powers to do something that is not specifically authorized by any single power. McCullough v. Maryland.
• Taxing and spending power: Congress may tax and spend for the general welfare. Tip: it cannot “act” for the general welfare.
• Commerce power: this is very broad (Article I, Section 8 of the Constitution).
• There are three categories that Congress can regulate under this power:
(1) Channels and instrumentalities of interstate commerce.
(2) People and things in interstate commerce. Champion v. Ames.
(3) Anything that “substantially affects” interstate commerce, even if it is noneconomic and purely intrastate.
• Wickard v. Filburn: Farmer grew wheat for animals and was subject to federal production quotas. Even though one farmer’s crops grown for personal consumption were not “interstate commerce,”
and would not affect interstate commerce itself, the cumulative actions of thousands of other farmers like that farmer would have an effect on interstate commerce. Thus, Congress can regulate
the activity.
• Gonzales v. Raich: Congress can prohibit the cultivation and use of medicinal marijuana for personal use.
• Examples of purely local activity that cannot be regulated (read narrowly and generally limited to their facts):
• United States v. Lopez: a ban on guns in school zones does not affect interstate commerce.
• United States v. Morrison: a federal statute providing a remedy for victims of violence based on gender is invalid.
Tip: Congress has the complete power to regulate interstate movement of things and to follow the person or thing over state lines. Further, under the “affecting interstate commerce” basis of
the Commerce Clause, Congress can regulate virtually all economic activity based on the fact that any local activity, when viewed cumulatively, has a substantial economic effect on interstate commerce.
• War and defense power: Congress has the power to declare war.
• Enforcement power: Congress may enact legislation that is “congruent and proportional” to the Thirteenth Amendment (which outlaws slavery and badges of slavery), Fourteenth Amendment (which contains the
Equal Protection Clause and Due Process Clause), and Fifteenth Amendment (which prohibits states from enacting racially discriminatory voting laws).
• Limitations on congressional power
• Tenth Amendment: see federalism section
• Delegation of powers: Congress can delegate legislative power to executive agencies or the judiciary. However, it cannot delegate a power that has been uniquely delegated to Congress by the
Constitution (e.g., the power to declare war).
Tip: Congress does not have police powers except over (MILD): military bases, Indian territories, federal lands, or D.C.
A legislative veto is unconstitutional. This occurs when Congress tries to overturn action by the executive branch without bicameralism and presentment. INS v. Chadha.
Federalism and State Powers
• Tenth Amendment: Any powers not given to the federal government are given to the states. Tip: This means the federal government cannot compel states to enforce federal statutes. (However, the federal
government is permitted to “incentivize” states to enforce such statutes by offering money to the states.)
• If Congress passes a generally applicable law that would be valid as applied to a private party (e.g., it is enacted under the commerce power), then that law can be applied to the states. Garcia v. San Antonio MTA.
Federal government vs. state government—federal government wins
• Supremacy Clause: Pursuant to the Supremacy Clause, federal law is supreme and prevails over state law. States may not pass laws (1) that conflict with federal law, (2) that interfere with a federal objective, or (3)
in areas where Congress has intended to “occupy the field.”
• Federal immunity from state law: A state cannot regulate or tax the federal government. However, a state may tax federal employees the same as it taxes everyone else.
Restriction on state powers—as between states
• Privileges and Immunities Clause of Article IV: States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means.
Tip: while most constitutional provisions use the word “person,” this provision uses “citizen.” It does not apply to aliens or corporations.
• Hicklin v. Orbeck: Alaska requires Alaska residents to be given preference for jobs on Alaska pipeline. This is invalid as it discriminates against out-of-state citizens in favor of Alaska residents (the “Alaska Hire” case).
• Privileges or Immunities Clause of the Fourteenth Amendment: states are not allowed to pass laws that would restrict access to vital governmental services (e.g., welfare benefits) to newcomers because such laws
would interfere with a citizen’s fundamental right to travel from state to state.
• Dormant (or negative) Commerce Clause
If a state passes a discriminatory law (one that treats out-of-state parties differently than those in the state—e.g., “all out-of-state sellers of milk must bottle their milk in state”), strict scrutiny applies. The
law will be struck down unless the state can show the law was necessary to serve a compelling interest and there was no reasonable nondiscriminatory alternative. The law is usually struck down. Wyoming v. Oklahoma.
o A law that is neutral on its face (e.g., it is passed for the health, safety, or welfare of the state’s citizens) but has a discriminatory effect will be struck down unless there is no other nondiscriminatory alternative.
• Dean Milk Co v. City of Madison: State law required milk pasteurization plants to be within five miles of the city in order to be granted a license to sell milk in the city. The state statute was struck down.
If a state passes a law that is not discriminatory but does place a burden on commerce (in-state and out-of-state parties are treated the same—e.g., “everyone driving through the state must have a certain
kind of tire”), a balancing test is used: Weigh the effects of the law on interstate commerce against the state’s interest served by the law. The law is more likely to be upheld.
o Bibb v. Navajo Freight Lines, Inc.: Illinois law requiring “curved” mudguards was unconstitutional because it had a small benefit and posed a great burden on interstate commerce.
Exception: where the state acts as a market participant—that is, where a state acts as a business rather than a regulator—the Dormant Commerce Clause does not apply.
• Reeves, Inc. v. Stake: a state can use its resources for the collective benefit of its citizens.
• Full Faith and Credit Clause: states must enforce judgments of other states if the court that rendered the judgment had jurisdiction (personal and subject matter), there was proper notice and a reasonable opportunity to
be heard, and the judgment was a final judgment on the merits.
State Action
State action requirement: If a plaintiff sues under the First, Fourteenth, or Fifteenth Amendments (e.g., for free speech, due process, equal protection, or voting rights), the plaintiff must show state action.
State action is present if the state passes a law, if a private actor performs a “traditional and exclusive” government function (e.g., a company town), or if private action is closely controlled by the state.
Note: the Thirteenth Amendment’s ban on slavery applies to private individuals.
Application to the states: The individual protections contained in the Bill of Rights (free speech, freedom of religion, due process, etc.) only apply to the federal government.
The Fourteenth Amendment’s Due Process Clause has been interpreted to apply many of the protections in the Bill of Rights to the states.
Due Process: the focus is on the right that is being burdened.
Procedural due process
The government may not intentionally deprive someone of life, liberty, or property without notice and an opportunity to be heard.
o Ex.: liberty is at issue when an individual is imprisoned.
o Ex.: Things that may be “property” for procedural due process purposes: conventional property (e.g., real estate), government benefits, or government employment.
What process is due? At a minimum, an opportunity to present objections to the proposed action and an impartial decisionmaker. Balancing test to determine process: The importance of the individual interest involved?
Risk of erroneous deprivation? Ability of additional safeguards and procedures to increase the accuracy of fact-finding? The government’s interest in fiscal and administrative efficiency? Mathews v. Eldridge.
Substantive due process
This limits the power of the government to regulate certain areas of life. There are two levels of scrutiny: strict scrutiny and rational basis.
Strict scrutiny for fundamental rights: the burden is on the government to show the law is necessary for a compelling government interest.
Privacy rights (MC SOFA = marriage, contraception and procreation, sexual conduct, obscenity in the home, family relations, abortion)
o Marriage: State law prohibiting prison inmate with child support obligation from marrying without court approval is unconstitutional. Zablocki v. Redhail.
o Contraception: Planned Parenthood cannot be prohibited from supplying contraception to single or married adults who want it. Griswold v. Connecticut.
o Sexual conduct: Intimate, consensual, homosexual conduct may not constitutionally be criminalized. Lawrence v. Texas.
o Obscenity in the home
o Family relations
•
Right of related individuals (including extended family) to live together. Moore v. City of E. Cleveland.
• However, the right of unrelated people to live together is not fundamental, so the government can prohibit it if it can assert a legitimate interest (e.g., preventing population density).
Village of Belle Terre v. Boraas.
•
Upbringing and education of children
• Parents cannot be banned from teaching their children German. Meyer v. Nebraska.
• Parents cannot be forced to send children to public schools. Pierce v. Soc‘y of Sisters.
•
Nonparent visitation rights: State law allowing court-ordered grandparent visitation is unconstitutional because it infringes on the parents’ ultimate right to decide who their children spend
time with. Troxel v. Granville.
o Abortion: the government has attempted to balance the interests of a woman’s constitutionally protected privacy interest in having an abortion before viability and the interest in
protecting potential life.
•
A state cannot ban previability abortions. Roe v. Wade.
•
A state may regulate abortions, so long as it does not place an “undue burden” on a woman’s right. An “undue burden” is subject to strict scrutiny. A regulation that is not an “undue burden”
undergoes the rational-basis test.
• Examples of regulations that do not create an undue burden:
o 24-hour waiting period. Planned Parenthood v. Casey.
o A minor may be required to obtain parental consent, so long as a “judicial bypass” option is included.
o A state may refuse to provide public funding for abortions. Maher v. Roe.
o All second trimester abortions can be required to occur in a hospital.
• Examples of regulations that constitute an undue burden:
o Requiring spousal consent. Planned Parenthood v. Danforth.
Right to vote
Right to interstate travel: the Privileges or Immunities Clause of the Fourteenth Amendment allows every citizen to travel between states, move to a new state, and enjoy the same privileges and
immunities that the other citizens of that state enjoy.
Right to refuse medical treatment: But, there is no fundamental right to commit suicide. Washington v. Glucksberg.
First Amendment rights (e.g., freedom of expression and freedom of religion)
Rational-basis test for everything else: the burden is on the plaintiff to show the law is not rationally related to a legitimate government interest (e.g., right to education, right to welfare benefits, and all economic regulations).
Tip: the plaintiff usually loses!
Equal Protection: the focus is on the class that is being discriminated against.
Strict scrutiny: the burden is on the government to show the law is necessary for a compelling government interest.
Fundamental rights when a class is involved (e.g., the right to vote).
Alienage if a state is discriminating (unless the public function doctrine applies, in which case the standard is rational basis).
o The public function doctrine allows states to exclude noncitizens from certain government jobs (e.g., public school teachers and police officers).
o When the federal government discriminates on the basis of alienage, the rational-basis test applies.
Race
o There are two ways to prove discrimination: (1) de jure discrimination (statute discriminates on its face), and (2) discriminatory intent. Strict scrutiny applies. Note: If the legislation merely has a
discriminatory effect, strict scrutiny does not apply (i.e., it must be de jure discrimination, not just de facto). Washington v. Davis: test administered to all police recruits had a higher failure rate among African
Americans, but it was constitutional because there was no discriminatory purpose.
o Compelling interests that meet the strict scrutiny test: redressing past discrimination by the same party or promoting diversity in higher education (i.e., affirmative action programs).
Intermediate scrutiny: the burden is on the government to show the regulation is substantially related to an important government interest.
Gender: Craig v. Boren: Oklahoma statute prohibiting sale of alcohol to males under age 21 and females under age 18 is unconstitutional.
o Court now requires an “exceedingly persuasive justification” for gender-based discrimination. United States v. Virginia.
Illegitimacy: Clark v. Jeter: illegitimate children must be given at least some reasonable opportunity to obtain a judicial declaration of paternity in order to bring wrongful death lawsuits, have a
chance to inherit, etc.
Rational-basis test: The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest (e.g., classifications based on age, education, or wealth). Tip: the plaintiff usually loses!
