Multistate Bar Exam Flashcards
(With CA Distinctions)
July 2021
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CALIFORNIA MBE FLASHCARDS
TABLE OF CONTENTS
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Criminal Law and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Evidence (Fed & CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
Civil Procedure (Fed & CA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77
Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127
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Contracts
Types of Contracts:
Unilateral Contract
Offer expressly requires performance as method for
acceptance.
1) Performance divided into 2 + parts under K;
Types of Contracts:
Divisible Ks:
Types of Contracts:
Option K
Types of Contracts:
Advertisements
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2) Number of parts due from each party is the
same; and
3) Performance between parties is equivalent.
Agreement to leave open in exchange for
consideration.
Generally preliminary proposal unless words are to
identifiable person (e.g. first come first serve).
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Contracts
Types of Contracts:
Quasi-K:
Types of Contracts:
Mixed contracts
Offer:
General Requirements
Equitable remedy when K results are unfair.
Prevents unjust enrichment.
Determined by the more important part of the deal,
except divided contracts in which both UCC and
common law rules may apply
1) A manifestation of a present intent to contract
demonstrated by promise, undertaking or
commitment;
2) Definite and certain terms; and
3) Communicated to an identified offeree.
Must include description.
Offer:
Specific Requirements for Sales K
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Under UCC: must also include quantity. If no price
included in offer, price will be a reasonable price at
time of delivery.
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Contracts
Offer:
Specific Requirements for
Real Estate K
Must identify land and price.
Offer:
Specific Requirements for
Employment K
What is Revocation?
Must include duration of employment.
Unambiguous statement by offeror to offeree or
unambiguous conduct indicating unwillingness to
K that offeree is aware of.
Offer can’t be revoked for up to 3 months if:
Revocation:
1) Offer to buy or sell goods;
Firm Offer under UCC
2) Signed written promise to keep open; and
3) Party is merchant.
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Contracts
1) Option K
Revocation:
Instances Where Offer Irrevocable
2) Detrimental reliance (must be reasonably
foreseeable )
3) Start of performance
1) Counteroffers kill
Rejection of Offer
2) Adding terms under common law mirror image
rule
3) Lapse of time ( e.g. > 1 month)
4) Conditional acceptance
Definition of Acceptance
A manifestation of assent to the terms of an offer in
the manner prescribed or authorized by the offer.
1) Full performance
2) Start performance: for bi-lateral K, but not for
unilateral K.
What Constitutes Acceptance?
3) Seller of goods sends wrong goods, unless with
explanation (then it’s a counteroffer)
4) Offeree promise to perform
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Contracts
Acceptance effective when mailed.
Mailbox rule
All else effective when received.
Common law: Mirror Image Rule.
Under UCC:
What if acceptance includes
additional terms?
One party is merchant → add’l term is proposal
subject to separate rejection;
Both parties merchants → add’l term is part of K
unless (1) materially alters K; (2) offeror objects
within reasonable time; or (3) offer limits acceptance
to the terms.
Requires bargained-for exchange of legal detriment
between parties.
Consideration
Substitutes for consideration:
1) Written promise when prior obligation had
applicable legal defense
2) Promissory estoppel.
Not considered consideration, except expressly
requested performance/forbearance and expectation of
payment.
Past Consideration
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New consideration required for pre-existing K or
statutory duty: except in CL, unforeseen difficulty,
third party promise or promise to pay debt barred by
SoL.
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Contracts
1) Incapacity
2) Illegality
3) Against Public Policy
Defenses to a Contract
4) Misrepresentation/Nondisclosure
5) Duress
6) Ambiguity/Misunderstanding
7) Mistake
8) Statute of Frauds
Defenses to a Contract:
Incapacity
Under 18 → has a right to disaffirm K unless minor
retains benefit after gaining capacity.
Subject matter illegal → K is void;
Defenses to a Contract:
Illegality
Defenses to a Contract:
Against Public Policy
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Subject matter is legal, but purpose is illegal → K
enforceable only by person who didn’t know of illegal
purpose.
May include covenants not to compete, exculpatory
clauses, etc.
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Contracts
Defenses to a Contract:
Misrepresentation/Nondisclosure
Innocent party may rescind if induced to enter K by
fraudulent misrepresentation or non-fraudulent
material misrepresentation.
1) Each party uses a material term open to two
reasonable interpretations;
Defenses to a Contract:
2) Each party attaches diff meaning to term; and
Ambiguity/Misunderstanding
3) Neither party knows or has reason to know the
term is subject to two interpretations causing
ambiguity.
Defenses to a Contract:
Mistake
Mutual mistake → No K if mutual mistake on basic
assumption of fact that materially affects agreed upon
exchange and not a risk that either party bears.
Unilateral mistake → not voidable unless other party
knew or should have known.
Applies to MY LEGS:
(1) Marriage;
Defenses to a Contract:
Statute of Frauds
When does it apply?
(2) Contract for 1 Year +;
(3) Land;
(4) Executory guarantee;
(5) Goods > $500;
(6) Suretyships.
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Contracts
Satisfy by:
Defenses to a Contract:
Statute of Frauds
How is it satisfied?
Defenses to a Contract:
Statute of Frauds
What are the writing requirements?
Defenses to a Contract:
1) Performance;
2) Writing; or
3) Judicial admission.
In real estate, part performance requires 2 out of 3 of
the following: (i) payment; (ii) possession; or (iii)
improvements.
Non-UCC: parties, subj matter, terms & conditions,
consideration, and signature.
UCC: quantity terms and signature, unless
confirmatory memo of oral K and no objection within
10 days.
Improper threat and no reasonable alternative.
Duress
Defenses to a Contract:
Unfair surprise and oppressive terms at time of K.
Unconscionable
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Contracts
Integration issues: (1) Did parties intend K to be final
agmt? (2) Was integration complete or partial?
Contract Terms:
Parol Evidence Rule
Merger clause: highly persuasive but not
determinative K is fully integrated.
No PE to reform or contradict written terms, unless
there’s a mistake in integration.
Parol Evidence ok to:
Contract Terms:
When is Parol Evidence allowed?
1) Argue defense to enforcement;
2) Explain ambiguous terms;
3) Provide add’l terms if only partial integration, or
4) Provide add’l terms if they would ordinarily be in
separate agreement.
Contract Terms:
Rules of Construction used by Court
when interpreting K
1) Course of performance (same ppl, same K);
2) Course of dealing (same ppl, similar K); or
3) Custom and usage (diff ppl, similar K).
Either Shipment Ks or Destination Ks.
UCC – Delivery Obligation
FOB means “free on board.”
If city is where seller is located → shipment K.
If buyer's city → destination K.
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Contracts
Determined by agreement.
UCC – Risk of Loss
UCC – Risk of Loss:
Delivery by Common Carrier
Breach (even slight) shifts risk of loss.
Shipment K → risk of loss to buyer when seller
delivers to carrier.
Destination K → risk of loss to buyer when seller
delivers to buyer.
Merchant seller → risk of loss to buyer on receipt of
goods.
UCC – Risk of Loss:
Non-merchant seller → risk of loss to buyer upon
tender.
If No Common Carrier Used
If risk of loss on buyer → buyer pays full K price.
If risk of loss on seller → possible liability on seller
for non-performance.
UCC – Express Warranties
Seller liable for breach (statements of fact, promises,
description of goods, etc.).
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Contracts
UCC – Implied Warranty of
Implied in K if dealing in goods of that kind. Goods
must be fit for their ordinary purpose.
Merchantability
All Ks have implied warranty of good faith and fair
dealing.
Implied that goods are fit for particular purpose if:
UCC – Implied Warranty of
Fitness for a Particular Purpose
1) Seller has reason to know of particular purpose;
and
2) Buyer relies on seller’s skill and judgment when
buying goods.
Occurs when a party refuses to perform under the
terms of the agreement.
Breach of Contract
Sale of Goods:
Perfect Tender
Such breaches are categorized as either material or
minor, with material breaches excusing the other party
from performance.
Seller’s performance must be perfect or buyer can
reject.
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Contracts
Buyer can retain and sue for damages or reject all of a
commercial unit and sue for damages.
Sale of Goods:
Rejection of Goods
Cure: Seller has second chance at perfect tender if:
1) S had reasonable grounds to believe delivery
would be accepted; or
2) Time to perform hadn’t expired.
Sale of Goods:
Installment K’s
B can reject installment only if there is a substantial
impairment that can’t be cured.
If accepting goods, B can’t later reject.
Sale of Goods:
Acceptance of Goods
Payment doesn’t equal acceptance w/o opportunity to
inspect.
Implied acceptance if B keeps for reasonable amount
of time.
If B has not accepted goods, B may cancel K by
revoking acceptance if:
Sale of Goods:
Revocation
1) Nonconformity substantially impairs value of
goods;
2) Excusable ignorance of grounds for revocation or
reasonable reliance on S’s assurance; and
3) Revocation within reasonable time after
B discovers nonconformity.
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Contracts
Substantial performance
Common Law Rule for Performance
1) Improper performance by other guy
(material breach)
Excuses for Non-Performance
2) Non-occurrence of condition (mutually agreed
promise requiring strict compliance)
3) Anticipatory Repudiation
4) Insecurity
Several options for relying party:
Excuses for Non-Performance:
Anticipatory Repudiation
1) Excuse relying party from performance and
immediately sue for damages (not avail if relying
party fully performed);
2) Suspend performance and wait until performance
date to sue;
3) Treat repudiation as offer to rescind and treat K
as discharged. Retraction ok if other party hasn’t
materially changed position.
Excuses for Non-Performance:
Insecurity
If reasonable grounds, relying party can demand
adequate assurance and may suspend performance.
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Contracts
Effect of Later Contract:
Only if performance not completed.
Rescission
Effect of Later Contract:
Modification
Effect of Later Contract:
Novation
Effect of Later Unforeseen Event:
Impossibility
Mutual agreement to accept different agreement to
satisfy existing K.
CL: new consideration needed to modify.
UCC: not needed to modify, but must show good faith
for modification.
Mutual agreement to substitute existing party with
another, excusing performance of substituted party.
Performance can’t be done (damage, destruction,
death, subsequent law or regulation).
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Contracts
Effect of Later Unforeseen Event:
Impracticability
Effect of Later Unforeseen Event:
Can’t be done without extreme and unreasonable
difficulty or expense.
Increase in seller cost rarely an excuse.
Unforeseeable supervening event destroys K purpose.
Frustration of Purpose
1) Specific Performance
2) Rescission
List of Non-Monetary Remedies
3) Reformation
4) Reclamation
Typically limited to real estate and sale of unique
goods, but never for services.
Non-Monetary Remedies:
Specific Performance
Requirements:
1) Valid K;
2) Conditions satisfied:
3) Inadequacy of legal remedies;
4) Mutuality; and
5) Feasibility of enforcement.
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Contracts
Cancels K.
Non-Monetary Remedies:
Rescission
Grounds for rescission: mutual mistake or unilateral
mistake if non-mistaken party would suffer undue
hardship or knew of mistake.
No negligence.
Non-Monetary Remedies:
Reformation
Changes written agreement to conform to parties’
original understanding.
Requirements: valid K, grounds for reformation.
No negligence, Statute of Frauds, Parol Evidence
Rule.
Right of unpaid seller to get goods back.
Non-Monetary Remedies:
Reclamation
Rights of good faith purchaser in
entrustment
Only if Buyer was insolvent at time of receipt and
Seller makes demand for return within 10 days of
buyer’s receipt or reasonable time if buyer gives
express representation; and buyer has goods at time of
demand.
Owner entrusts goods to person who sells that kind of
good and person wrongfully sells to third party
GFP cuts off right of original owner.
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Contracts
Monetary Damages:
Puts P in position as if K was not breached.
Expectation Interest
Monetary Damages:
Reliance Interest
Monetary Damages:
Puts P in same dollar position as if K was not
breached.
Prevents D’s unjust enrichment.
Restitution Interest
1) S breaches/B keeps – difference between value of
goods delivered and fair market value had they
been perfect.
Damages for Sale of Goods
2) S breaches/S keeps – difference between K price
and either market price or cost of replacement.
3) B breaches/B keeps – S recovers K price.
4) B breaches/S keeps – Difference between market
and K price.
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Contracts
Incidental Damages
Foreseeable Consequential Damages
Cost for finding replacement.
Damages from P’s special circumstances, only if D
had reason to know of special circumstances.
Avoidable damages: P must mitigate.
Limitations on Damages
Certainty: Loss must be proved with reasonable
certainty.
K fixes amount of damages.
Liquidated Damages
Valid if: Damages difficult to ascertain & reasonable
forecast.
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Contracts
Third Party Beneficiaries
Incidental TPBs don’t have K rights, only intended
TPB’s do.
No cancellation or modification after TPB’s rights
have vested by either relying, assenting or suing for
enforcement.
One party transfers rights under K to assignee.
Language important: If K states “Rights under this K
are not assignable” → Assignment is still valid.
Assignment of Rights
Assignor is liable for breach but assignee who doesn’t
know of prohibition can enforce.
BUT, if K states “All assignments under this K are
void” → Assignments are invalidated.
Gratuitous assignment: can be revoked; last gratuitous
assignment wins.
Gratuitous Assignment of Rights
v.
Assignment for Consideration
Assign for consideration: no recovery from obligor.
(i) Assignor implies warranty that right exists;
(ii) Right not subject to any defenses;
(iii) Assignor won’t do anything to impair value
of assignment.
First assignment for consideration wins.
Allowed unless K prohibits delegation, K calls for
very special skills, or K has very special reputation.
Delegation
If 3rd party doesn’t perform, delegating party always
remains liable.
Delegatee liable only if receives consideration from
delegating party, in which delegatee is liable to
delegating party and obligee.
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Constitutional Law
A SPERM:
Federal Judicial Power:
Justiciability
Abstention
Standing
Political Standing
Eleventh Amendment/Sovereign Immunity
Ripeness
Mootness
Justiciability:
Fed can’t enjoin pending State Court proceeding.
Abstention
Justiciability:
Standing Requirements
Justiciability:
Third Party Standing
Requirements: (Pickled Doughnuts Cause Reflux)
1) Personal & Direct Injury;
2) Causation;
3) Redressibility.
