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Studicata UBE Self-Study Program: Secret Weapons
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BUSINESS ASSOCIATIONS
AGENCY RELATIONSHIPS
CREATION: An agency relationship is created when:
1. The parties voluntarily consent to enter into
an agency relationship; AND
2. The agent is subject to the principal’s control.
TERMINATION: The agency relationship may be
terminated by the parties if the:
1. Agent or principal manifests to the other the
desire to cease the agency relationship;
2. Express terms of the agency expire; OR
3. Purpose of the agency relationship is fulfilled.
The agency relationship may be terminated by operation
of law if the:
1. Agent or principal dies;
2. Agent or principal loses capacity; OR
3. Agent materially breaches a fiduciary duty owed to
the principal.
AUTHORITY TO BIND PRINCIPAL: An agent may bind a
principal to a contract if the agent is acting within his actual
or apparent authority. Once a principal is validly bound to a
contract by his agent, the principal is liable under the terms of
the contract.
ACTUAL AUTHORITY: An agent acts with actual authority
(express or implied) when the agent reasonably believes, in
accordance with the principal’s manifestations to the agent,
that the principal wishes the agent to act.
Express Authority. Actual express authority exists when
the principal directs the agent to engage in the precise
task in question.
Implied Authority. Actual implied authority exists when
the agent believes, based on a reasonable interpretation
of the principal’s words or conduct, that the principal
wishes the agent to act on his behalf.
APPARENT AUTHORITY: An agent acts with apparent
authority when:
1. The principal holds the agent out as having authority
to act on the principal’s behalf; AND
2. The principal’s conduct, when reasonably
interpreted, causes a third party to rely on the
agent’s appearance of authority when dealing with
the agent.
PRINCIPAL/AGENT VICARIOUS LIABILITY
RESPONDEAT SUPERIOR: An employer (principal) may be
liable for torts committed by an employee (agent) if:
1. An employer-employee relationship exists; AND
2. The employee’s commission of the tort occurs
within the scope of employment.
INDEPENDENT CONTRACTORS: Generally, a principal is not liable
in tort for the unauthorized conduct of an independent
contractor. The principal’s amount of control over the agent is
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the key factor in determining whether an agent is an
independent contractor. Other relevant factors include:
1. The nature of the work
2. The skill required in the particular occupation;
3. Who supplies the equipment or tools to perform
the work;
4. The method of payment (hourly, salary, etc.);
5. The length of the employment; AND
6. How the parties characterize the transaction.
PARTNERSHIP TYPES AND FORMATION
GENERAL PARTNERSHIP (GP): A GP is a type of partnership
that has no limited personal liability. A GP is formed when:
1. Two or more person;
2. Associate as co-owners;
3. To carry on a business for profit.
LIMITED PARTNERSHIP (LP): An LP consists of one or more
general partners and one or more limited partners. General
partners remain personally, jointly and severally liable for all
debts of the LP, while limited partners are personally liable for
debts only to the extent of their investment in the LP.
Formation. An LP is formed when a written certificate of
limited partnership is executed in substantial compliance
with state law and filed with the secretary of state.
LIMITED LIABILITY PARTENRSHIP (LLP): An LLP limits a
partner’s potential liability for professional malpractice that
is committed by another partner. Any partnership may
become an LLP upon the:
1. Approval of the partners by vote; AND
2. Filing a statement of qualification with the secretary
of state.
PARTNERSHIP LIABILITY
TORT LIABILITY: General partners are jointly and severally
liable for all obligations of the partnership arising from
any wrongful act or omission of any partner acting:
1. Within the ordinary course of business; OR
2. With the authority of all other partners.
Limited partners are not personally liable for obligations of
the LP arising from the wrongful acts or omissions of other
partners (they are always liable for their own misconduct).
CONTRACT LIABILITY: Each partner is an agent of the
partnership. Therefore, the actions of every partner that
are made within the ordinary course of business to carry on
the partnership’s business bind the partnership, unless the
partner taking the action:
1. Has no authority to act on behalf of the partnership;
AND
2. The other side has knowledge or notice that
the partner lacks authority.
DUTIES OF THE PARTNERS
DUTY OF CARE: Each partner owes a limited fiduciary duty of
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care to the partnership and other partners, which
requires that each partner refrain from engaging in:
1. Grossly negligent or reckless conduct;
2. Intentional misconduct; OR
3. A knowing violation of the law.
DUTY OF LOYALTY: Each partner owes a fiduciary duty of
loyalty to the partnership and other partners, which
requires that each partner:
1. Act in good faith and fairly toward the
other partners;
2. Account for any property, profit, or benefit derived
by the partner from the partnership business; AND
3. Refrain from:
a. Competing with the partnership; AND
b. Usurping a business opportunity that
properly belongs to the partnership.
EFFECT OF BREACH: If a partner breaches the duty of care or
loyalty, he may be held personally liable for damages.
PARTNERSHIP DISSOLUTION
DISSOLUTION: Dissolution of a partnership does not
immediately terminate the partnership. Rather, the
partnership enters a “winding up” phase, which continues
until the winding up of the partnership’s affairs is completed.
CAUSES: There are three main causes of dissolution
1. Actions taken by the partners (e.g., dissociation);
2. Operation of law (e.g., the partnership’s business
becomes illegal); OR
3. Court order (e.g., a judicial dissolution may be
granted if it becomes impracticable to continue the
partnership’s business).
UNIFORM PARTERNSHIP ACT (UPA): Under the UPA, any
change in partner membership automatically triggers
dissolution of the partnership unless there is an agreement
to the contrary.
REVISED UNIFORM PARTERNSHIP ACT (RUPA): Under RUPA,
absent an agreement to the contrary, the “disassociation”
(occurs when a partner ceases his association with carrying
on the partnership business) of a partner does not
automatically trigger dissolution unless:
1. The partnership is an at-will partnership; OR
2. There is an occurrence of an event that the partners
specified in the partnership agreement that would
cause dissolution (e.g., term partnerships).
TERM PARTNERSHIPS: Under RUPA, a term partnership may
be dissolved before its term expires if:
1. At least half of the partner’s express their will to
wind up the business within 90 days after a partner’s
disassociation by death, bankruptcy, becoming
incapacitated, or wrongful disassociation; OR
2. All of the partners agree to amend the partnership
agreement by expressly agreeing for dissolution.
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CORPORATION FORMATION
ARTICLES OF INCORPORATION: Generally, a corporation is
formed when the articles of incorporation are filed with
the secretary of state (unless the articles specify a delayed
effective date).
Amendments. The articles may be amended if there is a
majority vote from the directors and shareholders.
However, minor amendments may be made by the
board of directors without shareholder approval.
CORPORATE BYLAWS: Corporate bylaws are written rules of
conduct that must be initially adopted by the incorporators
or board of directors. The bylaws may contain any provision
for managing the business and regulating the affairs of the
corporation to the extent that is consistent with the law and
articles of incorporation. If there is a conflict between the
articles and bylaws, the articles of incorporation govern.
Amendments. The bylaws may be amended or repealed
by the corporation’s shareholders. The board of
directors may also amend or repeal the bylaws unless
the shareholders expressly specify otherwise.
PIERCING THE CORPORATE VEIL
GENERAL RULE: Generally, shareholders of a corporation
are not personally liable for the debts of the corporation.
However, the major exception to this rule is the doctrine of
piercing the corporate veil.
PIERCING THE CORPORATE VEIL: Courts will allow a creditor
to pierce the corporate veil and hold a shareholder
personally liable for the debts of a corporation when:
1. The shareholder has dominated the corporation
to the extent that the corporation may be
considered the shareholder’s alter ego;
2. The shareholder failed to follow
corporate formalities;
3. The corporation was undercapitalized; OR
4. There is fraud or illegality present.
EFFECT: Once the corporate veil has been pierced, courts
generally hold all of the shareholders liable. However,
some courts do not extend liability to passive investors.
SHAREHOLDER RIGHTS
MEETINGS: A corporation must hold an annual meeting of
shareholders at a time that is fixed in accordance with the
bylaws. Special meetings can be held in certain situations.
Notice. Generally, shareholders who are entitled to vote
must be provided with sufficient notice of all annual and
special meetings.
Quorum. A quorum must be present in order for the
shareholders to take action at a meeting. Unless
otherwise set forth in the articles, a quorum exists
when at least a majority of the shares entitled to vote
are present.
VOTING RIGHTS: The articles may provide that holders of
certain types of shares cannot vote unless specific conditions
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are satisfied. Unless otherwise provided by law or the
articles, all shareholders’ votes are counted equally,
regardless of class.
ELECTING DIRECTORS: Shareholders elect directors either
directly (each share equals one vote) or cumulatively (voters can
put multiple votes on one or more candidates). Generally,
cumulative voting is more favorable to minority shareholders.
VOTE BY PROXY: A vote by proxy allows a shareholder to vote
without physically attending the meeting by authorizing
another to vote her shares on her behalf. A valid proxy must
exist in the form of a verifiable electronic transmission or a
signed written appointment form.
Freely Revocable. A proxy is freely revocable unless the
recipient of the proxy has an economic interest in the
shares.
BOOKS AND RECORDS: A shareholder possesses the right to
inspect corporate books and records during normal business
hours so long as the purpose for the inspection is proper.
However, a shareholder may inspect the articles and bylaws
without providing a proper purpose.
SALE OF CORPORATE ASSETS: Shareholder approval is
required for the corporation to sell, lease, exchange, or
otherwise dispose of all, or substantially all, of its property if
the disposal is not in the corporation’s usual and regular
course of business. However, if the disposal of assets is in the
corporation’s usual and regular course of business,
shareholder approval is not required (unless otherwise set
forth in the articles of incorporation).
DUTIES OF THE DIRECTORS AND OFFICERS
AUTHORITY OF DIRECTORS: Subject to any limitation
imposed by law or the articles, the board of directors has
full control over the affairs of the corporation.
AUTHORITY OF OFFICERS: The board of directors generally
delegates day-to-day management of the corporation’s
business to officers elected by the board. The board may
remove officers at any time with or without cause.
DUTY OF CARE: Directors and officers owe the corporation
a fiduciary duty of care. This duty includes:
1. The duty to take reasonable steps to monitor the
corporation’s management;
2. The duty to be satisfied that proposals are in the
corporation’s best interests;
3. The duty to disclose material information to the
board; AND
4. The duty to make reasonably informed decisions.
BUSINESS JUDGMENT RULE (BJR): In suits alleging that a
director or officer violated his duty of care owed to the
corporation, courts will apply the BJR. Under this rule, a court
will not second guess the decisions of a director or officer so
long as the decisions are made:
1. In good faith;
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2.
With the care an ordinarily prudent person in a like
position would exercise under similar circumstances;
AND
3. In a manner the director/officer reasonably believes
to be in the best interests of the corporation.
If a director or officer breaches the duty of care, he may
be held personally liable for damages.
CONFLICTING INTEREST TRANSACTIONS: Directors and
officers have a duty to avoid implicating their personal
conflicting interests in making business decisions for the
corporation. However, a director/officer that enters into
a conflicting interest transaction may be protected if:
1. Disinterested shareholders approve the transaction;
2. The non-interested members of the board
authorize the transaction; OR
3. The transaction, at the time of commitment, is
established to have been fair to the corporation.
CORPORATE OPPORTUNITIES: The corporate
opportunity doctrine prohibits directors and officers from
usurping business opportunities that rightfully belong to
the corporation for their own benefit.
MERGERS AND CONSOLIDATIONS
MERGERS AND CONSOLIDATIONS: A merger occurs when
one of two existing corporations is absorbed by the other
corporation. A consolidation occurs when two existing
corporations combine into one new corporation. A merger
or consolidation both require:
1. The recommendation of an absolute majority of
the board of directors; AND
2. The agreement of each corporation by an
absolute majority of shareholders.
DISSENTERS’ RIGHTS: After a merger or consolidation occurs,
dissenting shareholders opposed to the action may either:
1. Challenge the action; OR
2. Receive payment determined at fair market value of
their shares immediately before the merger or
consolidation took effect.
SHAREHOLDER LITIGATION
DERIVATIVE CLAIMS: A derivative claim is a lawsuit brought
by a shareholder on behalf of the corporation. The
shareholder is suing to enforce the corporation’s rights
when the corporation has a valid cause of action, but has
failed to pursue it. If successful, the proceeds go to the
corporation. However, if the award to the corporation
benefits the defendants, the court may order that damages
be paid directly to the shareholder who brought the action.
Demand. Generally, a shareholder must make a written
demand on the board before commencing a derivative
action. After submitting the demand, the shareholder
must wait 90 days to file the derivative action, unless
the board rejects the demand during the 90-day period.
However, under the common law, and in some
jurisdictions today, the plaintiff shareholder does not
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have to make a demand on the board if it would be futile
to do so (e.g., the board is interested in the transaction
being challenged).
DIRECT CLAIMS: A direct claim is a lawsuit brought by a
shareholder to enforce his own rights. The shareholder must
prove actual injury that is not solely the result of an injury
suffered by the corporation. If a direct claim is successful, the
proceeds go to the shareholder.
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CIVIL PROCEDURE
SUBJECT MATTER JURISDICTION (SMJ)
FEDERAL QUESTION JURISDICTION: A federal court has
federal question jurisdiction if the well-pleaded
complaint alleges a claim that arises under federal law.
DIVERSITY JURISDICTION: A federal court has
diversity jurisdiction if:
1. Complete diversity is present; AND
2. The amount in controversy exceeds $75,000.
CITIZENSHIP: Determining citizenship for diversity purposes
varies depending on the types of parties involved.
Individuals. An individual’s citizenship is determined by
the individual’s state or country of domicile.
Corporations. Corporations hold dual citizenship:
a. The state or country of incorporation; AND
b. The state or country of its principal place of
business.
Unincorporated Associations. Unincorporated
associations and partnerships are considered a citizen of
every state of which its members are citizens.
SUPPLEMENTAL JURISDICTION: Supplemental jurisdiction
allows a federal court with valid SMJ over a case to hear
additional claims over which the court would not
independently have jurisdiction if all the claims constitute the
same case or controversy.
Same Case or Controversy. Claims constitute the same
case or controversy if they arise out a “common nucleus
of operative fact” (i.e., the claims arise out of the same
transaction or occurrence).
REMOVAL: Removal allows the defendant to move a case
from state court to federal court if the case could have been
brought originally in federal court. In diversity actions, there
is an additional requirement – the defendant may remove if:
1. Complete diversity is present;
2. The amount in controversy exceeds $75,000; AND
3. The action is brought in a state of which no
defendant is a citizen.
PERSONAL JURISDICTION (PJ)
TRADITIONAL BASES: If any of the following 4 traditional bases
are satisfied, the court will have PJ over the defendant:
1. Domicile (D is domiciled in the forum state)
2. Physical Presence (D is served in the forum state)
3. Consent (D consents to PJ)
4. Waiver (D waives his objections to PJ)
STATE LONG-ARM: If none of the traditional bases are
satisfied, the court will still have PJ over the defendant if
minimum contacts exist between the defendant and the
forum state. Sufficient minimum contacts exist when:
1. General or specific jurisdiction is present; AND
2. The exercise of such jurisdiction does not offend
traditional notions of fair play and substantial justice.
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GENERAL JURISDICTION: General jurisdiction exists when the
defendant’s contact with the forum state is so systematic and
continuous that he is essentially at home in the forum state.
SPECIFIC JURISDICTION: Specific jurisdiction is present if:
1. The defendant purposefully availed himself of
the benefits of the forum state; AND
2. The defendant knew or reasonably should have
anticipated that his activity in the forum state made it
foreseeable that he may be hailed into court there.
SERVICE OF PROCESS AND NOTICE
SERVICE: The plaintiff is responsible for having a copy of the
summons and complaint served on the defendant within 90
days after the complaint is filed.
Domestic Individuals. An individual within the U.S. may
be served by:
a. Delivering a copy to the individual personally;
b.
Leaving a copy at the individual’s dwelling with
someone of suitable age who resides there; OR
c. Delivering a copy to an authorized agent.
Foreign Individuals. Unless prohibited by foreign law, an
individual in a foreign country may be served by:
a. Using certified mail requiring a signature; OR
b. Delivering a copy to the individual personally.
Business Entities. A corporation, partnership, or
association may be served by delivering a copy of the
summons and complaint to an officer, a managing or
general agent, or any other agent authorized by law.
VENUE AND TRANSFER
VENUE: Venue is proper in a judicial district where:
1. Any defendant resides if all the defendants reside
in the same state;
2. A substantial part of the events giving rise to the
claim occurred or a substantial part of property that
is the subject of the action is located; OR
3. If (1) or (2) cannot be satisfied, a judicial district
in which any defendant is subject to PJ.
RESIDENCE: Determining residence for venue purposes
varies depending on the types of parties involved.
Individuals. An individual is deemed to reside in the
judicial district where he is domiciled.
Business Entities. A business entity is deemed to reside
in any judicial district where the entity is subject to PJ.
Foreign Defendants. A defendant who is not a resident
of the U.S. may be sued in any judicial district.
TRANSFER: If venue is proper, the court may nonetheless
transfer the case for convenience to any court where the
case could have been originally filed. In diversity cases, the
transferee court must apply the law that would have been
applied in the district court that transferred the case.
If venue is improper, the court must:
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1. Dismiss the case; OR
2. Transfer the case to a venue in which the case could
have been originally filed, and apply the choice-oflaw rules of the state in which it is located (in
diversity cases).
In all federal question cases, the transferee court must apply
the federal law as interpreted by its own federal court of
appeals (regardless of whether original venue was proper).
PRELIMINARY INJUNCTIONS/TROs
PRELIMINARY INJUNCTION (PI): A PI preserves the status quo
of the parties until a final judgment can be reached. A plaintiff
seeking a PI must establish that:
1. She is likely to suffer irreparable harm if the PI is
not issued;
2. She is likely to suffer greater harm than the
defendant will if the PI is not issued;
3. She is likely to succeed on the merits; AND
4. The PI is the best interest of the public.
The non-moving party must be given notice and an
opportunity to oppose the PI at a hearing before the court.
TEMPORARY RESTRAINING ORDER (TRO): A TRO preserves
the status quo of the parties for up to 14 days until there is an
opportunity to hold a full hearing on the application for a PI.