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Contracts
Introduction
• The Uniform Commercial Code (UCC) applies to transactions
in goods. UCC 2-102. Common law applies to service
contracts.
• Goods: Things that are movable at the time of contracting.
UCC 2-105.
Offer
• Contract: a promise or set of promises for the breach of which
the law provides a remedy, or the performance of which the law
recognizes as a duty. Restatement (Second) of Contracts (Rest.) 1.
Contract = offer + acceptance + consideration
• Hawkins v. McGee: Hawkins burned his hand; McGee (doctor)
promised that he could fix it and give Hawkins a “100% good
hand.” The skin graft did not work. Doctor’s promise was
enforceable. (The “hairy hand” case.)
Acceptance
Definition
Overview and notice requirement
Offer: A manifestation of intent to enter into a bargain,
so made as to justify another in understanding that his
assent to that bargain is invited and will conclude it. Rest. 24.
• Offeror is the “master of his offer” and can invite a particular
mode of acceptance. Rest. 30.
Offeror: Person who makes the offer. Offeree: person who
receives the offer.
Creation
There must be objective manifestation of intent to enter into
a contract plus specific terms (e.g., price, quantity, identity
of the parties). And, it must be communicated to the offeree.
A few notes:
• Whether one has the intent to enter a contract is judged
by a reasonable person standard. Lucy v. Zehmer.
• A price quote or advertisement is not an offer.
Owen v. Tunison.
Exception: When a price quote is specific in quantity and
in response to a customer inquiry, it is an offer.
Fairmount Glass Works v. Crunden-Martin Wooden
Ware Co.
• An offer generally can only be accepted by the offeree.
Boulton v. Jones.
Termination of an offer
There are four ways to terminate an offer:
1. Lapse of time: An offer lapses after a reasonable time.
Rest. 41.
2. Rejection: includes counteroffer, which is a rejection and
a new offer (see mirror-image rule).
3. Revocation of an offer: An offer can be revoked before
acceptance unless it falls into one of the (FOUR) categories:
Firm offer: Offer by a merchant in a signed writing under
the UCC. This offer can be held open for a maximum of
three months. UCC 2-205.
Option contract: A promise to hold open the offer plus
consideration for that promise. Rest. 87.
Unilateral contract: if the offeree begins performance on
a unilateral contract, the offer is held open for a
reasonable time.
Reasonably foreseeable substantial reliance on the offer.
Elsinore Union Elementary Sch. Dist. v. Kastorff.
4. Death or incapacity of offeror.
• Look at the type of contract: In general, the offeree must
exercise reasonable diligence to notify the offeror of
acceptance or the offeror must receive the acceptance
seasonably. Rest. 56.
In general, notice is not required to make acceptance of a
unilateral contract effective, unless requested by the offeror.
Rest. 54.
• Carlill v. Carbolic Smoke Ball Co.: A large reward was
offered to anyone who contracted the flu while using the
smoke ball according to directions. Carlill used the smoke
ball according to directions and contracted flu. Court held
that where offer can be accepted by performance only,
notification of acceptance does not need to precede
the performance.
Effectiveness of acceptance
• General rule: Acceptance is effective when sent (the mailbox
rule). Rest. 63.
• Exceptions: an option contract (acceptance effective
upon receipt), or if a rejection then an acceptance is mailed
(generally, the one received first controls).
• UCC: Buyer’s offer to purchase can be accepted by
promising to ship or by shipping the goods. UCC 2-206.
Preparing to ship is not acceptance. Silence generally does
not constitute an acceptance unless past dealings or other
circumstances indicate otherwise. Rest. 69.
Terms of acceptance
• Common law: The acceptance must be the “mirror image” of
the offer. Rest. 59. Last-shot doctrine: if the parties perform as if
a contract exists, the last form sent is treated as containing the
contract terms.
• UCC: An acceptance does not need to mirror the offer and
may have additional or different terms. Between merchants,
an additional term will be a part of the contract unless it
materially alters it, the offeror objects within a reasonable time,
or the offer limits acceptance to the terms of the offer. Under
the majority rule, a different term is knocked out and replaced
with gap fillers (battle of the forms). UCC 2-207.
• Types of contracts
• Unilateral contract: Promise in exchange for performance. Only
means of acceptance is full performance (examples include
rewards, prizes, or where the offer specifies that the only means of
acceptance is full performance).
• Bilateral contract: Promise in exchange for promise. Can be
accepted by promising to perform or beginning performance.
Consideration
Definition: Each party to a contract gets something
from the contract. Consideration is a bargained-for exchange
or legal detriment. Rest. 17, 71.
• Hammer v. Sidway: Uncle promised nephew $5,000 if
he refrained from drinking and smoking until he turned
21. Nephew complied. Uncle tried to hold onto money
until nephew became more responsible. Court upheld
uncle’s original promise. Refraining from an act that one
has a legal right to do is consideration.
• The following are not consideration: a promise to make
a gift, a moral obligation, past consideration, or an
illusory promise.
Moral obligation: Mills v. Wyman: Mills took care of Wyman
until he died. Wyman’s father promised to pay Mills back.
When Wyman’s father didn’t pay, Mills sued. No consideration
for father’s promise.
• Exception: A moral obligation is sufficient consideration
to support a subsequent promise to pay where the
promisor received a material benefit. Webb v. McGowin;
Rest. 86.
Past consideration generally is not consideration.
Feinberg v. Pfeiffer Co.
Illusory promises: Whether to perform or not is entirely
at the option of the performing party. No consideration.
• Strong v. Sheffield: Uncle promised not to
collect debt until he wanted his money. This is illusory.
Note: a satisfaction clause does not render
a contract illusory.
Preexisting-duty rule: The performance of a preexisting
legal duty is not consideration unless it falls into an
exception (e.g., unforeseen difficulty, a good faith
settlement of a lawsuit, a good faith payment in full of
a due and disputed debt, a written promise to pay a
time-barred debt, or if the duty was owed to a third
person). Rest. 73.
• Alaska Packers v. Domenico: Workers signed contracts
and moved to Alaska. Once there, they demanded more
money. The workers had a preexisting duty to perform
their jobs. There is no consideration for the additional pay.
• Modification: Consideration is needed to modify a
common law contract. Only good faith is needed to
modify a UCC contract.
• Rewards: Promise to pay does not need to induce
performance; performer simply must know about the reward.
Rest. 81.
• Reliance (a substitute for consideration): If there is a promise
and foreseeable and justifiable reliance, enforcement will be
granted as necessary to avoid injustice. Rest. 90.
• Ricketts v. Scothorn: Grandfather told granddaughter she
could quit her job and he would give her $2,000 per year.
Even though no consideration (illusory), she relied on his
promise. Therefore, it is enforceable.
Defenses
Statute of Frauds (SOF) defenses
• Rule: The SOF requires a writing signed by the party to be charged that evidences a contract.
Tip: the “party to be charged” generally means the defendant.
• Which contracts fall into the SOF? (MYLEGS) Contracts made in consideration of marriage,
contracts that cannot be performed within a year, contracts for the sale of land, promises made by an
executor to pay a debt from his own estate, contracts for the sale of goods over $500, and
surety contracts.
• Exceptions—where no signed writing is required:
• Land: part performance (when one’s actions evidence a contract; e.g., the buyer does two of the
following three things: takes possession of the property, improves the land significantly, or pays a
substantial amount of the purchase price).
• Sale of goods: The four exceptions are: (1) merchant confirmatory memo exception, (2) when the
seller has made a substantial beginning in manufacture or commitments for specially manufactured
goods not suitable for sale to others in the seller’s ordinary course of business, (3) judicial admissions
(one admits in his pleadings, testimony, or in court that there is a contract—it is enforceable up to the
quantity admitted), and (4) part performance (one pays for or accepts a part of a contract).
• Surety: a promise to pay the debt of another if the other does not pay; falls within the SOF unless
the main purpose of the surety promise is to serve a pecuniary interest of the person making the
promise.
• Cannot be performed within year: full performance on one side will serve as a substitute for a
signed writing.
Capacity defenses
Incapacity: For minors, mentally incompetent, or intoxicated persons. Rest. 15. Contracts are
voidable; not automatically void. But, the party without capacity may remain liable for “necessities.”
Duress: When a party threatens to commit a wrongful act that would threaten other party’s
finances, property, well-being, or life. Rest. 175.
• Majority view: The duress must be created by the other party. Minority: anyone taking
advantage of another is enough.
Undue influence: unfair persuasion where a person in a position of trust, confidence, or dominance uses
that position to convince another to enter into a contract that is not in that party’s best interest.
Lack of contract formation defenses
Mutual mistake: If both parties are mistaken about a basic assumption of fact that materially affects the
agreed upon exchange and neither bears the risk, the contract is voidable. Rest. 152.
Unilateral mistake: if a party knew or had reason to know of the other party’s mistake, the contract
is voidable.
Mutual misunderstanding: there is no contract if both parties have a different understanding of a material
term that is open to at least two reasonable interpretations and neither party has any reason to know of the
meaning attached by the other.
Illegal subject matter (e.g., selling drugs): The contract is void. If it is for an illegal purpose (e.g., leasing
a car to transport drugs), it is voidable by the party who didn’t have the illegal purpose (e.g., the car owner)
if he didn’t know the purpose or knew of the purpose but didn’t facilitate it and it doesn’t involve “serious
moral turpitude.”
Unconscionability: There are two necessary elements: Procedural unconscionability (an unfair bargaining
process—e.g., hidden or incomprehensible terms) and substantive unconscionability (grossly unfair terms).
This is voidable.
• A price term alone can make a contract unconscionable. Jones v. Star Credit Corp.
Misrepresentation: one party intentionally misrepresents material facts to the other party and the other
party justifiably relies on those facts or those facts induce assent to contract.
• The misrepresentation must be a statement of fact, not opinion.
Nondisclosure: Generally, bare nondisclosure is not actionable. Swinton v. Whitinsville Sav. Bank.
However, in the context of sale of real estate, most jurisdictions have statutes that require disclosure of
certain defects.
• Nondisclosure plus: once a seller makes some representations and the buyer relies on those
representations, the seller must disclose more if failing to disclose additional facts would amount
to intentional deception.
Interpretation
• General rule: Express terms control. Then courts look to course of performance, course of dealing,
and trade usage. Tip: pay very close attention to the express language of the contract.
• Gap fillers: the UCC has default rules for terms that govern contracts for the sale of goods if no
term is stated in the contract (e.g., if nothing is said as to price, the price is a reasonable price at
the time of delivery).
• No oral modification (NOM) clause: At common law, even if a contract has a NOM clause, it can
be orally modified. Under the UCC, if there is a NOM clause, modifications must be in writing.
But a failed modification (i.e., no writing) might be a waiver. UCC 2-209.
• Keeping terms out with the parol evidence rule (PER): the PER applies when a party wants to add a term from preliminary negotiations (or contemporaneous oral terms) to a final written agreement.
PER doesn’t apply.
Parol evidence may
be admitted.
No
PER doesn’t apply.
If a party is using evidence to interpret a term, first determine whether the writing is ambiguous. If it is ambiguous, extrinsic evidence
will be admitted and the question of interpretation will go to the jury.
Two approaches to determine whether ambiguity exists:
(1) Four-corners rule (New York rule): see whether the writing is ambiguous on its face.