No Third party standing except- if (i) close
relationship; and (ii) injured 3rd party unlikely to
assert his own rights.
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Constitutional Law
Justiciability:
Associational Standing
1) Individuals have standing;
2) Germane to organization’s purpose; and
3) Neither claim nor relief requires participation of
individuals.
Will not adjudicate challenges to:
Justiciability:
Political Question
1) Amendments;
2) Foreign policy;
3) Republican form of government;
4) Impeachment; or
5) Partisan gerrymandering.
States can’t be sued in Fed Ct unless:
1) Fed gov’t sues;
Justiciability:
2) Express waiver; or
3) Congress clearly removes immunity.
11th Am/Sovereign Immunity
4) State sues another State
5) Suing state official re: abuse of power for
enforcement of unconstitutional law.
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Constitutional Law
Justiciability:
Some violation of law or when nothing to be gained
with actual violation.
Ripeness
Must be live controversy.
Justiciability:
Mootness
Except:
1) Wrongs capable of repetition but evading review;
2) Voluntary cessation;
3) Class actions.
Police Power
What are the Federal Legislative Powers?
General Welfare
Commerce Power
Federal Legislative Power:
Police Power
None except MILD:
Military; Indian reservations; Land (Fed);
and District of Columbia.
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Constitutional Law
Federal Legislative Power:
May only tax and spend.
General Welfare
(1) Channels of interstate commerce (IC);
Federal Legislative Power:
Commerce Power
Federal Legislative Power:
Limitations
What are the Federal Executive Powers?
(2) Instrumentalities of IC;
(3) Substantial effect on IC (cumulative impact for
economic activity only).
10th Amendment - Can’t compel states to regulate or
act, but may induce with strings on grants if expressly
stated & related to purpose.
14th Amendment – Congress can't create new or
expand existing rights. Only prevent or remedy
violations of existing rights if proportionate/congruent
to violation
1) Treaties
2) Executive Agreements
3) Appointments
4) Removal
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Constitutional Law
Must be ratified by Senate but no Senate approval
required to void.
Federal Executive Powers:
Treaties
Conflicts:
State law – State law is invalid.
Fed law – Last adopted controls.
US Constitution – Treaty invalid.
No Senate approval needed.
Federal Executive Powers:
Executive Agreements
Conflicts:
State law – State law is invalid.
Exec Agreement never valid over conflicting Fed law
or Constitution.
Federal Executive Powers:
Appointments
Federal Executive Powers:
Removal
President appoints: (i) ambassadors, (ii) Fed judges,
and (iii) exec officers with Senate confirmation.
Congress may vest appointment authority but may not
give itself appointment power.
Unless limited by statute, President can fire exec
officer.
Congress may limit if independence from President
desirable AND may only limit removal with good
cause.
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Constitutional Law
Impeachment
Removed for treason, bribery, and high crimes &
misdemeanors.
Requires majority house vote and conviction in Senate
by 2/3.
Constitution and laws/treaties made pursuant to it are
supreme.
Supremacy Clause:
Express or Implied (either Fed/State law mutually
exclusive; State law impedes on Fed objective; or
Congress evidences clear intent to preempt).
Tax: can’t pay state tax out of Fed treasury, but can
tax private store on Fed land.
Dormant Commerce Clause
Privileges and Immunities Clause
of Art IV
State or local law is unconstitutional if it places
excessive burden on interstate commerce.
State may not deny citizens of other states of the
privileges and immunities it accords its own citizens.
Limit – corps and aliens can’t sue under P&I.
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Constitutional Law
Required before Constitutional provisions applied to
private entities.
Individual Liberties:
State Action
Occurs if excessive state financial entanglement or
where entity performs public function.
Entanglement = gov’t authorizes, encourages, or
facilitates activity.
Levels of Scrutiny:
Rationally related to legitimate gov’t interest.
Rational Basis
Levels of Scrutiny:
Intermediate Scrutiny
Levels of Scrutiny:
Strict Scrutiny
Law must be substantially related to an important
gov’t interest.
Must be narrowly tailored to achieve objective.
Law must be necessary to achieve a compelling state
interest.
Must be least restrictive means necessary to achieve
objective.
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Constitutional Law
Deprivation of life, liberty or property (only if
entitlement)?
If yes, balance:
Procedural Due Process
1) Importance of interest to individual;
2) Ability of additional procedures to increase
accuracy of fact finding;
3) Gov’t interest in fiscal & admin efficiency.
Substantive Due Process:
Rational basis, limited protection.
Economic Liberties
State/local law effecting already existing Ks →
intermediate scrutiny:
Substantive Due Process:
Contracts Clause
1) Substantial impairment of K relationship;
2) Whether state law is designed to promote a
significant and legitimate public purpose; and
3) Narrowly tailored?
Substantive Due Process:
Takings Clause
5th Amendment provides that private property may
not be taken for public use without just compensation.
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Constitutional Law
(1) Denial of all economic value or (2) decrease of
economic value that leaves no economically viable
use for the property.
Substantive Due Process:
What Constitutes a Taking?
Court considers:
1) The social goals;
2) Diminution in value to owner; and
3) The owner’s reasonable expectations.
If reduction in value > promotion of pub welfare →
taking.
Substantive Due Process:
Taking for Public Use
Must be rationally related to a legitimate public
purpose.
If not, gov’t must pay for land or give land back +
damages.
1) Contraception
Substantive Due Process:
What are Fundamental Rights?
(Require Strict Scrutiny)
2) Abortion
3) Right to Privacy
4) Procreation
5) Speech
6) Parenting/Custody
7) Extended Family together
8) Rights under First Amendment
9) Marriage
Before viability → no prohibition, but regulation OK
so long as not an undue burden.
Substantive Due Process:
Abortion
After viability → states may prohibit unless necessary
to protect life of mother.
Spousal notice/consent → unconstitutional.
Parental notice/consent for minors OK, but only if
alternative judicial approval process.
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Constitutional Law
Equal Protection:
Constitutional Provisions
State/Local → 14th Amendment.
Fed → 5th Amendment Due Process Clause.
(State/Local vs. Federal)
Exists if: Discrim on face or discrim impact + intent.
Strict Scrutiny: Set asides/quotas (requires clear proof
of past discrim and congruent remedy).
Equal Protection:
Race/National Origin
College Admissions: Race can be a factor b/c of
compelling interest of diversity, but may not simply add
pts or have a set aside.
Public secondary schools: Not OK.
Apportionment: Consideration OK but can’t be
predominant.
Exists if: Discrim on face or discrim impact + intent.
Equal Protection:
Gender:
Intermediate Scrutiny.
Role Stereotypes: Not OK.
Remedial measures: OK if designed to address past
discrim and difference in opportunity.
Strict Scrutiny (generally).
Equal Protection:
Alienage:
BUT re: self gov’t/democratic process → Rational
Basis (e.g. voting, jury service, being police or
elementary/secondary teacher).
Undocumented Alien Children → Intermediate
Scrutiny (right to education).
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Constitutional Law
Equal Protection:
Intermediate Scrutiny.
Non-Marital Children
Equal Protection:
Right to Travel
Equal Protection:
Right to Vote
Strict Scrutiny ( e.g. preventing people from moving
or residency req’ts).
Strict Scrutiny.
At large elections OK unless proof of discrim purpose.
Fee can’t preclude indigent.
Equal Protection:
Political Candidacy
Ballot access regs must be reasonable and non discrim
means of promoting important state interest.
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Constitutional Law
Age
Disability
Equal Protection:
Wealth/Economic
When is Rational Basis Applied?
Sexual Orientation
Education
Content based→ Strict Scrutiny.
First Amendment:
Restrictions on Speech
Content Based vs. Content Neutral
Two types:
Subject matter - Law restricts topic of speech.
Viewpoint - Restricts specific ideologies.
Content Neutral → Generally intermediate scrutiny.
First Amendment:
Judicial order or admin system stopping speech before
it occurs.
Prior Restraints
Strict Scrutiny.
First Amendment:
Prior Restraints
(Preliminary Injunctions)
Requires:
1) Narrowly drawn, reasonable & definite;
2) Injunction promptly sought;
3) Prompt and final determination.
Person must act according to injunction until
overturned. If in violation, no challenge.
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Constitutional Law
First Amendment:
Must be no discretion in licensing authority.
Prior Restraints
Must contain procedural safeguards like prompt
determination of requests for licenses and judicial
review.
(Licenses/Permit)
Vagueness: Reasonable person can’t tell what is
prohibited/allowed.
First Amendment:
Facially Invalid Regulations
Overbreadth: Regulates substantially more speech
than Constitution allows.
Unfettered discretion: Too much power given to
licensing authority.
Note: Fighting word bans are unconstitutional as
vague and overbroad.
Conduct that communicates.
First Amendment:
Symbolic Speech
First Amendment:
Lesser Protected Speech:
Test: Reg OK if (1) Important state interest
independent of suppression of message; and (2)
Impact on communication no greater than necessary.
(Intermediate Scrutiny)
Types: Flag burning protected. Draft card and nude
dancing not protected. Burning cross protected unless
done with intent to threaten. Contribution limits OK;
expenditure limits unconstitutional.
Punishable if (1) Substantial likelihood of imminent
illegal activity; and (2) Speech directed to causing
imminent illegality.
Incitement of Illegal Activity
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Constitutional Law
Test: PIPS – Prurient Interest. Patently offensive.
Serious value (lack of).
First Amendment:
Lesser Protected Speech:
Obscenity
First Amendment:
Obscenity – Zoning Restrictions
Prurient interest = Local standard of shameful and/or
morbid interest in sex.
Patently offensive = Local standard.
Serious value = No redeeming artistic, literary,
political or scientific value based on national
reasonable person standard.
OK to regulate location and size of adult bookstores
and movie theaters in order to target secondary
effects.
Generally protected, except:
First Amendment:
Profane and Indecent Language
Broadcast Media: Radio station/free network TV
because of intrusiveness into home and accessibility
by kids.
Schools: Responsibility of teaching civilized
discourse.
Truthful commercial speech always protected.
First Amendment:
Commercial Speech
False and deceptive ads not protected.
Test: Intermediate scrutiny – (1) Serves substantial
gov’t interest; (2) Directly advances that interest; (3)
Narrowly tailored to serve that interest (need not be
least restrictive)
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Constitutional Law
Libel and slander not protected.
Public official: Must show falsity and actual malice.
First Amendment:
Defamation:
Public figure: Same as public official.
Private figure: If public concern, must show falsity
and negligence. If no public concern, no malice
necessary.
Truthful Public Info: No restrictions so long as info
was lawfully obtained by gov’t records.
First Amendment:
Freedom of Press/Privacy
Illegally intercepted calls: Media no liability so long
as media didn’t participate in illegality and re: matter
of public importance.
Access to Gov’t: Gov’t may limit dissemination of
info to protect privacy.
Gov’t Papers: No req’t for public accessibility.
Crim Trials: Public and press have right to attend, but
may be limited by overriding interest determined by
judge based on intermediate scrutiny.
Includes parks, sidewalks, etc.
Forums for Speech:
Public Forums
Regs must be subject matter and viewpoint neutral.
If not → Strict Scrutiny.
Regs must serve important gov’t purpose and leave
open adequate alternate places for communication.
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Constitutional Law
Forums for Speech:
Designated Public Forums:
Forums for Speech:
Limited Public Forums
Forums for Speech:
Non-Public Forums
Gov’t properties which gov’t allows open for speech.
Same requirements as public forums.
Gov’t properties limited to certain groups or dedicated
to discussion of limited topics.
Regs OK if reasonable and viewpoint neutral.
Includes military bases, outside prisons, sidewalks on
post office property, ad space on city buses, airports,
etc.
Regs OK if reasonable and viewpoint neutral.
Strict Scrutiny.
Requires: AAA (knowing + specific intent)
Freedom of Association:
1) Actively Affiliated with group;
Prohibit/Punish Group Membership
2) Knowing of illegal Activities;
3) Specific intent of furthering illegal activities.
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Constitutional Law
Freedom of Association:
If chilling effect → Strict Scrutiny.
Disclosure of Group Membership
Freedom of Association:
Prohibition of Discrimination
Constitutional unless interferes with intimate
association (small groups) or expressive association
(discrim integral to expressive activity of group, e.g.
KKK).
No punishment on basis of religious beliefs.
Freedom of Religion:
Free Exercise Clause
But Free Exercise can’t be used to challenge neutral
laws of general applicability, except denial of
unemployment benefits if person quit for religious
reasons or Amish who have right not to educate
children.
If not generally applicable or if enacted to
discriminate → Strict Scrutiny.
Lemon test: SEX. (1) Secular purpose; (2) Effect
neither advances nor inhibits religion; (3) No
eXcessive entanglement with religion.
Freedom of Religion:
Establishment Clause
No discrimination against religious speech or among
religions unless Strict Scrutiny.
School: No gov’t sponsored religious activity. BUT,
religious groups must be given same access to school
facilities.
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Constitutional Law
Public concern → Balance employee's rights as
citizen against gov’t interest in efficient performance
of public service.
Public Employment
Not public concern → Wide deference to employer
judgment.
If within employee duties → Punishment OK.
No firing for party affiliation unless in policy making
position.
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Criminal Law & Procedure
Merger of Crimes
Only solicitation and attempt merge into substantive
offense.
No merger for conspiracy – separate crime.
Essential Elements of a Crime
1) Physical act (actus reus): own volition, but not
reflective, convulsive or unconscious; and
2) Mental state (mens rea).
BAM ACTS
1) Burglary
2) Assault
What are the Specific Intent Crimes?
3) Murder (1st degree)
4) Attempt
5) Conspiracy
6) Theft
7) Solicitation
Malice Crimes
Reckless disregard of obviously high risk of harm.
(Murder/Arson)
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Criminal Law & Procedure
General intent Crimes
Strict Liability Crimes
Transferred Intent
Awareness of all factors constituting crime.
(e.g. awareness of act or high likelihood it will occur)
No required awareness.
Two charges – attempt and offense.
Liable for crime itself and all foreseeable crimes.
Accomplice Liability
Requires active involvement (e.g. aid, counsel or
encourage, with intent to aid).
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Criminal Law & Procedure
Asking someone to commit crime.
Solicitation
Requires intent for person to commit the crime.