A plaintiff seeking a TRO must establish that:
1. She is likely to suffer irreparable harm if the TRO is
not issued;
2. She is likely to suffer greater harm than the
defendant will if the TRO is not issued;
3. She is likely to succeed on the merits; AND
4. The TRO is the best interest of the public.
The court may issue a TRO without notice (ex parte) if:
1. Immediate and irreparable will result to the movant
before the non-moving party can be heard; AND
2. The attorney certifies in writing any efforts made to
give notice and why it should not be required.
PLEADINGS
COMPLAINT: The complaint is the first pleading filed by the
plaintiff – it commences the lawsuit. A complaint must state:
1. Grounds for SMJ;
2. A showing that the pleader is entitled to relief; AND
3. A demand for judgment for relief.
PRE-ANSWER MOTION: After the complaint is filed, the
defendant may file a pre-answer motion to raise certain
defenses or respond with the answer.
ANSWER: The answer must state:
1. A specific denial or admission of each allegation in
the complaint or a general denial of all allegations
with specific admissions if necessary; AND
2. Any affirmative defenses that the respondent has (if
excluded, such defenses are deemed waived).
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COMPULSORY JOINDER
COMPULSORY JOINDER: A plaintiff must join an absent
party or face dismissal of the lawsuit if:
1. Complete relief cannot be accorded among the other
parties to the action without the absentee party; OR
2. The absentee has such an interest in the action that
a decision in his absence will impede his ability to
protect the interest or leave any of the other
parties subject to a substantial risk of incurring
multiple/inconsistent obligations; AND
3. The court has PJ over the absentee; AND
4. The absentee’s presence would not destroy
subject matter jurisdiction or venue.
DISCOVERY
SCOPE: Generally, discovery is permitted with regard to
any non-privileged matter that is:
1. Relevant to any party’s claim or defense; AND
2. Proportional to the needs of the case.
LIMITS: The court must limit the extent of discovery if:
1. The discovery sought is unreasonably cumulative
or can be obtained from some other source that is
more convenient or less expensive; OR
2.
The party seeking discovery had ample opportunity to
obtain the information by discovery in the action.
ATTORNEY WORK-PRODUCT: Generally, the materials
prepared by an attorney or client in anticipation of
litigation are protected from discovery unless:
1. The materials are otherwise unavailable;
2. There is a substantial need for the materials; AND
3. The materials cannot be obtained without
undue hardship.
MOTIONS
RULE 12(b): A party may assert any or all of the
following defenses by motion to dismiss:
1. Lack of subject matter jurisdiction;
2. Lack of personal jurisdiction;
3. Improper venue;
4. Insufficient process;
5. Insufficient service of process;
6. Failure to state a claim upon which relief can be
granted; AND
7. Failure to join an indispensable party
under compulsory joinder.
RULE 12(b)(6): Under a 12(b)(6) motion for failure to state a
claim upon which relief can be granted, a claim for relief can
be dismissed if it either fails to assert a legal theory of
recovery that is cognizable or fails to allege facts sufficient
to support a cognizable claim. In making this determination
courts apply a 2-step analysis:
1.
The court must identify and reject legal conclusions
unsupported by factual allegations; THEN
2. The court should assume that the well-pleaded
factual allegations are true and, drawing on the
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court’s judicial experience and common sense, determine
whether the allegations plausibly give rise to the entitlement
of relief.
MOTION FOR SUMMARY JUDGMENT (MSJ): A MSJ must be
filed at any time until 30 days after the close of discovery. A
MSJ must be granted if, from the pleadings, affidavits, and
discovery materials on file, when viewing the evidence in the
light most favorable to the nonmoving party, it appears that:
1. No genuine dispute of material fact exists; AND
2. The moving party is entitled to judgment as a matter
of law.
MOTION FOR JUDGMENT AS A MATTER OF LAW (JMOL): A
JMOL may be filed by either party after the close of the
nonmoving party’s evidence or at the close of all evidence.
The motion will be granted if, when viewing the evidence in
the light most favorable to the nonmoving party, the court
finds that a reasonable jury would not have a legally
sufficient basis to find for the nonmoving party.
VERDICTS AND JUDGMENTS
APPEALS AND REVIEW
COLLATERAL ORDER DOCTRINE: The doctrine of collateral
order allows a party to appeal interlocutory rulings (i.e.,
non-final rulings) if the ruling decides a claim or issue:
1. That is separable from and collateral to the merits
of the case;
2. Involves a serious and unsettled legal question; AND
3. Would be effectively unreviewable if the court
waited until final judgment to hear the claim or
issue.
FINAL JUDGMENT RULE: The federal courts of appeals have
jurisdiction over appeals from final judgments of the
district courts. A final judgment is a decision by the court on
the merits that leaves nothing for the court to do but execute
the judgment.
RES JUDICATA: Res judicata provides that a final judgment on
the merits of an action precludes the parties from successive
litigation of an identical claim in a subsequent action. To bar a
claim under res judicata:
1. The original claim must have resulted in a valid final
judgment on the merits;
2. The original and later-filed causes of action must be
sufficiently identical (i.e., related to the same
transaction or occurrence); AND
3. The claimant and the defendant must be the same
(and in the same roles) in both the original and laterfiled action, or privity exists between the parties in
the original and later-filed action.
COLLATERAL ESTOPPEL: Collateral estoppel precludes the relitigation of issues of fact or law that have already been
necessarily determined by a judge or jury as part of an earlier
claim. To bar an issue under collateral estoppel:
1. The issue sought to be precluded must be the same
as that involved in the prior action (i.e., the facts
relevant to the particular issue and the applicable
law must be identical);
2. The issue must have been actually litigated in the
prior action;
3. The issue must have been determined by a valid final
judgment on the merits; AND
4. The determination of the issue must have been
essential to the prior judgment.
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CIVIL PROCEDURE
NOTE: Unless otherwise noted, templates are written under the assumption that all comprised rules are at issue.
Paragraph indentions are included to help differentiate issues and sub-issues and are unnecessary for actual essays.
SUBJECT MATTER JURISDICTION
The main issue is whether the federal court has subject matter jurisdiction.
A court must have subject matter jurisdiction to hear and decide a case before it. While state courts have
unlimited jurisdiction, a federal court can generally only obtain subject matter jurisdiction under federal question
jurisdiction, diversity jurisdiction, supplemental jurisdiction, or removal.
FEDERAL QUESTION JURISDICTION
The issue is whether the federal court has subject matter jurisdiction under federal question jurisdiction.
A federal court has subject matter jurisdiction under federal question jurisdiction if the complaint alleges a
claim that arises under federal law. The well-pleaded complaint rule stipulates that the federal question must
be presented on the face of the plaintiff's complaint.
Here, the plaintiff’s complaint alleges _____. [Discuss whether the claim arises under federal law.]. _____’s [the
defendant’s] assertion that _____ is irrelevant. Under the well-pleaded complaint rule, the plaintiff must allege
a claim that arises under federal law to trigger federal question jurisdiction – not the defendant.
In conclusion, the federal court [has/does not have] subject matter jurisdiction under federal question
jurisdiction, because the plaintiff’s complaint alleges a claim that [arises/does not arise] under federal law.
DIVERSITY JURISDICTION
The issue is whether the federal court has subject matter jurisdiction under diversity jurisdiction.
A federal court has subject matter jurisdiction under diversity jurisdiction if: (1) complete diversity is present
such that every citizenship represented on the plaintiff’s side of the case is different from every citizenship
represented on the defendant’s side of the case; AND (2) the amount in controversy exceeds $75,000.
Complete Diversity
To determine whether complete diversity is present, we must first determine the citizenship of each
party to the action.
Citizenship for Diversity Purposes
For individuals, citizenship is determined by the individual’s state or country of
domicile. Domicile is the place of residence where an individual intends to remain
indefinitely. An individual can only have one domicile at a time.
Corporations hold dual citizenship for diversity purposes. A corporation is considered a citizen of
BOTH: (1) the state or country of its incorporation; AND (2) The state or country of its principal
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place of business. Generally, the corporation’s principal place of business is found where the
corporation’s headquarters are located (i.e., “the nerve center”).
Here, _____ [Identify the citizenship of EACH plaintiff and defendant to the action.].
Ultimately, complete diversity is _____ [present/not present], because _____ [Identify whether every
citizenship represented on the plaintiff’s side of the case is different from every citizenship
represented on the defendant’s side of the case. If any plaintiff shares citizenship with any defendant,
complete diversity is not present.].
Amount in Controversy Requirement
Next, to determine whether diversity jurisdiction is present, we must determine whether the amount
in controversy requirement is met.
The amount in controversy is the monetary value at stake in a lawsuit. Generally, this is the value of
damages claimed or relief sought in the action. To meet this requirement, the amount in controversy
must exceed $75,000.
[*If there are not multiple claims involved]
Here, the amount in controversy [exceeds/does not exceed] $75,000, because _____ [Discuss whether
the damages claimed or relief sought exceeds $75,000].
[*If there are multiple claims involved]
Aggregation of Claims
[*If there is 1 plaintiff and 1 defendant]
One plaintiff can aggregate all her claims against one defendant to exceed the $75,000
amount controversy requirement.
Here, the plaintiff can aggregate [his/her] _____ [List all claims and monetary amounts] against
the defendant, because all [his/her] claims are against one defendant.
Upon aggregation, the amount in controversy equals _____ [Calculate the total value of the
aggregated claims], which _____ [exceeds/does not exceed] $75,000.
[*If there is 1 plaintiff and multiple defendants]
One plaintiff can aggregate all her claims against multiple defendants if the defendants
are jointly liable.
Here, the plaintiff [can/cannot] aggregate [his/her] claims against the defendants, because
the defendants [are/are not] jointly liable.
[*If the defendants are jointly liable]
Upon aggregation, the amount in controversy equals _____ [Calculate the total value of
the aggregated claims], which _____ [exceeds/does not exceed] $75,000.
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UBE Self-Study Program | Essay Templates | Civil Procedure
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[*If the defendants are not jointly liable]
Without aggregation, _____ [Identify whether each individual claim exceeds $75,000.
Claims that independently exceed $75,000 may proceed.].
[NOTE: If there are multiple plaintiffs, each plaintiff’s claim must meet the amount in
controversy requirement separately unless supplemental jurisdiction applies.]
In conclusion, the federal court [has/does not have] subject matter jurisdiction under diversity jurisdiction, because
_____ [Identify whether complete diversity is present and whether the amount in controversy exceeds
$75,000. Both elements must be met for the court to have subject matter jurisdiction under diversity
jurisdiction.].
SUPPLEMENTAL JURISDICTION
The issue is whether the federal court has subject matter jurisdiction under supplemental jurisdiction.
Supplemental jurisdiction allows a federal court with valid subject matter jurisdiction over a claim to hear
additional claims over which the court would not independently have jurisdiction if all the claims constitute the
same case or controversy. Claims constitute the “same case or controversy” if they arise out of a common
nucleus of operative fact, such that all the claims arise out of the same transaction or occurrence.
[*If the court is sitting in federal question jurisdiction]
Here, the court has valid subject matter jurisdiction over [claim 1], because the claim satisfies federal question
jurisdiction. [Claim 2] does not independently satisfy subject matter jurisdiction, because the claim does not
trigger federal question or diversity. However, if [claim 2] arises out of the same transaction or occurrence as
[claim 1], the court will have subject matter jurisdiction over the claim under supplemental jurisdiction. [Discuss
facts that suggest whether claim 2 arises out of the same transaction or occurrence as claim 1].
[*If the court is sitting in diversity jurisdiction and a counterclaim is involved]
Here, the court has valid subject matter jurisdiction over [claim 1], because the claim satisfies diversity
jurisdiction. [Counterclaim 1] does not independently satisfy subject matter jurisdiction, because the
counterclaim does not trigger federal question or diversity. However, if [counterclaim 1] is compulsory, the
court will have subject matter jurisdiction over the claim under supplemental jurisdiction. A counterclaim is
compulsory if it arises out of the same transaction or occurrence as the original claim filed. If [counterclaim 1] is
permissive, the court will not have subject matter jurisdiction over the claim under supplemental jurisdiction. A
counterclaim is permissive if it does not arise out of the same transaction or occurrence as the original claim
filed. [Discuss facts that suggest whether the counterclaim is compulsory or permissive].
[*If the court is sitting in diversity jurisdiction and a cross-claim is involved]
Here, the court has valid subject matter jurisdiction over [claim 1], because the claim satisfies diversity
jurisdiction. [Cross-Claim 1] does not independently satisfy subject matter jurisdiction, because the claim does
not trigger federal question or diversity. However, if [cross-claim 1] arises out of the same transaction or
occurrence as [claim 1], the court will have subject matter jurisdiction over the claim under supplemental
jurisdiction. [Discuss facts that suggest whether cross-claim 1 arises out of the same transaction or occurrence
as claim 1].
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UBE Self-Study Program | Essay Templates | Civil Procedure
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In conclusion, the federal court [has/does not have] subject matter jurisdiction under supplemental
jurisdiction, because [claim A] [constitutes/does not constitute] the same case or controversy as [claim B], as
the claims [arise/do not arise] out of the same transaction or occurrence.
REMOVAL
The issue is whether the defendant can remove the case from state court to federal court.
Removal allows the defendant to move a case from state court to federal court if the case could have been
brought originally in federal court. Thus, the defendant may remove a case to federal court if: (1) federal
question jurisdiction is present; or (2) diversity jurisdiction is present and the action is brought in a state of
which no defendant is a citizen. Federal question jurisdiction is present if the plaintiff’s complaint alleges a
claim that arises under federal law. Diversity jurisdiction is present if: (1) complete diversity is present; and (2)
the amount in controversy exceeds $75,000.
[*If the claim being removed involves federal question jurisdiction]
Here, the plaintiff’s complaint alleges _____. [Discuss whether the claim arises under federal law.]. The
defendant’s assertion that _____ is irrelevant. Under the well-pleaded complaint rule, the plaintiff must allege a
claim that arises under federal law to trigger federal question jurisdiction – not the defendant.
[*If the claim being removed involves diversity jurisdiction]
Here, _____ [Insert a standard diversity jurisdiction analysis – see above. Remember, in addition to your
standard diversity jurisdiction analysis, you must discuss whether the action is brought in a state of which no
defendant is a citizen. Even if diversity jurisdiction is present, the defendant cannot remove the action if the
action is brought in a state that any defendant is a citizen of.]
[*If the defendant can remove the case]
In conclusion, the defendant can remove the case from state court to federal court, because _____ [either:
federal question jurisdiction is present OR diversity jurisdiction is present and the action is brought in a state of
which of which no defendant is a citizen].
[*If the defendant cannot remove the case]
In conclusion, the defendant cannot remove the case from state court to federal court, because _____ [either:
federal question jurisdiction is not present OR diversity jurisdiction is not present OR diversity jurisdiction is
present, but the action is brought in a state of which the defendant is a citizen].
PERSONAL JURISDICTION
The main issue is whether the court has personal jurisdiction over the defendant.
A court must have personal jurisdiction to adjudicate the rights and liabilities of a defendant. A court can obtain
personal jurisdiction over a defendant under a traditional base or state long-arm statute.
TRADITIONAL BASES
The issue is whether the court has personal jurisdiction over the defendant under a traditional base.
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UBE Self-Study Program | Essay Templates | Civil Procedure
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If any of the following four “traditional bases” are satisfied, the court will have personal jurisdiction over the
defendant. Under the traditional bases, the court will have personal jurisdiction if the defendant: (1) is domiciled
in the forum state; (2) receives service of process while physically present in the forum state (unless the
defendant was in the state only to answer a summons or was brought there by force or fraud); (3) consents to
personal jurisdiction in the forum state expressly or implicitly by conduct; OR (4) waives their objection for lack
of personal jurisdiction expressly or by substantial participation on the merits.
Here, _____ [Discuss facts pertaining to any of the four of the traditional bases. If any are satisfied, the court will
have personal jurisdiction over the defendant. If none are satisfied, continue to your discussion of the
state long-arm statue. However, even if a traditional base is satisfied, you should still discuss the state
long-arm analysis to accumulate maximum points on a civil procedure essay.].
[*If a traditional base is satisfied]
In conclusion, the court has personal jurisdiction over the defendant, because _____ [identify which traditional
base is satisfied]. However, even if no traditional bases were satisfied, the court could still obtain personal
jurisdiction over the defendant under a state long-arm statute.
[*If a traditional base is not satisfied]
While the court does not have personal jurisdiction over the defendant under a traditional base, the court
may still obtain personal jurisdiction over the defendant under a state long-arm statute.
STATE LONG-ARM STATUTE
If none of the traditional bases are satisfied above, personal jurisdiction may still be obtained by using a state
long-arm statute. Generally, this requires that minimum contacts exist between the defendant and the forum
state, such that: (1) general or specific jurisdiction is present; and (2) the exercise of such jurisdiction does not
offend traditional notions of fair play and substantial justice.
General Jurisdiction
General Jurisdiction is present when the defendant’s contact with the forum state is so systematic
and continuous that he is essentially “at home” in the forum state. For corporations, this includes the
locations where the corporation is incorporated and has its principal place of business. When general
jurisdiction is present, the defendant can be sued on any claim even if the claim is unrelated to the
defendant’s contact with the forum state.
Here, the defendant _____ [Describe what contact the defendant has with the forum state and discuss
whether the defendant’s contact with the forum state is systematic and continuous.].
Specific Jurisdiction
Specific jurisdiction is present if: (1) the defendant purposefully availed himself of the benefits of the
forum state; and (2) the defendant knew or reasonably should have anticipated that his activities in the
forum state made it foreseeable that he may be “hailed into court” there. Unlike general jurisdiction,
the defendant can only be sued on claims that arise out of the defendant’s specific contact with the
forum state.
Here, the defendant _____ [Describe the specific contact that the defendant made with the forum state,
and discuss whether both elements are satisfied.].
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UBE Self-Study Program | Essay Templates | Civil Procedure
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[*If specific jurisdiction is present]
Finally, the defendant [can/cannot] be sued on this claim, because _____ [discuss whether the claim
arises out of the defendant’s specific contact with the forum state.].
Traditional Notions of Fair Play and Substantial Justice
The exercise of general or specific jurisdiction cannot offend traditional notions of fair play and
substantial justice. There are five factors courts consider when making this determination: (1)
convenience of the forum state for the defendant; (2) whether the forum state has a legitimate interest
in providing redress; (3) whether the plaintiff’s interest in obtaining relief is proper; (4) the interstate
judicial system’s interest in efficiency; and (5) the shared interest of the several states in furthering
social policies.