(2) California test: see whether there is an ambiguity, given the context of the transaction.
Trade usage: Commonly accepted interpretations within the trade will be used to interpret ambiguous contract terms. (Course of
performance and course of dealing will also be permitted for this purpose.)
• Frigaliment Importing Co., Ltd. v. B.N.S. International Sales Corp.: Defendant contracted to sell “chicken” to Plaintiff and sent stewing
chickens. Plaintiff contends that the word “chicken” means broiler chickens and frying chickens, but not stewing chickens. Plaintiff failed
to establish that “chicken” meant only broilers and fryers.
Is there a
written
contract?
Yes
Is a party trying to
introduce evidence
to ADD a term to the
written agreement?
No
Yes
No
Is the written
agreement valid?
Yes
The PER doesn’t apply
to modifications.
PER doesn’t apply if one alleges the
agreement isn’t valid—e.g., fraud,
mistake, or showing that no duties
arose due to a condition precedent.
Is the term that a party wants to add
from before the written contract was
created, or oral and at the same time
the written contract was created?
Complete
If there is a complete integration,
no terms will be admitted into
evidence.
Is the writing “integrated”
(i.e., a final expression)?
PER doesn’t apply.
No
No
Yes
Yes
Is the integration complete or partial?
Use a few approaches:
• Williston approach: look at the writing itself (the “four
corners”) to see if writing is complete.
• Corbin approach: admit evidence of prior negotiations
to determine whether writing is complete.
• Contract is a partial integration (default) unless parties
intended writing to be a complete integration. UCC 2-202.
Partial
If there is a partial integration,
consistent additional terms are
admitted. Rest. 216. No
contradictory terms. Rest. 215.
Performance, Breach, & Discharge
Common law: one must substantially perform one’s duties in order for the other
party’s duty to arise. If there is a material breach, there is no substantial performance.
• Jacob & Youngs Inc. v. Kent: Plaintiffs contracted with builder to construct a house;
Plaintiffs demanded the builder use “Reading” pipe. Builder did not. Court held that
builder substantially performed because the builder used a pipe of the same value;
thus, buyers had to pay.
Exception: Express condition (e.g., “I will buy it if I like it” or “I will buy it if
I can get a 10% interest rate”). These must be complied with exactly.
Tip: courts find that most conditions are “constructive” and substantial
performance is enough.
UCC: Seller must provide perfect tender of the goods (or buyer can reject the
goods). UCC 2-601. Rejection must be timely and buyer must notify seller. UCC 2-602.
If seller does not provide perfect tender and buyer rejects the goods, seller only has an
automatic right to cure if (1) there is time left to perform under the contract, or (2) seller
reasonably believed that buyer would accept the nonconforming goods with or without
a money allowance such as a discount (e.g., seller sent better goods). UCC 2-508.
Exception: Installment contract. Buyer may reject an installment if there is a
“substantial impairment” and seller cannot cure the installment. UCC 2-612.
Exception: Divisible contract. If the contract is divisible (identifiable portions
of performance to which price may be apportioned), seller may collect for the
portions that are performed. Gill v. Johnstown Lumber Co.
Note on revocation: If buyer accepts goods, he may not reject them. However,
he may later revoke his acceptance. Revocation is a higher standard than rejection
as it requires showing that the defect substantially impairs the value of the goods to
him, among other things. UCC 2-608.
Excusing performance and conditions: A party is excused from performing if the other party
breaches. An anticipatory repudiation occurs when a party unequivocally breaches. Generally, if this
occurs, the other party can sue immediately, suspend performance and wait to sue, treat the
contract as discharged, or urge the other party to perform. UCC 2-610. A prospective inability to
perform is when a party has reasonable grounds for insecurity that the other will not perform.
The insecure party can demand adequate assurances that performance will take place. UCC 2-609.
Note that conditions can also be waived. An election waiver (after condition should have occurred)
cannot be retracted. An estoppel waiver (before condition should have occurred) may be retracted.
Discharging duties: A duty can be discharged by:
Occurrence of a condition subsequent: this is a condition that cuts off a duty. (E.g., “I will paint
the house until it starts to rain.” The rain is a condition subsequent that cuts off the duty to paint
the house.)
Agreement: examples include novation (a new party steps into the shoes of an existing party),
modification, release, accord and satisfaction (the parties agree to new or different
consideration), and rescission (the contract is undone).
o Waiver vs. modification: If the parties agree to change the terms, it is a modification
(requires new consideration). If one party acts contradictory to the terms and the
other party does not object, it might be a waiver.
Frustration of purpose: The primary purpose of the contract known by both parties at the
time of contracting is substantially frustrated by an unforeseeable event that occurred after
the contract was entered into. Krell v. Henry: Plaintiff rented apartment to watch coronation
proceedings. The king got sick and coronation was postponed. The purpose of the contract
was frustrated.
Impossibility: An event that renders performance impossible occurs after the contract was made,
it was not reasonably foreseeable at the time of the contract, the nonoccurrence was a basic
assumption of the parties, neither party is at fault, and neither party bears the risk. Rest. 261.
Remedies
• General rule: The damaged party recovers expectation damages. This is the loss of value of
the breaching party’s performance plus incidental damages plus consequential damages minus
any expenses saved as a result of the breach. Mitigation of damages is required.
• Incidental damages are those related to avoiding the loss from the breach (e.g., storing goods
after a breach). UCC 2-715(1).
• Consequential damages: those foreseen at the time the contract is entered into. UCC 2-715(2).
• UCC formulas: Buyer’s remedies: UCC 2-711. Seller’s remedies: UCC 2-703.
Seller breaches and buyer has goods: Buyer gets value of goods as contracted for
minus value of goods as delivered plus incidental and consequential damages. UCC 2-714.
Seller breaches and seller has goods: Buyer gets the difference between the market price
(or replacement price: UCC 2-712) and contract price plus incidental and consequential
damages minus expenses saved. UCC 2-713.
Buyer breaches and buyer has goods: Seller gets the contract price. UCC 2-708.
Buyer breaches and seller has goods: Seller gets the difference between the contract price
and market price (or resale price, see UCC 2-708) plus incidental damages minus expenses
saved. UCC 2-706.
Lost volume seller: seller gets lost profits plus incidentals.
• Equitable remedies
Specific performance is not usually available unless the goods are unique or if it is a land
contract. UCC 2-716.
An injunction is an equitable remedy that tells a party to do or not do something.
Rescission is undoing the contract when the contract is void or voidable or because it is
impossible to perform.
Reformation is a remedy either party may seek when the contract does not reflect the terms
to which the parties agreed.
• Liquidated damages clauses are enforced if the damages are difficult to estimate at the time of
the contract and a reasonable forecast of damages. Penalties are not permitted under contract law.
Dave Gustafson & Co. v. State.
• Restitution means the plaintiff recovers the value of the benefit conferred. This remedy may be
sought when the contract is breached, when it is unenforceable, or when there is no contract.
Restitution is granted in contracts that are implied in law (i.e., quasi-contracts), which arise
when the plaintiff has conferred a benefit on the defendant, the plaintiff reasonably expected to be
paid, and the defendant would be unjustly enriched otherwise.
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Evidence
Introduction to Evidence
• Direct evidence: evidence that directly proves a fact without having to draw an inference about that fact.
• Circumstantial evidence: proof of facts from which the jurors can infer or conclude that other facts exist.
Types of evidence
1. Witness testimony: Answers to questions asked by lawyers, judges, or (sometimes) jurors. Does not include voice samples.
2. Real evidence: any tangible thing having substantive significance due to its direct role in the events at issue.
3. Documentary evidence: Writings, recordings, photographs, etc. Admissible if the evidence (1) is relevant, (2) is properly authenticated, (3) satisfies the best-evidence rule (FRE 1002),
and (4) is not otherwise inadmissible under an exclusionary rule.
4. Stipulated facts: Facts agreed upon by parties. The judge will instruct jurors to consider the facts to be proven, even without testimony.
5. Judicially noticed facts: The court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or it can be accurately and readily
determined from sources whose credibility cannot be questioned. FRE 201.
How evidence is admitted or excluded
FRE 611: Mode and Order of Examining Witnesses and Presenting Evidence
(a) The court shall exercise reasonable control over the mode and order of examining witnesses and presenting evidence.
(b) Cross-examination should not go beyond the scope of direct examination and issues of witness credibility.
(c) Leading questions are not allowed on direct examination but are allowed on cross-examination and for hostile witnesses/adverse parties.
Relevance
•
•
•
•
•
Relevant evidence: Evidence which has any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence. FRE 401.
o It is generally admissible (FRE 402) but may be excluded if the probative value is substantially outweighed by a
danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence (FRE 403).
The court decides preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible.
FRE 104(a).
Relevance that depends on a fact: When the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the
condition that the proof be introduced later. FRE 104(b).
Limiting instruction: When evidence that is admissible as to one party for one purpose but not admissible as to another
party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the
jury accordingly (give a “limiting instruction”). FRE 105.
Completeness rule: When a party introduces part of a writing or transaction, the other party can ask that the rest of it be
introduced as well if it, in fairness, ought to be considered contemporaneously with the rest. By introducing the writing or
transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc. FRE 106.
Authentication and Foundation
•
•
•
Authentication: The proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.
FRE 901(a).
Methods of authenticating evidence:
• Testimony of witness with knowledge (includes someone with
knowledge of a scene in a photograph to authenticate photo).
FRE 901(b)(1).
• Handwriting: Nonexpert who has familiarity with the person’s
handwriting prior to litigation, an expert, or the trier of fact.
FRE 901(b)(2)(3).
• Voice: Anyone can authenticate a voice including a lay
person, even if the person acquired familiarity with the
voice solely for the purpose of litigation. FRE 901(b)(5).
• Phone conversation: Show that the call was made to
the number assigned (at the time) to a particular person or
business. FRE 901(b)(6).
Self-authenticating exhibits: E.g., public records under seal,
official publications, newspapers, periodicals, etc. FRE 902.
Witnesses
•
•
•
•
•
Competency to testify: Every person is competent to be a witness except as otherwise provided in the FRE. FRE 601.
Personal knowledge: A lay witness may testify only if sufficient evidence supports a finding that the witness has personal knowledge. FRE 602.
Oath or affirmation: Before testifying, every witness must declare that he will testify truthfully by oath or affirmation “It must be in a form designed to impress that duty on the witness’s conscience.” FRE 603.
Exclusion of witnesses: At a party’s request, a court must order a nonparty witness to be excluded. However, a court cannot authorize excluding a party, a person whose presence is essential to the claim
or defense, or someone authorized to be present. FRE 615.
Refreshing recollection: If a witness’s memory fails him, he may be shown a document or record to refresh his memory. FRE 612.
o Tip: Do not confuse refreshing recollection with the hearsay exception for recorded recollection (where a record is actually offered into evidence)! FRE 803(5).
Expert witnesses
•
•
•
Expert qualification: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if it is helpful to the trier of fact and based on sufficient facts or data. FRE 702.
An expert may base an opinion on (1) personal knowledge, (2) facts that are in the record and made known to the expert by a hypothetical or testimony at trial, or (3) facts not in the record if they are the
kind of facts other experts would reasonably rely on. FRE 703.
Ultimate issue rule: An expert opinion may embrace an ultimate issue, but in a criminal case an expert witness must not state whether the defendant had the requisite mens rea. FRE 704.