Crime ends at the asking – if other person accepts, it
becomes conspiracy.
(1) Agreement; (2) intent to agree; (3) unlawful obj.
MAJ jurisdictions require overt act.
Conspiracy
Attempt
Defenses Negating Criminal Capacity:
Insanity
Liability: all foreseeable crimes committed to further
conspiracy.
Withdrawal: requires (1) affirmative act notifying all
members of withdrawal and (2) assistance in
neutralizing. Cuts off liability for subsequent crimes
of co-conspirators, not conspiracy itself.
Specific intent to commit + substantial step beyond
mere preparation.
Defense to all, including Strict Liability.
D has burden of production.
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Criminal Law & Procedure
Voluntary → Only defense for Specific Intent.
Involuntary → Like insanity. Is defense to all, incl SL.
Defenses Negating Criminal Capacity:
Intoxication:
Requires:
1) Taking drugs/alcohol;
2) w/o knowledge, under duress, or pursuant to med
advice without awareness of intoxicating effect.
Defenses Negating Criminal Capacity:
Infancy:
Insanity Tests:
M’Naghten
Insanity Tests:
Irresistible Impulse
If < 7 → no liability.
If < 14 → rebuttable presumption of no liability.
At time of conduct, D lacked ability to know
wrongfulness of actions or nature/quality of actions.
D lacks capacity for self-control & free choice, or
unable to conform conduct to the law.
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Criminal Law & Procedure
Insanity Tests:
MPC/ALI
Insanity Tests:
D lacked capacity to (i) appreciate criminality of
conduct or (ii) conform conduct to req’ts of law.
D’s conduct was product of mental illness.
Durham Rule
Non-deadly – if reasonably necessary.
Excuses/Justification:
Self Defense
Excuses/Justification:
Defense of others
Deadly – (i) D without fault; (ii) confronted w/
unlawful force; (iii) reasonably believe to be
threatened w/ imminent death/great bodily harm.
Minority – retreat unless in person’s home; making
lawful arrest; or victim of rape/robbery. But, original
aggressor must withdraw and communicate
withdrawal.
Person assisted reasonably appeared to have legal
right to use force in his own defense.
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Criminal Law & Procedure
Excuses/Justification:
Defense of property
Excuses/Justification:
Crime Prevention
Excuses/Justification:
Effectuate Arrest
Excuses/Justification:
Duress
Non deadly force OK. No force allowed to regain
possession unless in hot pursuit.
Non deadly force to prevent felony or breach of peace.
Deadly force only to prevent dangerous felony.
Private person: Deadly force only if person harmed
was actually guilty of offense.
Officer: Deadly force to apprehend fleeing felon who
threatens death/serious bodily harm and necessary to
prevent escape.
Threat of imminent infliction of death/great bodily
harm on self or member of immediate family.
No excuse for homicide.
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Criminal Law & Procedure
Excuses/Justification:
Necessity
Other Defenses:
Impossibility
Other Defenses:
Mistake of Fact
Reasonably necessary to avoid imminent and greater
injury to society.
No excuse for homicide.
Factual Impossibility → no defense.
Legal Impossibility → not illegal to do what D
intended to do.
Specific Intent Crimes → any mistake is defense.
Malice/Gen Intent Crimes → reasonable mistake only.
Strict Liability Crimes → never.
Only if crime requires lack of consent (e.g. rape).
Other Defenses:
Consent
Requirements:
1) Consent voluntarily/freely given;
2) Legally capable; and
3) No fraud.
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Criminal Law & Procedure
Other Defenses:
Entrapment
Only if police originated criminal design and D
was not predisposed to commit act.
Unlawful application of force resulting in bodily
injury or offensive touching.
Battery
Assault
Homicide
Aggravated Battery: deadly weapon; serious bodily
harm; to a child, woman or police.
Attempted battery (Specific Intent); or
Threat to inflict bodily injury (General Intent).
Unlawful killing of human with malice aforethought;
intent to kill; intent to inflict great bodily injury;
reckless indifference to an unjustifiably high risk to
life; felony murder.
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Criminal Law & Procedure
First Degree Murder
Deliberate, willful, and premeditated and enumerated
felony (e.g. arson, robbery, burglary, rape, mayhem
and kidnapping).
No felony murder once D reaches temp safety or if
death of co-felon is result of resistance by victim or
police.
Second Degree Murder
Covers everything else under CL murder. Unjustified
killing.
Bump down murder if “imperfect self-defense” – D
was at fault in starting fight or unreasonably but
honestly believed in necessity.
Manslaughter:
Voluntary – murder with adequate provocation/heat of
passion without time to cool.
Involuntary – criminal negligence, battery, or
misdemeanor.
Larceny:
Taking and carrying away of personal property of
another by trespass with intent to permanently
deprive.
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Criminal Law & Procedure
Embezzlement:
Fraudulent conversion of personal property of another
by a person in lawful possession of that property.
False Pretense:
Obtaining title to personal property of another by an
intentional false statement of past or existing fact with
intent to defraud
Larceny by Trick:
Obtaining possession to personal property of another
by intentional false statement of fact with intent to
defraud.
Robbery:
Taking of personal property of another from other’s
person or presence by force or threat of imminent
death/injury with intent to permanently deprive.
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Criminal Law & Procedure
Extortion:
Receipt of Stolen Property:
Burglary:
Arson:
Obtain property by threat of harm/exposing info.
Receiving possession and control of stolen personal
property known to have been stolen by another person
with intent to permanently deprive owner.
Breaking and entering of a dwelling of another at
nighttime with intent to commit felony therein.
Malicious burning of dwelling of another.
Requires damage to structure.
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Criminal Law & Procedure
Exclusion:
Fruit of the Poisonous Tree
Prohibits introduction of evidence obtained in
violation of 4th, 5th, or 6th Amendment.
1) Statements in violation of Miranda;
2) Independent source;
Exclusion:
Exceptions
3) Inevitable discovery;
4) Intervening act of free will by D;
5) Violation of knock and announce.
BUT, voluntary confessions in violation of Miranda
are admissible to impeach, and evidence from illegal
search can impeach D’s trial testimony.
Exclusion:
Good Faith Defense
Exclusion:
Good Faith negated if:
Reliance on (i) judicial opinion; (ii) statute or
ordinance; or (iii) defective search warrant.
(i) Affidavit so lacking in probable cause (“PC”) that
no reasonable officer would rely on it; (ii) Warrant
defective/invalid on face; (iii) Affiant lied or misled
judge; (iv) Judge wholly abandoned judicial role.
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Criminal Law & Procedure
Exclusion:
Harmless Error:
4th Amendment – Search and Seizure:
Arrest:
4th Amendment – Search and Seizure:
Valid Warrant:
Admission of illegal evidence will overturn conviction
unless gov’t can show beyond a reasonable doubt that
error was harmless.
Probable cause + warrant if D in home.
Stop in car requires reasonable suspicion (checkpoint
and pre-textual stops OK)
Must include:
1) Particularity of place searched;
2) Particularity of things seized; and
3) Issued by neutral and detached judicial officer.
4th Amendment – Search and Seizure:
Challenge if:
Affiant intentionally and recklessly included material
false statement.
But, good faith still applies.
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Criminal Law & Procedure
4th Amendment – Search and Seizure:
Search & Seizure: Three-Step Analysis:
1) Does person have 4th Am right? (gov’t conduct
and reasonable expectation of privacy – requires
standing, e.g. ownership or living in premises
searched; overnight guest; but not items held out
to public);
2) Search warrant valid?
3) Is there an exception?
1) Incident to Lawful Arrest
4th Amendment – Search and Seizure:
Exceptions to Valid Search Warrant
2) Automobile Exception
3) Plain View
4) Consent
5) Stop and Frisk
6) Hot Pursuit/Evanescent Evidence
Exceptions to Valid Search Warrant:
Incident to Lawful Arrest
Exceptions to Valid Search Warrant:
Automobile Exception
Search contemporaneous in time and place.
Limited to wingspan of individual.
Incident to arrest → may search interior compartment
of car but not trunk.
If probable cause → full search, including any
containers.
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Criminal Law & Procedure
Exceptions to Valid Search Warrant:
Officer must be legitimately on premises.
Plain View
Exceptions to Valid Search Warrant:
Consent
Exceptions to Valid Search Warrant:
Voluntary and intelligent consent by someone who
has apparent equal right of use and access.
Valid search even if individual did not have authority
if police reasonably believed they did.
Stop if reasonable suspicion of criminal act supported
by articulable facts.
Stop and Frisk
Frisk if reasonable suspicion that suspect is armed and
dangerous but limited to finding weapons.
Exceptions to Valid Search Warrant:
May follow suspect into dwelling if in pursuit (should
be within 15 min of suspect).
Hot Pursuit/ Evanescent Evidence
May seize evidence that is likely to disappear.
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Criminal Law & Procedure
1) Only if probable cause;
4th Amendment – Search and Seizure:
Wiretapping
2) Warrant must include named persons and
description with particularity re: conversations.
3) For limited time;
4) Terminated when info obtained;
5) Return to court to show what was intercepted.
Miranda for custodial (not free to leave)
interrogations (reasonably likely to elicit response).
Confessions:
5th Amendment - Miranda Rights
Unambiguous assertion of right to attorney prohibits
questioning unless accused initiates resumption.
NOT offense specific.
Voluntary confessions made in violation of Miranda
are admissible to impeach.
Confessions:
Must be knowing, voluntary & intelligent.
Waiver of Rights under Miranda
Confessions:
6th Amendment
Right to counsel. Post-charge at critical stages of
proceeding.
Offense specific.
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Criminal Law & Procedure
Confessions:
Requires that confession be voluntary.
14th Amendment
Redact all portions referring to other D;
Confessions:
Admissibility of Co-Defendant Confession
Confessing D takes stand and subject to cross;
Confession of non-testifying D is being used to rebut
the D’s claim that his confession was obtained by
coercion.
Right to Counsel for post charge line ups/show ups.
No right to counsel at photo ID.
Identifications (e.g. lineups)
Grounds for Attack
Denial of Due Process: if unnecessarily suggestive or
substantially likely to present mistake.
Remedy: exclude in-court ID.
Negated if P can show adequate independent source
of identification, including ample opportunity to
observe person at time of crime.
Double Jeopardy
Attaches when jury is sworn or, if no jury, first
witness is sworn.
Does not apply to separate sovereigns.
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Criminal Law & Procedure
1) Hung jury
2) Mistrial from manifest necessity
Exceptions to Double Jeopardy
3) Retrial after successful appeal unless insufficient
evidence to support verdict
4) Breach of agreed plea;
5) Termination at behest of D on grounds not
constituting acquittal.
Any natural person can assert, but only applies to
testimonial disclosure.
5th Amendment Privilege Against
Self-Incrimination
Limitations: doesn’t apply to compulsory disclosure
of docs; must be asserted at first instance of
questioning on that subject, including civil trials.
Effect: P can’t make negative comment on silence,
unless D asserts that D wasn’t able to tell his side of
the story.
Eliminated if: grant of immunity; no possibility of
incrimination (e.g. stat of limitations); waiver.
Pre-Trial Disclosure Requirements
P: must disclose material, exculpatory evidence.
D: must disclose use of alibi or insanity.
When is there a Right to Jury Trial?
Right if maximum authorized sentence > 6 months.
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Criminal Law & Procedure
Jury Voting Requirements for Conviction
If 6 jurors → must be unanimous.
If 12 jurors → 9-3 is enough.
May exclude juror with absolute opposition that may
prevent or substantially impair performance.
Death Penalty Cases:
Must present all relevant mitigating evidence.
No automatic Death Penalty.
Only jury can determine aggravating factor imposing
Death Penalty.
Judge must address D personally re:
Plea Deals
1) nature of charge;
2) max possible penalty/mandatory min; and
3) that D has a right to plead guilty but would
wave right to trial.
Overturn plea if:
1) plea involuntary;
2) lack of jurisdiction;
3) ineffective assistance of counsel; or
4) P fails to keep agreed plea bargain
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Evidence (CA Distinctions in red)
Part of CA Constitution.
CA Prop 8
What is it?
All relevant evidence is admissible in CA crim cases
unless evidence falls within an exemption.
CHOP SUR
Confrontation clause;
Hearsay;
CA Prop 8
Exemptions
Open the door;
Privilege;
Secondary evidence;
Unfair prejudice;
Rape shield
Calls for narrative
Unresponsive
Leading Questions
Objections
Assumes facts not in evidence
Argumentative
Compound
Objections must be timely and specific or objection is
waived.
Logical Relevance
If it has any tendency to make a material fact of
consequence more or less probable than it would be
without the evidence.
CA Evid Code: also requires the fact of consequence
in dispute be relevant.
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Evidence (CA Distinctions in red)
Typically irrelevant unless:
Relevance of Similar Happenings
1) Used to show causation;
2) To show a pattern in fraudulent claims or a
preexisting condition;
3) To prove intent;
4) Rebut defense of impossibility;
5) Show comp sales relevant to establish value;
6) Evidence of habit;
7) Routine practice;
8) Industrial custom.
If the probative value of the evidence is outweighed
by its prejudicial effect.
Legal Relevance
Policy Considerations:
Admissibility of Liability insurance
Policy Considerations:
Admissibility of
Subsequent remedial measures
Emotionally disturbing (e.g. gory photograph) or
evidence that is admissible for one purpose but
inadmissible for another.
Inadmissible to prove culpable conduct (e.g.
negligence, or D’s ability to pay).
Safety measures or repairs after accident inadmissible
to prove culpable conduct or, if products liability,
defective product design.
CA: if strict prod liability case, evid of remedial
measures is admissible to prove defective design.
Limitation only applies to negligence theories.
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Evidence (CA Distinctions in red)
Policy Considerations:
Admissibility of Settlement Offers
Policy Considerations:
Admissibility of
Offers to Pay Medical Expenses
Policy Considerations:
Expressions of Sympathy (CA)
Policy Considerations:
Not admissible to prove liability or guilt if a claim is
asserted. Not severable from other statements.
CA: also includes mediation proceedings.
Inadmissible to prove liability or guilt, but may be
severed from other statements.
CA: admissions of fact also inadmis and stmts are not
severable.
In civil action, expression of sympathy to victim is
inadmissible, but severable from other statements.