Here, _____ [Briefly discuss all five factors.].
In conclusion, the court [has/does not have] personal jurisdiction over the defendant under a state long-arm
statute, because _____ [Identify whether general or specific jurisdiction is present and whether traditional
notions of fair play and substantial justice are offended. Remember, if specific jurisdiction is present, the claim
must arise out of the defendant’s specific contact with the forum state.].
VENUE
The main issue is whether the court has proper venue.
Venue determines the judicial district in which a lawsuit may be filed or commenced. Venue is proper in a judicial
district where any defendant resides if all the defendants reside in the same state. If this is not satisfied, venue is proper
in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred, or where a
substantial part of property that is the subject of the action is located. If neither of these are satisfied, venue is proper in
a judicial district where any defendant is subject to personal jurisdiction.
Residence for Venue Purposes
To determine whether venue is proper, we must first determine the residence of each party to the action.
An individual is deemed to reside in the judicial district where he is domiciled. A business entity is deemed to
reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in
question. A defendant who is not a resident of the United States, whether a U.S. citizen or an alien, may be
sued in any judicial district.
Here, _____ [Identify the residence of each party to the action.].
[*If no defendant resides in the United States]
In conclusion, venue is proper, because no defendant resides in the United States, and any defendant who is not a
resident of the United States may be sued in any judicial district.
[*If all the defendants reside in the same state]
In conclusion, venue [is/is not] proper, because _____ [Identify whether all the defendants reside in the same state, and
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UBE Self-Study Program | Essay Templates | Civil Procedure
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whether any defendant resides in the judicial district. If both are satisfied, the court has proper venue.].
[*If all the defendants do not reside in the same state]
In conclusion, venue [is/is not] proper, because all the defendants do not reside in the same state and _____ [Identify
whether a substantial part of the (events or omissions/property) giving rise to the claim (occurred/is located) there. If
either are satisfied, the court has proper venue.].
[*If all the defendants do not reside in the same state and a substantial part of the events/property giving rise to the
action (did not occur/are not located) there]
In conclusion, venue [is/is not] proper, because all the defendants do not reside in the same state, a substantial part of
the events or omissions giving rise to the claim did not occur there, a substantial part of property that is the subject of
the action is not located there, and _____ [Identify whether any defendant is subject to personal jurisdiction in the
state where the judicial district is located. If so, the court has proper venue.].
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UBE Self-Study Program | Essay Templates | Civil Procedure
7
CONFLICT OF LAWS
CHOICE OF LAW APPROACHES
CHOICE OF LAW: In determining whether to apply the law of
the forum or the law of another jurisdiction with an interest
in the controversy, the court will use one of the following
approaches.
VESTED RIGHTS: Under the traditional vested rights
approach, the court applies the law of the jurisdiction where
the event that gave rise to the lawsuit occurred.
GOVERNMENTAL INTEREST: Under the modern
governmental interest approach, the court applies the law of
the jurisdiction that has a greater interest in having its law
applied. In making this determination, the court will examine:
1. The policies behind the respective laws in the forum
and the other jurisdiction; AND
2.
Whether it is reasonable for the respective
jurisdictions to assert an interest in the application
of those policies under the circumstances.
MOST SIGNIFICANT RELATIONSHIP: Under the Second
Restatement, the court applies the law of the jurisdiction that
has the most significant relationship to the problem at issue.
In making this determination, the Second Restatement sets
forth the following factors for the court to consider:
1. Relevant policies of the forum and other interested
jurisdictions;
2. Relevant policies underlying the field of law at issue;
3. Uniformity of result; AND
4. Ease of application of the law to be applied.
FEDERAL-STATE CONFLICTS
ERIE DOCTRINE: Under the Erie Doctrine, a federal court
sitting in diversity jurisdiction must apply the law of the forum
state in which it sits (not its own federal law) regarding
substantive issues. However, federal courts are free to apply
their own rules to procedural issues. Choice of law issues are
considered substantive; therefore, a federal court sitting in
diversity must apply the forum state’s choice of law rules.
RECOGNITION OF OTHER STATES’ JUDGMENTS
FULL FAITH AND CREDIT: Courts must give full faith and credit
to the judicial proceedings of every U.S. state and territory,
unless there is a valid defense to recognition or enforcement.
A court is not required to enforce the judgment of another
court if:
1. The other court lacked valid jurisdiction;
2. The other court’s judgment was procured by fraud;
3. The other court’s judgment was not entered on the
merits; OR
4. The other court’s judgment was not final (judgments
on appeal).
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UBE Self-Study Program | QuickSheets | Conflict of Laws
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CONSTITUTIONAL LAW
11th AMENDMENT
STATE SOVEREIGN IMMUNITY: The 11th Amendment is
a jurisdictional bar that prohibits:
1. The citizens of one state or a foreign country from
suing another state in federal court for money
damages or equitable relief; AND
2. Suits in federal court against state officials for
violating state law.
11th AMENDMENT EXCEPTIONS: The following are
exceptions to the application of the 11th Amendment:
1. Consent. A state may consent to a suit by waiving its
11th Amendment protection.
2. Injunctive Relief. When a state official, rather than
the state itself, is named as the defendant in an
action brought in federal court, the state official may
be enjoined from enforcing a state law that violates
federal law or may be compelled to act in accord
with federal law despite state law to the contrary.
3. Individual Damages. An action for damages against
a state official is not prohibited so long as the official
himself (not the state) will have to pay.
4. Congressional Authorization. Congress may
abrogate state immunity from liability it is clearly
and expressly acting to enforce rights created by the
14th Amendment.
JUSTICIABILITY
STANDING: A federal court cannot decide a case unless the
plaintiff has standing (i.e., a concrete stake in the outcome
of the action). To have standing, a plaintiff bears the burden
of establishing three elements:
1. Injury in Fact. The injury must be concrete and
particularized. While a threat of future injury can
suffice, it cannot be merely hypothetical or
conjectural, it must be actual and imminent.
2. Causation. The injury must be fairly traceable to the
challenged action (i.e., the defendant’s conduct
caused the injury).
3. Redressability. It must be likely that a favorable
court decision will redress an injury suffered by
the plaintiff.
THIRD PARTY STANDING: Generally, one cannot assert the
constitutional rights of others to obtain standing, but a
claimant with standing in her own right may also assert
the rights of a third party if:
1. The 3rd party would experience difficulty or is
unable to assert their own rights;
2. There is a special relationship between the
plaintiff and the 3rd party; OR
3. The plaintiff’s injury adversely affects the
plaintiff’s relationship with the third party.
ORGANIZATIONAL STANDING: An organization may bring
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an action on behalf of its members (even if the
organization itself has not suffered an injury) if:
1. Its members would have standing to sue in their
own right; AND
2. The interests at stake are germane to
the organization’s purpose.
RIPENESS: For a case to be ripe for litigation, the
plaintiff must have experienced a real injury or
imminent threat thereof.
MOOTNESS: A case has become moot if further legal
proceedings would have no effect (i.e., there is no longer a
controversy). A live controversy must exist at each stage
of review (not merely when the complaint is filed). There
are three exceptions:
1. Capable of Repetition, Yet Evading Review. A case
will not be dismissed as moot if the controversy is a
type that may often recur, but that will not last long
enough to work its way through the judicial system.
2. Voluntary Cessation. A case will not be dismissed as
moot if the defendant voluntarily ceases the wrongful
action once litigation has commenced. The court must
be assured that there is no reasonable expectation
that the wrong will be repeated.
3. Class Actions. An entire class action will not be
dismissed as moot solely because the named party’s
claim in the class is resolved and becomes moot.
POWERS OF CONGRESS
NECESSARY AND PROPER “POWER”: Congress can exercise
those powers enumerated in the Constitution plus all
auxiliary powers necessary and proper to carry out all powers
vested in the federal government. The Necessary and Proper
Clause standing alone cannot support federal law – it must
work in conjunction with another federal power.
TAXING POWER: Congress has the power to tax, and
most taxes will be upheld if:
1. They bear some reasonable relationship to revenue
production; OR
2. Congress has the power to regulate the
activity taxed.
SPENDING POWER: Congress may spend to “provide for the
common defense and general welfare.” Spending may be
for any public purpose (very broad).
COMMERCE POWER: Congress has the power to regulate all
foreign and interstate commerce. To be within Congress’s
power under the Commerce Clause, a federal law regulating
interstate commerce must either regulate the:
1. Channels of interstate commerce;
2. Instrumentalities of interstate commerce and
persons and things in interstate commerce; OR
3. Activities that have a substantial effect on interstate
commerce.
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AMENDMENT ENFORCEMENT POWER: Each of the 13th, 14th,
and 15th Amendments (ban on slavery, equal protection and
due process, and voting rights) contain a provision that
authorizes Congress to pass “appropriate legislation” to enforce
the civil rights guaranteed by those Amendments.
POWERS OF THE PRESIDENT
DOMESTIC POWERS: The President has the power to:
1. Reprieve or pardon federal offenses, except in cases
of impeachment;
2. Appoint all officers of the United States (e.g.,
ambassadors, Supreme Court Justices, etc.) with the
advice and consent of the Senate;
3. Remove any executive appointee without cause and
without Senate approval, except in cases of federal
judges (federal judges may only be removed by
impeachment); AND
4. Veto any bill presented by Congress.
SCOPE OF PRESIDENTIAL POWER: In order to determine
whether the President’s actions are within the scope of his
constitutional power, the court must consider the degree of
congressional authorization the President is acting with:
1. When the president is acting with the express or
implied authorization of Congress, presidential
authority is at its highest, and the action is strongly
presumed to be valid.
2. When Congress has not spoken, presidential
authority is diminished, and the action is invalid if it
interferes with the operations or power of another
branch of government.
3. When Congress has spoken to the contrary,
presidential authority is at its lowest, and the action
is likely invalid.
FEDERAL AND STATE POWERS
EXCLUSIVE FEDERAL POWERS: Some powers are exclusively
federal because the Constitution limits or prohibits the use
of the power by state (e.g., treaty power, coinage of money).
Other powers are exclusively federal because the nature of
the power itself is such that it can be exercised only by the
federal government (e.g., declaration of war).
EXCLUSIVE STATE POWERS: The 10th Amendment provides
that all powers not assigned by the Constitution to the federal
government are reserved to the states, or to the people.
FEDERAL REGULATION OF STATES: The federal government
has virtually unlimited power to regulate the states.
Generally, Congress may regulate the states so long as it is
exercising an enumerated power. While Congress cannot
command state legislatures to enact specific legislation, it
may encourage state action through the use of its taxing and
spending powers.
DORMANT COMMERCE CLAUSE: If Congress has not
enacted legislation in a particular area of interstate
commerce, then the states are free to regulate, so long as
the state or local action does not:
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1. Discriminate against out-of-state commerce;
2. Unduly burden interstate commerce; OR
3. Regulate wholly out-of-state activity.
Legislation that violates any of the above requirements
is generally deemed unconstitutional unless:
1. The state is acting as a market participant
rather than a market regulator;
2. The legislation favors state or local
government entities that are performing a
traditional government function; OR
3. Congress explicitly permits the legislation.
SUPREMACY CLAUSE: The Supremacy Clause provides that
federal law is the “supreme law of the land.” Any state law
that directly or indirectly conflicts with a federal law is
void under the Supremacy Clause.
STATE ACTION
STATE ACTION REQUIREMENT: Generally, the Constitution
protects against wrongful conduct by the government, not
private parties (there is an exception for the prohibition of
slavery, which applies to the government and private
parties). Thus, state action is required to trigger an
individual’s constitutional protections. State action may exist
in cases of private parties when:
1. A private person carries on activities that are
traditionally performed exclusively by the state; OR
2. There are sufficient mutual contacts between the
conduct of a private party and the government (this is
a question of the degree of state involvement).
DUE PROCESS
PROCEDURAL DUE PROCESS: The Due Process Clause of the
14th and 5th Amendments guarantees that no person shall be
denied life, liberty, or property without due process of law.
Thus, a fair process (e.g., notice and hearing) is required for a
government agency to take a person’s life, liberty, or
property. Only intentional (not negligent) deprivation of
these rights violates the Due Process Clause. The type and
extent of procedural due process that is required is
determined by a three-part balancing test that weighs:
1. The importance of the individual’s interest that
is being affected; AND
2. The value of specific procedural safeguards to
that interest; AGAINST
3. The government interest in fiscal and
administrative efficiency.
SUBSTANTIVE DUE PROCESS: A governmental regulation
that infringes upon a fundamental right is subject to the
strict scrutiny standard of review, while a governmental
regulation that does not infringe upon a fundamental right is
subject to the rational basis standard of review. Fundamental
rights, triggering strict scrutiny, include:
1. The right to interstate travel;
2. The right to vote; AND
3. The right to privacy, including:
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a. The right to marry;
b. The right of married persons to use
contraceptives;
c. The right of adults to engage in
non-commercial, consensual sex;
d. The right of parents to make decisions
regarding the care, custody, and control of
their children (including the right to
privately educate a child outside the
public school system); AND
e. The right of related person to live together
in a single household.
STANDARDS OF REVIEW
STRICT SCRUTINY: The government must prove that the
regulation is the least restrictive means to achieve a
compelling government interest (very difficult to prove).
INTERMEDIATE SCRUTINY: The government must prove
that the regulation is substantially related to an important
government interest.
RATIONAL BASIS: The challenger must prove that the
regulation is not rationally related to any legitimate
government interest (very difficult to prove).
EQUAL PROTECTION
EQUAL PROTECTION CLASSIFICATIONS: The Equal Protection
Clause of the 14th Amendment prohibits the government
from denying citizens equal protection of the laws. When the
government makes laws that classify people into groups, the
constitutionality of the law will be evaluated according to the
type of classification made:
1. If a suspect classification is involved, the strict
scrutiny standard applies. Classifications are suspect
if they are based on race, ethnicity, national origin,
or alienage (alienage is only suspect if the
classification is made by state law).
2. If a quasi-suspect classification is involved, the
intermediate scrutiny standard applies.
Classifications are quasi-suspect if they are based on
gender or legitimacy (non-marital children).
3. For all other classifications (e.g., age, disability,
and wealth classifications), the rational basis
standard applies.
GOVERNMENTAL INTENT: For strict or intermediate scrutiny
to be applied, there must be intent on the part of the
government to discriminate. A discriminatory effect or
disparate impact toward a group of people alone is not
enough to show governmental intent. Governmental intent
may be shown by:
1. A law that is discriminatory on its face;
2. A discriminatory application of a facially neutral law;
OR
3. A discriminatory motive behind a facially neutral law.
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5th AMENDMENT TAKINGS
TAKINGS CLAUSE: The power of the government to take
private property for public purposes is known as “eminent
domain.” The Takings Clause of the 5th Amendment acts as
a check on this power. It provides that:
1. Private property may be taken;
2. For public use;
3. With just compensation (fair market value).
REGULATORY TAKING: Generally, a governmental regulation
that adversely affects a person’s property interest is not a
taking (does not require just compensation); however, it is
possible for a regulation to rise to level of a taking (requiring
just compensation). In determining whether a regulation
constitutes a taking, the Penn Central factors are considered:
1. The economic impact of the regulation on
the property owner;
2.
The extent to which the regulation interferes with the
owner’s reasonable investment-backed expectations
regarding the use of the property; AND
3. The character of the regulation (including the degree
to which it will benefit society, how the regulation
distributes the burdens and benefits among
property owners, and whether the regulation
violates any of the owner’s essential attributes of
property ownership, such as the right to exclude
others from the property).
PER SE TAKINGS: A governmental regulation clearly results
in a taking when the regulation results in a:
1. Permanent physical occupation of the property; OR
2. Permanent total loss of the property’s
economic value.
FREE SPEECH GENERAL PRINCIPLES
SCOPE OF SPEECH: The freedom to speak includes the
freedom not to speak. Thus, the government generally
cannot require people to salute the flag or display other
messages with which they disagree (e.g., a person need not
display the state motto “live free or die” on a license plate).
Speech includes symbolic acts undertaken to communicate
an idea (e.g., wearing a black armband to protest war).
OVERBREADTH: If a regulation of speech or speech-related
conduct punishes a substantial amount of protected speech
in relation to its plainly legitimate sweep, the regulation is
facially invalid.
VAGUENESS: A statute or regulation is void for vagueness if
it does not put the public on reasonable notice as to what is
prohibited.
CONTENT vs. CONDUCT SPEECH REGULATION
CONTENT-BASED REGULATIONS: Speech regulations are
content-based if they prohibit communication of specific ideas. It
is presumptively unconstitutional to place burdens on speech
because of its content, except for certain categories of
unprotected speech (e.g., obscenity, defamation, etc.).
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CONTENT-NEUTRAL REGULATIONS: Content-neutral speech
regulations generally must:
1. Advance important interests unrelated to the
suppression of speech; AND
2. Not burden substantially more speech than
necessary to further those interests.
TIME, PLACE, AND MANNER RESTRICTIONS: The government
has power to regulate the conduct associated with speech,
although the breadth of this power depends on whether the
forum involved is a public or nonpublic forum.
PUBLIC FORUMS: Public property that has historically been
open to speech-related activity is called a public forum (e.g.,
streets, sidewalks, and public parks). Public property that has
not historically been open to speech-related activities, but
which the government has made open for such activities on
a permanent or limited basis, by practice or policy is called a
designated public forum (e.g., schoolrooms that are open for
after-school use by social, civic, or recreation groups). The
government may regulate speech in public forums and
designated public forums with reasonable time, place, and
manner regulations that:
1. Are content-neutral (i.e., are subject matter and
viewpoint neutral)
2. Are narrowly tailored to serve an important
government interest; AND
3. Leave open alternative channels of communication.
NONPUBLIC FORUMS: Government property that has not
historically been linked with speech and assembly but has
been opened for specific speech activity is called a limited
public forum (e.g., school gym opened to host a debate on a
particular community issue). Government property that has
not historically been linked with speech and assembly and has
not been opened for specific speech activity is called a
nonpublic forum (e.g., military bases, schools while classes
are in session, government workplaces, etc.). The government
may regulate speech in limited public forums and nonpublic
forums if the regulations are:
1. Viewpoint neutral; AND
2. Reasonably related to a legitimate government
purpose
UNPROTECTED SPEECH
UNPROTECTED SPEECH: To be valid, restrictions on the content
of speech must be necessary to achieve a compelling
government interest. The government has a compelling interest
in the following categories of speech, which are deemed
“unprotected speech” under the 1st Amendment:
1. Inciting imminent lawless action;
2. Fighting words;
3. Obscenity;
4. Defamatory speech; AND
5. Some commercial speech
INCITING IMMINENT LAWLESS ACTION: Speech can be
restricted if it creates a clear and present danger of
imminent lawless action. It must be shown that that:
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1. Imminent illegal conduct is likely; AND
2. The speaker intended to cause it.
FIGHTING WORDS: Speech can be limited if it constitutes
fighting words. Fighting words are personally abusive words
that are likely to incite immediate physical retaliation in an
average person. The Supreme Court will not tolerate fighting
words statutes that are designed to punish only certain
viewpoints (e.g., prohibiting only fighting words that insult
on the basis of race, religion, or gender).