A note on the reliability standard for scientific and other technical evidence—three crucial cases:
• Frye v. United States held that the scientific technique upon which expert testimony is based must be generally accepted within the scientific community in which it belongs.
• Daubert v. Merrell Dow Pharmaceuticals, Inc. stated that there is a list of factors to consider: (1) Can it/has it been tested? (2) Has it been subject to peer review and publication? (3) What
is the known or potential rate of error of the technique or theory when applied and the existence and maintenance of standards and controls? (4) Has it been generally accepted
in the scientific community?
• Kumho Tire Co. v. Carmichael held that the Daubert factors may be applied to all expert testimony.
Lay witnesses
•
Lay witness: A lay witness’s opinion is admissible if it is rationally based on the witness’s perception; helpful to determining a fact; and not based on scientific, technical, or other specialized knowledge.
A lay witness must have personal knowledge. FRE 701.
Character Evidence
•
•
•
Documentary Evidence
Character evidence is generally inadmissible to prove that someone acted in accordance with his character. FRE 404(a).
Exceptions:
In civil cases, it is only admissible in cases regarding negligent entrustment or hiring, defamation, and child custody.
It can be proven by (ROS) reputation or opinion evidence, or specific acts. FRE 405.
In criminal cases, the defendant must open the door and can use (RO) reputation or opinion evidence. The prosecution
can then use (ROS) reputation or opinion evidence and specific acts to rebut the defendant’s character evidence. FRE 404.
A criminal defendant may offer evidence of the victim’s violent character using (RO) reputation or opinion evidence. The prosecution
may rebut by introducing (RO) reputation or opinion evidence of the victim’s or the defendant’s character. FRE 404(a)(2)(B).
A defendant’s prior bad acts may be admissible to prove (MIMIC) motive, intent, lack of mistake, identity, or common scheme or plan.
MIMIC evidence can be used in criminal and civil cases. FRE 404(b).
Habit and routine practice: Evidence of a person’s or organization’s habit or routine practice may be admitted to prove that it acted in
accordance with the habit or routine practice. Habit evidence is distinguishable from character evidence. FRE 406.
Sexual misconduct cases
•
•
Prior sexual misconduct of a defendant: If a defendant is accused of sexual assault or child molestation, the court may admit
evidence that the defendant committed any other sexual assault (FRE 413) or child molestation (FRE 414). The evidence may
be considered on any matter to which it’s relevant, including that the defendant acted in accordance with his character.
Tip: remember that only specific acts can be offered.
Prior sexual misconduct of a victim: In a criminal case, specific acts can be offered to prove the source of semen, injury, or other
physical evidence; to prove consent; or when excluding it would violate the defendant’s constitutional rights. In a civil case,
evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice. The court
may admit reputation evidence only if the victim places it in controversy. FRE 412.
•
An original writing, recording, or photograph generally is
required (FRE 1002), but a duplicate is admissible to the same
extent as an original unless it is unfair to admit it or there is a
genuine question about authenticity (FRE 1003).
•
The best-evidence rule: One must present documentary
evidence when one wants to prove the contents of a writing.
This applies to a writing that is a legally operative document
(e.g., a will, contract, etc.) or when the witness learned about the
event solely from the writing or record and has no independent
knowledge of the event. FRE 1002.
•
Summaries: A party may use a summary, chart, or calculation if
records are voluminous. However, the proponent must allow the
other parties to examine or copy the originals or duplicates and the
court may order them to be produced. FRE 1006.
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Impeachment
Is extrinsic evidence permitted? (I.e., is outside
evidence permitted to prove that the statement was
made or that the event occurred?)
What is it?
Prior inconsistent
statement FRE 613
If a party makes a prior statement that is inconsistent with her testimony at trial, it may be used for
impeachment. Tip: it may also be used as substantive evidence (i.e., the truth of the matter
asserted) if it falls within a hearsay exception or exclusion (e.g., prior inconsistent statement
or opposing party’s statement).
Extrinsic evidence may be used only if the witness is given an opportunity
to explain or deny the statement at some point. This does not apply if
the witness is the opposing party, not in court at all, or if the interests
of justice require.
Bias (common law—
not covered by FRE)
If a witness is a family member, friend, enemy of a party, paid by a party, granted immunity, or if
other circumstances show bias, then that can be used to suggest the witness has motive to lie.
Extrinsic evidence may be used only if the witness is asked about the
facts that suggest bias and the witness denies those facts.
There are two categories of convictions that are allowed into evidence under the FRE:
(1) Felony or misdemeanor convictions where the prosecution is required to prove an act of
dishonesty or false statement as part of the crime. These are automatically admitted.
(2) Felony convictions are admissible if they meet a balancing test. (Witness not defendant=use
FRE 403-balancing test.) (Witness criminal defendant=use reverse FRE 403-balancing test.)
Extrinsic evidence (the conviction) is permitted.
Conviction of a
crime FRE 609
Specific instances of
misconduct FRE 608(b)
If a witness engaged in a “bad act” that is probative of truthfulness (e.g., lying or cheating), he
may be questioned about it on the stand.
Extrinsic evidence is not permitted! If the witness denies the
misconduct, evidence is not admissible to prove that it occurred.
Sensory deficiencies
Anything that concerns the witness’s perception or memory (e.g., if the witness is deaf, blind,
has a bad memory, etc.) can be used to suggest the witness is mistaken.
Extrinsic evidence is permitted.
A witness may be impeached during cross-examination if he made a mistake or lied about
anything he said during direct examination.
If the witness won’t admit his mistake, extrinsic evidence may
be used as long as the fact at issue is not a collateral (irrelevant) fact.
A party may call its own character witness to testify that the witness in question has a bad
reputation for truthfulness or, in the character witness’s opinion, that the witness is not truthful.
The witness is extrinsic evidence.
Contradiction
Reputation or opinion for
untruthfulness FRE 608(a)
Is confrontation (asking
the witness about it)
permitted or required?
Permitted
Required
Note: if more than 10 years have passed since the witness’s conviction
or release from confinement for it, whichever is later, evidence of the
conviction generally is not admissible.
Permitted
Required (getting the
witness to admit it is the
only way to prove the act)
Permitted
Required (one must confront
the witness prior to offering
extrinsic evidence)
Permitted
Note: Credibility of a witness may be attacked by any party, even the party that called the witness. FRE 607. Rehabilitation: evidence of truthful character is admissible only after the witness’s truthfulness is attacked.
Privileges and Work Product
•
•
•
•
•
Spousal immunity: (1) it applies in a criminal trial, (2) it is held by the witness spouse, and (3) the parties must be married at the time of trial.
Confidential communications: (1) it applies in a civil or criminal trial, (2) it is held by both spouses, (3) the communication was confidential, and (4) it was made during the marriage.
Attorney-client privilege: the privilege applies to confidential communications between an attorney and his client (or either’s agent) or prospective client made for the purpose of obtaining legal advice.
Psychotherapist-patient privilege: confidential communications between a patient and a doctor for the purpose of diagnosis or treatment are protected.
Work-product doctrine: Material prepared for litigation may not be discovered absent a showing of a “substantial need” and “undue hardship.” Attorney mental impressions are not discoverable.
Policy Exclusions
•
•
•
•
•
Insurance coverage is inadmissible to prove negligence but may be used for other purposes (e.g., to show agency, ownership, or control). FRE 411.
Subsequent remedial measures are inadmissible to show negligence or guilt but may be used for impeachment, to show ownership or control, or to show feasibility of precautionary measures if disputed. FRE 407.
An offer to settle a disputed claim and statements made during negotiations generally are inadmissible. FRE 408.
An offer to pay medical bills is inadmissible to prove liability. FRE 409.
A guilty plea is admissible. But, an offer to plead guilty, a guilty plea later withdrawn, a no-contest plea, and statements made during negotiations that did not result in a guilty plea are inadmissible. FRE 410.
Hearsay
• Hearsay: An out of court statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. FRE 801(c).
o Statement: An oral assertion, written assertion, or nonverbal conduct, if it is intended to be an assertion. FRE 801(a).
• General rule: Hearsay is inadmissible unless a federal statute or the FRE indicates otherwise (e.g., there is an exclusion that makes it nonhearsay or an exception that would allow for the admissibility of what is otherwise
hearsay). FRE 802.
• Hearsay within hearsay: Evidence containing multiple levels of hearsay is inadmissible for its truth unless each layer, analyzed independently, falls within an established hearsay exception or is treated as nonhearsay. FRE 805.
Character
Verbal act or legally operative words (e.g., defamation, words that show contract formation, etc.)
To prove it was said
(nonhearsay)
State of mind (e.g., “I’m the Queen of England” to show declarant is crazy)
Effect on listener or reader (Tip: this is usually offered to prove motive or intent.)
WHY IS THE
STATEMENT
BEING OFFERED?
Nonhearsay
To prove it is true
Prior statements of a trial witness (these are EXCLUDED from the definition of hearsay):
(1) prior statement of identification (FRE 801(d)(1)(C)); (2) prior inconsistent statement (made under oath at a formal trial, hearing, or deposition
and the declarant is at trial subject to cross-examination concerning the statement) (FRE 801(d)(1)(A)); or (3) prior consistent statement used to
rebut a charge of recent fabrication or improper influence (FRE 801(d)(1)(B)).
Opposing party’s statement (also known as “party admissions”): (1) any statement made by the opposing party that is offered against that
party (FRE 801(d)(2)(A)), (2) adoptive admission (statement a person adopts through silence) (FRE 801(d)(2)(B)), (3) agent/employee
statement made by the agent/employee offered against the principal/employer during the existence of the relationship and concerning a
matter within the scope of the agency/employment (FRE 801(d)(2)(D)), and (4) statement by coconspirator made during the course of and in
furtherance of the conspiracy (FRE 801(d)(2)(E)).
Hearsay Exceptions
Declarant must be unavailable (invokes a privilege, is absent from the jurisdiction,
is ill or dead, lacks memory, or refuses to testify)
1. Forfeiture by wrongdoing (witness tampering): A party engages in wrongdoing for the
purpose of making a witness unavailable for trial. FRE 804(b)(6).
2. Former testimony: Declarant is unavailable and had given testimony at a former proceeding or deposition
and it is admitted against a party or someone in privity who had the motive and opportunity to develop the
statement. FRE 804(b)(1). NOTE: Don’t confuse with prior statement of a trial witness! FRE 801(d)(1).
Declarant may be available or unavailable
1. Present sense impression: Declarant describes or explains event as it is happening or immediately
thereafter. FRE 803(1).
2. Excited utterance: There is a startling event, declarant makes a statement while under the stress of excitement,
and the statement relates to the event. FRE 803(2).
3. Then-existing mental, emotional or physical condition: Declarant states his then-existing feelings, physical
condition, or intent. FRE 803(3).
3. Statement against interest: Declarant is unavailable and made a statement he knew was against his interest
at the time the statement was made. FRE 804(b)(3).
4. Statement for medical treatment/diagnosis: Declarant makes a statement about medical history, or past or
present symptoms or their cause for the purpose of diagnosis or treatment. FRE 803(4).
4. Dying declaration: Declarant is unavailable, the statement was made while he believed death was impending,
it concerns the cause or circumstances of death, and it is used in a homicide or civil case. FRE 804(b)(2).