Offers to plea, and related statements are inadmissible
to prove guilt.
Admissibility of Criminal Pleas
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Evidence (CA Distinctions in red)
Character Evidence:
Inadmissible to prove conduct unless character is at
issue (e.g. defamation, negligent entrustment, child
custody).
Admissibility of Character Evidence in
Civil Litigation
Opinion, reputation, and specific acts can be used.
Fed Only: Prior sexual assaults or child molestation
are admissible to prove conduct.
Character Evidence:
Criminal CE of D
What can be offered and when?
D must open door first, unless acts of prior sex assault
or child molestation. CA: prior acts of domestic
violence admissible.
If D offered CE of V, P can offer evid of D’s same
trait. P can rebut pertinent CE if D opened the door.
CA: Narrower – if D offered CE of V’s violent
character, P may rebut with D’s violent character.
Direct Exam: Only reputation and opinion.
Character Evidence:
Criminal CE of D
Direct vs. Cross Examination
Character Evidence:
Criminal CE of V
(Under FRE)
Cross Exam: Reputation, opinion, specific acts, but no
extrinsic evidence.
CA: only reputation and opinion evidence on direct or
cross exam.
Prop 8 – everything subject to balancing.
Prosecutor can’t first offer CE, unless homicide case
where D alleges self defense. But P can offer V’s
peacefulness.
D can open door with CE of V, and P can rebut only
with D’s same character trait.
Direct Exam: Only reputation and opinion.
Cross Exam: Reputation, opinion, and specific acts,
but no extrinsic evid.
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Evidence (CA Distinctions in red)
Character Evidence:
CA Prop 8: Relevant CE of V admissible, subject to
balance.
Criminal CE of V
(CA)
Reputation/opinion, specific acts on direct or cross
examination.
Crim – Reputation and opinion not allowed for V.
Specific acts OK to show 3rd party source of physical
evid or prior consent between D and V.
Character Evidence:
Rape Shield
Civil – Reputation, opinion, and specific acts only if
probative value substantially outweighs unfair
prejudice. If reputation, only if V put rep at issue.
CA: Prop 8 does not apply to Rape Shield.
Character Evidence:
Admissibility of Specific Acts
Admissible to demonstrate MIMIC, subject to
balancing.
MIMIC = Motive, Intent, Mistake (not),
Identification, Common Scheme/Plan.
1) Personal knowledge: First hand sensory
perception;
Witness Competency
Witness must have…
2) Present Recollection;
3) Ability to communicate; and
4) Sincerity: make oath or affirmation to tell truth.
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Evidence (CA Distinctions in red)
…understand legal duty to tell truth.
Witness Competency
In CA, Witness must also…
Ws who have been hypnotized to refresh recollection
are incompetent, except Ws in crim case who have
been hypnotized by police using procedures protecting
against suggestion.
Only judges and jurors automatically DQ’d.
Disqualification of Witness
No DQ for insanity, religious belief or age, but may
affect credibility.
Contradiction
Prior Inconsistent Statement
Bias/Interest/Motive
Ways to Impeach a Witness
Prior Conviction
Non-Conviction Acts
Reputation/Opinion re: Truthfulness
Sensory Deficiencies
Impeachment of a Witness:
Prior Inconsistent Statement
Cross exam or extrinsic evid if not a collateral matter
and W is given opportunity to explain or deny.
Must be under oath. (CA: doesn’t need to be under
oath).
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Evidence (CA Distinctions in red)
Impeachment of a Witness:
Cross exam or extrinsic evid if not a collateral matter.
Bias/Interest/Motive
Felonies and misdemeanors involving false statements
always OK unless >10 yrs old.
Impeachment of a Witness:
Felonies not involving false statements OK subject to
balancing.
Prior conviction
(Under FRE)
Misdemeanors not involving false statements NOT
admissible.
If admissible, extrinsic evid can be used.
Impeachment of a Witness:
Prior conviction
All felonies re: moral turpitude (lying, violence, theft,
extreme reck, or sex misconduct, OK subject to
balancing.
Felonies not involving moral turpitude are
inadmissible, subject to Prop 8.
(CA)
Misdemeanors inadmissible, but under Prop 8, moral
turpitude misdemeanors OK subject to balancing.
OK if involves lying, but no extrinsic evidence.
Impeachment of a Witness:
Non-Conviction Acts
CA: Inadmissible, but under Prop 8, misconduct re:
moral turpitude OK subject to balancing.
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Evidence (CA Distinctions in red)
Impeachment of a Witness:
Extrinsic evid OK or opinion of W.
Reputation/Opinion re: Truthfulness
Ways to authenticate:
1) Admission,
Document Reliability:
Authentication of Signatures
2) Eyewitness Testimony,
3) Expert Opinion,
4) Lay Opinion by someone familiar with sig,
5) Circumstantial Evid,
6) Genuine Exemplar (known sig compared to sig
admitted).
1) Certified Public Docs;
2) Acknowledged Docs;
Document Reliability:
Self-Authenticating Documents
3) Official Publications;
4) Newspapers;
5) Periodicals;
6) Business Records (FED only);
7) Trade Inscriptions (FED only).
Document Reliability:
Must fairly and accurately depict what it is purporting
to show at time of event.
Photos
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Evidence (CA Distinctions in red)
Document Reliability:
Must look at chain of custody.
Non-Unique Items
Document Reliability:
Best Evidence Rule (FED)
a.k.a.
Secondary Evidence Rule (CA)
Evidence is being offered to prove contents of a
writing.
Originals and duplicates OK. CA: duplicate includes
machine duplicate and other written evidence of
contents.
Testimony OK only if original was lost or destroyed,
unless bad faith by proponent of testimony.
Admissible if based on W’s perceptions and helpful to
trier of fact.
Opinion Testimony:
OK to show speed of auto, sanity, intoxication,
emotions, value of W’s property.
Lay Opinion
No legal or scientific opinions requiring specialized
knowledge.
Requirements: Hot Quiznos for Cold Penguins.
Opinion Testimony:
Expert Opinion
1) Helpful to the jury;
2) Qualified;
3) Supported by proper Factual basis;
4) Reasonable degree of Certainty;
5) Based on reliable Principles that were reliably
applied.
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Evidence (CA Distinctions in red)
Expert Opinion:
Federal/Daubert Standard
Expert Opinion:
Kelly-Frye Standard (CA)
Peer reviewed and published scientific journals; tested
and subject to retesting; low error rate; reasonable
level of acceptance. .
Based on principles generally accepted by experts in
the field.
Generally known in jurisdiction OR capable of
accurate and ready determination by sources whose
accuracy cannot reasonably be questioned.
Opinion Testimony:
Judicial Notice
Civil – Judicial notice is conclusive.
Crim – Jury may but doesn’t need to accept.
CA: Ct must take judicial notice of matters generally
known within jurisdiction, whether requested or not.
Burdens of Proof:
Civil vs. Criminal
Civil – Preponderance of evidence. Presumptions:
Shifts burden to party against whom presumption is
asserted
Crim – Beyond a reasonable doubt.
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Evidence (CA Distinctions in red)
What is hearsay?
Out of court statement offered to prove the truth of the
matter asserted in the statement.
Usually Inadmissible.
1) Facts of Independent Legal Significance
List of Hearsay Exemptions:
(Admissible Because Not Hearsay)
Hearsay Exemptions:
Admission by Party Opponent
Hearsay Exemptions:
Vicarious Party Admission
2) Effect on hearer
3) Speaker’s Knowledge of Facts
4) Circumstantial Evid of State of Mind
5) Admission by Party Opponent
6) Vicarious Party Admission
7) Adoptive Admission
8) Prior Inconsistent Stmt Under Oath
9) Prior Consistent Stmt to Rebut Charge of Lying
10) Prior Stmt of ID
Not subject to personal knowledge requirement or the
opinion rule.
Employee – if authorized spokesperson or within
scope of employment and during employment
relationship.
Authority can be Express or Implied.
CA: Limited – only if negligence exposes employer to
respondeat superior.
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Evidence (CA Distinctions in red)
Silence is admission if:
Hearsay Exemptions:
Adoptive Admission
1) Party heard and understood;
2) Was physically and mentally able to deny;
3) Reasonable person would have denied.
Hearsay Exemptions:
Prior Inconsistent Statement Under Oath
Used for impeachment and substantive proof.
CA: Does not require oath.
Hearsay Exemptions:
Prior Consistent Statement to
If made before bribe or inconsistent statement as
substantive proof or to bolster credibility.
Rebut Charge of Lying
Hearsay Exemptions:
If ID made after perceiving the person.
Prior Statement of ID
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Evidence (CA Distinctions in red)
1) Former Testimony
2) Dying Declarations
List of Hearsay Exceptions
3) Statement Against Interest
4) Personal/Family History
(Requiring Unavailability)
5) Statement Offered Against Person Procuring
6) Declarant Unavailable
1) Privilege;
What Constitutes “Unavailability” for
Purposes of
a Hearsay Exception?
2) Death/Illness;
3) Proponent cannot procure by process or other
reasonable means;
4) Refusal to testify despite court order;
5) Failure of memory.
CA: refusal to testify out of fear, total memory loss.
Hearsay Exceptions (Requiring Unavailability)
Former Testimony
(FRE)
Hearsay Exceptions (Requiring Unavailability)
Former Testimony
(CA)
Party against whom testimony is offered had
opportunity and motive to conduct exam.
In civil case, party must have close privity-like
relationship with earlier party (e.g. predecessor in
interest).
Also applies if W lives at least 150 miles from court.
In civil case, no privity requirement so long as
opportunity and motive are similar.
OK if offered against person who originally offered it
into evidence in the prior proceeding.
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Evidence (CA Distinctions in red)
Hearsay Exceptions (Requiring Unavailability)
Dying Declarations
Only in civil and homicide cases by one believing he
is about to die and describing cause or circumstance
leading to injury.
CA: All cases if declarant is actually dead.
At time made, against pecuniary, penal or proprietary
interest.
Hearsay Exceptions (Requiring Unavailability)
Statement Against Interest
Hearsay Exceptions (Requiring Unavailability)
Personal/Family History
If used to exculpate, must have corroborating evid.
CA: Also if against social interest. No corroborating
evidence required.
Declarant must be family member or close associate.
Requires personal knowledge.
Hearsay Exceptions (Requiring Unavailability)
Statement Offered Against Person
that Wrongfully Caused
Declarant’s Unavailability.
Only if person offered against engaged or
acquiesced in intentional wrongdoing.
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Evidence (CA Distinctions in red)
Hearsay Exceptions (Requiring Unavailability)
Made at/near injury explaining infliction or threat.
Infliction or Threat of Physical Abuse
(CA only)
Includes written or recorded statements and
statements made to police/medical professionals.
Hearsay Exceptions (Requiring Unavailability)
Past Physical or Mental Condition
Only if at issue in case, but does not need to be
made for treatment purposes.
(CA only)
1) Present Sense Impression
2) Ancient Documents
List of Hearsay Exceptions
(Unavailability Immaterial)
3) Past Physical Condition for Med Diagnosis
4) Excited Utterance
5) Recorded Recollection
6) State of Mind
7) Public Record
8) Business Record
9) Judgment of Previous Conviction
10) Learned Treatises
Hearsay Exceptions (Unavailability Immaterial)
Present Sense Impression
While perceiving event or immediately thereafter.
CA: Statement made to explain conduct while
engaged in it.
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Evidence (CA Distinctions in red)
Hearsay Exceptions (Unavailability Immaterial)
Must be at least 20 years old
Ancient Documents
Hearsay Exceptions (Unavailability Immaterial)
Past Physical Condition for
Medical Diagnosis
If made to medical professional to assist in diagnosis
or treatment.
Only statements re: cause or source.
CA: Only in child abuse or neglect cases when victim
is under 12.
Hearsay Exceptions (Unavailability Immaterial)
Excited Utterance
During or soon after startling event while under stress
of excitement of event.
a.k.a.
Spontaneous Statement (CA)
Requirements:
1) W once had personal knowledge;
Hearsay Exceptions (Unavailability Immaterial)
Recorded Recollection
2) Doc made by W under W’s direction or adopted;
3) Written or adopted when memory was fresh;
4) Accurate when made; and
5) W now doesn’t remember
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Evidence (CA Distinctions in red)
Hearsay Exceptions (Unavailability Immaterial)
State of Mind
Hearsay Exceptions (Unavailability Immaterial)
Public Record
(FRE)
Hearsay Exceptions (Unavailability Immaterial)
Public Record
Present mental, emotional, sensation or physical
condition.
Only if state of mind is directly at issue and material
or to establish intent (circumstantial evid that intent
was carried out).
Record describing activity of office, describing matter
observed pursuant by duty imposed by law.
Record contains factual findings from investigation
made pursuant to authority granted by law.
(Prosecution can’t use).
Prosecution may use if made by public employee,
within scope of employee’s duties, made near time of
matter described, under circumstances indicating
trustworthiness.
(CA)
Hearsay Exceptions (Unavailability Immaterial)
Record of event, condition, opinion or diagnoses kept
in regular course of business, made at or near time of
matter described.
Business Record
CA: No opinions or diagnoses unless simple.
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Evidence (CA Distinctions in red)
Judgment of felony conviction (e.g., copy of judgment
of conviction) admissible in both civil and crim case
to prove any fact essential to judgment.
Hearsay Exceptions (Unavailability Immaterial)
Judgment of Previous Conviction
BUT, when offered by prosecution for purposes other
than impeachment, judgments against person other
than the accused are inadmissible.
CA: Civil only but includes pleas of nolo contendre.
Prop 8 may apply in crim if moral turpitude.
Hearsay Exceptions (Unavailability Immaterial)
Learned Treatises
Standard scientific treatise or authoritative work if
relied on by expert in direct or called to attention of
expert on cross.
CA: Narrow to point of uselessness – only facts of
general notoriety.
Even if not inadmissible b/c of hearsay, Confrontation
clause can make statement inadmissible against D in a
crim case.
Confrontation Clause
Testimonial statements are inadmissible unless the
declarant is unavailable AND the D had an
opportunity to cross exam the declarant when the
statement was made.
Only in crim cases and only when the prosecution is
offering the evidence.