OBSCENITY: Obscene speech is not protected. Speech is
obscene if it describes or depicts sexual conduct that,
taken as a whole, by the average person:
1. Appeals to the prurient interest in sex, using
a community standard;
2. Is patently offensive; AND
3. Lacks serious literary, artistic, political, or scientific
value, using a national reasonable person standard.
COMMERCIAL SPEECH: Generally, commercial speech (e.g.,
advertising) is afforded 1st Amendment protection if it is
truthful. However, commercial speech that proposes
unlawful activity or that is false, misleading, or fraudulent
may be restricted as unprotected speech. Any other
regulation of commercial speech will be upheld only if it:
1. Serves a substantial government interest;
2. Directly advances that interest; AND
3. Is narrowly tailored to serve that interest.
RELIGIOUS FREEDOMS
FREE EXERCISE CLAUSE: The Free Exercise Clause prohibits
government from punishing someone on the basis of her
religious beliefs or interfering with her exercise of religion.
However, the government can deny benefits or impose a
restriction on someone based on her religious beliefs so long
as there is a compelling interest that satisfies strict scrutiny
(the Supreme Court has never found an interest so
compelling that it justifies such action).
ESTABLISHMENT CLAUSE: The Establishment Clause, along
with the Free Exercise Clause, compels the government
to pursue a course of neutrality toward religion.
Government action challenged under the Establishment
Clause will be found invalid, unless the action:
1. Has a secular purpose;
2. Has a primary effect that neither advances
nor inhibits religion; and
3. Does not produce excessive government
entanglement with religion.
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CONSTITUTIONAL LAW
NOTE: Unless otherwise noted, templates are written under the assumption that all comprised rules are at issue.
Paragraph indentions are included to help differentiate issues and sub-issues and are unnecessary for actual essays.
[*If an individual is alleging an infringement on a constitutional right – consider state action]
STATE ACTION
The issue is whether there is state action that triggers _____ [the individual’s] constitutional protections.
Generally, the Constitution protects against wrongful conduct by the government, not private parties. Thus, state
action is required to trigger an individual’s constitutional protections. However, state action may exist in cases of
private parties when: (1) a private person carries on activities that are traditionally performed exclusively by the state;
or (2) there are sufficient mutual contacts between the conduct of a private party and the government.
Here, _____ [Discuss whether the government or a private party is infringing on the plaintiff’s constitutional rights.
Absent either exception, if the wrongdoer is a private party – the plaintiff’s constitutional protections are not triggered.].
Therefore, state action [is/is not present], and _____ [the individual’s] constitutional rights are triggered.
[*If the government passes a law that treats a group of people differently from others – consider equal protection]
EQUAL PROTECTION
The issue is whether the _____ [government’s law] is constitutional.
The Equal Protection Clause of the 14th Amendment prohibits the government from denying citizens equal protection
of the laws. When the government makes laws that classify people into groups, the constitutionality of the law will be
evaluated according to the type of classification made.
[*If the classification is suspect]
SUSPECT CLASSIFICATION
A classification is suspect if it is based on race, ethnicity, national origin, or alienage (alienage is only suspect if
the classification is made by state law). If a suspect classification is involved, the strict scrutiny standard applies
so long as there is intent on the part of the government to discriminate. A discriminatory effect or disparate
impact toward a group of people alone is insufficient to show governmental intent. Generally, governmental
intent to discriminate can be shown by: (1) a law that is discriminatory on its face; (2) a discriminatory
application of a facially neutral law; or (3) a discriminatory motive behind a facially neutral law.
Here, _____ [Identify that the government’s law classifies people into a group based on race, ethnicity, national
origin, or alienage.]. In addition, _____ [Discuss whether there was intent on the part of the government to
discriminate.].
[*If there was governmental intent to discriminate]
Since a suspect classification is involved and there was governmental intent to discriminate, the strict
scrutiny standard applies. Under the strict scrutiny standard, the government must prove that the
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regulation is the least restrictive means to achieve a compelling government interest. Here, _____
[Discuss whether the government has met their burden to prove that the regulation is the least
restrictive means to achieve a compelling government interest. Note that this is an extremely difficult
burden for the government to prove – the challenger will likely win.].
[*If there was NOT governmental intent to discriminate]
While a suspect classification is involved, there was no governmental intent to discriminate. Therefore, the
rational basis standard applies. Under the rational basis standard, the challenger must prove that the
regulation is not rationally related to any legitimate government interest. Here, _____ [Discuss
whether the challenger has met their burden to prove that the regulation is not rationally related to any
legitimate government interest. Note that this is an extremely difficult burden for the challenger to
prove – the government will likely win.].
[*If the classification is quasi-suspect]
QUASI-SUSPECT CLASSIFICATION
A classification is quasi-suspect if it is based on gender or legitimacy (non-marital children). If a quasi-suspect
classification is involved, the intermediate scrutiny standard applies so long as there is intent on the part of the
government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is
insufficient to show governmental intent. Generally, governmental intent to discriminate can be shown by: (1)
a law that is discriminatory on its face; (2) a discriminatory application of a facially neutral law; or (3) a
discriminatory motive behind a facially neutral law.
Here, _____ [Identify that the government’s law classifies people into a group based on gender or legitimacy.].
In addition, _____ [Discuss whether there was intent on the part of the government to discriminate.].
[*If there was governmental intent to discriminate]
Since a quasi-suspect classification is involved and there was governmental intent to discriminate, the
intermediate scrutiny standard applies. Under intermediate scrutiny, the government must show that the
classification is substantially related to an important government interest. Here, _____ [Discuss
whether the government has met their burden to prove that the classification is substantially related
to an important government interest.].
[*If there was NOT governmental intent to discriminate]
While a quasi-suspect classification is involved, there was no governmental intent to discriminate.
Therefore, the rational basis standard applies. Under the rational basis standard, the challenger must
prove that the regulation is not rationally related to any legitimate government interest. Here, _____
[Discuss whether the challenger has met their burden to prove that the regulation is not rationally
related to any legitimate government interest. Note that this is an extremely difficult burden for
the challenger to prove – the government will likely win.].
[*If the classification is NOT suspect or quasi-suspect]
NON-SUSPECT CLASSIFICATION
A classification is suspect if it is based on race, ethnicity, national origin, or alienage (alienage is only suspect
if the classification is made by state law). A classification is quasi-suspect if it is based on gender or legitimacy
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(non-marital children). For all other classifications, the rational basis standard applies. Under rational basis,
the challenger must prove that the regulation is not rationally related to any legitimate government interest.
Here, _____ [Identify that the government’s law classifies people into a group that is not based on race,
ethnicity, national origin, alienage, gender or legitimacy.]. Since the government’s classification is neither
suspect or quasi-suspect, the rational basis standard applies. Under the rational basis standard, _____ [Discuss
whether the challenger has met their burden to prove that the regulation is not rationally related to any
legitimate government interest. Note that this is an extremely difficult burden for the challenger to prove –
the government will likely win.].
1st Amendment Free Speech
The issue is whether the _____ [government’s regulation of speech] is constitutional.
[*If the regulation of speech is targeting what is being said]
CONTENT-BASED REGULATIONS
It is presumptively unconstitutional to place burdens on speech because of its content, except for certain
categories of unprotected speech. Content-based regulations on protected speech are subject to strict
scrutiny. Under the strict scrutiny standard, the government must prove that the regulation is the least
restrictive means to achieve a compelling government interest.
Here, _____ [Discuss whether the government’s regulation of speech is content-based. If it is, and the speech
does not fall under a category of unprotected (see below), it is presumptively unconstitutional and subject to
strict scrutiny.].
[*If the regulation of speech is content-based, but targeting a category of unprotected speech]
Unprotected Speech
To be constitutional, restrictions on the content of speech must be necessary to achieve a compelling
government interest. The government has a compelling interest in the following categories of
speech, which are deemed “unprotected speech” under the 1st Amendment: (1) inciting imminent
lawless action; (2) true threats and fighting words; (3) obscenity; (4) defamatory speech; and (5)
some commercial speech.
Inciting Imminent Lawless Action
Speech can be restricted if it creates a clear and present danger of imminent lawless action. It
must be shown that that: (1) imminent illegal conduct is likely; and (2) the speaker intended
to cause it.
Here, _____ [Discuss whether the regulation is targeting speech that incites imminent lawless
action. If so, the regulation is likely constitutional.].
True Threats and Fighting Words
Speech can be restricted it constitutes a true threat or fighting words so long as the regulation
is not designed to punish only certain viewpoints. Fighting words are personally abusive words
that are likely to incite immediate physical retaliation in an average person (words that are
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merely insulting or annoying are not enough).
Here, _____ [Discuss whether the regulation is targeting true threats or fighting words and
whether the regulation is viewpoint neutral. If both are satisfied, the regulation is likely
constitutional.].
Obscenity: Miller Test
Speech can be restricted if it constitutes obscenity. Speech constitutes obscenity if it
describes or depicts sexual conduct that, taken as a whole, by the average person: (1) appeals
to the prurient interest in sex, using a community standard; (2) is patently offensive; and (3)
lacks serious literary, artistic, political, or scientific value, using a national reasonable person
standard.
Here, _____ [Discuss whether the regulation is targeting speech that constitutes obscenity. If so,
the regulation is likely constitutional.].
Commercial Speech
Generally, commercial speech is afforded 1st Amendment protection if it is truthful. However,
commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent
may be restricted as unprotected speech. Any other regulation of commercial speech will be
upheld only if it: (1) serves a substantial government interest; (2) directly advances that
interest; and (3) is narrowly tailored to serve that interest.
[*If the regulation of commercial speech is targeting wrongful speech]
Here, _____ [Identify that the regulation is targeting commercial speech that proposes
unlawful activity or that is false, misleading, or fraudulent. In this case, the regulation is
likely constitutional.].
[*If the regulation of commercial speech is NOT targeting wrongful speech]
Here, _____ [Identify that the regulation is not targeting commercial speech that
proposes unlawful activity or that is false, misleading, or fraudulent.]. Therefore, _____
[Discuss whether all three elements are satisfied. If so, the regulation is constitutional.].
[*If the regulation of speech is targeting how, when, or where it is being said]
CONTENT-NUETRAL REGULATIONS
Content-neutral regulations are viewpoint and subject matter neutral regulations that usually regulate the
conduct associated with the speech rather than the content of the speech itself. Generally, content-neutral
speech regulations are subject to intermediate scrutiny, meaning that they must: (1) advance an important
government interests unrelated to the suppression of speech; and (2) not burden substantially more
speech than necessary to further those interests.
Time, Place, and Manner Restrictions
The government can regulate conduct related to speech with content-neutral time, place, and
manner restrictions. However, the breadth of this power depends on whether the forum involved is a
public forum, a designated public forum, a limited public forum, or a nonpublic forum.
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[*If the forum involved is a public forum or a designated public forum]
Public Forums and Designated Public Forums
Public property that has historically been open to speech-related activity is called a public forum
(e.g., streets, sidewalks, and public parks). Public property that has not historically been open to
speech-related activities, but which the government has made open for such activities on a
permanent or limited basis, by practice or policy is called a designated public forum.
Here, _____ [Explain why the forum is a public forum or a designated public forum.]. Since the
forum involved is a [public forum/designated public forum], the government may regulate
speech with reasonable time, place, and manner regulations that: (1) are content-neutral; (2)
are narrowly tailored to serve an important government interest; and (3) leave open alternative
channels of communication.
Here, _____ [Discuss whether all three elements are satisfied. If so, the regulation of speech is
constitutional.].
[*If the forum involved is a limited public forum or a nonpublic forum]
Limited Public Forums and Nonpublic Forums
Government property that has not historically been linked with speech and assembly but has
been opened for specific speech activity is called a limited public forum. Government
property that has not historically been linked with speech and assembly and has not been
opened for specific speech activity is called a nonpublic forum.
Here, _____ [Explain why the forum is a limited public forum or a nonpublic forum.]. Since the
forum involved is a [limited public forum/nonpublic forum], the government may regulate
speech if the regulations are (1) viewpoint neutral; and (2) reasonably related to a legitimate
government purpose.
Here, _____ [Discuss whether both elements are satisfied. If so, the regulation of speech is
constitutional.].
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UBE Self-Study Program | Essay Templates | Constitutional Law
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CONTRACTS
GENERAL PRINCIPALS
COMMON LAW vs. UCC: The gateway issue in all contracts
and sales essay questions will be to determine whether the
common law or Article 2 of the UCC governs:
1. The common law governs if a contract deals with
services or real estate.
2. The UCC governs if a contract deals with goods.
MIXED CONTRACTS: For mixed contracts (contracts that have
elements of both services and goods), the predominant
purpose of the contract determines whether the common law
or UCC governs. If the predominant purpose of the contract
involves the purchase or sale of goods, the UCC applies. If the
predominant purpose of the contract involves services or real
estate, the common law applies.
FORMATION REQUIREMENTS: A traditional,
enforceable contract is formed when there is:
1. Mutual assent (offer + acceptance)
2. Consideration; AND
3. No defenses to formation that would invalidate
the otherwise valid contract.
OFFER
THE OFFER: To form an offer, the offeror must:
1. Manifest a willingness to enter into an agreement;
AND
2. Create a power of acceptance in the offeree.
TERMS REQUIRED IN THE OFFER: Under the common law, all
essential terms must be specified in the offer (parties, subject,
quantity, and price). Under the UCC, price is not required in the
offer. Generally, the UCC only requires three terms be specified
in the offer (parties, subject, and quantity).
ADVERTISEMENTS: An advertisement is usually considered
an invitation to deal rather than an offer, because an ad
usually fails to confer a power of acceptance to the other
side. However, advertisements that are very specific and
leave nothing open to negotiation may constitute offers.
TERMINATING THE OFFER: An offer is terminated if any of
the following occur before acceptance:
1. The offeror revokes the offer by
express communication to the offeree;
2. The offeree learns that the offeror has taken an
action that is absolutely inconsistent with a
continuing ability to contract;
3. The offeree expressly rejects the offer;
4. The offeree expressly makes a counteroffer;
5. The offeror dies/becomes incapacitated;
6. A reasonable amount of time passes; OR
7. The subject of the offer becomes illegal/destroyed.
ACCEPTANCE
ACCEPTANCE: An acceptance is a manifestation of willingness to
enter into the agreement by the offeree (usually must be
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communicated to the other side – silence generally does not
manifest willingness unless there is a past history of silence
serving as acceptance).
MASTER OF THE OFFER: The offeror is the master of the
offer, which means that the offeree must accept the offer
according to the rules of the offer.
MAILBOX RULE: An ACCEPTANCE that is sent by mail,
email, or fax is valid at the moment of dispatch UNLESS:
1. The offeree-sender uses the wrong address or
has improper postage;
2. The offeror expressly stipulates otherwise;
3. An option contract is involved;
4. The offeree-sender sends a termination letter before
the acceptance letter; OR
5. The offeror detrimentally relies on a termination
before he receives the acceptance letter.
COUNTEROFFER vs. ACCEPTANCE
COUNTEROFFERS: A counteroffer operates as a both a rejection
that terminates the original offer and as a new offer.
MIRROR IMAGE RULE: Under the common law, the terms in the
acceptance must match the terms of the offer exactly –
otherwise it is not an acceptance, it is a counteroffer (i.e., the
terms of the offer and acceptance must mirror each other).
UCC § 2-207 (BATTLE OF THE FORMS): Under the UCC, the
acceptance does not have to mirror the offer (i.e., the
acceptance can include different or additional terms from
those in the offer). UCC § 2-207(1) determines whether the
purported acceptance (containing new terms) will operate
as an acceptance or as a counteroffer. It states:
1. A definite and seasonable expression of
acceptance or written confirmation;
2. Which is sent within a reasonable amount of time;
3. Operates as an acceptance even though it states
terms additional to or different from those
offered or agreed upon;
4. Unless acceptance is expressly made conditional
upon assent to the additional or different terms.
If the purported acceptance is a valid acceptance under
UCC § 2-207(1), the next issue is whether the additional
or different terms in the acceptance will govern the
contract or whether UCC gap fillers will be implemented.
Under UCC § 2-207(2), the ADDITIONAL terms will govern
the contract if BOTH parties are merchants UNLESS:
1. The initial offer expressly limited acceptance to its
terms;
2. The additional terms materially alter the deal; OR
3. The offeror objects to the additional terms within a
reasonable amount of time.
Under the knockout rule, different terms (conflicting
terms) in the original offer and acceptance knock each
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other out creating a gap in the contract. UCC gap fillers
are then used to plug this gap (regardless of whether the
parties are merchants). The knockout rule does not apply
to additional terms (nonconflicting terms) added by the
offeree. UCC § 2-207(2) will determine whether the
additional terms control or whether UCC gap fillers must
be implemented.
CONSIDERATION
CONSIDERATION: to form a traditional, enforceable contract,
the agreement must be supported by consideration.
Consideration involves a transfer of legal value in a
bargained-for exchange. Consideration is present if:
1. The promisee incurs a legal detriment or the
promisor receives a legal benefit; AND
2. The promise induces the detriment and
the detriment induces the promise.
CONTRACT MODIFICATION: Under the common law,
contract modifications must be supported by consideration.
The common law follows the preexisting duty rule, which
means that a promise to do something that you are already
legally obligated to do is not consideration. Under the UCC,
there is no consideration requirement. A contract
modification is valid if it is made in good faith.
PROMISSORY ESTOPPEL: Promises that lack
consideration may still be enforced if:
1. The promisor should reasonably expect the promise
to induce action or forbearance from the promisee;
2. The promise does induce such action or forbearance
to the promisee’s detriment; AND
3. Injustice can be avoided only by enforcement of the
promise.