5. Recorded recollection: A witness has insufficient recollection of the event, but he made/adopted a statement
while the event he had personal knowledge of was fresh in his memory and can vouch for the accuracy of the
statement. FRE 803(5). Tip: Distinguish this from refreshing recollection! FRE 612.
5. Statement of personal or family history (e.g., birthdate and marriage date) FRE 804(b)(4).
6. Business records: A record made in the regular course of business at or about the time the event occurred
and that contains information observed by employees of the business (or an independent hearsay exception
exists). FRE 803(6)(7).
The Confrontation Clause: In a criminal case, if the statement is testimonial, the declarant is unavailable, and the
defendant had no opportunity to cross-examine the declarant, the statement will generally not be admitted
(pursuant to the Sixth Amendment Confrontation Clause).
7. Public records (made by an agency) FRE 803(8)
8. Learned treatises (read into evidence if an expert is on the stand) FRE 803(18)
9. Catchall exception (for trustworthy statements) FRE 807
10. Others (reputation about character, familial relations, etc.)
How to Excel on Law School Exams
Understand the nature of law school exams
Learn to answer exam questions using the IRAC method
The letters in IRAC stand for the following:
(1) Generally, one exam determines your entire grade.
(2) Law school exams test the ability to think critically and apply the law to fact patterns.
(3) Law school exams are graded on a strict curve. Usually, only a small percentage of first-year law
students get an “A.”
Issue
Rule
Analysis
Conclusion
Issue
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Issue-spotting: One of the key skills that most law school exams test is issue-spotting, or the ability to recognize the applicable legal principle using certain facts.
o Many fact patterns will not give you hints as to what the issues are. The question will simply say, “Discuss the issues” or “Discuss.”
o Issue-spotting is important because if you do not spot the issue, you will not be able to apply the relevant law and analyze it (which is where you get the most points!).
State the issue: It is important that you clearly state the issue. Explicitly say, “The issue is whether . . .”
Tip: to become good at issue-spotting, practice answering exam questions and comparing your answer to the model answer to see if you spotted all the issues.
Rule
•
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•
State the rule: for each issue that you identify, state the rule of law that governs the issue.
Only include what is relevant: make sure that you state the relevant rules of law.
o Some students will try to impress the professor by writing down every rule they know. You generally do not get points for stating irrelevant rules and you are also wasting time.
Tip: To get good at rule statements, make sure to have a well-organized outline. After you make your outline, commit the rules to memory.
Analysis
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•
Apply the law to the facts: The analysis is the most important part of your answer—this is the part where you apply the law to the facts.
o The key to an outstanding exam answer is to develop the analysis by making lawyerly arguments on behalf of the plaintiff and on behalf of the defendant for each issue that you spot.
Even if the question says “you are counsel for the defendant,” you should still recognize (and address) arguments that the plaintiff will make. The best lawyers will anticipate the arguments from the other side!
• Think about what the plaintiff would argue.
• Think about what the defendant would argue.
• State who has the better argument.
o Make creative arguments and try to make as many arguments as you can. Think of the “A” section of your IRAC as being a work of “ART”:
• A = Argument
• R = Response
• T = Tell who is right
Potential arguments: Some potential arguments that you can make in the analysis section include the following:
o Argue that the facts should be interpreted one way or another.
o Argue that the law should be interpreted one way or another.
o Cite policy reasons for why the case should turn out one way or another.
o Argue that one rule should be applied over another. For instance:
• The traditional rule should be applied instead of the model rule (or vice versa).
• The common law rule should be applied instead of the statutory rule (or vice versa).
• The majority rule should be applied instead of the minority rule (or vice versa).
Tip: The best way to improve your analytical skills is to practice applying the law on exam questions. Every time you answer an exam question, closely compare your answer to the model or
sample answer. Identify how you could have improved your analysis. It is also crucial that you have your outline memorized. It is hard to make arguments about the law if you cannot clearly state the law.
Conclusion
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Pick a side: Identify who is more likely to win and explain your reasoning.
o The conclusion answers the question, “Who has a better legal argument?”
Note: For most major issues, the conclusion that you arrive at is not as important as the analysis that you provide.
Tip: Strike a balance. Do not leave your conclusion too inconclusive (e.g., “It depends on what the court decides. Either could win.”). However, your conclusion should not be too decisive
either (e.g., “The plaintiff will definitely win.”).
o It is best to not use extremely strong words or phrases unless they are truly appropriate (and this will be very rare on law school exams!).
o Use words like “probably” or “likely” (e.g., “For the reasons discussed above, it is likely that the defendant will win.”).
Stylistic Tips
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Underline or bold key elements of the law to draw attention to them.
Break up your answer into several paragraphs—at least one paragraph for each issue.
Focus on writing clearly and in an organized manner rather than writing an eloquent response.
State the elements of the law and how they apply to the fact pattern (even if they seem obvious). Remember to state general rules before discussing exceptions to the rules. Connect every dot!
In general, try to write a long answer. The more you say, the more potential points you can earn (however, do not write an answer that is rambling or unfocused).
If you have a strong preference for writing over typing (or vice versa) do whatever you are most comfortable with.
o If you are debating, typing is usually preferred because it is generally faster, it allows you to organize your answer better, it is typically more legible, and most students find it easier to type than to write for the
duration of a law school exam.
© JD Advising, Inc. WWW.JDadvising.com
An answer using simple IRAC
I
R
A
C
A sophisticated answer using the strategy we recommend
I
R
A{
ARGUMENT 1, RESPONSE, & TELL WHO IS RIGHT
ARGUMENT 2, RESPONSE, & TELL WHO IS RIGHT
}
C
ARGUMENT 3, RESPONSE, & TELL WHO IS RIGHT
A sophisticated answer uses the IRAC method yet transcends it at the same time. Such an answer comes in all kinds of formats.
It is not limited to the format above. For example, another model is as follows:
I
R
A{
A&R&T
A&R
•
•
SUB ARGUMENT, RESPONSE, & TELL
WHO IS RIGHT
SUB ARGUMENT, RESPONSE, &
TELL WHO IS RIGHT
}
C
Practice Exams
•
The three primary sources that you should use to practice what you know:
o Exams that your professor has given students in the past (check with your professor).
• This is by far the best resource! Make sure to obtain model answers if possible!
o Problems in supplements (e.g., Examples and Explanations or Glannon Guide).
• This is a great place to start and to utilize throughout the semester.
o Other resources that contain exams with model answers. Search online for “law school exams”!
Self-Grading and Using Model Answers
•
After you write an answer to a practice question, spend a lot of time comparing your answer to the model answer and grading your answer. This is the best possible
way to improve your exam-answering abilities!
Start by asking these questions when comparing your answer to the model answer:
o
Issue
• Did I spot the same issues that the writer or model answer spotted?
• Did I miss important issues? Which ones? How will I avoid this in the future?
• Did I include issues that the model answer did not include? If so, are these issues relevant?
o
Rule
• Did I clearly lay out all of the rules and elements of law for each issue?
• Did I discuss laws that were not relevant? How can I avoid this in the future?
o Analysis
• Did I make arguments on behalf of each party (where applicable)?
• Did I analyze the problem as in-depth as the model answer did?
• Did I discuss all the relevant facts that the model answer mentioned?
• Did I spend too much time analyzing an issue that should obviously turn out in one party’s favor?
• Did I know enough law to fully analyze the question or do I need to review my outline more?
o Conclusion
• Was my conclusion too vague? Was it too strongly worded?
• Was my conclusion correct (or at least arguably correct)?
o Other questions to ask
• Did I spend too much time restating facts or conclusions?
• Did I answer the exam in the appropriate amount of time?
• What are my strengths?
• How can I capitalize on my strengths and make them even better?
• What do I need to practice more?
•
Tips for Multiple-Choice Questions
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Practice: If you know that your professor will include multiple-choice questions on the exam, it is important to practice. A quick online search for “multiple-choice questions” and the subject
will usually yield helpful results! Alternatively, you can usually find a supplement that contains multiple-choice questions.
Do them slowly and methodically when you practice: This method should not be used on the actual test but can help you get better at the skill of answering multiple-choice questions.
1. Read the fact pattern, read the call of the question, and then stop.
2. Before looking at the answer choices, ask yourself what legal issue is being tested and what rule you need to address the legal issue. If you do not know the rule, look it up in your outline.
3. Try to answer the call of the question without looking at the answer choices.
4. Once you have answered the question, look at the answer choices and pick the one that most closely matches the answer you stated.
5. Lastly, review the other answer choices and explain why each one is incorrect.
Work on timing: As you get closer to the exam, work on speed. Incorporate timed questions (or sets of questions) into your practice. Be sure to spend some time learning and understanding
the material before you jump into timed questions.
Last Minute Tips
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Thoroughly analyze the issues . . . but not the obvious ones.
• For example, in Torts, if you are presented with a negligence question and the facts tell you that the plaintiff was clearly harmed by the defendant’s actions, then you should mention harm as an
element and briefly analyze the facts, but you should not spend paragraphs and paragraphs discussing it.
State the relevant rules of law . . . but do not state every rule of law that you know.
• There is a big difference between writing every rule of law that you know and writing the applicable rules. Sticking to what is relevant makes you look like a good lawyer that can zero in on the important issues!
Use facts to support your arguments . . . but do not restate or summarize all the facts at the beginning of your essay.
• Start by diving into the important issues. Then, simply incorporate the relevant facts into your analysis.
Use facts to support your arguments . . . but do not make up new facts and then discuss the facts you made up.
• If you change the facts, you are answering your own question, not the professor’s. If there are unknown facts, point out what is missing, but do not change the facts entirely.
How to Write and Learn
Your Law School Outlines
Introduction to the basics of outlining
(1) Outline early in the semester.
(2) Your class notes are your most important resource.
(3) Make your own outline.
(4) Do not type up your class notes and call it your “outline.”
(5) Organize your outline in a way that makes sense (discussed below).
Gather your materials
(3)
The materials you should consult as you make an outline are:
(1) Syllabus
(2) Class notes
Casebook, commercial briefs book, and supplement (if you use one)
Step one: figure out the overall structure by looking
at your syllabus.
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•
Your syllabus generally includes a list of all the major topics that you
will be covering that semester.
o If your syllabus does not have a breakdown of the topics you will be covering,
consult the table of contents in your casebook.
For example, your Contracts class might start with contract formation
(offer, acceptance, and consideration). Then, it might discuss defenses (e.g., illegality and insanity)
and the Statute of Frauds. It might also talk about remedies (for both the UCC and common law).
o
Your Contracts outline might be organized like this:
1) Contract formation
(a) Offer
(b) Acceptance
(c) Consideration
2) Defenses
(a) Illegality
(b) Insanity
3) Statute of Frauds
4) Remedies
(a) Common law
(b) UCC
Step two: start with the first issue and find the rules
that go with that issue.
•
The best place to find the rule is your class notes (your professor writes the exam,
so it makes sense to know the rules your professor wants you to know!).
•
For example, if you take the “offer” section from step one, here are some of the
rules that go with “offer”:
o An offer is a manifestation of intent to enter into a contract.
o Elements: An offer requires (1) intent and (2) specific terms. The specific terms include
price, quantity, and identity of the offeree.
o The intent to enter into a contract is looked at from the perspective of a reasonable person.
Step three: break down the rules into manageable
parts.