Communication btwn atty and client, or rep, intended
by client to be confidential and made to facilitate legal
services is privileged unless client waives
Privileges:
Attorney/Client
(FRE)
Cannot be made in presence of 3rd party, unless
unknown eavesdropper.
Applies to communications from employee/agent if
corp authorizes them to communicate.
Privilege extends beyond client’s death.
Not applicable to malpractice action.
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Evidence (CA Distinctions in red)
Privileges:
Attorney/Client
(CA)
Communication between company's employee and atty
only applies if employee is natural person to speak to
attorney on behalf of company on that matter OR if
employee did something for which company may be
liable.
Attorney can disclose if necessary to prevent crime
likely to result in death or serious bodily harm.
Doesn’t apply if:
1) Patient puts physical condition in issue;
Privileges:
Doctor/Patient
2) Physician’s services sought to aid in crime; or
3) Case alleges breach of duty arising out of
relationship.
CA: Doesn’t apply in crim case or to information
doctor is required to report to public office.
Privileges:
Psychotherapist-Social Worker/Client
Communication between patient and psych, intended
by client to be confidential, and made to facilitate
rendition of professional psych services, is privileged,
unless waived by patient.
CA: No privilege if necessary to prevent crime that is
likely to result in death or serious bodily harm.
In crim cases, W may refuse to testify against spouse.
Can be waived by testifying spouse.
Privileges:
Spousal - Testimonial
Doesn’t apply in crim case where spouse is charged
with crime against spouse or kids.
Requires legal marriage at time of trial.
CA: Applies in both civil and crim and spouse doesn’t
have to go on stand.
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Evidence (CA Distinctions in red)
Privileges:
Spousal – Confidential Communications
Protects all communications during marriage. Requires
legal marriage at time of communication.
Both spouses hold and can prevent testimony of the
other.
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Civil Procedure (Fed and CA)
1) D domiciled in forum;
Personal Jurisdiction (Jx):
2) Personally served while present in forum;
Traditional
3) Express or implied consent to jx.
Personal Jurisdiction (Jx):
Assume statute reaches constitutional limit.
Long Arm Statute
Personal Jurisdiction (Jx):
Constitutional Analysis
Does D have such minimum contacts with the forum
so that exercise of jx doesn’t offend traditional notions
of fair play and substantial justice?
My Parents Frequently Forgot to Read Children’s
Stories:
Personal Jurisdiction (Jx):
Purposeful availment + Foreseeability.
Minimum Contacts
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Civil Procedure (Fed and CA)
Personal Jurisdiction (Jx):
Relatedness + Convenience + State’s Interest.
Fairness
Personal Jurisdiction (Jx):
Relatedness
(specific vs. general)
Specific = D’s specific contact with forum.
General = D corporation must be “at home” in forum
state.
FED
Subject Matter Jurisdiction (Jx):
Complete Diversity + Amt in Controversy > $75K.
Diversity
FED
Subject Matter Jurisdiction (Jx):
OK to aggregate claims of one P against one D, but
not two claims by two or more Ps against two or more
Ds.
Aggregation
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Civil Procedure (Fed and CA)
FED
Subject Matter Jurisdiction (Jx):
“Arises under” Federal law.
Federal Question
FED
Subject Matter Jurisdiction (Jx):
Supplemental Jx
“Common nucleus of operative fact”
BUT, P cannot use supp jx in diversity case to
overcome lack of diversity.
Occurs when:
FED
1) Federal question is dismissed early on;
Subject Matter Jurisdiction (Jx):
Refusal
2) State claim is complex; or
3) State law issue predominates.
D can remove if case could be heard in Fed Ct under
subject matter jx.
FED
Subject Matter Jurisdiction (Jx):
All Ds must agree.
No removal by P if more than a year passed since case
was filed, or in a diversity case where any D is a
citizen of the forum.
Removal
Once D files permissive counterclaim in state ct, he
can’t remove.
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Civil Procedure (Fed and CA)
CA
Amount < $25K;
Subject Matter Jurisdiction (Jx):
$25K limit on recovery.
Limited Civil Action
CA
Subject Matter Jurisdiction (Jx):
Amount > $25K;
No limit on Recovery.
Unlimited Civil Action
CA
Individual < $10K
Subject Matter Jurisdiction (Jx):
Entity < $5K
Small Claims
CA
Subject Matter Jurisdiction (Jx):
Demand or recovery not including attorneys’ fees,
interest on claim or costs.
Initial Classification
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Civil Procedure (Fed and CA)
CA
Automatic: P amends complaint to change amt in
controversy.
Subject Matter Jurisdiction (Jx):
Reclassification
Venue:
On motion: Party can move to reclassify or court can
reclassify if notice and hearing.
Anything re: land.
Local Actions
1) District in which all Ds reside;
Venue:
2) If same state but diff districts then any district
where one resides; OR
Transitory (FED)
3) District where substantial part of claim arose.
Corporations reside anywhere it does business.
Venue:
Transitory (CA)
Any county where any D resides. BUT, if all Ds are
non-residents, any county OR where K entered into or
injury occurred.
Corporation’s is Principal Place of Business (“PPB”),
OR where K or breach arose.
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Civil Procedure (Fed and CA)
Venue:
Transfer of Venue (FED)
Venue:
Transfer of Venue (CA)
Courts consider convenience of parties and Ws and
interest of justice (public factors re: applicable law,
what community should bear burden of jury service).
Consider whether impartial trial impossible;
convenience of W and ends of justice; or no qualified
judge.
Far more appropriate ct exists elsewhere (ct will dismiss
without prejudice or stay case). Factors:
Venue:
Forum Non Conveniens (FED)
1) Location of Ws and evid;
2) Undue hardship for D;
3) Availability of adequate alternative forums;
4) Use of judicial resources;
5) Public policy.
Applicable when transfer is impossible because ct is in
different judicial system, but never granted if P is
resident of forum.
Venue:
Forum Non Conveniens (CA)
“In the interest of substantial justice,” action could be
heard in another state.
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Civil Procedure (Fed and CA)
1) Personal Service;
Service:
2) Substituted Service;
Proper Service for
Summons and Complaint?
3) Service on Agent; or
4) Waiver by Mail
5) Publication (Only in CA)
Service:
What is Substituted Service?
Service:
What is Waiver by Mail?
FED: Left with someone at D’s usual abode and to
someone of suitable age and discretion who resides
there.
CA: Personal service not possible with reasonable
diligence; made at Ds usual abode; left with
competent household member 18+; person informed
of contents and process mailed.
FED: Process mailed to D; formal service waived if
returned in 30 days.
If no return, personal or substituted service required.
CA: Mail to D and D acknowledges.
Service:
What is Service by Publication?
(CA only)
Publish summons and required docs in newspaper of
general circulation for 4 consecutive weeks, at least
once a week.
Requires affidavit by attorney that D can’t be served
after reasonable diligence.
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Civil Procedure (Fed and CA)
Service:
When can you be immune from service?
If in state as W or party.
(FED ONLY)
Service:
Timing
FED: Must serve D within 90 days after complaint
filed, or Ct. must dismiss with prejudice unless P
shows good cause.
CA: 60 days or Ct. may issue order to show cause.
What Law Governs the Dispute?
Erie Doctrine
(FED)
In diversity and supp jx cases, Fed Ct must apply state
substantive law: (i) SoL; (ii) choice of law rules; (iii)
elements of claim/defense; (iv) rules on tolling SoL.
But Ct uses Fed Procedural Law.
If substantive law, analyze (1) if outcome determinative
(SL); (2) balance of interests; (3) avoid forum shopping
(SL).
If Fed law conflicts, Fed law prevails.
What Law Governs the Dispute?
CA
CA law governs both substantive and procedural.
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Civil Procedure (Fed and CA)
Preserves status quo pending determination of merits
of litigation.
Must provide notice to adverse party.
Preliminary Injunction
Must show: (1) imminent irreparable injury (nonmonetary); (2) no adequate legal remedy; (3)
substantial likelihood of success on the merits; (4)
balance hardships; (5) not adverse to public interest.
Preserves status quo of subj matter of litigation, and
prevents irreparable harm until PI hearing.
Temporary Restraining Order
Must provide notice unless (i) immediate and
irreparable injury; (ii) effort to give notice; and (iii)
provide security in case party wrongfully
restrained/enjoined.
Must show same elements as PI.
Lasts 14 days unless extension granted.
Attorney must sign all pleadings, etc. to certify that:
Proper Pleadings:
1) No improper purpose;
2) Legal contentions are warranted by law; and
What is Rule 11 (FED)?
Proper Pleadings (FED):
Claim
3) Factual contentions and denials have evidentiary
support.
Must plead FACTS supporting plausible claim enough
to put D on notice and prep reasonable response
(Iqbal/Twombly standard)
+ Basis of Subject Matter Jx
+ Demand for relief.
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Civil Procedure (Fed and CA)
Within 21 after service.
Motion for more def statement/motion to strike.
Proper Pleadings (FED):
D’s Response
Motion or Answer - Waivable: lack of Pers Jx;
improper venue; insufficient process or service.
Non-waivable: failure to state claim, failure to join
indispensable party; lack of SMJ.
Answer: must respond (admit, deny, lack info) + raise
affirmative D (SoL, SoF, res judicata, self defense).
P once within 21 days after D serves first response.
Proper Pleadings (FED):
Right to Amend Pleadings
D once within 21 days after D serves answer.
If no right, seek leave of court. Court considers delay,
prejudice, futility.
Proper Pleadings (FED):
Pertain to matters that occur after initial pleading.
Supplemental Pleadings
Permission from court required.
Proper Pleadings (CA):
Claim
Fact pleading = ultimate facts constituting action +
demand for judgment (unless personal injury or
wrongful death).
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Civil Procedure (Fed and CA)
Proper Pleadings (CA):
D’s Response
Lack of Personal Jurisdiction; Improper process of
Service.
Requires special appearance.
Motion to Quash Service of Summons/Dismiss for
Inconvenient Forum
Waived if not made first.
General: Fail to state facts sufficient to state claim or
lack SMJ (purely fed case).
Proper Pleadings (CA):
D’s Response
Demurrer
Special: lack of capacity; existence of another
pending action; defect or misjoinder of parties;
uncertain pleading; failure to plead whether K is oral
or written; and failure to file certain required
certificates.
Not available for limited cases.
Proper Pleadings (CA):
D’s Response
Strike all or part of complaint as “irrelevant, false,
improper.”
Motion to Strike
Proper Pleadings (CA):
Admit;
Deny or lack info;
D’s Response
General denial + affirmative Defenses using fact
pleading.
Answer
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Civil Procedure (Fed and CA)
Doe D is ok if P was
Proper Pleadings (CA):
(i) genuinely ignorant of ID;
(ii) pleaded ignorance; and
Fictitious Defendant
(iii) substituted true D within 3 yrs.
Relation back when substituted.
Proper Pleadings:
Compulsory if arises from same transaction or
occurrence.
D’s Counterclaim/Cross Claim against P
Proper Pleadings:
D’s Cross-Claim/Cross Complaint
Permissive if arising from same transaction or
occurrence or under supplemental jx.
against Co-D
Proper Pleadings:
Impleader by D/Cross Complainant Against
3rd Party
No diversity required between 3rd party D and 3rd
party P.
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Civil Procedure (Fed and CA)
Joinder of Parties:
Permissive
Must arise under same transaction or occurrence +
raise 1 common question.
1) Complete relief can’t be given to existing parties
without them;
Joinder of Parties:
2) Disposition in party's absence may impair their
ability to protect their own interest; or
Compulsory
3) Their absence would expose existing parties to
double or inconsistent obligations.
If feasible, PJ + SMJ (keep diversity).
Discretion of Court
Joinder of Parties:
How?
Intervention:
Of Right
If not feasible, Ct can proceed w/o, but considers:
(1) Alternative forum;
(2) Actual likelihood of prejudice;
(3) Can court shape relief to avoid prejudice;
(4) Whether P will be deprived of adequate remedy.
Applicant has an interest in the property or transaction
and action without him may impair ability to protect
his interest.
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Civil Procedure (Fed and CA)
Intervention:
Permissive
Joinder of Claims:
Impleader
Applicant’s claim or defense and the main action have
common question of fact; must have own jx.
CA: In order to be permissive, intervenor’s interest
must be direct and immediate.
Join 3rd party for indemnity/ contribution on
underlying claim.
Instituted by P to determine who has a valid claim to
the stake.
Joinder of Claims:
Interpleader
Under Fed Rule, interpleader must follow regular Fed
question or diversity rules.
Under statutory rules, interpleader has special, simpler
standards – diversity between one claimant and $500
in issue, service nationwide and venue properly where
any claimant resides.
Subject Matter Jurisdiction +
Nobody Can Touch Rocky’s Apple
Federal Class Actions:
1) Numerosity
Requirements
2) Commonality
3) Typicality
4) Representative is Adequate
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Civil Procedure (Fed and CA)
Prejudice – class treatment necessary to avoid harm
to class member or party opposing class;
Federal Class Actions:
Types of Class Actions
Federal Class Actions:
Notification in Damages Class Action
Injunction/Declaratory Judgment – class members
treated alike by other party;
Damages (most likely mass tort) – (i) common
questions predominate; (ii) class action is superior.
Must notify all identifiable members that they can opt
out, otherwise bound if they don’t.
Can enter separate appearance.
Class Rep pays.
Fed Question or Diversity. If Div: only look to rep, no
one else in class.
Federal Class Actions:
Subject Matter Jurisdiction
Federal Class Actions:
Settlement
Traditionally → rep has complete diversity from Ds +
Rep claim > 75K;
Class Action Fairness Act → SMJ if any class
member diverse from any D, + more than 100 class
mems, + aggregate claim > $5m.
Requires ct appearance, notice to class, second chance
to opt out for members of class.
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Civil Procedure (Fed and CA)
Question is one of common or gen interest and is
impracticable to bring all before Ct.
CA State Class Actions
Requirements: Ascertainable class + well defined
community of interest (common question
predominates, representative is adequate, superior
method).
Duty to produce without request:
Discovery:
Required Disclosures (FED ONLY)
1) Initial Disclosures (i. ID people & docs likely to
have discoverable info; ii. computation of
damages; iii. insurance coverage.);
2) List of Experts;
3) Pretrial – detailed info about trial evidence at least
30 days before trial.