DEFENSES TO CONTRACT FORMATION
INCAPACITY: A party must have capacity to enter into a
contract. Minors (under 18) generally lack capacity per se.
Intoxicated persons receive protection only if the other
side had reason to know of their intoxication. If a party to a
contract lacks capacity, the contract is voidable (the
incapacitated party can disaffirm the contract). However, if
the contract involves the purchase of necessaries, the party
lacking capacity must still pay fair market value for the
necessaries. A party lacking capacity can ratify the deal by
keeping the benefits of the contract after capacity is
obtained.
MUTUAL MISTAKE: A mutual mistake occurs when both
parties are mistaken as to a basic assumption on which the
agreement is made. The adversely affected party may
rescind the deal if:
1. There is a mistake of fact, existing at the time that
the deal is made;
2. The mistake relates to a basic assumption of the
contract;
3. The mistake has a material impact on the deal; AND
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4. The impacted party did NOT assume the risk of
mistake.
UNILATERAL MISTAKE: A unilateral mistake is a mistake
made by one party that is unknown to the other party. The
adversely affected party may rescind the deal if the above 4
elements are met plus the mistake would make the contract
unconscionable or the other side knew of, had reason to
know of, or caused the mistake.
MISREPRESENTATION: A misrepresentation is a statement
at the time of contracting that is not true. It can be
intentional (fraudulent) or accidental. To assert this defense,
the party must show:
1. A misrepresentation of a present fact (not opinion);
2. That is material or fraudulent (knowing/reckless);
AND
3. That is made under circumstances in which it is
justifiable to rely on the representation.
DURESS: Duress is an improper threat that deprives a
party from making a meaningful choice to contract.
Contracts induced by duress are generally voidable.
UNDUE INFLUENCE: Undue influence arises when a party’s
assent is induced due to his susceptibility to pressure and
the other side’s excessive use of pressure (usually voidable).
ILLEGALITY: If the consideration or performance of a contract is
illegal or contrary to public policy, the contract is void and will
not be enforced. However, a legal contract entered in
furtherance of an illegal purpose may still be enforced.
UNCONSCIONABILITY: If a contract is so unfair or oppressive
to one party such that it shocks the conscience of the court,
a court may find it unconscionable and refuse to enforce it.
Some courts require both procedural unconscionability
(defects in the bargaining process) and substantive
unconscionability (terms of the deal are grossly one-sided)
to refuse to enforce the contract.
STATUTE OF FRAUDS
TRIGGERING THE STATUTE OF FRAUDS: The following contracts
are not valid unless they satisfy the statue of frauds:
1. A contract made in consideration of marriage;
2. A contract promising to guarantee the debt
of another;
3. A contract that by its terms cannot be
performed within one year from its making;
4. A contract for the purchase/sale of goods for $500 or
more; AND
5. A contract to transfer, receive, or create an interest
in real estate.
SATISFYING THE STATUTE OF FRAUDS: The statute of frauds
can be satisfied with a signed writing or by performance.
Satisfaction by Writing. A writing will satisfy the statute
of frauds if the writing:
a. Is signed by the party to be charged;
b. Shows that a contract was formed; AND
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c. Contains all the requisite terms of the deal.
Services Contracts. Full performance of a services
contract by either side satisfies the statute of frauds.
Real Estate Contracts. Part performance of a real estate
contract can satisfy the statute of frauds if any two of the
following three are met:
a. Buyer takes possession of the property;
b. Buyer makes payment in full or part; AND/OR
c. Buyer makes substantial improvements to the
land.
Goods Contracts. Part performance on a goods contract
satisfies the statute of frauds, but only for the quantity
received and accepted.
Custom-Made Goods. The statute of frauds is satisfied
when a seller makes a "substantial beginning" toward
manufacture of custom goods that are to be specially
made for the buyer and are not suitable for sale to
others in the ordinary course of the seller's business
under circumstances that reasonably indicate that the
goods are for the buyer.
PAROL EVIDENCE RULE
PAROL EVIDENCE RULE (PER): When the parties to a contract
express their agreement in a writing with the intent that it
embody the final expression of their bargain, the writing is
an integration. If the writing is not an integration (e.g., nonfinal expressions such as tentative drafts), the PER does not
apply. Otherwise, an integration may be complete or partial:
Complete Integration. If the writing completely
expresses all of the terms of the parties’ agreement,
then it is a complete integration. All other expressions or
statements, written or oral, made prior to the writing, as
well as any oral expressions made contemporaneously
with the writing, are inadmissible.
a. Merger Clause. A merger clause recites that
the agreement is the complete agreement
between the parties. This is strong evidence
that the writing is a complete integration.
Partial Integration. If the writing sets forth the parties’
agreement about some terms, but not all the terms, then
it is a partial integration. Other expressions or
statements, written or oral, made prior to the writing, as
well as any oral expressions made contemporaneously
with the writing, are admissible to supplement the
writing so long as the evidence does not contradict the
terms of the writing.
EXCEPTIONS TO THE PER: The PER does not apply if any of
the following exceptions exist:
1. Defenses. Extrinsic evidence may be offered to
establish a defense to the formation or enforcement
of a contract.
2. Separate Deals. Extrinsic evidence may be offered if
it represents a distinct and separate contract.
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3. Condition Precedents. Extrinsic evidence may be
offered if a party asserts that there was an oral
agreement that the written contract would not
become effective until a condition occurred.
4. Ambiguity and Interpretation. Extrinsic evidence
may be offered for the purpose of interpreting or
clarifying an ambiguity in the agreement.
WARRANTIES
EXPRESS WARRANTIES: Under the UCC, an express warranty
is created when the seller makes any affirmation of fact or
promise, description, or uses a sample or model as part of
the basis of the bargain with the buyer. Disclaimers that
grossly conflict with express warranties are unenforceable.
IMPLIED WARRANTY OF MERCHANTABILITY: Under the UCC,
all merchants make an implied warranty (unless disclaimed)
that the goods being sold are fit for their ordinary
commercial purposes. A merchant can disclaim the implied
warranty of merchantability if the language used to disclaim
is conspicuous. Language of “as is” or “with all faults” or
language that puts the buyer on notice will be sufficient for
disclaiming this warranty. The disclaimer may be made orally
so long as the term “merchantability” is used. If the buyer,
before entering into the contract, has examined the goods or
a sample as fully as the buyer desires, or has refused to
examine the goods, then there is no implied warranty of
merchantability with respect to defects that an examination
ought to have revealed to the buyer.
IMPLIED WARRANTY OF FITNESS: A warranty that the goods are
fit for a particular purpose is implied whenever the seller has
reason to know that the buyer has a particular use for the goods,
and the buyer is relying upon the seller’s skill to select the
goods. The seller need not be a merchant for this warranty to
apply. This warranty can be disclaimed by general language (“as
is”), but it must be conspicuous and in writing.
PERFORMANCE
SUBSTANTIAL PERFORMANCE: Under the common law,
substantial performance is required, which means that
performance will be satisfied so long as there is not a
material breach of the contract.
PERFECT TENDER: Under the UCC, perfect tender is required,
which means that a seller must deliver perfectly conforming
goods in accordance with the terms of the contract. The
smallest nonconformity is a breach that allows the buyer to
reject all or a portion of the goods. However, installment
contracts do not have to satisfy perfect tender – the buyer can
reject a specific installment delivery when there is a substantial
impairment in the installment that cannot be cured. If the seller
fails to tender perfect goods, the buyer must give the seller a
chance to cure the nonconformity if:
1. The time for performance under the contract has not
yet expired; OR
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2. The seller has reasonable grounds to believe that the
buyer would accept a replacement for the
nonconformity.
MONEY DAMAGES
that could have been avoided had the plaintiff
taken reasonable steps to mitigate his losses.
THIRD-PARTY RIGHTS
THIRD-PARTY BENEFICIARY CONTRACTS: An intended thirdEXPECTATION DAMAGES: The goal of expectation damages is party beneficiary is not a party to the contract, but has rights
to put the non-breaching party in the same economic position under the contract because the two contracting parties are
that it would be in if the contract had been performed as
aware that their respective performances are intended to
promised. Expectation damages are measured by comparing
benefit the identified third-party. An intended beneficiary
the value of the performance without the breach to the value has the right to sue for breach of contract. An incidental
of the performance with the breach.
third-party beneficiary is not a party to the contract, but just
so happens to benefit from the contract. An incidental
RELIANCE DAMAGES: The goal of reliance damages is to put
the non-breaching party in the same economic position that it beneficiary has no legal rights because the purpose of the
contract was not intended to benefit them. An incidental
would be in if the contract had never been created. Reliance
beneficiary does not have the right to sue for breach.
damages restore the losses that the plaintiff incurred that
ASSIGNMENT: Generally, a party can assign rights and benefits,
would have never taken place but for the breached contract.
in whole or in part, under a contract to a third party unless the
RESTITUTION: The goal of restitution is to prevent unjust
enrichment. Restitution gives the plaintiff an amount equal to contract explicitly prohibits or invalidates assignments. If the
contract prohibits assignments, then the assignor has breached
the economic benefit that the plaintiff has conferred on the
the deal when he makes the assignment and is liable for
defendant.
damages; however, the assignment is still valid and enforceable
EQUITABLE REMEDIES
by the assignee. If the contract invalidates assignments, then the
SPECIFIC PERFORMANCE: Specific performance is awarded only
assignment is void and the assignee cannot enforce the
when monetary damages are considered inadequate to
assignment or recover.
compensate the injured party. Specific performance is
An assignee has the right to sue the obligor for nonpresumptively available for real estate transactions, and is
performance. However, any defense to enforcement that
presumptively not available for contracts of personal service.
could be used against the assignor may also be used
RECISSION: Rescission is the cancelling of a contract so as to
against the assignee. An assignee also has the right to sue
restore the parties to the positions they had before the
contract was made. Parties may seek to rescind a contract for the assignor for wrongful revocation of assignment or
breach of an implied warranty.
a variety of reasons, such as mutual mistake, fraud,
DELEGATION: A delegation of duties occurs when a party
misrepresentation, or even unilateral mistake if the other
“outsources” her duties under a contract to a third party.
party knew or should have known about the mistake.
This is generally acceptable provided that:
Rescission can also occur by the mutual agreement.
1. The contract does not prohibit delegation; AND
RIGHT OF RECLAMATION (REPLEVIN): Under the UCC, a
2. The other party does not have some special interest
seller may reclaim the goods she sent to a buyer if either of
in having a specific individual perform.
the following circumstances apply:
Generally, a delegatee is not liable for breach unless she
1. Insolvent Buyer. When an insolvent buyer receives
goods on credit, and the seller learns that the buyer receives consideration from the delegating party (i.e., the
delegating party is not excused and remains liable for
is insolvent, the seller may reclaim the goods if a
non-performance unless there is consideration).
demand is made within 10 days after the buyer’s
receipt of the goods. However, the 10-day limitation
does not apply if the buyer misrepresented his
solvency to the seller in writing within three months
before delivery.
2. Bad Checks. If the buyer pays with a check that is
subsequently dishonored, then the seller may
reclaim the goods following a demand made within
a reasonable time.
MITIGATION OF DAMAGES
DUTY TO MITIGATE: The plaintiff has a duty to take
reasonable steps to mitigate his losses. If the plaintiff fails to
do so, the court will reduce the total damages by the amount
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UBE Self-Study Program | QuickSheets | Contracts
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CONTRACTS
NOTE: Unless otherwise noted, templates are written under the assumption that all comprised rules are at issue.
Paragraph indentions are included to help differentiate issues and sub-issues and are unnecessary for actual essays.
LAW APPLICABILITY
The gateway issue is whether Article 2 of the Uniform Commercial Code (UCC) or common law applies.
For contracts dealing with goods, the UCC applies. For contracts dealing with services or real estate, the common law
applies. If there is a mixed contract that deals with both goods and services, the predominate purpose of the contract
determines whether the UCC or common law applies.
Here, the _____ [UCC/common law] applies, because _____ [Identify whether the predominate purpose of the contract
deals with goods or services.].
CONTRACT FORMATION
The main issue is whether a traditional, enforceable contract was formed.
A traditional, enforceable contract is formed when there is: (1) mutual assent between the parties; (2) consideration;
and (3) no defenses to formation that would invalidate an otherwise valid contract.
MUTUAL ASSENT
The first issue we must determine is whether mutual assent between the parties is present.
Mutual assent between the parties is present when there is a valid offer and acceptance.
OFFER
To form a valid offer, the offeror must: (1) manifest an objective willingness to enter into the
agreement; (2) create a power of acceptance in the offeree; and (3) specify all necessary terms of the
agreement. Under the common law, all essential terms must be specified in the offer, which includes:
parties, subject, quantity, and price. However, under the UCC, the price term is not required in the offer.
The only required terms under the UCC are: parties, subject, and quantity.
Here, ____ [Discuss all three elements to determine whether a valid offer was formed.].
Termination of the Offer
The next issue is whether the offer was terminated before acceptance.
If a valid offer is terminated at any time before acceptance, the offer is invalidated. It cannot be
accepted or revived unless a new offer is made. An offer is terminated if any of the following
occur before acceptance: (1) the offeror revokes the offer by express communication to the
offeree; (2) the offeree learns that the offeror has taken an action that is absolutely inconsistent
with a continuing ability to contract; (3) the offeree expressly rejects the offer; (4) the offeree
expressly communicates a counteroffer to the offeror; (5) The offeror dies or otherwise
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becomes incapacitated; (6) a reasonable amount of time passes; or (7) the subject matter of the
offer becomes illegal or is destroyed.
Here, _____ [Discuss whether the offer was terminated before acceptance. If the offer is
terminated before acceptance, mutual assent is destroyed unless another valid offer is at play.].
Irrevocable Offers
Generally, the offeror is free to revoke an offer at any time prior to acceptance. However,
there are four main types of offers that are irrevocable: (1) option contracts;
(2) UCC firm offers; (3) offeree started performance; and (4) detrimental reliance.
Option Contract
An offer is irrevocable if consideration is given in exchange for a promise
to keep the offer open.
Here, _____ [Discuss whether consideration was given in exchange for a
promise to keep the offer open to determine whether the offer was irrevocable
(e.g., “I promise not revoke this offer for one week if you pay me an additional
$100 to keep the offer open.”).].
UCC Firm Offer
Under the UCC, an offer is irrevocable if a merchant makes a firm offer to buy or
sell goods, provided that the offer: (1) is in writing; (2) contains an explicit
promise to not revoke the offer; and (3) is signed by the merchant. A firm offer
will last either as long as stated in the offer or for a reasonable amount of time
not to exceed 90 days.
Here, _____ [Discuss all three elements to determine whether the offer was
irrevocable.].
Offeree Started Performance
A unilateral offer to contract is irrevocable once the offeree starts
performance. A unilateral offer arises from a promise that requests acceptance
by performance, as opposed to a bilateral offer, which arises from a promise
that requests acceptance by a return promise.
Here, the offer was _____ [unilateral/bilateral], because _____ [Identify
whether the promisor requested acceptance by performance or a
return promise].
[*If the offer was unilateral]
Thus, once _____ [offeree] started performance, the offer became irrevocable.
[*If the offer was bilateral]
Thus, the offer was freely revocable.
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UBE Self-Study Program | Essay Templates | Contracts
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Detrimental Reliance
An offer is irrevocable if the offeree reasonably and detrimentally relies on
the offer in a foreseeable manner.
Here, _____ [Discuss whether the offeree reasonably and detrimentally relied
on the offer in a foreseeable manner to determine whether the offer was
irrevocable.].
ACCEPTANCE
The next issue we must determine to determine whether mutual assent is present is whether the offer
was accepted.
To accept an offer, the offeree must: (1) manifest an objective willingness to enter into the agreement;
and (2) accept the offer according to the rules established by the offeror who is master of the offer. For
bilateral contracts (which arise from a promise that requests acceptance by a return promise), the
offer is accepted once performance is started. For unilateral contracts (which arise from a promise that
requests acceptance by performance), the offer is only accepted once performance is complete.
Here, _____ [Discuss both elements to determine whether the offer was accepted. If there is acceptance
of a valid offer, mutual assent is present between the parties.].
Mailbox Rule
Under the mailbox rule, an acceptance that is sent by mail is generally valid when the letter is
sent – not when the letter is received. However, the mailbox does not apply to option contracts
or in situations where the offeree sends another communication that terminates or alters the
offer first.
Here, _____ [Discuss whether the mailbox rule applies. The mailbox rule is all about timing – if
the offeree mails a rejection/counteroffer before mailing the acceptance, the letter that the offeror
opens first controls. If the offeree mails the acceptance letter first, it is valid when sent.].
Acceptance Contains Different or Additional Terms
The next issue is whether the purported acceptance that contains terms that are not included in
the offer is a valid acceptance or a counteroffer. A counteroffer operates as both a rejection that
terminates the original offer and as a new offer.
[*If the common law applies]
Mirror Image Rule
Under the common law, the terms in the acceptance must match the terms of the offer
exactly – otherwise it is not an acceptance, it is a counteroffer.
Here, _____ [Discuss whether the offer and purported acceptance mirror each other. If
the purported acceptance contains any additional or different terms from those in the
offer - it is not an acceptance, it is a counteroffer.].
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[*If the UCC applies]
UCC 2-207 (“Battle of the Forms”)
Under the UCC, the acceptance does not have to mirror the offer and can include
different or additional terms from those in the offer. UCC 2-207(1) determines whether
the purported acceptance (containing new terms) will operate as an acceptance or as a
counteroffer. It states: (1) A definite and seasonable expression of acceptance or written
confirmation; (2) which is sent within a reasonable amount of time; (3) operates as an
acceptance even though it states terms additional to or different from those offered or
agreed upon; (4) unless acceptance is expressly made conditional upon assent to the
additional or different terms.
Here, _____ [Discuss all four elements to determine whether the purported acceptance
is a valid acceptance or counteroffer.].
[*If the purported acceptance is a valid acceptance]
The next issue is whether the new terms in the acceptance will govern the contract
or whether UCC gap fillers will be implemented.
[*If the purported acceptance contains “additional” terms]
Under UCC 2-207(2), the additional terms will govern the contract if both parties are
merchants, unless: (1) the initial offer expressly limited acceptance to its terms; (2)
the additional terms materially alter the deal; OR (3) the offeror objects to the
additional terms within a reasonable amount of time.
Here, _____ [Discuss whether both parties are merchants, and if so, if any exceptions
apply. If either party is not a merchant or an exception applies, UCC gap fillers will
be implemented.].