Rather than having one long sentence, try to break it down into manageable parts. For example:
1) Contract formation
(a) Offer
Rule: An offer is a manifestation of intent to enter into a contract. Elements:
(1) Intent (must be from the perspective of a reasonable person)
(2) Specific terms
(A) Price
(B) Quantity
(C) Identity of offeree
Instead of bolding the elements, you may find it helpful to use a different color!
Do what works best for you!
Step four: add cases (or at least the rules from cases).
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If you outline early (as recommended), you will have plenty of time to add the important cases that you discuss in class.
o If you start outlining late, you should still try to include the landmark cases, and at least include the rule for all other cases.
Don’t include lengthy descriptions of cases or case briefs for each case! Try to summarize the case in one to two sentences.
o Write the summary in your own words. It doesn’t have to be eloquent or well-written.
You should use your class notes, casebook, or commercial brief book to find the rules. The best resource is your class notes.
Here is what your Contracts outline (from above) might look like with cases added:
1) Contract formation
(a) Offer
Rule: An offer is a manifestation of intent to enter into a contract. Elements:
(1) Intent (must be from the perspective of a reasonable person)
• Fairmount Glass Works v. Crunden: Even if one or more terms (below) are left open, a contract does not fail for indefiniteness if the parties intended to make a contract.
Strong intent can overcome a lack of specific terms.
(2) Specific terms
(A) Price
• Harvey v. Facey: Saying “lowest price you’ll accept” is not an offer. Need the price.
(B) Quantity
(C) Identity of offeree
• Owen v. Tunison: if offeree is not identified (in this case, a land sale contract), there is no offer.
• Lefkowitz: Coat case. This was an offer because all terms were identified (first person in store gets coat for $1).
Step five: use hypothetical examples or important points your professor made in class to illustrate a rule.
Hypothetical examples from class show how the rule is applied to facts. Also, the professor could use similar facts on the exam! Continuing with the example above:
1) Contract formation
(a) Offer
Rule: An offer is a manifestation of intent to enter into a contract. Elements:
(1) Intent (must be from the perspective of a reasonable person)
• Fairmount Glass Works v. Crunden: Even if one or more terms (below) are left open, a contract does not fail for indefiniteness if the parties intended to make a contract.
Strong intent can overcome a lack of specific terms.
(2) Specific terms
(A) Price
• Harvey v. Facey: Saying “lowest price you’ll accept” is not an offer. Need the price.
• Hypo: “Will you sell us the property?” Is that an offer? No. A question is not an offer. It is also missing a price term!
(B) Quantity
• Hypo: “We are authorized to offer you all the fine salt you order.” Is that an offer? No. It is missing a quantity term. Just because the word “offer” is used does not make it an offer.
(C) Identity of offeree
• Owen v. Tunison: if offeree is not identified (in this case, a land sale contract), there is no offer.
• Lefkowitz: Coat case. This was an offer because all terms were identified (first person in store gets coat for $1).
After your outline is created . . .
Review your outline
Color-code
Strategy for success #1: actively and repeatedly review your outline.
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Use a variety of techniques to review your outline. It will help you to learn the material if you review your outline in a variety of ways. Here are some tips to help you review your outline:
o Read, re-read, highlight, write in the margins, and underline your outline.
o Re-write portions of your outline on scrap paper while you are reviewing it.
o Write mnemonics or codes in the margins of your outline to help remember the elements.
o Incorporate pictures and drawings in your outline.
o Include diagrams, charts, and concept maps in your outline.
o Color-code your outline with highlighters or different colored ink.
o Read a section of your outline aloud, and then say it out loud without looking at the paper. Then, read a little bit more. Say everything you have read out loud without looking at the paper. Repeat.
o Study in a group rather than individually or vice versa.
o Explain concepts that you review to others. Listening to yourself explain issues to others is an important learning tool. In addition, others might raise good questions and further deepen your
understanding or clarify various issues.
o Quiz yourself on your outline (or have someone else quiz you).
o Think of practical examples to understand abstract legal concepts. Or think of theory and policy analyses to help you truly learn why the law works the way it does in everyday life.
Repeat, repeat, repeat.
o Repetition is the key to memorization. It gives your brain a chance to understand your outline and learn it. Review a section of your outline multiple times before moving on to the next section.
Take breaks and be healthy.
o Use your study time to study intensely, but take frequent breaks. Exercise, eat a snack, make a phone call, or go on a short walk. A break gives your brain a chance to encode what you have learned,
and it keeps you alert and productive when you go back to studying.
o Also, make sure you get enough sleep. If you skip out on sleep to study more, you are not doing yourself any favors.
Strategy for success #2: review your outline with the final exam in mind.
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When you first begin reviewing your outline, focus on learning the basics: learn the elements of every cause of action, defense, and concept.
Once you have a good grasp on the material, focus on the parts of your outline where the law is unsettled. Focus on the “gray areas”:
o There is a majority rule that differs from the minority rule.
o There is a model rule and/or common law rule and/or statute that differ from one another.
o It is unclear whether certain elements are met in certain situations.
The “gray areas” of the law are often highly tested. Recognizing and analyzing these areas of the law will help you maximize the number of points you score on an exam!
What do you do with case briefs, class notes, etc. after your outline is finished?
The nice thing about having an outline is that once you have it, you do not have to review anything else! You do not have to review your class notes, case notes, or other materials. Look over these
materials only enough times to understand them and incorporate them into your outline.
Should I prepare differently for open book exams?
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You want to prepare almost the same for open book exams as closed book exams.
However, for open book exams, make sure you tab and organize your outline(s) and notes so that you can easily find any information that you may want to refer to during the exam.
Remember that open book exams are harder in some ways because the professor isn’t as impressed by rule statements (Why should he/she be? Your outlines are right in front of you!).
The professor will focus more on issue-spotting and analysis.
Some people find it beneficial to make attack outlines for open book exams. These outlines are just a few pages long and contain all of the relevant rules of law without any theory, illustrations, etc.
After you finish outlining early, use your outline to take practice exams!
•
Three primary sources that you should use to practice what you know:
o Exams that your professor has given students in the past (check with your professor).
• This is by far the best resource! Make sure to obtain model answers if possible!
o Problems in supplements (e.g., Examples and Explanations or Glannon Guide)
• This is a great place to start and to utilize throughout the semester.
o Other resources that contain exams with model answers. E.g., search online for “law school exams”!
What if the exam is tomorrow and you don’t have time to outline or take practice exams?
•
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If the final exam is tomorrow and you don’t have time to go through this process to make an in-depth outline, instead make a short cheat sheet—a one- or two-page outline of all of the
major issues discussed in class. Include rules, major exceptions, and anything your professor really seemed to focus on through the semester. Primarily focus on your class notes for this process.
If you do not have time to take practice exams, at least skim past exams, bullet point your answers, and compare your answers with model or sample answers. That way, you will have an
idea of the format and your professor’s expectations.
© JD Advising, Inc. WWW.JDadvising.com
Real Property
Fundamentals of Property
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Attributes of property: (1) right to exclude, (2) right to dispose, and (3) right to use, possess, and enjoy (altogether, referred to as the “bundle of sticks”).
Real property: land, buildings, plants, subsurface, and air/water (“immovables”).
Personal property: chattels, intellectual property, stocks, debt, and bank accounts (“movables”).
Freehold estates: Involves ownership in property. E.g., a life estate.
Nonfreehold (leasehold) estates: Involves leasing property without actual ownership. E.g., a tenant’s lease.
Caveat emptor (“let the buyer beware”): the buyer is responsible for checking the quality of what he is receiving.
Personal Property
Findings
Gifts
Abandoned property: Property is abandoned if the owner intends to relinquish ownership/control
and there is an act of abandonment (e.g., setting trash out on the curb). The finder/recipient has a
superior right of possession to everyone (including the original owner).
Mislaid property: Property is mislaid if the owner intends to place it somewhere and simply forgets to
retrieve it (e.g., if one leaves keys or a wallet at a cash register when checking out). Under common
law, the finder is not entitled to possession.
Lost property: Property is lost if the owner does not intend to relinquish possession or ownership
(e.g., a wallet falls out of a person’s backpack). Rule: The finder’s right of possession is superior
to all others except the true owner. Armory v. Delamirie.
• Locus in quo: Lost property found on private property goes to the private property owner, not the
finder. Unattached chattel that is not lost does not go to the owner of land where the chattel is
found unless that owner actually possessed the object.
• Treasure trove: When “treasure” is lost under the original rule, the treasure trove goes to the state
or the owner of the land. Under the American common law, finder laws apply.
Inter vivos gift: A gift given during life. Elements: (1) Donative intent, (2) delivery, and (3) acceptance.
An inter vivos gift may not be revoked once it is complete. Note: Constructive delivery is only
permitted if actual delivery is impracticable. E.g., a donor would be permitted to deliver keys to a
car when giving the gift of a car because actual delivery (handing over the car) is impracticable.
Gift causa mortis: A gift made in contemplation of death. Elements: (1) Made in contemplation of
imminent or very likely death, (2) delivery (actual or constructive), (3) intent is conditioned to
become absolute only upon death, and (4) acceptance (presumed unless rejected).
Note: Title to the property does not actually pass until the grantor dies. Thus, the gift may be
revoked by the grantor during his life.
Private Interests in Real Property
Freehold estates
Fee simple absolute
E.g., “To A” or “To A and her heirs.”
“A” has the estate forever. A total restraint on the transfer of ownership is not permitted, but limited
conditions and rights of first refusal are permitted.
Fee tail
E.g., “To A and the heirs of his body.”
“A” has the estate so long as “A” and any of his descendants (e.g., children) survive.
Fee simple determinable (FSD)
E.g., “To A for so long as A is in college.”
“A” has a FSD. The owner (O) has a possibility of reverter. This estate is measured by time and ends
automatically when the time period ends.
• Magic words of creation (SUWD): so long as, until, while, and during.
Fee simple subject to condition subsequent (FSSCS)
E.g., “To A but if A smokes, O reserves a right of entry.”
“A” has a FSSCS. O has a right of entry. This estate is conditional and measured by the occurrence of
an event. This estate ends when O enters.
• Magic words of creation: A “right of entry” must be reserved for O (usually you will see
“conditional” words too like “but, if, upon condition…”).
• Tip: if you see FSD and FSSCS language, there is a preference for a court to find a FSSCS.
Fee simple subject to executory interest (FSSEI)
E.g., “To A but if A smokes, to B.”
“A” has a FSSEI and “B” has an executory interest. You will see durational or conditional language, but
when the estate ends, it will go to “B” instead of back to O.
Life estate
E.g., “To A for life.”
Life tenants must pay taxes, interest on the mortgage, and make repairs. Life tenants cannot commit
waste. Restrictions on alienation (transfer) are permitted.
Rule Against Perpetuities
Rule
No interest is good unless it must vest, if at all, not later than 21 years after a life in being at the
creation of the interest.
•
It applies to executory interests, contingent remainders, and vested remainders subject
to open (class gifts).
Application
Identify the lives in being. If it is possible for the interest to vest more than 21 years after all the
lives in being have died, the future interest is stricken.
Future interests
Held by grantor
Right of entry, possibility of reverter, and reversion
Held by grantee
Remainder: usually follows a life estate.
• A remainder is vested when the remainderman is ascertained and it is certain to
become possessory.
• It is contingent when the remainderman is (UUU) unborn, unascertained, or if it is uncertain
to vest due to a condition.