Discovery:
Scope - Relevant
Must be reasonably calculated to lead to admissible
evidence.
FED: Must be relevant to claim or defense.
CA: Must be relevant to subject matter of litigation.
Discovery:
Scope - Proportional
Must be proportional to needs of case.
Benefit must outweigh burden.
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Civil Procedure (Fed and CA)
Discovery:
Depositions
Non-parties subpoenaed.
Parties require notice.
Discovery:
FED: Limited to 25 total
Interrogatories
CA: Limited to 35 total.
Discovery:
30 days to respond
Request to Produce
Discovery:
30 days to respond
Requests for Admission
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Civil Procedure (Fed and CA)
Discovery:
Physical/Mental Exam
Discovery:
Duty to Supplement
FED: Court order required
CA: Party requesting can attend physical exam.
Court order required to attend mental exam.
FED: If incomplete or incorrect, response must be
supplemented.
CA: If unlimited, info must be accurate + complete
when given. Opposing party must make supplement
demands.
FED: Partial or Total Violation.
CA: Must work out on own unless total violation.
Discovery:
Sanctions
Both FED and CA:
Cost or Contempt + Extreme sanction for extreme
violations: (i) monetary sanctions; (ii) strike
pleadings; (iii) disallow evidence; (iv) dismiss; (v)
default judgment.
Discovery:
Work Product/Attorney Work product = mental
impression, conclusion, legal theories, opinions.
Privilege
CA: Balance privacy with need for information.
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Civil Procedure (Fed and CA)
Discovery:
E-Discovery
Requirement to Produce
Electronically Stored Info (ESI)?
FED and CA similar.
No need to produce electronically stored info (ESI) if
party shows not reasonably accessible because undue
burden, but court may order production + cost
sharing/shifting.
Discovery:
E-Discovery
May use metadata to authenticate.
Authentication
Discovery:
E-Discovery
No sanctions if ESI not preserved before knowing it
would be discoverable in litigation.
Safe Harbor
Discovery:
E-Discovery
Failure to Preserve ESI (FED)
Must take reasonable steps to preserve ESI if litigation
anticipated.
If data lost + prejudice to other party + intent to
deprive other party of data = Ct. may (i) presume or
instruct jury it may/must presume lost data
unfavorable to party; or (ii) dismiss action or enter
default jgmt.
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Civil Procedure (Fed and CA)
Adjudication without Trial:
Voluntary Dismissal
FED: P can voluntarily dismiss before D serves
answer or motion without prejudice.
CA: Before trial, P can dismiss with or without
prejudice. After trial, P can move for voluntary
dismissal with prejudice.
Failure to prosecute, or abide court order.
Adjudication without Trial:
Involuntary Dismissal
Adjudication without Trial:
Failure to State a Claim: Rule 12(b)6
CA: Discretion to dismiss if trial not brought within 2
yrs; mandatory dismissal if no trial within 5 yrs or no
process within 3 yrs.
Alleged facts must support legally recognized claim.
Assumes all allegations true, only looks at face of
complaint.
Moving party: must show no genuine dispute of
material fact.
Adjudication without Trial:
Summary Judgment
Opposing party: show triable issue exists.
Evidence looked at in light most favorable to
non-moving party.
CA: Separate Statement of Material Facts required.
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Civil Procedure (Fed and CA)
Federal Pretrial Conferences:
Court may hold as many as needed to expedite case
and facilitate settlement.
Purpose of Pretrial Conferences
Federal Pretrial Conferences:
Final Pretrial Conference
Court may use to formulate trial plan. Held close to
trial date, may be modified by court only to prevent
manifest injustice.
May be sanctioned for:
Federal Pretrial Conferences:
Sanctions
1) Failure to attend conference or obey order;
2) Being substantially unprepared; or
3) Acting in bad faith.
Verdicts & Judgments:
Recovery
If default, recovery limited to amount sought in
complaint.
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Civil Procedure (Fed and CA)
7th Amendment similar to CA Constitution.
Verdicts & Judgments:
Jury Trials
Verdicts & Judgments:
Voire Dire
Verdicts & Judgments:
Jury Verdicts
(FED)
FED: If law and equity, jury decides facts first in law.
Court decides equitable relief.
CA: Try equity first. If damages incidental, no jury
trial.
FED: Unlimited strikes for cause; each side gets 3
peremptory challenges; 6-12 jurors, no alternates;
requires unanimous verdict.
CA: Unlimited strikes for cause; each party gets 6
peremptory; alternates available; 3/4 verdict required.
General - finds in favor of P or D completely, gives
amount of damages.
Special – jury makes finding on all issues of material
fact submitted to them, court applies law.
General w/ Special Interrogatories – jury answers
factual questions to ensure general verdict valid.
Verdicts & Judgments:
Motion for Non-Suit
If D moves at close of P’s opening or at close of P’s
evidence.
(CA Only)
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Civil Procedure (Fed and CA)
Verdicts & Judgments:
Motion for Judgment as Matter of Law
a.k.a.
Directed Verdict
Verdicts & Judgments:
D moves at close of P’s evidence and close of all
evidence.
P only moves at close of all evidence.
Standard: Reasonable people couldn’t disagree.
Must bring Motion for Judgment as Matter of Law
FIRST.
Claim that jury verdict not reasonable.
Renewed Motion for
Judgment as Matter of Law
(Judgment Notwithstanding Verdict)
Bring within 28 days of entry of judgment.
Same standard as Motion for Judgment as Matter of
Law.
CA: No req’t to make Directed Verdict motion first.
1) Prejudicial error making judgment unfair;
Verdicts & Judgments:
Motion for New Trial
2) New evidence that couldn’t have been obtained
with due diligence;
3) Prejudicial misconduct;
4) Judgment is against the weight of evidence;
What are the grounds for new trial?
Appealability & Review:
Where and when to file appeal?
5) Excessive/inadequate damages that shocks the
conscience (remittitur: jury award too large, P
chooses lesser figure or new trial.)
FED: File in the trial court within 30 days of entry of
judgment.
CA: Limited and small claims appealed in appellate
division of Superior Ct.
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Civil Procedure (Fed and CA)
Decision on final merits of claim. All Ds must agree.
Appealability & Review:
Final Judgment Rule
(FED)
Appealability & Review:
NO Final Judgment: (i) Denial of motion for
Summary Judgment; (ii) grant for new trial; (iii) grant
to remand to state court; (iv) default judgment that
does not dispose of all claims among all parties.
YES Final Judgment: (i) Denial of new trial; (ii) Grant
or deny renewed motion for judgment as matter of
law.
Judgment must dispose of all causes of action pending
between the parties.
Final Judgment Rule
(CA)
Judgment of one of several parties is considered final
judgment.
Orders re:
Appealability & Review:
1) Injunctions;
2) Receivers;
Interlocutory Review – As of Right
(FED)
3) Property possession;
4) Admiralty;
5) Patent infringement;
6) Grant/deny class cert.
Court may review interlocutory orders only if:
Appealability & Review:
1) Order involves controlling question of law;
Interlocutory Review – Discretionary
(FED)
2) Substantial ground for difference of opinion;
3) Immediate appeal may advance ultimate
termination of case; and
4) Court of appeals allows appeal.
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Civil Procedure (Fed and CA)
Types of Extraordinary Writs
Writ of Mandate: compel lower court to do something
law requires.
Writ of Prohibition: to stop a lower court from doing
something the law doesn’t allow.
Requirements for Extraordinary Writs
Party will suffer irreparable harm if writ is not issued
(e.g. unusually harsh or unfair; normal appellate route
is inadequate; party has beneficial interest in
outcome).
Claimant won Case 1 – res judicata merges cases.
Claimant lost Case 1 – res judicata bars the case.
Res Judicata (Claim Preclusion)
Requirements:
1) Same parties;
2) Ended in valid final judgment on the merits; and
3) Assert the same cause of action/claim.
1) Against someone who was a party in Case 1;
Collateral Estoppel (Issue Preclusion)
2) Case 1 ended in valid, final judgment on the
merits;
3) Issue actually litigated and determined; and
4) Issue essential to the judgment.
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Civil Procedure (Fed and CA)
Non-mutuality Defensive: D can assert if P was party
to prior case, but only if P had full chance to litigate.
Who asserts Collateral Estoppel
(Issue Preclusion)?
Non-mutuality Offensive: P can assert against D if not
“unfair”:
1) D had full and fair opportunity to litigate;
2) Party could foresee multiple suits;
3) P couldn’t have been joined easily; and
4) No inconsistent judgments on record.
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Real Property
Fee Simple Absolute:
Fee Tail:
Divisible, Descendible and Alienable.
Abolished and turns into a fee simple absolute.
Life tenant limited by doctrine of waste.
Life Estate:
Future interest: reversion in grantor or remainder in
3rd party.
If life estate in 2 persons, contingent remainder in fee
simple upon death of first.
Requires: Clear conditional language, violation of
which leads to automatic forfeiture.
Fee Simple Determinable:
Characteristics: Divisible, Descendible, Alienable –
but always subject to durational condition.
Future Interest: possibility of reverter.
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Real Property
Requires: clear language that grantor has a right to reenter.
Fee Simple Subject to
Condition Subsequent:
Characteristics: Divisible, descendible, alienable,
subject to condition. If violated, interest may
terminate at grantor’s option.
Future Interest: right of entry.
Fee Simple Subject to
Executory Limitation
Future Interests to Grantor:
Characteristics: Divisible, Descendible, Alienable
subject to condition.
Future Interest: Shifting executory interest to 3rd
party.
1) Possibility of reverter.
2) Right of Entry.
3) Reversion.
Future Interests to Third Party:
Follows defeasible fee of some sort.
Shifting Executory Interest
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Real Property
Unascertained person OR subject to condition
precedent, or both.
Future Interests to Third Party:
Contingent Remainder:
If condition precedent, conditional language appears
before language creating remainder.
If satisfied, becomes an indefeasibly vested remainder.
Future Interests to Third Party:
Ascertainable person and not subject to condition
precedent.
Vested Remainder:
Future Interests to Third Party:
3rd person certain to acquire future interest without
condition.
Indefeasibly Vested Remainder:
Future Interests to Third Party:
Vested Remainder Subject to Complete
Defeasance/Total Divestment:
3rd party’s future interest could get cut short by
satisfaction of a condition subsequent.
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Real Property
Voluntary or Affirmative waste
Doctrine of Waste
(Very Athletic Purple Aliens)
Permissive Waste
Ameliorative waste
Overt conduct causing a decrease in value or
consumption/exploitation of natural resource.
Exceptions: PURGE
Voluntary or Affirmative waste
Permissive Waste:
Ameliorative waste:
1) Prior Use (if exploitation previously occurred,
but limited to open mines doctrine);
2) Reasonable repairs;
3) Grant; or
4) Exploitation (land only suitable for this
purpose).
Life Tenant must pay all ordinary taxes and mortgage
interest payments, and protect land from disrepair by
conducting reasonable maintenance.
Acts that may enhance property’s value not allowed
unless future interest holders know + give consent.
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Real Property
Rule Against Perpetuities
Rule Against Perpetuities:
Analysis
Voids future interest if any possibility that given
interest may vest > 21 yrs after death of measuring
life.
(1) Last person mentioned by proper name.
(2) Next subsequent party not mentioned by proper
name takes.
(3) The rest is struck.
Rule Against Perpetuities:
Reform
Wait and See/Second Look: Majority of jurisdictions
determine RAP at the end of the measuring life.
Uniform Statutory RAP: provides for 90 year vesting
period instead of life + 21 yrs.
TTIP – time; title; interest (equal); and possessionof
the whole.
Joint Tenancy:
How is it Created?
Grantor must clearly express survivorship rights.
Characteristics: not devisable or descendable;
alienable but destroys Joint Tenancy.
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Real Property
Joint Tenancy:
How is it Severed?
SPAM – Sale, Partition (voluntary agreement;
partition in kind; forced sale), Mortgage (if title
theory).
Marital interest between H & W with right of
survivorship.
Tenancy by the Entirety
Creation: only H&W who take as one. Presumption
when couple takes.
Characteristics: creditors can’t touch and no unilateral
conveyance to 3rd party.
Tenancy in Common
Characteristics: each co-tenant owns individual part
with right to possess the whole.
Descendible, divisible & alienable. No survivorship
rights.
Possession: each has right to possess whole; no ouster.
Rent from Co-T: none, absent ouster.
Rights of Co-Tenants
Part 1
Rent from 3rd Parties: lease of premises must account
to co-T for fair share of income.
Adverse Possession: co-T can’t adversely possess
unless valid ouster.
Carrying Costs: each co-T must pay for portion of
taxes & mortgage.
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Real Property
Repairs: contribution from other co-T if co-Ts advised
of reasonable & necessary repairs.
Rights of Co-Tenants
Part 2
Improvements: no contribution from co-Ts. But at
partition, improver responsible for increase or
decrease in value.
Waste: no waste and liability if co-T commits.
Partition: any co-T can seek it.
Landlord/Tenant:
Lease of fixed, determined period.
Tenancy for Years/
Termination: no notice required.
Term of Years/Estate for Years:
Term > 1yr must be in writing (SoF).
Successive or continuous intervals.
Periodic Tenancy
Termination: notice required; must be at least equal to
length of period with end at natural lease period.
Express or Implied
1) no duration specified but payment required at
specific intervals;
Implied Periodic Tenancy
2) oral agreement of terms of years with payment at
specific intervals; or
3) if Landlord elects to holdover Tenant who
wrongfully stays.
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Real Property
No fixed period of duration.
Tenancy at Will
Termination: at any time.
Tenancy at Sufferance
Tenant Duties:
Duty To 3rd Parties
T wrongfully holds over expiration of lease.
Must keep premises in good repair.
Liability for injuries sustained by invitees, even if L
promised to repair.
Must maintain premises and make ordinary repairs.
No waste.
Tenant Duties:
Duty to Repair
Fixtures: pass with ownership of land unless: private
agreement OR T can remove without causing
substantial harm to premises.
Loss: CL – T liable for any loss, incl force of nature.
Mod – if loss w/o fault of T, T may terminate lease.
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Real Property
Tenant Duties:
Duty to Pay Rent
CL: duty independent of L’s obligations.
Mod: duty dependent on L’s covenants under lease.