[*If the purported acceptance contains “different” terms]
Most courts apply the knockout rule with UCC 2-207(2) to determine whether the new
terms control or whether UCC gap fillers must be implemented. Under the knockout
rule, a distinction is made between "different" and "additional" terms. A different
term is a term that was not included in the original offer that conflicts with the terms
of the original offer. An additional term is a term that was not included in the original
offer that does NOT conflict with the terms of the original offer. Under the knockout
rule, different terms in the original offer and acceptance knock each other out creating
a gap in the contract. UCC gap fillers are then used to plug this gap.
Here, _____ [Discuss whether the new term conflicts with the original offer. If it
conflicts, apply the knockout rule and conclude that UCC gap fillers must
be implemented to plug the gap.].
In conclusion, mutual assent between the parties [is/is not] present, because _____ [Identify whether there was
both a valid offer and acceptance.].
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CONSIDERATION
The next issue we must determine to determine whether a traditional, enforceable contract was formed is
whether the agreement is supported by consideration. Consideration involves a transfer of legal value in a
bargained-for exchange. Consideration is present if: (1) the promisee incurs a legal detriment or the promisor
receives a legal benefit; AND (2) the promise induces the detriment and the detriment induces the promise.
Here, _____ [Discuss both elements to determine whether the agreement is supported by consideration. Watch
out for gift promises, conditional gifts, pretenses of consideration, illusory promises, and past consideration.]
In conclusion, the agreement [was/was not] supported by consideration, because _____ [Identify whether both
elements were met.].
CONTRACT MODIFICATION
The issue is whether the contract modification was valid.
[*If the common law applies]
Preexisting Duty Rule
Under the common law, a contract modification must be supported by consideration. The
preexisting duty rule stipulates that a promise to do something of which the party is
already legally obligated to do, by contract or otherwise, is not consideration.
Here, the contract modification [was/was not] supported by consideration, because _____
[Identify whether the contract modification was supported by consideration. Remember,
a promise to do something of which the party is already legally obligated to do is not
consideration.].
In conclusion, the contract modification [was/was not] valid, because _____ [Identify whether
the contract modification was supported by consideration.].
[*If the UCC applies]
Good Faith Requirement
Under the UCC, a contract modification is valid if it is made in good faith.
Here, the contract modification [was/was not] made in good faith, because _____ [Discuss facts
that suggest whether the contract modification was made in good faith.].
In conclusion, the contract modification [was/was not] valid, because _____ [Identify whether
the contract modification was made in good faith.].
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UBE Self-Study Program | Essay Templates | Contracts
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CRIMINAL LAW
GENERAL PRINCIPALS
ESSENTIAL ELEMENTS OF A CRIME: Almost all crimes
require proof of the following four core elements:
1. Actus Reus. The defendant must have either
performed a voluntary physical act or failed to act
under circumstances imposing a legal duty to act.
2. Mens Rea. The defendant must have committed the
offense with a culpable state of mind. However, a
defendant need not know that their conduct is illegal
to be guilty of a crime.
3. Causation. There must be a casual connection
between the defendant’s physical act or failure to
act and the harmful result.
4. Concurrence. The requisite mental state must be
present at the same time the physical act
constituting the crime occurs.
MENTAL STATE REQUIREMENTS
SPECIFIC INTENT: Specific intent requires that the crime be
committed with a specific intent or objective. The existence
of specific intent cannot be conclusively imputed from the
mere doing of an act, but the manner in which the crime
was committed may provide evidence of specific intent.
Specific intent crimes include: solicitation, attempt,
conspiracy, 1st degree murder, assault, larceny, robbery,
burglary, false pretenses, and embezzlement.
MALICE: The intent necessary for malice crimes require a
reckless disregard of an obvious or high risk that the
particular harmful result will occur. Malice crimes include
common law murder and arson.
GENERAL INTENT: General intent is a “catch-all” category of
intent. It requires that the defendant intend to commit an act
that is prohibited by law (whether the defendant intended
the act’s result is irrelevant). General intent crimes include:
battery, rape, manslaughter, kidnapping, and false
imprisonment.
STRICT LIABILITY: Strict liability only requires that the
defendant voluntarily commit the actus reus (regardless of
the defendant’s intent). Defenses that negate state of mind
are NOT available. Statutory rape is a strict liability crime.
MODEL PENAL CODE: The model penal code eliminates the
common law distinctions between general and specific intent
and adopts the following four categories of intent:
1. Purposely. A defendant acts “purposely” when his
conscious objective is to engage in the conduct or to
cause a certain result.
2. Knowingly or Willfully. A defendant acts “knowingly
or willingly” when the defendant is aware that his
conduct is of the nature required by the crime or
that circumstances required by the crime exist.
3. Recklessly. A defendant acts “recklessly” when the
defendant acts with a conscious disregard of
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substantial and unjustifiable risk that a material
element of a crime exists or will result from his
conduct. The risk must constitute a gross deviation
from the standard of conduct of a law-abiding
person.
4. Negligently. A defendant acts “negligently” when
the defendant fails to perceive a substantial and
unjustifiable risk that a material element of a
crime exists or will result from his conduct. The
risk must constitute a gross deviation from the
standard of conduct of a reasonable person in the
same situation.
HOMICIDE
COMMON LAW MURDER: Murder is the unlawful killing of a
human being with malice aforethought. Malice aforethought
exists if there are no facts reducing the killing to voluntary
manslaughter or excusing it and it was committed with one
of the following states of mind:
1. Intent to kill;
2. Intent to inflict great bodily injury;
3. Reckless indifference to an unjustifiably high risk
to human life (“depraved heart murder”); OR
4. Intent to commit a felony (felony murder rule).
VOLUNTARY MANSLAUGHTER: Voluntary manslaughter is
a killing that would be murder but for the existence of
adequate provocation. Provocation is adequate only if:
1. It was a provocation that would arouse sudden and
intense passion in the mind of an ordinary person,
causing him to lose self-control; AND
2. There was not sufficient time between the
provocation and the killing for passions of a
reasonable person to cool off.
INVOLUNTARY MANSLAUGHTER: Involuntary manslaughter
is an unintentional killing committed:
1. With criminal negligence; OR
2. In the commission of a misdemeanor or in the
commission of a felony that is not statutorily
treated as 1st or 2nd degree murder.
FIRST AND SECOND DEGREE MURDER: In some
jurisdictions, murder is divided into degrees by statute.
Generally, a murder will be 2nd degree murder unless it falls
under any of the following statutory aggravating
circumstances, which would make it 1st degree murder:
1. Premeditation. If the defendant made the decision
to kill in a cool and dispassionate manner and
actually reflected on the idea of killing, even if only
for a very brief period (e.g., a few seconds), it is 1st
degree murder.
2. Felony Murder. In many states, a killing committed
during the commission of an enumerated felony is
felony murder and called 1st degree murder. The
most commonly listed felonies in such statutes are
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burglary, arson, rape, robbery, and kidnapping
(BARRK); however, other felonies that are inherently
dangerous to human life are often included as well.
3. Heinous Murder. Some states make killings that are
performed in a certain way (e.g., torture, mutilation,
etc.) 1st degree murder.
FELONY MURDER: Any death caused in the commission of,
or in an attempt to commit, a felony is murder. However
there are several limitations on this rule:
1. The defendant must have committed or attempted
to commit the underlying felony – a defense that
negates an element of an underlying offense will
also be a defense to felony murder;
2. The felony must be distinct from the killing itself
(e.g., a battery that causes a victim’s death does not
qualify as an underlying felony because the battery is
not distinct from the killing itself);
3. The death must have been a foreseeable result of
the felony; AND
4. The death must have been caused before the
defendant’s “immediate flight” from when the
felony ended (i.e., once the felon has reached a
place of “temporary safety” – subsequent deaths are
not felony murder).
OFFENSES AGAINST THE PERSON
BATTERY: Battery is the:
1. Unlawful (without legal excuse);
2. Application of force;
3. To the person of another;
4. That results in bodily harm or offensive contact.
ASSAULT: Assault is either:
1. An attempt to commit a battery; OR
2. Intentionally placing another in apprehension of
imminent bodily harm.
FALSE IMPRISONMENT: False Imprisonment consists of:
1. Unlawful (without legal excuse);
2. Confinement of a person;
3. Without valid consent.
PROPERTY OFFENSES
LARCENY: Larceny consists of:
1. A taking;
2. And carrying away;
3. Of the personal property of another;
4. By trespass (without consent);
5. With intent to permanently deprive.
EMBEZZLEMENT: Embezzlement consists of:
1. The fraudulent conversion;
2. Of the personal property of another;
3. By a person in lawful possession of that property.
FALSE PRETENSES: False pretenses consists of:
1. Obtaining title;
2. To the personal property of another;
3. By an intentional false representation;
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4. Of a material past or present fact (not opinion);
5. With intent to defraud.
LARCENY BY TRICK: Larceny by trick consists of:
1. Obtaining possession or custody;
2. To the personal property of another;
3. By an intentional false representation;
4. Of a material past or present fact (not opinion);
5. With intent to defraud.
ROBBERY: Robbery consists of:
1. A taking and carrying away;
2. Of the personal property of another;
3. From the other’s person or presence;
4. By force or threat of force;
5. With intent to permanently deprive.
OFFENSES AGAINST THE HABITATION
BURGLARY: common law burglary consists of:
1. A breaking;
2. And entry;
3. Of the dwelling of another;
4. At nighttime;
5. With the intent to commit a felony in the structure
(at the time of entry).
ARSON: common law arson consists of:
1. The malicious;
2. Burning;
3. Of the dwelling of another.
INCHOATE OFFENSES
ATTEMPT: An attempt requires:
1. The specific intent to perpetrate a crime; AND
2. An overt act beyond mere preparation that falls
short of completing the crime (most states require a
“substantial step” toward completion of the crime).
Withdrawal. Under the common law, abandonment or
withdrawal is not a defense to attempt. However, under
the Model Penal Code (minority of jurisdictions), a fully
voluntary and complete abandonment is a valid
defense. Abandonment is not voluntary if it is motivated
by a desire to avoid detection.
SOLICITATION: Solicitation consists of:
1. Requesting another to commit a crime;
2. With the intent that the person solicited commit
the crime.
Withdrawal. In most jurisdictions, it is not a defense that
the solicitor renounces or withdraws the solicitation.
However, the Model Penal Code recognizes renunciation
as a defense if the defendant prevents the commission
of the crime.
CONSPIRACY: At common law, a conspiracy consists of:
1. An agreement between two or more persons;
2. To accomplish a criminal objective;
3. With the intent to enter into the agreement; AND
4. With the intent to commit the criminal objective.
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Overt Act. Unlike the common law, a majority of states
also require that an overt act be committed in
furtherance of the criminal objective. The overt act does
not have to be criminal in nature.
Pinkerton Liability. A conspirator may be held liable for
crimes committed by their co-conspirators if the crimes
were foreseeable and committed in furtherance of the
criminal objective.
Withdrawal. Withdrawal may be a defense to crimes
committed in furtherance of the conspiracy. However,
withdrawal from the conspiracy is not a defense to the
conspiracy itself unless the conspirator:
a. Performs an affirmative act that notifies
all members of the conspiracy of her
withdrawal;
b. Gives notice in time for the members
to abandon their plans; AND
c. Attempts to neutralize her assistance if
she provided any as an accomplice.
CRIMINAL CAPACITY
INSANITY: A defendant may be entitled to acquittal if, at the
time of the crime, the defendant was legally insane. There
are four formulations of the test to be applied in order to
make this determination:
1. M’Naghten Rule. Under this rule, a defendant is
entitled to acquittal if, because of a mental illness,
he did not know:
a. The nature and quality of the act; OR
b. The wrongfulness of the act.
2. Irresistible Impulse Test. Under this test, a
defendant is entitled to acquittal if, because of a
mental illness, he lacked the capacity
a. For self-control and free choice; OR
b. To conform his conduct to the law.
3. Model Penal Code Test. Under this test, a
defendant is entitled to acquittal if, because of a
mental illness, he did not have substantial capacity:
a. To conform his conduct to the law; OR
b. To appreciate the wrongfulness of the act.
4. Durham Test. Under this test, a defendant is
entitled to acquittal if the unlawful act would not
have been committed but for the defendant’s
mental illness.
VOLUNTARY INTOXICATION: Voluntary intoxication
(intentional ingestion of an intoxicating substance without
duress, which is known to be intoxicating to the person
ingesting the substance) is a valid defense to specific intent
crimes if the intoxication prevents the formation of the
required intent. Voluntary intoxication does not apply to
general intent, malice, or strict liability crimes.
INVOLUNTARY INTOXICATION: Involuntary intoxication
(ingestion of an intoxicating substance under duress or
without knowledge of its intoxicating effects) is a valid
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defense to all crimes if the intoxication serves to negate
an element of the crime.
JUSTIFICATION DEFENSES
NON-DEADLY FORCE: A person without fault may use
non-deadly force in self-defense if she:
1. Is confronted with unlawful force; AND
2. Reasonably believes it is necessary to protect
herself from the imminent use of unlawful force
upon herself.
DEADLY FORCE: A person without fault may use deadly
force in self-defense if she:
1. Is confronted with unlawful force; AND
2. Reasonably believes that she is threatened with
imminent death or great bodily harm.
DUTY TO RETREAT: In a minority of jurisdictions, a person
must retreat before using deadly force if the victim can
safely do so unless:
1. The attack occurs in the victim’s own home;
2. The attack occurs while the victim is making a
lawful arrest; OR
3. The assailant is in the process of robbing the victim.
IMPERFECT SELF-DEFENSE: Imperfect self-defense can
reduce a murder charge to voluntary manslaughter if the
defendant kills another based on an honest but unreasonable
belief that the use of deadly force was necessary to prevent
death or serious bodily harm.
DEFENSE OF OTHERS: A defendant may defend others with force
if he reasonably believes that the person assisted has the legal
right to use force in her own defense. Only some courts allow
imperfect self-defense to be applied to situations where the
defendant was defending another person.
OTHER DEFENSES
DURESS: The defense of duress is available to the defendant
if the defendant reasonably believed that another person
would imminently inflict death or great bodily harm upon him
or a family member if he did not commit the crime.
MISTAKE OF FACT: Mistake of fact is a defense that shows the
defendant lacked the state of mind required for the crime. If the
charged offense is a specific intent crime, the mistake need not
have been reasonable. For malice and general intent crimes, the
mistake must have been reasonable. Mistake of fact is irrelevant
if the crime imposes strict liability.
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CRIMINAL PROCEDURE
4th AMENDMENT SEARCHES
SEARCHES: Under the 4th Amendment, a person is granted
protection from unreasonable government searches. A
search occurs when government conduct violates a person’s
reasonable expectation of privacy. There is a reasonable
expectation of privacy in: homes, hotel rooms, offices,
backyard of home (curtilage), and luggage. There is not a
reasonable expectation of privacy in: public streets, open
fields (even if on private property), garbage, abandoned
property, and anything visible from public space. Absent any
of the exceptions listed below, a warrantless search
performed by the government that violates a reasonable
expectation of privacy is unlawful. Evidence obtained from an
unlawful search is usually excluded.
SEARCH WARRANT EXCEPTIONS
2. Conducted pursuant to established police agency
procedures that are designed to meet legitimate
objectives while limiting the discretion of the officer.
STOP AND FRISK (TERRY STOP): Law enforcement officers
can stop an individual when the officer has a reasonable
suspicion, based on articulable facts (i.e., more than a
“hunch” – less than probable cause), to believe that the
subject is or is about to be engaged in criminal activity. During
a Terry stop, an officer can frisk a subject for weapons
without a warrant; however, the officer cannot initiate a
search for evidence. If the frisk for weapons reveals objects
whose shape makes their identity obvious (e.g., object is
obviously contraband), the officer may seize those objects.
ARRESTS AND SEIZURES OF PERSONS
ARRESTS: In order to arrest an individual, law
enforcement officers must have probable cause to believe
EXIGENT CIRCUMSTNACES: Law enforcement officers may
that the individual has committed a crime. An officer has
conduct a search without a warrant if:
probable cause if:
1. The officers are in “hot pursuit” or
1. The officer witnesses the commission of the crime;
immediate danger; OR
OR
2. The evidence would spoil or disappear in the time it
2. A person tells the officer that a crime has
would take to obtain a warrant.
been committed.
SEARCH INCIDENT TO A LAWFUL ARREST: Law enforcement
ARREST WARRANT: An individual may be arrested with or
officers may conduct a search without a warrant if the
without an arrest warrant; however, an arrest warrant
search occurs at the time that a lawful arrest is made. The
scope of the search is limited to objects within the reach of
authorizes law enforcement officers to enter a home to
the arrestee.
arrest the individual. An arrest warrant is issued by a neutral
magistrate based on a finding of probable cause to believe
CONSENT: Law enforcement officers may conduct a search
without a warrant if a person voluntarily consents to a search. that the named individual has committed a crime. Without a
Officers do not have to inform the subject that she has the
warrant, officers can arrest an individual inside the home
right to refuse consent to the search. A third party with
only if there is:
apparent authority can consent to search. However, officers
1. Consent to enter; OR
cannot search over a present occupant’s objection (e.g., if
2. Exigent circumstances.
one occupant consents and the other occupant refuses,
5th AMENDMENT AND MIRANDA
officers cannot search the property).
5th AMENDMENT: The 5th Amendment provides that no person
AUTOMOBILES: Law enforcement officers may conduct a
shall be compelled in any criminal case to be a witness against
search without a warrant if they have probable cause to
himself. A defendant who wishes to invoke his 5th Amendment
believe that an automobile contains contraband or
right does so by simply not taking the stand.
evidence of a crime. They can search the parts of the
CUSTODIAL INTERROGATIONS: Under Miranda, any
vehicle, and containers inside, which could reasonably
incriminating statement obtained as a result of custodial
contain the items for which there is probable cause.
interrogation (i.e., suspect is in custody and subject to police
PLAIN VIEW: Law enforcement officers may seize
interrogation) may not be used against the suspect at a
evidence without a warrant if:
subsequent trial unless the police informed the suspect of
1. The officers are legally on the premises;
his Miranda rights.
2. The evidence is observed (with any of the
1. Custodial. A person is in custody when he
five senses) in plain view; AND
reasonably believes that he is not free to leave
3. There is probable cause to believe the items are
(e.g., in the back of a police cruiser).
evidence of a crime or contraband.