Executory interest (EI)
• Shifting: when “B” divests a third party of his interest.
• Springing: when “B” divests O of his interest.
Real covenants and equitable servitudes
Definition: A promise that concerns the use of land and may bind future landowners.
(This could be a real covenant or equitable servitude, depending on which elements, discussed
below, are met.)
Real covenant: The following is needed to enforce a covenant (PINT): horizontal and vertical privity
(only vertical is needed for the benefit to run), intent for the covenant to bind future successors, notice
of the covenant, and it must touch and concern the land (impact the value of the land). The remedy
for a violation is money damages.
Equitable servitudes: Everything above is needed except privity. The remedy is an injunction.
Equitable defenses are available (e.g., laches, unclean hands).
Easements, licenses, and profits
Easement: An easement can be appurtenant (benefits the land) or in gross (benefits a person or
entity). The servient tenement is the property subject to the easement. The dominant tenement
(applicable for easements appurtenant) is the property benefitted by the easement.
Creation: There are four methods of creation:
(1) Express: a signed writing is required.
(2) Implied by prior use: common apparent use by a landowner who subdivides land.
(3) Implied by necessity: when there is a strict necessity (e.g., land is landlocked), or in some
jurisdictions a reasonable necessity (e.g., a party needs access to utilities), an easement may
be granted.
(4) Prescription: one uses the land openly, notoriously, continuously, and without permission from
the owner for the statutory period of time.
Transfer: The dominant estate passes automatically. The servient estate passes only if the new
owner has notice of the easement.
Use: reasonable development is permitted but the easement must be used for its original purpose.
Termination: An easement can terminate in one of the following ways:
• Merger (if one owns the dominant and servient estate, the easement ends)
• Release (a signed writing)
• Abandonment (act + intent to abandon; tip: mere nonuse is not enough to abandon
an easement)
• Estoppel (a statement by the dominant estate holder and reliance by the servient estate holder)
• Prescription (the easement is blocked for the statutory period)
• End of necessity (this applies only for an easement by necessity)
License: A license can be created orally. It is revocable at will unless coupled with an interest
or reliance.
Profit: a profit is the right to go onto land and take a resource (e.g., wood, coal, etc.) away.
Landlord-Tenant Issues
CONCURRENT ESTATES
Types of tenancies
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Tenancy for fixed term (also called a tenancy for term of years): a tenancy for a specific period of time (not necessarily “years”).
Periodic tenancy: a tenancy without a specific end date.
Tenancy at will: a tenancy that either party may terminate without notice.
Tenancy at sufferance: A tenancy that occurs when a tenant stays past the end date of his lease, and the landlord fails to evict.
Lasts until landlord evicts or accepts a new lease term.
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The tenant must pay rent and not commit waste. The landlord can require a security deposit.
The landlord covenants (express or implied) that the tenant will have quiet enjoyment (right to possess property without interference).
There is an implied warranty of habitability for residential property where the landlord must keep property in habitable condition.
A landlord constructively evicts a tenant if there is something that renders the premises unusable, the landlord fails to act after
notice, and the tenant leaves. Tip: the tenant must actually leave to win an eviction action.
Rights and duties of landlord and tenant
Termination
(1) Eviction: if the tenant does not pay rent, the landlord can evict the tenant from the property.
(2) Surrender: If the tenant does not pay rent but has abandoned the property, the landlord can treat it as a “surrender.”
This excuses future rent obligations.
(3) Duty to mitigate: The landlord must try to mitigate damages by re-renting the land. (Note: this duty did not exist at common law.)
Adverse Possession
Adverse possession requirements (CHANGE): Possession must be:
• Continuous: this means that the adverse possessor must use the land like a true owner would (e.g., seasonal use may suffice).
• Hostile: This means without permission. Most states say it does not matter whether the adverse possessor knows she is trespassing.
Some states say the adverse possessor must believe she owns the property. Others say the adverse possessor must believe she
does not own the property.
• Actual: the adverse possessor acquires the land actually used (unless the color of title doctrine applies).
• Open and notorious: the true owner must have actual or constructive notice of the adverse possession.
• It must go on for the statutory period: each jurisdiction has its own statutory period.
• Exclusive: the adverse possessor holds the land to the exclusion of the true owner.
• If the owner fails to oust the adverse possessor before the statutory period runs and the adverse possessor satisfies all of these
requirements, then the adverse possessor has gained legal title, superior to all claims.
Joint tenancy
• Creation (TTIP):
Time, title, interest, possession, plus express
language needs to be used (e.g., “as joint tenants with a right of
survivorship”). Joint tenants have a right of survivorship.
• Destruction
it can be partitioned or it can be severed by one of the G SAM
methods:
giving away one’s interest during one’s life,
signing a contract for sale,
an actual foreclosure (judicial sale) by a judgment creditor,
or
executing a mortgage in a title theory state.
Tip: One cannot give away one’s joint tenancy interest by will.
When a joint tenant dies, the joint tenant no longer has an
interest in the property and instead the property will be given to
the other joint tenant(s).
• Survivorship:
the joint tenant that lives the longest has the sole interest in
the property after the other dies.
Tenancy in common
• Creation:
Only the right to possess the whole is needed. There is no
survivorship right.
Tip: unlike a joint tenant, a tenant in common may devise his
interest (i.e., give away his interest by will).
Tacking is permitted.
If the true owner has a disability (JIM: jail, insane, or minor) at the time the adverse possessor enters, then the statutory time period is
tolled until the disability is lifted.
Color of title: if the adverse possessor has bad title to the land, he will get all of the property (rather than the part actually used), so long
as the tract is unitary and the adverse possessor possesses an amount that is reasonable in relationship to the whole.
Property Transactions
CONTRACTS FOR SALE AND DEEDS
Step one: The contract of sale (K) is signed. General rule: a K must (1) be in writing, (2) be signed by the party to be charged,
and (3) contain essential terms (including the identity of the parties, price, and a description of land).
The seller of the home does not have to disclose defects unless they are not obvious, he knows or should know of
them, and the defect is serious.
A part performance exception exists if the claimant does two of the following three: (1) takes possession, (2) makes
payment in full of a substantial part of the price, or (3) substantially improves the land.
Step two: the K must satisfy or exclude the warranty of marketable title.
Marketable title is one “reasonably free from defects.” It must be given on the day of closing (but one can pay off a
mortgage with the proceeds of a sale).
What makes title unmarketable? (1) Defect in the chain of title, (2) encumbrance (mortgage or easement not
mentioned in the contract), (3) violation of zoning ordinance, or (4) title acquired by adverse possession (in some jurisdictions).
Step three: once the K is signed, legal and equitable title split (equitable conversion).
Equitable title passes to the buyer. If something happens to the property after the K is signed, the risk of loss is
on the buyer.
Legal title remains with the seller. The seller’s interest is the money from the sale.
Step four: Closing occurs. The deed must be executed and delivered! Execution means that the deed identifies the parties,
has words of grant, is signed by the seller, and describes the land. Delivery means intent to pass title presently. Delivery is
presumed to have occurred if the deed is in the grantee’s possession or if it is recorded. Tip: marketable title must be given
on the closing date (not before).
Step five: once delivery occurs, the buyer can only sue on the deed (deed-merger doctrine)!
A quitclaim deed gives no warranties.
A warranty deed gives six covenants:
PRESENT covenants of right to convey, seisen, no encumbrances, and future (FEW) covenants of further assurances,
quiet enjoyment, and warranty.
Tenancy by the entirety
• Creation:
Similar to a JT but the parties must be married. It can only
terminate by death, divorce, mutual agreement, or a mutual
creditor of both executing on its interest.
RELATIONS AMONG COTENANTS
(1) Possession: each tenant may possess the whole.
(2) Profits: In general, a cotenant does not have to share profits that
he makes from the land through his own efforts. Exceptions: if there is
ouster, depletion of natural resources in a way that decreases the
value of the land, or lease to a third party.
(3) Right to contribution for taxes, mortgage payments, and
necessary repairs.
MORTGAGES AND SECURITY DEVICES
• A mortgage indicates the existence of a debt. The mortgagor is
the debtor. The mortgagee is usually a bank that lends money.
Tip: remember “It’s better to be the mortgagee” if you mix up
these terms.
Other types of security devises include an absolute
deed as security (the parties do not call it a “security interest”
but one essentially gives a deed as security), a deed of trust
(similar to a mortgage, but a trustee proceeds with foreclosure),
and an installment land contract (one pays off land in a “lease”
and gets title to the land once all payments are made).
RECORDING ACTS
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Common law: First-in-time first-in-right. One does not need to record one’s interest to have title. However, recording acts
have the power to change the common law result.
Notice statute: a subsequent bona fide purchaser (BFP) for value without notice can obtain title that is superior to someone
who received the property before him.
Race-notice statute: a subsequent BFP for value without notice who records first can obtain superior title.
Notice can be (AIR) actual, inquiry, or record notice.
Purchasers: Mortgagees and those who pay consideration are purchasers. Donees, heirs, and judgment lien
creditors are not purchasers.
Shelter rule: this allows traditional grantees who are not protected by the recording act to prevail by “sheltering”
under the rights of those who conveyed the land to them.
Estoppel by deed: if a grantor transfers property to a grantee (when he does not have title to the property) by warranty
deed and then later acquires title, the title will automatically go to the grantee unless the grantor later gave the land to a BFP.
EMINENT DOMAIN
Fifth Amendment: private property shall not be taken for public use
without just compensation.
Physical taking: requires compensation regardless of whether public
interests are served by the taking.
Regulatory taking: any physical invasion or action that denies the owner
of all economic value constitutes a taking.
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Torts
Intentional Torts
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Assault: the defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension of such contact) and an imminent apprehension directly or indirectly results.
o Apprehension does not mean fear. Apprehension is knowledge or anticipation of the impending contact.
Battery: the defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension of such contact) and a harmful or offensive contact directly or indirectly results.
o Doctrine of personal autonomy: contact with anything reasonably associated with the person satisfies the contact requirement.
o Garratt v. Dailey: Defendant pulled chair out from woman trying to sit down. While Defendant did not purposely harm Plaintiff, substantial certainty that harm would occur is sufficient to establish intent.
False imprisonment: the defendant acts with intent to confine or restrain the plaintiff to a bounded area, actual confinement occurs, and the plaintiff either knows of the confinement or is hurt by it.
Intentional infliction of emotional distress (IIED): The defendant intentionally or recklessly engages in extreme or outrageous conduct that causes the plaintiff to suffer severe emotional distress.
The plaintiff does not need to show physical symptoms in order to prevail. However, the plaintiff must show he suffered “severe emotional distress.”
Trespass to land: the defendant physically invades the land of another and intends to be where he is.
o It must be a physical invasion. An intangible invasion (e.g., lights or loud noises) might constitute a nuisance but not trespass.
o Only the entrance must be intentional. The entrant does not need to know that the land belongs to another.
Trespass to chattels: The defendant intentionally interferes with another’s use or possession of his personal property and harm results. The damages are the cost to repair the property.
Conversion: The defendant intentionally interferes with another’s personal property and a serious and substantial harm results. The damages are the fair market value of the property or replevin.
o The difference between trespass to chattels and conversion is the amount of damage. Significant/total damage = conversion.