Commercial Ts: may be held for new yr-to-yr lease if
original was > 1 yr.
Tenant Duties:
Breach of Duty to Pay Rent when Tenant
in Possession of Property
Residential Ts: held to new month-to-month lease,
regardless of original term.
Rent = new rent if L advised T before term of old
lease OR old rent if L advised T after term.
SIR:
Tenant Duties:
If Tenant Fails to Pay Rent when
out of Possession
1) Surrender (L treats as ending of leasehold, but if
> 1yr left, writing may be required);
2) Ignore (hold T responsible for rent unpaid);
3) Re-Let (hold T liable for deficiency but L must
diligently try to re-let).
Landlord Duties:
Duty to Deliver Possession
MAJ (English Rule): put T in physical possession. If
former T on premises, L is liable for damages.
MIN (American Rule): put T in legal possession. If
former T on premises, that is T’s issue.
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Real Property
Breached by Total/Partial Actual or Constructive
Eviction
Landlord Duties:
Implied Covenant of Quiet Enjoyment
Total Eviction: L excludes T from entire premises; or
actual or continual refusal to repair material damages
that prevent habitability (terminates T's obligation to
pay rent);
Partial Eviction: 3rd party retakes and physically
excludes T from portion of leased premises (rent
proportionately reduced).
SING:
Constructive Eviction
1) Substantial Interference (chronic problem
fundamentally incompatible with quiet
enjoyment);
2) Notice (T notifies L, who fails to respond);
3) Get out (T must vacate within reasonable time)
Landlord Duties:
Actions of Other Tenants
L not responsible for actions of other Ts, except
cannot permit nuisances and must control/police
common areas.
CLAPS:
1) Common Areas (must maintain);
Landlord Duties:
Tort
2) Latent Defect (warn of those latent defects landlord
should be aware of);
3) Assumption of Repairs (if you say you’ll fix, fix
with reasonable care);
4) Public Use Rule (defects if leasing public space);
5) Short term lease of furnished apt (liable for any
defects causing harm).
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Real Property
Req’t: fit for basic human habitation as determined by
housing code or individual judicial conclusion.
Landlord Duties:
Implied Warranty of Habitability
(Residential only)
Tenant Power
Breach: M + 3Rs:
1) Move out (and terminate);
2) Repair & deduct;
3) Reduce rent (or withhold until ct determines fair
market value – but put $ in escrow);
4) Remain and sue (pay rent and get damages).
T only has ability to assign or sublease the interest
(time) he has.
If extended, then sublease for that extra time would be
invalid and the subletter/assignee could be ejected.
Transfer in entirety. L and T2 are in privity of estate
but not in privity of K.
Landlord/ Tenant:
Assignments
L and T1 not in privity of estate but in privity of K.
T2 is primarily responsible and T1 is secondarily
responsible.
Sublease: only portion of interest transferred. L and
T2 are not in privity of estate or K. T1 and T2 are
responsible to each other.
Affirmative Easements
Right to do something on servient land.
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Real Property
Requires holder to compel servient owner to refrain.
Negative Easements
Limited to LASSS: Light, Air, Support, Stream,
Scenic view.
Physical use/enjoyment of property.
Easement Appurtenant:
Passes automatically with dominant tenement and
with servient tenement unless BFP without notice.
In gross: only personal or commercial advantage.
Non-transferrable unless for commercial purpose.
PING:
1) Prescription (continuous, open, adverse, hostile).
Creation of an Easement
2) Implication (if division, implied from existing
use if apparent and reasonably necessary to
dominant land’s use/enjoyment).
3) Necessity (if division creates land lock).
4) Grant ( > 1yr must be in writing).
Termination of an Easement
END CRAMP:
(1) Estoppel (servient landowner materially changes
position in reasonable reliance that easement
won’t be enforced);
(2) Necessity;
(3) Destruction of servient land;
(4) Condemnation of serv land by eminent domain;
(5) Release (in writing);
(6) Abandonment (physical action by holder
expressing intent never to use again);
(7) Merger (if separated later, doesn't auto revive)
(8) Prescription (servient owner interferes)
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Real Property
Privilege to enter land for specific purpose.
License
Informal and freely revocable, unless estoppel
(licensee invested substantial $/labor in reasonable
reliance on continuation)
Profit
Permission to enter land to take soil. Same rules as
easements.
Covenant ($ damages)
Contractual promise to do or not do something on
land.
WITHVN:
1) Writing (by original parties);
2) Intent (by original parties to run);
Covenant ($ damages):
Burden Runs
3) Touch/Concern (provides some value to
benefited party);
4) Horizontal and Vertical Privity (H: succession of
estate between original parties, e.g. grantor/ee;
L/T; debtor/creditor. V: non-hostile nexus);
5) Notice (Actual, Record, or Inquiry).
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Real Property
WITV:
Covenant ($ damages):
Benefit Runs
1) Writing;
2) Intent;
3) Touch/Concern;
4) Vertical Privity.
Equitable Servitude
Operates like covenant, but injunction required to
enforce burden.
WITNES:
1) Writing;
Creation of Equitable Servitude
2) Intent;
3) Touch/Concern;
4) Notice;
5) Equitable Servitude.
Majority rule
Implied Equitable Servitude
Req’ts: (1) General Scheme by subdivider when sale
began; and (2) Notice.
Defenses: changed condition is so pervasive it affects
entire area.
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Real Property
Possession for statutory period of time can ripen into
title if it's COAH:
Adverse Possession
1) Continuous;
2) Open/Notorious;
3) Actual;
4) Hostile.
Possessor's state of mind irrelevant. No adverse
possession if owner disabled at inception. Tacking ok
if privity between adverse possessors.
SoF requires writing unless (2 of 3):
Land Conveyances:
Requirements for a land contract
1) Possession;
2) Payment;
3) Substantial Improvements.
Land Conveyances:
Risk of Loss in Land Contract
B owns land when K is signed so buyer bears risk.
Marketable title at closing free from adverse
possession, encumbrances, zoning violations.
Land Conveyances:
Implied Promises in Land Contract
No false statement of material fact, including failure
to disclose latent, material defects.
No implied promise of fitness or habitability unless
new home builder (promise of workmanlike
construction).
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Real Property
Land Conveyances:
Effect of Untimely Performance
Time not of the essence unless stated in K.
Performance rendered within reasonable time after
closing date is ok.
Deed replaces K as controlling doc.
Req’s: LEAD – Lawfully Executed And Delivered.
Land Conveyances:
Deed Requirements
Lawful execution: writing, signed by grantor (“G”),
comports with stat req’ts (no consideration req’d and
description only requires “good lead”).
Delivery: G must have present intent to be
immediately bound. Recipient’s express rejection
defeats delivery.
Land Conveyances:
No covenants. Only gives what Grantor has.
Quitclaim Deed
Land Conveyances:
General Warranty Deed
Sad, Crying Elvis Wants Queen Anne
1) Seisin – G owns estate he’s conveying;
2) Rt. to Convey – has power to convey w/o temp
restraints;
3) Against Encumbrances – no servitudes or
mortgages;
4) Warranty – promise to defend against lawful claims
by others;
5) Quiet Enjoyment – no disturbance by 3rd party’s
lawful claim of title;
6) Further Assurances – do whatever necessary to
perfect title.
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Real Property
Land Conveyances:
Statutory Special Warranty Deed
Promises G makes on behalf of himself that he won’t
convey to anyone else and property is free from
encumbrances made by G.
BFP = purchaser for value and without notice of
someone else buying first (actual, inquiry or record
notice).
Recording System:
Why is protected?
Doomed Donee: no protection for heir, devisee, or
donee except shelter rule.
Estoppel: person conveying land w/o any interest in it
is estopped from denying validity of conveyance if he
later acquires.
Recording System:
Shelter Ruler
One who takes from BFP is protected just like BFP.
Recording System:
Wild Deed
Out of order deed doesn’t give record notice.
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Real Property
Recording System:
Notice Statute Jurisdiction
2nd buyer wins if neither BFP nor buyer A record.
Recording System:
Race Notice Jurisdiction
1st buyer wins if records before 2nd buyer.
Mortgages:
Legal Mortgage
Encumbrance in writing.
Mortgages:
Equitable Mortgage
Deed absolute on face given as collateral.
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Real Property
Mortgages:
Transfer of a Mortgage
1) Note must be negotiable and made payable to
named mortgagee;
2) Original note must be endorsed and signed by
mortgagee;
3) Original must be delivered;
4) Transferee must take note in good faith without
notice of illegality;
5) Transferee must pay value for note.
Transferee is holder in due course. T takes free of
personal defenses but subject to real defenses.
MAD FIFI 4
1) Material Alteration
Mortgages:
Real Defenses – MAD FIFI 4
2) Duress
3) Fraud in Factum
4) Incapacity
5) Illegaility
6) Infancy
7) Insolveny
Mortgages:
Selling Property with a Mortgage
Foreclosure:
Assumption of mortgage: Debtor and buyer are
personally liable. Buyer is primarily and Debtor is
secondarily liable.
Subject to mortgage: Buyer has no personal liability;
only owner is personally liable, but home can still be
foreclosed.
All junior lien holders must be joined or mortgage
will remain on land.
Joinder
D must be joined if seeking deficiency judgment.
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Real Property
Foreclosure:
If sale < debt, mortgagee brings deficiency action.
Amount
If sale > debt, junior liens paid in full by order of
priority, surplus to debtor.
Foreclosure:
If sale < debt, mortgagee brings deficiency action.
Senior Interest
If sale > debt, junior liens paid in full by order of
priority, surplus to debtor.
Foreclosure:
Priority
Foreclosure:
Redemption
First to record, first in right.
BUT, purchase money mortgagee has “super-priority.”
In equity: up to date of sale, debtor may pay missed
payments + interest + cost.
Statutory redemption: ½ states allow redemption
within fixed period (e.g. 6months). Mortgagor has
right to possess during that time.
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Real Property
Lateral Support
Strict liability if excavation causes adjacent land in
natural state to cave or if land with building can show
that land would have collapsed in natural state.
Otherwise, negligence.
Water Rights:
Riparian Doctrine
Water belongs to landowners (riparians) bordering
water course.
Liable only for unreasonable interference with other’s
use.
Water initially belongs to the state.
Water Rights:
Prior Appropriation Doctrine
Right to divert and make beneficial use can be
acquired by individual.
Rights determined by priority of beneficial use (e.g.
agriculture). First in time, first in right generally.
Water Rights:
Groundwater
Surface owner has right to make reasonable use of
water beneath surface, but can’t be wasteful.
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Real Property
Water Rights:
Surface Water
Common enemy rule: landowner can change drainage,
but can’t unnecessarily harm land of another.
Creates flexibility.
Zoning:
Variance
Requirements: 1) undue hardship; 2) variance won’t
decrease neighboring prop value.
Determined by admin action before zoning board.
Zoning:
Non-Conforming Use
Zoning:
Unqualified Exactions
Once lawful but no longer because of new zoning
ordinance.
Can’t be eliminated all at once unless just
compensation paid.
Amenities government seeks in exchange for granting
permission to build.
Inherently suspect – must be reasonably related in
nature and scope to impact of proposed development.
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Real Property
Zoning:
Institutionalized Persons Act (RIULPA)
No zoning restrictions that impose substantial burden
on religious exercise of a person/institution unless
compelling gov interest.
Zones ranked in hierarchy. Residential zones = higher;
business zones = lower.
Zoning:
Cumulative Zoning
Zoning:
Non-Cumulative (Exclusive) Zoning
Zoning:
Grandfather Clauses
Uses allowed in higher zones also allowed in all lower
zones. But, no use allowed in higher zone than the
zone for which it was originally listed. (e.g. may build
residential home in business district, but no businesses
in residential district).
Allowed uses are exclusive to individual district.
(e.g. no residential building in business district).
Exempt businesses/class of persons from new zoning
rules/regulations.
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Real Property
Typically valid if lawful non-conforming use.
Zoning:
Validity of Grandfather Clauses
Conflicts of Law:
Re: Disposition of Property
Conflicts of Law:
Re: Validity of Land Contract
Conflicts of Law:
Re: Executory K for Sale of Land
But there is expectation that non-conforming use will
come to an end (e.g. factory in residential zone may
be prohibited from upgrading facilities since would
indicate no intent to eventually conform).
Disposition (by decent, deed, or any other method)
governed by laws of place where property located.
BUT: if property only incidental to K and K is
personal in nature, traditional conflicts of law rules for
Ks apply.
If no choice of law by parties, validity of K
determined by local law of state where property
located. UNLESS another state has more significant
relationship under choice of law principles to
transaction or parties.
Typically governed by law of jurisdiction where
property located. BUT in some jurisdictions, validity
and effect of executory K for land sale governed by
place where K is made and to be performed.
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Torts
P must show:
1) A harmful or offensive contact;
Battery
2) to P’s person;
3) D’s intent; and
4) Causation.
P must show:
1) An act by the D which causes reasonable
apprehension in P;
Assault
2) of immediate harmful or offensive contact
to P’s person;
3) D’s intent; and
4) Causation.
P must show:
1) An act or omission by D that confines or
restrains P;
False Imprisonment
2) to a bounded area;
3) D’s intent; and
4) Causation.
NOTE: P must be aware of or harmed by
confinement.
P must show:
1) Extreme and outrageous conduct by D;
Intentional Infliction of
Emotional Distress
2) Intent or recklessness;
3) Causation; and
4) Damages in the form of severe emotional
distress.
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Torts
P must show:
Bystander Intentional Infliction of
Emotional Distress
1) P present when injury occurred;
2) P is a close relative to V; and
3) D knew P was present and a close relative.
P must show:
1) A physical invasion of P’s real property;
2) Intent; and
Trespass to land
3) Causation.
NOTE: Negligent or reckless entries are only
subject to liability if D causes harm to land.
P must show:
1) An act by D that interferes with P’s right of
possession in chattel;
Trespass to chattel
2) Intent;
3) Causation; and
4) Damages.
P must show:
1) An act by D that interferes with P’s right of
possession of chattel,
Conversion
2) which is so serious that D must pay for chattel’s
full value;
3) Intent; and
4) Causation.
NOTE: even a BFP of chattel may be guilty when
chattel has been stolen from its true owner.
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Torts
Requires legal capacity.