2. Interrogation. A person is subject to an
ADMINISTRATIVE SEARCHES: Law enforcement officers do
interrogation when the police know or should
not need search warrants to conduct administrative searches
know that their words or actions are likely to elicit
if the search is both:
an incriminating response.
1. Reasonable; AND
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UBE Self-Study Program | QuickSheets | Criminal Procedure
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MIRANDA RIGHTS: When a person is in custody, the
police must inform the person of her Miranda rights
before subjecting her to a police interrogation. This
includes informing the subject:
1. She has the right to remain silent;
2. Any statement she makes may be used against her in
court;
3. She has the right to consult an attorney and to have
the attorney present during questioning; AND
4. She has the right to have an attorney appointed
if she cannot afford one.
MIRANDA WAIVER: A defendant may knowingly and
voluntarily waive his Miranda rights. The burden is on
the government to demonstrate by a preponderance of
the evidence that the waiver was made knowingly and
voluntarily.
INVOCATION OF RIGHTS: The police must cease their
interrogation if the party being questioned affirmatively
invokes her:
1. Right to remain silent; OR
a. After a substantial period of time, police can
go back to the suspect, give Miranda
warnings again, and seek to interrogate her
further.
2. Right to counsel.
a. The interrogation cannot resume until the
lawyer is present, the suspect reinitiates the
interrogation, or 14 days have passed since
the suspect was released from custody.
MIRANDA VIOLATIONS: A statement obtained in violation of
Miranda is inadmissible in the prosecution’s case-in-chief, but
can be admitted to impeach the defendant. Evidence
obtained from a voluntary statement taken in violation of
Miranda is admissible. Miranda is violated if:
1. The police fail to give Miranda warnings before a
custodial interrogation; OR
2. The police fail to cease interrogation of a person
after she has affirmatively invoked her right to
remain silent or her right to counsel.
MIRANDA EXEPCTIONS: There are three main exceptions to
the Miranda requirement. The police are not required to give
Miranda warnings before questioning a suspect:
1. When the public’s safety is at risk;
2. When the suspect being questioned is not
aware that the interrogator is a police officer
(e.g., undercover police officers); OR
3. If the questioning is biographical for routine booking
purposes.
HARMLESS ERROR RULE: If evidence in violation of Miranda
is admitted at trial, a guilty verdict will be upheld if the
prosecution can prove beyond a reasonable doubt that the
error was harmless because the defendant would have been
convicted even without the tainted evidence.
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INVOLUNTARY STATEMENTS: The 5th Amendment protects
against government compulsion of involuntary statements.
Statements are involuntary only if the police coerced the
defendant into making the statements. To determine
whether a statement was coerced by the police, courts look
at the totality of the circumstances. Relevant factors include:
1. The length of the interrogation;
2. The time and location where the interrogation took
place;
3. Police tactics used; AND
a. Force. The application of force or threats of
force made by the police to the person
being interrogated renders any statements
made during the interrogation involuntary.
b. Trickery. Trickery or false promises made by
the police to the person being interrogated
may render their statements involuntary.
However, deceit or fraud by the police (i.e.,
lying about an accomplice’s confession)
does not itself make a statement
involuntary.
4. The character of the person being interrogated (e.g.,
age, experience, state of health, education level,
sophistication, intoxication, mental condition, etc.)
ADMISSIBILITY OF INVOLUNTARY STATEMENTS: An
involuntarily obtained statement is not admissible against a
defendant for substantive purposes or for impeachment
purposes. Evidence obtained from an involuntary
statement is fruit of the poisonous tree and is
presumptively inadmissible.
6th AMENDMENT RIGHT TO COUNSEL
6th AMENDMENT: The 6th Amendment guarantees a criminal
defendant “the assistance of counsel for his defense.” The 6th
Amendment right to counsel automatically attaches once
formal adversarial judicial proceedings have commenced (e.g.,
formal charge, preliminary hearing, indictment, arraignment,
and all parts of the trial process). By contrast, the 5th
Amendment right to counsel must be affirmatively invoked by
the defendant (does not automatically attach).
6th AMENDMENT VIOLATIONS: Once a defendant’s right to
counsel has attached, any attempts to deliberately elicit a
statement from him in the absence of his attorney violates
the 6th Amendment. However, The 6th Amendment right to
counsel is offense-specific; meaning that it only applies to
the offense that the defendant has been formally charged
with. The police are free to question the defendant about
unrelated offenses without his attorney present.
6th AMENDMENT WAIVER: The 6th Amendment right to
counsel is in effect once it automatically attaches unless the
defendant voluntarily, knowingly, and intelligently waives
the right. The defendant must understand the nature of the
right being waived and the consequences for waiving it.
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EXCLUSIONARY RULES
EXCLUSIONARY RULE: Evidence obtained in violation of the
defendant’s 4th, 5th, or 6th Amendment rights is inadmissible
in a criminal case. Additionally, all evidence obtained as a
result of the constitutional violation is inadmissible as fruit of
the poisonous tree. These exclusionary rules do not apply to
Miranda violations; they only apply to 4th, 5th, and 6th
Amendment violations.
EXCEPTIONS: The exclusionary rule does not apply if:
1. The police had an independent source for the
evidence that was distinct from the original illegal
source;
2. The discovery of the evidence was inevitable
regardless of the violation;
3. There is attenuation in the causal chain, such that
intervening events and the passage of time can
remove the taint; OR
4. The police relied in good faith on either:
a. Existing law that was later declared
unconstitutional; OR
b. A warrant that, while facially valid, is later
found to be defective.
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UBE Self-Study Program | QuickSheets | Criminal Procedure
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CRIMINAL PROCEDURE
NOTE: Unless otherwise noted, templates are written under the assumption that all comprised rules are at issue.
Paragraph indentions are included to help differentiate issues and sub-issues and are unnecessary for actual essays.
4th AMENDMENT SEARCHES
The main issue is whether _____ [the evidence] obtained by the government may be excluded on 4th Amendment
unreasonable search grounds.
Under the 4th Amendment, a person is granted protection from unreasonable government searches. Absent an
exception to the warrant requirement, a search performed by the government without a warrant is considered
unreasonable and unlawful. Thus, evidence obtained from a warrantless search performed by the government is
usually excluded unless an exception applies.
GOVERNMENT SEARCHES
To determine whether the evidence obtained is admissible, the first issue is whether there was a
search performed by the government.
Reasonable Expectation of Privacy
For 4th Amendment purposes, a search occurs when government conduct violates a person’s
reasonable expectation of privacy. Courts have held that all the following places have a reasonable
expectation of privacy: homes; hotel rooms; offices; backyard of the home (curtilage); and luggage. By
contrast, courts have held that all the following places do not have a reasonable expectation of privacy:
public streets; public/private open fields; garbage left on the street; abandoned property; anything
visible from public airspace; and anything that can be seen inside one’s home from public space.
Here, _____ [Discuss whether the government’s conduct violated the defendant’s reasonable
expectation of privacy.].
[*If the government’s conduct did NOT violate the defendant’s reasonable expectation of
privacy]
Ultimately, there was not a search performed by the government, because the government’s
conduct did not violate the defendant’s reasonable expectation of privacy. Without a search
performed by the government, there cannot be a 4th Amendment search violation. Therefore,
_____ [the evidence] may not be excluded on 4th Amendment unreasonable search grounds.
[*If the government’s conduct violated the defendant’s reasonable expectation of privacy]
Ultimately, there was a search performed by the government, because the government’s
conduct violated the defendant’s reasonable expectation of privacy,
Warrant Requirement
Therefore, the next issue is whether the government had a valid search warrant
to conduct the search.
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UBE Self-Study Program | Essay Templates | Criminal Procedure
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[*If the government did NOT have a warrant to perform the search]
Here, the government did not have a warrant to perform the search.
Therefore, the search is unlawful, and the evidence obtained from it will likely
be excluded unless an exception applies.
NOTE: Consider possible exceptions (E.S.C.A.P.E.S. from the warrant
requirement): Studicata Attack Outline, Criminal Procedure: Pages 2-3
[*If the government had a warrant to perform the search]
To be valid, a search warrant must: (1) be issued by a neutral magistrate; (2) be
based on probable cause to believe that the items sought are fruits,
instrumentalities, or evidence of crime; and (3) describe the place and property
to be searched with particularity. If a warrant fails to meet these three
requirements, the warrant is invalid, and the recovered items will be excluded
from the prosecutor’s case-in-chief.
Here, _____ [Discuss all three elements to determine whether the government
had a valid warrant to perform the search.].
[*If the government’s search warrant was invalid]
Absent an exception to the warrant requirement, _____ [the evidence
obtained from the search] will be excluded from the prosecutor’s casein-chief, because the search warrant _____ [identify which element
was not satisfied.].
[*If the government’s search warrant was valid]
In conclusion, _____ [the evidence obtained from the search] may not
be excluded under 4th Amendment search grounds, because the
government’s search was performed with a valid search warrant.
Therefore, the search was reasonable under the 4th Amendment.
GOVERNMENT INTERROGATIONS & MIRANDA
The main issue is whether _____ [the evidence] obtained by the government may be excluded on Miranda grounds.
Under Miranda, if a suspect under custodial interrogation is not advised of his Miranda rights or if he invokes his rights,
but the police continue to interrogate him, then the court may exclude any subsequent self-incriminating statements
from being used in the prosecution’s case-in-chief at trial. A custodial interrogation occurs when: (1) a person
reasonably believes that he is not free to leave; and (2) the police know or should know that their words or actions are
likely to elicit an incriminating response.
Here, _____ [Discuss both elements to determine whether a custodial interrogation occurred.].
[*if there was NOT a custodial interrogation]
In conclusion, _____ [the self-incriminating statements] may not be excluded on Miranda grounds, because the
evidence was not obtained as a result of a custodial interrogation.
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UBE Self-Study Program | Essay Templates | Criminal Procedure
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[*if there was a custodial interrogation]
[*if the suspect purportedly waives Miranda rights]
WAIVER
A defendant may waive his Miranda rights so long as it is done knowingly and voluntarily. The burden
is on the government to demonstrate by a preponderance of the evidence that the waiver was made
knowingly and voluntarily.
Here, _____ [Discuss whether the government met their burden to prove that the defendant knowingly
and voluntarily waived his Miranda rights by a preponderance of the evidence.].
[*if the waiver was made knowingly and voluntarily and there is no subsequent invocation
of rights]
Therefore, _____ [the evidence] may not be excluded on Miranda grounds, because _____ [the
suspect/defendant] knowingly and voluntarily waived [his/her] Miranda rights
without subsequently invoking them.
[*if the suspect being interrogated invoked her right to remain silent or her right to counsel]
INVOCATION OF RIGHTS
Regardless of a prior waiver of Miranda rights, the police must cease their interrogation if the party
being questioned affirmatively invokes: (1) her right to remain silent; or (2) her right to counsel.
However, if the party being questioned affirmatively invokes her right to remain silent, the police can
go back to the suspect after a substantial period of time, give Miranda warning again, and seek to
interrogate further. In addition, if the party being questioned affirmatively invokes her right to counsel,
the interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or
14 days have passed since the suspect was released from custody.
Here, _____ [Discuss whether the suspect affirmatively invoked her right to remain silent or her right to
counsel. If the police fail to cease their interrogation after an invocation of rights, and neither
exception applies – discuss Miranda violations (see below).].
MIRANDA VIOLATIONS
Miranda is violated if: (1) the police fail to give Miranda warnings before a custodial interrogation; or (2) the
police fail to cease interrogation of a person after she has affirmatively invoked her right to remain silent or
her right to counsel.
[*if Miranda was violated]
Here, _____ [Identify how Miranda was violated (failure to warn or failure to cease interrogation).].
While a statement obtained in violation of Miranda is inadmissible in the prosecution’s case-in-chief, it can be
admitted to impeach the defendant. In addition, evidence obtained from a voluntary statement taken in
violation of Miranda is admissible.
[*if the evidence obtained from the Miranda violation is a self-incriminating statement]
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UBE Self-Study Program | Essay Templates | Criminal Procedure
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Here, _____ [the self-incriminating] statement] taken in violation of Miranda [is/is not] admissible,
because _____ [identify whether the statement is being admitted in the prosecution’s case-in-chief or
for impeachment purposes.].
[*if the evidence obtained from the Miranda violation is a piece of evidence that is located from
a voluntary statement]
Here, _____ [the evidence] taken in violation of Miranda is admissible, because the evidence
was located from a voluntary statement.
NOTE: Statements are involuntary only if the police coerced the defendant into making the
statements. To determine whether a statement was coerced by the police, courts look at the totality of
the circumstances. Relevant factors include: (1) the length of the interrogation; (2) the time and
location where the interrogation took place; (3) Police tactics used (force/trickery); and (4) The
character of the person being interrogated (e.g., age, experience, state of health, education level,
sophistication, intoxication, mental condition, etc.).
[*if Miranda was NOT violated]
Here, _____ [Identify that the police gave Miranda warnings before their custodial interrogation, and if there
was an invocation of rights, that the police ceased their interrogation properly.].
Therefore, _____ [the evidence] may not be excluded on Miranda grounds, because there was not a Miranda
violation.
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UBE Self-Study Program | Essay Templates | Criminal Procedure
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EVIDENCE
RELEVANCE
LOGICAL RELEVANCE: Evidence must be relevant in order
to be admissible. Evidence is relevant if it is both:
1. Probative (evidence is probative if it has any
tendency to make a fact more or less probable); AND
2. Material (evidence is material if it is a fact of
consequence in determining the outcome of
the action).
LEGAL RELEVANCE: The court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.
PUBLIC POLICY EXCLUSIONS
SUBSEQUENT REMEDIAL MEASURES: Subsequent remedial
measures are actions taken after an injury or harm that make
future injury less likely (e.g., installing a handrail after a
person falls down the stairs). Subsequent remedial measures
are not admissible to prove negligence, defective product
design, or culpable conduct. However, subsequent remedial
measures are admissible to show agency, ownership, or
control of property or for impeachment purposes.
SETTLEMENT NEGOTIATIONS: Offers, conduct, or statements
made during negotiations to settle or compromise are not
admissible to prove a disputed claim, to prove an amount, or
for impeachment purposes.
OFFERS TO PAY MEDICAL EXPENSES: Offers to pay medical
expenses are not admissible to prove liability for the
plaintiff’s injuries. However, any conduct or statements
accompanying the offer to pay are admissible (e.g., factual
admissions accompanying an offer to pay are admissible).
LIABILITY INSURANCE: Evidence that a person was or was not
insured against liability is not admissible to prove whether
the person acted negligently or otherwise wrongfully.
However, such evidence is admissible to prove a witness’s
bias or prejudice or to prove agency, ownership, or control.
CHARACTER EVIDENCE
CHARACTER EVIDENCE: Character evidence is evidence of a
person’s character or a person’s specific character trait (e.g., he
is violent; she is honest; he is a reckless driver; etc.). There are
three forms of character evidence that can be presented:
1. Reputation in the community (e.g., “Everyone in the
community knows Johnny is violent.”);
2. Opinion testimony (e.g., “I personally think Johnny is
a violent person.”); AND
3. Specific Instances (e.g., “I saw Johnny get into a bar
fight last weekend.”)
APPLICATION IN CIVIL CASES: In civil cases, character
evidence is not admissible for propensity purposes (i.e.,
evidence of someone’s character cannot be introduced to
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show that they have the propensity to act in accordance
with the alleged character trait), unless:
1. Character is an essential element of a claim or
defense (e.g., defamation, negligent hiring,
negligent entrustment, child custody, etc.); OR
a. If character is an essential element of a
claim or defense, it may be shown by
reputation, opinion testimony, or
specific instances.
2. The case is based on the defendant’s
sexual misconduct
a. If the case is based on the defendant’s
sexual misconduct, evidence of a past sexual
assault by the defendant is admissible.
APPLICATION IN CRIMINAL CASES: In criminal cases, the
prosecution cannot introduce evidence of a defendant's
bad character to prove that the defendant has the
propensity to have committed the crime in question.
However, the defendant may “open the door” and present
positive character evidence so long as it is:
1. Pertinent to the crime charged (e.g., if the crime
charged involves violence, the defendant may only
put on character evidence of non-violence); AND
2. Through reputation or opinion testimony
(not specific instances of conduct).
If the defendant opens the door by presenting evidence
of positive character, the prosecution may then introduce
negative character evidence (must relate to the same
character trait in question) to rebut the defendant in two
different ways. The prosecution can
1. Call its own character witness; OR
a. The witness is limited to reputation or
opinion testimony (not specific instances
of conduct).
2. Cross-examine the defendant’s character witness.
a. On cross-examination, the prosecution can
introduce evidence of specific instances so
long as it relates to the same character
trait in question.
VICTIM’S CHARACTER EVIDENCE: A criminal defendant
may introduce reputation or opinion testimony of the
victim’s character if it is relevant to one of the defenses
asserted. If the defendant does so, the prosecution may
rebut by presenting evidence that:
1. The defendant possesses the same character trait;
OR
2. The victim possesses a relevant positive
character trait.
However, in criminal cases involving rape, evidence offered
to prove a victim’s sexual behavior or predisposition is not
admissible.
UBE Self-Study Program | QuickSheets | Evidence
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M.I.M.I.C.: Specific instances of conduct are generally not
admissible to show propensity but are admissible to show
(M.I.M.I.C.): motive or opportunity, intent, absence of
mistake, identity, or common plan or preparation. Specific
instances of conduct are admissible for MIMIC purposes if:
1. There is sufficient evidence to support a jury finding
that the defendant committed the prior act (i.e.,
cannot “fish” for prior acts without proof); AND
2. The probative value of the specific instances of
conduct is NOT substantially outweighed by the
danger of unfair prejudice to the jury.
HABIT AND ROUTINE PRACTICES: Evidence of a person’s habit
(e.g., putting on a seatbelt) or an organization’s routine practice
(e.g., filing certain paperwork) may be admitted to prove that on
a particular occasion the person or organization acted in
accordance with the habit or routine practice.
IMPEACHMENT
CHARACTER FOR TRUTHFULNESS: A witness’s credibility
may be attacked by introducing character evidence of the
witness’s untruthfulness through reputation or opinion
testimony. A witness’s credibility cannot be bolstered
(evidence of truthful character may not be introduced until
credibility has first been attacked). On cross-examination, a
witness’s credibility may be attacked with specific instances
of conduct, provided that:
1. The specific instance regards the truthfulness of the
witness;
2. There is a good faith belief in the prior misconduct;
AND
3. The specific instance does not involve an arrest or a
consequence of an arrest.