Defenses to Intentional Torts
Consent: this can be express or implied.
o Exceptions: incapacity (e.g., children), duress, consent obtained by fraud, or conditional consent.
o O’Brien v. Cunard Steamship Co.: holding out arm while embarking ship constitutes implied consent for vaccination when all of the other passengers were being vaccinated.
Self-defense, defense of others: The defendant reasonably believes force is necessary to protect against the unlawful use of force. (Subjective and objective component—the defendant must reasonably believe
he is in danger AND a reasonable person would think he is in danger.)
o The amount of force used in defense must be reasonable. The defendant cannot use deadly force unless he reasonably believes he faces deadly force.
Defense of property: the defendant may use reasonable (not deadly) force to protect against an imminent threat to property.
o Merchant’s defense: store owner can reasonably detain a person the store owner reasonably believes has stolen goods.
Public necessity: the defendant acts to protect the public from a greater harm that would have occurred had he not acted.
Private necessity: The defendant acts to protect an interest of his own. He is not liable for a tort, but he must still pay for actual damage caused.
o Ploof v. Putnam: Plaintiff moored boat to Defendant’s dock to wait out a storm. Defendant wrongfully untied the boat. Plaintiff is not liable for trespass but must pay for damage.
Transferred-intent doctrine: intent can “transfer” for torts involving assault, battery, false imprisonment, trespass to land, or trespass to chattels.
Tender-years doctrine: in most states, children under the age of seven cannot be liable for intentional torts.
INTRODUCTION TO NEGLIGENCE
Negligence replaces the common law strict liability approach, which found liability regardless of whether the defendant acted reasonably.
Elements of negligence: To sue for negligence, one needs to show all four elements: (1) duty, (2) breach, (3) causation—both actual and
proximate cause, and (4) damages.
1. DUTY
The reasonably prudent person standard applies. Heaven v. Pender. A few factors are considered in determining if the defendant was acting as a reasonably prudent person:
• Children: Use a subjective standard for children. Look at the age, intelligence, and experience of the child. An exception exists if the child was engaged in an adult activity. If the child was engaged in an
adult activity, use the reasonably prudent person standard. Examples of an adult activity include shooting a gun or driving a car or boat.
• Physical characteristics: take into account if the defendant is physically impaired, but do not take into account if he is mentally impaired.
• Professionals: take into account the defendant’s superior knowledge.
• Emergencies: the jury is instructed to ask what a reasonably prudent person in the same situation would do.
A few other factors to consider when noting the duty owed by the defendant:
• Custom: Custom is generally evidence of a duty of care. In professional malpractice cases, it is conclusive evidence.
• The T.J. Hooper: Industry custom is for ships to have radios. A ship without a radio got lost in a storm. That all other ships have radios is merely evidence that a reasonably prudent person would
have a radio, it is not conclusive.
• Duty to control third parties: Generally, there is no duty to control the conduct of third parties. However, there is a duty to act reasonably to control third parties if one has a special relationship with the third
party (e.g., an owner and the occupiers of his land, a prison and its prisoners, or a mental institution and its patients).
• Nonfeasance vs. misfeasance: Generally, there is no duty to affirmatively act to warn or prevent harm. There are several exceptions:
Volunteers: once someone chooses to rescue, he has a duty to act reasonably.
Relationship with victim: a special relationship, such as parent-child or landlord-tenant, may create a duty to act reasonably.
Owners and occupiers of land
• Undiscovered trespasser (a person the premises possessor does not or should not know of): No duty of care is owed. However, the premises possessor must not act wantonly or willfully.
• Discovered trespasser (a person the premises possessor knows or should know is trespassing): the premises possessor must warn of or make safe unreasonably dangerous artificial
conditions that he knows of.
• Licensee (social guest): the premises possessor must warn of or make safe all concealed dangers that he knows of.
• Invitee (one that enters a public place or business): The premises possessor has a duty to inspect the premises for danger and must warn of or make safe all dangers that he knows or should know of.
Tip: this is the only case where a duty to inspect is imposed on the premises possessor.
Negligence per se (violation of a statute)
If the plaintiff establishes negligence per se, the plaintiff has conclusively proven duty and breach. He still must prove causation and damages for his negligence claim.
• Elements: (1) violation of a statute, (2) a person within the class of persons the statute is designed to protect was injured, and (3) the type of injury the statute was designed to prevent occurred.
• Exceptions: impossible to comply with statute, a reasonable effort to comply was made, compliance is unsafe.
2. BREACH
The plaintiff must show that the defendant breached his duty of care.
Res ipsa loquitor: When the circumstances surrounding the injury are unclear, if the plaintiff can show that the injury was likely the result of negligence and that it was likely the defendant that was negligent
(e.g., if the defendant had exclusive control of the instrumentality causing the injury), the plaintiff has made a case for breach. Tip: If the plaintiff can show this, it means that the case should go to trial, and
no directed verdict should be entered for the defendant. It does not necessarily mean that the plaintiff wins his case.
• Byrne v. Boadle: While passing by a building, Plaintiff was injured by barrel of flour being lowered from above. Even though Plaintiff could not show how Defendant was negligent, there is
a presumption of negligence when the flour was within Defendant’s control.
Learned Hand formula (from United States v. Carroll Towing Co.): burden of preventing accident < (probability x loss from accident) (B<PL)
If the burden of prevention is less than probability times loss, it is likely a breach of the duty of care to not take steps to prevent the accident.
3. CAUSATION
There are two types of causation that must be present—actual (but for) and proximate.
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Actual (but-for) cause: There must be a factual connection between the breach and the injury suffered. (Ask yourself: But for the defendant’s actions, would the injury have occurred anyway?
If yes, then there is no actual cause.)
o Multiple causes: If there are two or more defendants, use the substantial factor test. If the defendant’s breach was a substantial factor in causing the harm, the defendant is liable.
o Alternative causes: The plaintiff must show that all potential defendants are joined in the lawsuit and all defendants are negligent. The burden then shifts to each defendant to show his breach of
duty was not the actual cause of the harm.
• Summers v. Tice: Two hunters shoot at deer; one of them hits third hunter. No one knows which of two shooters hit third hunter. The alternative causes doctrine may be used to hold the defendants liable.
o Market-share liability: The plaintiff is injured by a product that is produced by multiple manufacturers, each with a share of the market. It is impossible to determine which manufacturer made the product.
All market participants are actual causes of the plaintiff’s harm.
Proximate cause: The harm must be a foreseeable result of the breach. Tip: Watch out for an extraordinary or unforeseeable sequence of events at the time of the act or an unforeseeable intervening action.
Examples of harm that is considered foreseeable: (1) medical malpractice that occurs after an accident, (2) harm that occurs during rescue efforts to protect life/property endangered by the defendant’s negligence,
or (3) disease or subsequent accident that occurs after an accident.
o Palsgraf v. Long Island Railroad Co.: Railroad attendant assisted by pushing passenger holding box of explosives onto moving train, causing box of explosives to fall and explode. Explosion caused scale
on the platform to fall on Plaintiff. This type of harm to this Plaintiff was not foreseeable, so the railroad is not the proximate cause of Plaintiff’s injuries.
4. DAMAGES
The plaintiff must suffer actual harm to successfully sue in a negligence action. Economic damages are those that relate to the loss (e.g., medical bills and lost wages). Noneconomic damages are compensation
for nonmonetary losses (e.g., pain and suffering).
• There are three types of damages:
(1) Actual/compensatory: compensates the plaintiff for the loss or injury that has occurred.
(2) Nominal: a trivial sum of money awarded to the plaintiff, who has established a cause of action but has not established damages.
(3) Punitive: Designed to punish the defendant for outrageous conduct and deter others from acting similarly. Tip: this is usually only available if the defendant’s conduct was reckless, malicious, or willful
and wanton.
Tip: The plaintiff must show actual damages to recover in a negligence action. The plaintiff cannot recover punitive damages or nominal damages in a negligence action.
• The plaintiff is not permitted to recover in negligence or strict liability if he has suffered a pure economic loss (i.e., no injury to himself or his property).
Eggshell-skull rule: recovery is allowed if some harm is foreseeable, even if the extent of the plaintiff’s harm was unforeseeable.
Negligent Infliction of Emotional Distress (NIED)
This claim is brought when a plaintiff suffers emotional distress as a result of the defendant’s negligence. There are two methods of establishing NIED:
(1) Zone-of-danger rule: the defendant acts negligently, the plaintiff is within the zone of danger, the plaintiff fears an impact (a near miss), and there is a physical manifestation of that fear (e.g., heart attack, miscarriage).
(2) Bystander recovery: The defendant acts negligently, the plaintiff witnesses the negligent injury of a close relative, and the plaintiff suffers physical symptoms of emotional distress. But, a court may liberalize rules where
the defendant’s negligence creates a great likelihood of distress (e.g., mishandling of a corpse).
Affirmative Defenses to Negligence
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Contributory negligence: the plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to avoid the injury.
Comparative negligence: a judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each.
o Pure comparative negligence: The plaintiff can recover no matter how negligent he is. His damages are simply reduced by his percentage of fault.
o Partial (modified) comparative negligence: if the plaintiff was more at fault than the defendant (or, in some states, if the plaintiff and the defendant were equally at fault), then the plaintiff cannot recover.
Assumption of risk: If the plaintiff knew of the risk and voluntarily assumed it, generally he cannot recover damages (however, some courts will analyze assumption of risk using a comparative
fault analysis). It can be express or implied.
Multiple Defendant Issues
• Joint and several liability: In a joint and several liability jurisdiction, the plaintiff may recover all of his damages from any single defendant (and the defendant may seek contribution from the codefendant(s)).
Each defendant is liable for all damages. In a several liability jurisdiction, each defendant is liable for only his percentage of fault.
• Employees and other agents: Employers or principals are vicariously liable for the torts of their employees or agents that are committed in the course and scope of employment or agency. (Note: Intentional
torts are usually outside the scope of employment unless they were foreseeable or they were committed for the purpose of serving the employer.) If an employer is found liable under this theory, he
may seek indemnity (i.e., full payback) from his employee.
• Independent contractors: A principal generally is not liable for the torts of his independent contractors. However, a principal is liable if the duty is nondelegable or an inherently dangerous activity.
The principal may also be liable for his own negligence in hiring, firing, or supervising the contractor. Tip: a duty generally is nondelegable if it involves safety.
• Parents generally are not vicariously liable for the acts of their children. However, a parent may be directly liable for his own negligence (e.g., failure to supervise).
Strict Liability
In a strict liability case, the plaintiff must prove duty (which, in this case, is absolute), causation, and harm. Tip: in a strict liability case, whether the defendant was acting reasonably is immaterial.
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Abnormally dangerous activities: an abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a
matter of common usage in the community.
o Restatement (Second) of Torts: Factors to consider in determining whether an activity is “abnormally dangerous”: existence of high degree of risk, likelihood of great harm, inability to eliminate
risk by reasonable care, extent to which activity is a matter of common usage, inappropriateness of activity to place carried on, and extent to which value outweighs risk.
o Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.: Hazardous material leaked from train car. Court held that strict liability does not apply—the accident could have been avoided by
reasonable care. Thus, this is an ordinary negligence matter.
Wild animals: Defendant is strictly liable for foreseeable harms caused by wild animals. Examples of wild animals include skunks, bears, and monkeys. Dogs, cats, cows, and honey bees
are not wild animals.
Strict liability also applies to products liability.
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