Can be Express or Implied.
Consent
Implied Consent: Apparent - common understanding,
custom and usage or D’s reasonable interpretation of
P’s objective conduct; Implied by law where
necessary to save life.
- Only if invasion is imminent or in progress.
Self Defense and Defense of Others
(reasonable mistake does not negate)
- May only use proportionate force.
False Arrests:
Police → only if reasonable grounds to believe
felony was committed and person arrested committed
it.
Felony Arrest w/o Warrant
Private → only if felony was actually committed and
private person had reasonable grounds to believe
person committed it.
False Arrests:
Police and Private → only if breach of the peace and
committed in presence of arrester.
Misdemeanor Arrest w/o Warrant
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Torts
False Arrests:
Crime Prevention w/o Warrant
General Rule for Defense of Property
Police and Private → if felony or breach of the peace
is in progress, or reasonably appears to be.
Deadly force only allowable if felony and suspect
poses serious harm.
Must ask to desist.
No deadly force allowed.
Wrongdoer → reasonable time and manner.
Defense of property:
Re-entry on land
Innocent party → reasonable time and peaceful
manner with notice.
If on land through owner’s fault → no privilege.
Defense of property:
Re-capture of chattel
May use force only if in hot pursuit.
May only recapture from tortfeasor or third party
with knowledge of wrongful taking.
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Torts
Defense of property:
Shopkeepers privilege
Defense of property:
Public necessity
Defense of property:
Private Necessity
Shopkeeper may detain for reasonable time and
manner if reasonably believes person committed theft
in order to conduct an investigation.
If necessary to protect community as a whole, there
is absolute defense for trespass and damages.
D may protect own interest only if emergency is not
of D’s own making.
Only a defense for trespass, but D still liable for
actual harm.
Requirements:
1) Defamatory language,
2) of or concerning P;
Defamation
3) Publication by D to a third person; and
4) Damages, possibly. If libel or slander per se,
damages presumed. If any other slander,
damages must be proven with some showing of
economic harm.
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Torts
P must also prove:
If Defamation is matter of public concern
(Constitutional Defamation)
Defamation:
If Plaintiff is Public Figure
Defamation:
If Plaintiff is Private Figure
1) Falsity of the statement; and
2) Fault on D’s part, in addition to the 4 basic
requirements.
Must prove malice (e.g. D knowing of the falsity or
acting in reckless disregard), in which case damages
are presumed.
Must only prove negligence, in which case P must
prove damages.
Or demonstrate malice, in which case damages are
presumed.
Consent
Defenses to Defamation
Truth
Privilege
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Torts
Absolute – spouses (no publication); and officer of
gov’t in course of official duties.
Defenses to Defamation:
Absolute vs. Qualified Privilege
Invasion of Right to Privacy:
Appropriation of P’s Picture or Name
Qualified privilege – public interest in promoting
candor. Speaker must have a reasonable belief that
info is true and speech confined to matter at hand.
P must establish an unauthorized use of P’s picture or
name for D’s commercial advantage, unless news
worthy publication.
Remedies → injunction; damages.
P must show:
Invasion of Right to Privacy:
Intrusion
D’s act of prying or intruding into a private affair, in
which P has a reasonable expectation of privacy,
would be objectionable to a reasonable person.
P must show:
(1) D attributed to P certain views that P does not
hold or actions that he did not take,
Invasion of Right to Privacy:
False Light
(2) which would be objectionable to a reasonable
person under the circumstances; and
(3) Must show publication (must be widespread
dissemination of major/material falsehood).
If public concern, must prove malice.
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Torts
P must show:
(1) A public disclosure of private info about P…
Invasion of Right to Privacy:
Disclosure
(2) that would be objectionable to a reasonable
person (must be widespread dissemination of
confidential info).
Exception for news worthy publication.
Consent
Defenses to Privacy Torts
Absolute and Qualified privileges (for disclosure and
false light).
NOTE: Truth is not a defense
P must prove:
Intentional Misrepresentation
(Fraud, Deceit)
1) An affirmative misrepresentation of a material
fact (2) that D made knowing or believing it was
false, (3) which induced P to act in reliance upon
the misrepresentation;
4) Justifiable reliance;
5) Causation; and
6) Damages.
P must prove:
1) Misrepresentation by D in a business or
professional capacity;
Negligent Misrepresentation
2) Breach of duty toward the P;
3) Causation;
4) Justifiable reliance;
5) Damages.
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Torts
P must prove:
1) Existence of a valid contractual relationship
between P and a third party or valid business
expectancy of P;
Inducement of a Breach of Contract
2) D’s knowledge of relationship or expectancy;
3) An intentional interference by D inducing
breach or termination;
4) Damages.
Defense: D’s own business interest or protection of
interest.
Must be:
1) Institution of criminal proceedings against P;
2) Termination in P’s favor;
Malicious prosecution
3) Absence of probable cause for prior proceedings;
4) Improper purpose; and
5) Damages
Must be:
Abuse of process
1) Wrongful use of the legal process for an ulterior
purpose; and
2) A definite act or threat against P in order to
accomplish the ulterior purpose.
1) Duty
Elements for Negligence
2) Breach
3) Causation
4) Damages
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Torts
Negligence:
Duty
Duty of care owed to foreseeable plaintiffs in the
zone of danger is the amount of care a reasonably
prudent person (RPP) would exercise acting under
similar circumstances, taking into account the
person’s superior skill, knowledge, and physical
characteristics.
Under 4 → no liability;
Negligence:
Specialized Duty Rules For
Children
Negligence:
Specialized Duty Rules For
Professionals
Negligence:
Specialized Duty Rules For
Age 4-18 → duty of care of a child of similar age,
intelligence and experience under similar
circumstances, unless child is engaged in adult
activity.
Owe the care of an average member of that
profession participating in a similar community.
Specialists compared with other specialists
nationwide.
Held to high degree of care and liable for even slight
negligence if P is a passenger or guest.
Common Carriers and Innkeepers
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Torts
Negligence:
Specialized Duty Rules For
Owe duty of ordinary care, although for nonpaying
passengers may only be liable for reckless tortuous
conduct.
Automobile Driver to Passengers
Possessors of Land:
Zero duty of care.
But, no wanton/willful harm (no traps).
Duty owed to Undiscovered trespassers
If dangerous condition → duty to warn of concealed
unsafe condition that may cause death or serious
bodily harm.
Possessors of Land:
Discovered trespassers
(including anticipated trespassers)
P must show:
1) Artificial condition;
2) Highly dangerous;
3) Concealed; and
4) Prior knowledge.
No duty to inspect or repair.
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Torts
Child trespassers injured by artificial condition are
entitled to the care of a RPP under the circumstances,
if P shows:
Possessors of Land:
Attractive nuisance doctrine
1) Dangerous condition present on land that owner
is or should be aware;
2) Owner knows of or should know that kids
frequent vicinity of condition;
3) Condition is likely to cause injury;
4) Expense of remedy is slight versus risk.
Possessors of Land:
What is a Licensee?
Entrant with own purpose but with permission (e.g.
social guest)
If dangerous condition, possessor has duty to warn
licensee of all known dangerous conditions.
Possessors of Land:
Duties owed to
Licensees
P must show:
1) Concealed condition; and
2) Possessor had prior knowledge.
No duty to inspect or repair.
Possessors of Land:
What is an Invitee?
Entrant who is on land for commercial benefit of
possessor (e.g. customers in a store).
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Torts
Duty to protect from all reasonably knowable
dangerous conditions. P must show:
Possessors of Land:
Duties owed to
Invitees
Possessors of Land:
Duties owed to
Lessee
Possessors of Land:
Vendor of realty
1) Concealed condition; and
2) Possessor had prior knowledge or would have
discovered by reasonable inspection.
Exception: if owner of recreational land w/o fee, no
liability for injuries unless possessor willfully and
maliciously failed to guard against or warn.
General duty to warn of existing defects if aware that
lessee will not discover upon reasonable inspection.
Lessee has general duty to maintain.
Must disclose concealed, unreasonably dangerous
conditions not discoverable by reasonable inspection.
Statutory duty may replace common law duty of care,
thus creating negligence per se, if:
Statutory standards of care
1) The statute provides for a criminal penalty;
2) Statute clearly defines the standard of conduct;
3) Plaintiff is within the protected class; and
4) Statute was designed to prevent the type of
harm suffered by plaintiff.
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Torts
Duty to Rescue
Generally no duty to rescue, unless (i) family
member; (ii) common carrier and innkeepers to
customers; or (iii) land possessors to invitees.
BUT, if undertake rescue, must act reasonably.
Liable for negligence during rescue.
1) Res Ipsa Loquitor
Ways to Establish Breach
2) Violation of statute
3) Custom or Usage
Ways to Establish Breach:
Res Ipsa Loquitor
Ways to Establish Breach:
Custom or Usage
P lacks info of what D did wrong, but as a matter of
logic the accident that occurred is normally, typically
or routinely associated with negligence.
May be used to demonstrate standard of care
required, but not necessarily conclusive to determine
whether conduct was negligence.
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Torts
Single Defendant: Use “But for” test.
Actual Causation
Multiple Defendants:
Merged or mingled causes → substantial factor;
Unascertainable cause → shift burden of proof to D
Foreseeability: If D is direct cause, result is
foreseeable unless freakish and bizarre.
Proximate Cause
If indirect cause, D always liable for intervening
medical negligence; negligence rescue; protection or
reaction forces; and subsequent disease or accident.
No liability if intervening force is crime or
intentional tort.
Eggshell plaintiff rule
You take P as you found P.
1) Contributory negligence
Defenses to Negligence
2) Assumption of the risk
3) Comparative negligence
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Torts
Contributory negligence
Assumption of the risk
Minority Rule → contributory negligent P is barred
from recovery.
Last Clear Chance Rule applies: Even if P is
contributorily negligent, if D had last clear chance to
avoid accident, D is liable.
If P knew of risk and voluntarily proceeded, then P
may be denied recovery.
P failed to take proper degree of care for own safety.
Jury assigns % of fault.
Comparative negligence
Pure comparative fault → strictly by the numbers.
Partial/Modified comparative fault (used by most
states) → P recovers % only if fault is < 50%.
Last clear chance does not apply.
P must show:
1) D was negligent;
Negligent Infliction of
Emotional Distress
2) P was within zone of physical danger as a result
of D’s negligence; and
3) Physical manifestation of that stress
(Exception: physical manifestation assumed if
mishandling of corpse)
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Torts
P must prove:
1) Existence of an absolute duty to make safe;
To Establish Strict Liability
2) Breach of duty;
3) Actual and proximate cause of P’s injury; and
4) Damage to the P’s person or property.
Injuries caused by animals
Always SL if livestock or wild animals.
No SL for domesticated animals, unless D knew of
vicious propensities.
SL if P proves:
Ultra-Hazardous Activity
1) Activity cannot be made safe given existing
technology;
2) Activity poses severe risk of harm; and
3) Activity is uncommon in the area where it’s
conducted.
P must show:
Product Liability:
Strict Tort Liability
1) D was a merchant routinely dealing in goods of
this type;
2) Defective product;
3) Existence of defect when product left D’s
control; and
4) P was making foreseeable use of the product at
the time of injury.
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Torts
P must show:
Product Liability:
Manufacturing defect
1) Product differs from others off the assembly
line; and
2) Failed to perform as safely as an ordinary
consumer would expect.
All products in the line are dangerous.
D has duty to use alternative design if it is:
Product Liability:
Design defect
Product Liability:
Inadequate warnings
Product Liability:
Implied Warranty of Merchantability
1) Safer;
2) Economical; and
3) Practical (e.g. doesn’t impair the products
utility, make it more difficult to use, or present
alternative safety issues).
Consumers must be warned of residual risks,
preferably at point of use, using more than words
(e.g. icons or pictures).
Goods are of average acceptable quality and
generally fit for the ordinary purpose for which the
goods are used.
SL if breached.
Defenses → assumption of risk; contributory neg.
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Torts
Product Liability:
Implied Warranty of Fitness for a
Particular Purpose
Seller knows or has reason to know the particular
purpose for which goods are to be used and buyer
relies on seller to select goods.
SL if breached.
Defense → assumption of risk; contributory neg.
Product Liability:
Affirmation of fact or promise that becomes basis of
the bargain.
Express warranty
Breach if bargain isn’t lived up to.
SL if statement was:
Product Liability:
Misrepresentation of fact
Miscellaneous Torts:
Public Nuisance
1) of material fact concerning quality or use of
goods; and
2) Seller intended to induce reliability with
statement.
Established if community’s right to health, safety, or
property have been interfered with to an
unreasonable degree, requiring a balance of interests.
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Torts
Miscellaneous Torts:
Private Nuisance
Established if P’s ability to use or enjoy P’s property
has been interfered with to a substantial and
unreasonable degree, requiring a balance of interests.
If V is married, uninjured spouse may claim damages
for loss of:
Miscellaneous Torts:
Loss of consortium
1) Domestic services;
2) Companionship;
3) Sexual intimacy.
Respondeat superior when employee commits tort
within scope of employment.
Vicarious liability:
Employer/Employee
Vicarious liability:
Hiring party/independent contractor
No VL for intentional torts outside scope of
employment unless (i) job entails use of force;
(ii) employer authorizes; or (iii) motivated by desire
to benefit employer.
No VL except land possessors are liable for injuries
to invitees caused by independent contractors.
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Torts
Vicarious liability:
Car owner/Car Driver
Vicarious liability:
Parent/Child
Generally no VL unless owner lends car to driver for
owner errand or owner provides express or implied
permission to immediate family member.
Generally no VL, unless there is negligence or
negligent entrustment.
Occurs when two or more negligent acts are
proximate causes to injury.
Joint and Severable Liability
If indivisible → each D is liable for entire amount of
damage.
If divisible → each D is liable for their identifiable
portion.
If Ds acting in concert → each D liable for entire
amount of damage.
Co-Defendants’
Comparative Contributions:
Contribution: typically relative to proportion of fault;
minority of states → apportionment in equal shares.
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Torts
Shifts entire loss between or among tortfeasors if by:
Indemnity
1) Contract;
2) Vicarious Liability;
3) Strict products liability; or
4) Identifiable difference in degree of fault (in some
jurisdictions)
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