PRIOR CONVICTIONS: Evidence of a prior felony or
misdemeanor conviction involving dishonesty is usually always
admissible to attack a witness’s credibility (subject to the 10year restriction). Evidence of a prior felony (crime is punishable
by death or imprisonment for more than 1 year) that does not
involve dishonesty is admissible if it is legally relevant (i.e.,
probative value is not substantially outweighed by the danger of
unfair prejudice). However, if more than 10 years has elapsed
since conviction or release (whichever is later) of any crime, the
prior conviction is subject to a reverse legal relevance test. The
party introducing the evidence must show that the probative
value of the conviction substantially outweighs the danger of
unfair prejudice.
PRIOR INCONSISTENT STATEMENTS: A witness’s credibility
may be attacked by introducing the witness’s prior
inconsistent statements. Extrinsic evidence may only be
introduced if the witness is given an opportunity to explain or
deny the prior inconsistent statement. However, extrinsic
evidence of a prior inconsistent statement cannot be used to
attack the witness’s credibility regarding a collateral matter
(i.e., an irrelevant matter).
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SENSORY COMPETENCE: A witness’s credibility may be
attacked by showing that the witness has a deficiency
in her ability to perceive, recall, or relate information
(e.g., memory loss) that is not collateral.
HEARSAY DECLARANT: When a hearsay statement has been
admitted in evidence, the declarant’s credibility may be
attacked, and then supported, by any evidence that would
be admissible for those purposes if the declarant had
testified as a witness.
OPINION TESTIMONY
LAY WITNESSES: If a witness is not testifying as an expert
(i.e., a lay witness), testimony in the form of an opinion is
limited to one that is:
1. Rationally based on the witness’s perception;
2. Helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; AND
3. Not based on scientific, technical, or other specialized
knowledge within the scope of an expert.
EXPERT WITNESSES: Expert witnesses may testify in the
form of an opinion or otherwise if:
1. The expert witness is qualified by possessing
sufficient knowledge, skill, experience, training, or
education;
2. The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
3. The testimony is based on sufficient facts or data;
4. The testimony is the product of reliable
principles and methods; AND
5. The expert has reliably applied the principles
and methods to the facts of the case.
TESTIMONIAL PRIVILEGES
SPOUSAL IMMUNITY: A witness in a valid marriage may
refuse to testify against his or her spouse in any
criminal proceeding (including a grand jury).
MARITAL COMMUNICATIONS: Communications between
spouses are privileged, and may be asserted by either
spouse in both criminal and civil proceedings (even if the
parties are no longer married), if the communications were:
1. Made during the course of a valid marriage; AND
2. Intended to be confidential.
ATTORNEY-CLIENT PRIVILEGE: Communications (not sought
to further a crime or fraud) between an attorney and a
client or a person seeking to become a client are privileged
if the communications were:
1. Made to facilitate legal services; AND
2. Intended to be confidential.
DOCUMENTARY EVIDENCE
AUTHENTICATION: All tangible evidence (evidence not
presented as oral or verbal testimony) must be authenticated.
Authentication requires that a party show that the item being
introduced as evidence is what the party claims it to be.
UBE Self-Study Program | QuickSheets | Evidence
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Physical evidence may be authenticated through a witness
with personal knowledge of the object or a witness that can
establish a chain of custody for the object. Documentary
evidence may be authenticated through stipulation, witness
testimony, or handwriting verification. The following
documents are self-authenticating and do not require
extrinsic proof of authenticity: public documents bearing a
seal, certified copies of public records, official publications
issued by a public authority, newspapers and periodicals,
notarized documents, commercial paper, trade inscriptions,
and records of regularly conducted business activity
certified by a custodian of the records.
HEARSAY IN GENERAL
HEARSAY: Hearsay is an out-of-court statement that is
offered to prove the truth of the matter asserted. Hearsay
is not admissible unless it falls under a valid exception. A
“statement” includes a person’s oral assertions, written
assertions, or nonverbal conduct if the person intended it as
an assertion (e.g., head nod, thumbs up, etc.).
NOT OFFERED FOR TRUTH: If an out-of-court statement is not
offered to prove the truth of the matter asserted, the
statement is not hearsay and is admissible. Common
examples of statements that are not offered to prove the
truth of the matter asserted (thus are admissible) include:
1. Verbal acts of independent legal significance offered
to prove that the statement itself was made,
irrespective of its truth (e.g., defamatory statements,
threats, etc.);
2. Statements offered to show the effect on
the listener;
3. Statements offered to show the declarant’s mental
state or state of mind; AND
4. Statements offered for impeachment purposes.
STATUTORILY DEEMED NON-HEARSAY
PRIOR INCONSISTENT STATEMENTS: Prior inconsistent
statements are admissible for substantive purposes if:
1. The declarant is testifying at trial and is subject to
cross-examination;
2. The statements were previously made under penalty
of perjury (i.e., under oath); AND
3. The prior statements are inconsistent with present
testimony being given at trial.
If the statements were not previously made under penalty of
perjury, they can be offered only for impeachment purposes
(not substantive purposes).
PRIOR CONSISTENT STATEMENTS: Prior consistent
statements are admissible to rebut a claim that the declarant
is fabricating or has a recent motive to fabricate the
statement in court if:
1. The declarant is testifying at trial and is subject to
cross-examination; AND
2. The prior consistent statement was made before the
declarant had a motive to fabricate the statement.
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PRIOR STATEMENTS OF IDENTIFICATION: Prior statements
of identification (e.g., prior out-of-court identifications in
lineups, photo arrays, etc.) are admissible for substantive
purposes if the declarant is testifying at trial and is subject to
cross-examination.
ADMISSIONS BY A PARTY OPPONENT: Prior out-of-court
statements made by a party to the current litigation that are
offered by the opposing party are admissible as non-hearsay.
HEARSAY EXCEPTIONS (UNAVAILABILITY REQUIRED)
UNAVAILABILITY REQUIREMENT: A declarant is deemed
to be unavailable as a witness if the declarant:
1. Is exempted from testifying because the court rules
that a privilege applies;
2. Refuses to testify despite a court order to do so;
3. Testifies to not remembering the subject matter;
4. Cannot be present or testify because of a death
or then-existing infirmity, physical illness, or
mental illness; OR
5. Is absent and the statement’s proponent has not
been able, by process or other reasonable means
to procure the declarant’s attendance.
FORMER TESTIMONY: Former testimony is admissible if:
1. The declarant is unavailable;
2. The statement was prior testimony given at a trial
hearing or deposition (not a grand jury); AND
3. The opposing party had an opportunity and
similar motive to develop the testimony through
cross or direct examination.
DYING DECLARATION: A statement is admissible if:
1. The declarant is unavailable;
2. The declarant believed that her death was imminent
when she made the statement;
3. The statement pertains to the cause or
circumstances of her death; AND
4. The action involved is a civil case or homicide.
STATEMENT AGAINST INTEREST: A statement is admissible if:
1. The declarant is unavailable;
2. The statement is against the declarant’s self-interest;
AND
3. A reasonable person would NOT have made the
statement unless he believed it to be true.
FORFEITURE BY WRONGDOING: A party forfeits her hearsay
objection if the party intentionally or wrongfully makes the
declarant unavailable to testify as proven by a
preponderance of the evidence.
HEARSAY EXCEPTIONS (AVAILABILITY IRRELEVANT)
PRESENT SENSE IMPRESSION: A present sense impression is
admissible as a valid exception to the hearsay rule. A
present sense impression is a statement made by the
declarant in which she describes an event as it takes place
or immediately thereafter.
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EXCITED UTTERANCE: An excited utterance is admissible as
a valid exception to the hearsay rule. An excited utterance is
a statement that concerns a startling event, made by the
declarant when the declarant is still under stress from the
startling event.
STATE OF MIND: A statement of the declarant’s thenexisting state of mind (e.g., motive, intent, or plan) or
emotional, sensory, or physical condition (e.g., mental
feeling, pain, or bodily health) is admissible to prove the
declarant’s state of mind or the declarant’s conduct.
MEDICAL DIAGNOSIS OR TREATMENT: A statement of a
person’s past or present condition is admissible so long as it
is made for the purpose of medical diagnosis or treatment.
RECORDED RECOLLECTION: The record may be read into
evidence (only opposing counsel can decide to enter it as
an exhibit into evidence) if the witness cannot recall events
or information provided that:
1. The record is about a matter the witness once had
personal knowledge of;
2. The record was made or adopted by the witness
when the matter was fresh in the witness’s mind;
3. The record accurately reflects the witness’s personal
knowledge; AND
4. The witness can no longer recall the events or
information well enough to testify, even after
reviewing the writing while on the stand.
PRESENT RECOLLECTION REFRESHED: Present recollection
refreshed allows a witness to glance at almost any item
(usually a writing) to refresh her memory while on the stand
(the item is taken away while the witness is testifying and it is
not admitted into evidence). Recorded recollection involves a
writing made or adopted by the witness that accurately
reflects their personal knowledge (opposing counsel may
allow the writing to be admitted into evidence).
BUSINESS RECORDS: A business record is admissible as a
valid exception to the hearsay rule if the record is:
1. Kept in the course of regularly conducted business;
AND
2. Made by a person with knowledge of the matter at
or near the time of the matter's occurrence (e.g., a
secretary who logs calls as they come in).
CONSTITUTIONAL LIMITATIONS
a.
3.
4.
A statement is testimonial if the declarant
would reasonably expect that the statement
would be used for prosecution purposes.
The declarant is unavailable to be cross-examined
at trial; AND
The defendant did not have an opportunity to crossexamine the declarant at a proceeding prior to trial.
6th AMENDMENT CONFRONTATION CLAUSE: The
Confrontation Clause guarantees a person accused of a crime
the right to confront witnesses against him in a criminal
action (i.e., the right to be present at trial and the right to
cross-examine the prosecution’s witnesses). The use of an
out-of-court statement (even if it falls under a valid hearsay
exception or testimonial privilege) violates the defendant’s
constitutional rights under the Confrontation Clause if:
1. The proceeding is a criminal action (not civil);
2. The statement is testimonial;
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UBE Self-Study Program | QuickSheets | Evidence
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EVIDENCE
NOTE: Unless otherwise noted, templates are written under the assumption that all comprised rules are at issue.
Paragraph indentions are included to help differentiate issues and sub-issues and are unnecessary for actual essays.
RELEVANCE
The issue is whether the evidence is relevant.
LOGICAL RELEVANCE
Evidence must be relevant to be admissible. Evidence is relevant if it is both probative and material. Evidence
is probative if it has any tendency to make a fact more or less probable than it would be without the evidence.
Evidence is material if it is a fact of consequence in determining the outcome of the action.
Here, _____ [Discuss whether the evidence is both probative and material.].
In conclusion, the evidence [is/is not relevant], because _____ [Identify whether both elements are satisfied.].
LEGAL RELEVANCE
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice; confusing the issues; misleading the jury; undue delay; wasting time;
or needlessly presenting cumulative evidence.
Here, _____ [Discuss whether the evidence’s probative value is substantially outweighed.].
In conclusion, the court [may/may not] exclude the evidence, because _____ [Identify whether the evidence’s
probative value is substantially outweighed.].
CHARACTER EVIDENCE
The issue is whether the character evidence is admissible.
Character evidence is evidence of a person’s character or a person’s specific character trait. There are three forms of
character evidence that can be presented: (1) reputation in the community; (2) opinion testimony; and (3) specific
instances of conduct.
[*If the case is civil]
PROPENSITY EVIDENCE IN CIVIL CASES
In civil cases, character evidence is not admissible for propensity purposes (to show that the party has the
propensity to act in accordance with the alleged character trait), unless: (1) character is an essential element of
a claim or defense; or (2) the case is based on the defendant’s sexual misconduct. If character is an essential
element of a claim or defense, it may be shown by reputation, opinion testimony, or specific instances of
conduct. If the case is based on the defendant’s sexual misconduct, evidence of a past sexual assault by the
defendant is admissible.
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[*If propensity evidence is introduced and character is NOT an essential element of the claim or defense
and the case is NOT based on the defendant’s sexual misconduct]
Here, _____ [Identify that the evidence is being introduced to show that the party has the propensity to act in
accordance with the alleged character trait.]. In addition, _____ [Identify that character is not an essential
element of the claim or defense and that the case is not based on the defendant’s sexual misconduct.].
Therefore, _____ [the evidence] is inadmissible, because it is being introduced for propensity purposes and
neither exception is satisfied.
[*If propensity evidence is introduced and character is an essential element of the claim or defense
(e.g., defamation, negligent hiring, child custody, etc.) and/or the case is based on the defendant’s
sexual misconduct]
Here, _____ [Identify that the evidence is being introduced to show that the party has the propensity to act in
accordance with the alleged character trait.]. While character evidence is usually not admissible for
propensity purposes in civil cases, _____ [Identify the exception that applies.].
Therefore, _____ [the evidence] is admissible, because _____ [Identify the exception that applies.].
[*If evidence of a victim’s character is introduced in a sexual misconduct civil case]
EVIDENCE OF THE VICTIM’S CHARACTER IN SEXUAL MISCONDUCT CIVIL CASES
In civil cases involving sexual misconduct, evidence may be offered to prove a victim’s sexual behavior or
misconduct so long as the evidence’s probative value substantially outweighs the danger of harm to the
victim and unfair prejudice to any party.
Here, _____ [Balance the evidence’s probative value against the danger of harm to the victim and unfair
prejudice to any party to determine admissibility.].
[*If the case is criminal]
PROPENSITY EVIDENCE IN CRIMINAL CASES
In criminal cases, the prosecution cannot introduce evidence of a defendant's bad character to prove that the
defendant has the propensity to have committed the crime in question. However, the defendant may “open the
door” and present positive character evidence so long as it is: (1) pertinent to the crime charged; and (2)
through reputation or opinion testimony (not specific instances of conduct).
If the defendant opens the door by presenting evidence of positive character, the prosecution may then
introduce negative character evidence, so long as it relates to the same character trait in question, to rebut
the defendant in two different ways: (1) the prosecution can call its own character witness; or (2) the
prosecution can cross-examine the defendant’s character witness. If the prosecution calls its own character
witness, the witness is limited to reputation or opinion testimony (not specific instances of conduct). On crossexamination, the prosecution can elicit evidence of specific instances of conduct so long as it relates to the
same character trait in question.
[*If the prosecution introduces propensity evidence before the defendant opens the door]
Here, _____ [Identify that the evidence is being introduced for propensity purposes.].
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Therefore, _____ [the evidence] is inadmissible, because the prosecution cannot introduce character evidence
against a defendant for propensity purposes before the defendant introduces her own character evidence.
[*If the defendant introduces evidence of positive character]
Here, _____ [Discuss whether the defendant’s character evidence is: (1) pertinent to the crime charged; and (2)
through reputation or opinion testimony (not specific instances of conduct). If either of these elements are
not satisfied, the evidence is inadmissible.].
[*If the prosecution rebuts the defendant’s evidence of positive character]
Here, _____ [Identify whether the prosecution is rebutting with their own character witness or by crossexamining the defendant’s character witness.].
[*If the prosecution rebuts with their own character witness]
Here, _____ [Discuss whether the prosecution limits their character witness’s testimony to: (1) the same
character trait raised by the defendant; and (2) reputation or opinion testimony (not specific
instances of conduct). If either of these elements are not satisfied, the evidence is inadmissible.].
[*If the prosecution rebuts by cross-examining the defendant’s character witness]
Here, _____ [Discuss whether the prosecution limits their cross-examination to the same character trait
raised by the defendant. Remember, on cross-examination, the prosecution can elicit evidence
of specific instances of conduct so long as it relates to the same character trait in question.].
[*If evidence of a victim’s character is introduced in a criminal case]
EVIDENCE OF THE VICTIM’S CHARACTER IN CRIMINAL CASES
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to
one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that:
(1) the defendant possesses the same character trait; or (2) The victim possesses a relevant positive character trait.
If this is done on cross-examination, the prosecution may introduce specific instances of conduct to rebut.
[*If the defendant introduces evidence of the victim’s character]
Here, _____ [Discuss whether the evidence is reputation or opinion testimony (not specific instances of conduct)
and whether the evidence is relevant to one of the defenses asserted. If either is not satisfied, the evidence
is inadmissible.].
[*If the prosecution rebuts the defendant’s evidence of the victim’s character]
Here, _____ [Discuss whether the prosecution’s rebuttal presents evidence that the defendant possesses the
same character trait, or the victim possesses a relevant positive character trait. If neither apply, the evidence
is inadmissible. Remember, on cross-examination, the prosecution may elicit specific instances of conduct.].
[*If evidence of a rape victim’s character is introduced in a criminal case]
Rape Shield Laws
In cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is not admissible.
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[*If a specific instance of conduct is introduced for any other reason than to show propensity]
NON-PROPENSITY EVIDENCE (M.I.M.I.C.)
Specific instances of conduct are generally not admissible to show propensity but are admissible to show
(M.I.M.I.C.): motive or opportunity; intent; absence of mistake; identity; or a common plan or preparation.
Specific instances of conduct are admissible for MIMIC purposes if: (1) there is sufficient evidence to support a
jury finding that the defendant committed the prior act; AND (2) the probative value of the specific instances
of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.
Here, _____ [Identify that the specific instance of conduct is not being introduced for propensity purposes.].
Rather, _____ [the evidence] is being introduced to show _____ [Insert applicable M.I.M.I.C. purpose]. Further,
_____ [Discuss whether there is sufficient evidence to support a jury finding that the defendant committed the
prior act and whether the probative value of the specific instance of conduct is substantially outweighed by the
danger of unfair prejudice.].
Therefore, _____ [the evidence] _____ [is/is not] admissible, because _____ [Identify whether the evidence is
being introduced for propensity purposes and whether both elements are satisfied.].
HEARSAY
The issue is whether the out-of-court statement is admissible.
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay is not admissible
unless it falls under a valid exception. A “statement” includes a person’s oral assertions, written assertions, or
nonverbal conduct if the person intended it as an assertion.
NON-HEARSAY
If an out-of-court statement is not offered to prove the truth of the matter asserted, the statement is
not hearsay and is admissible.
Verbal Acts of Independent Legal Significance
Verbal acts of independent legal significance are statements offered to prove that the statement itself
was made, irrespective of its truth. Verbal acts of independent legal significance are not offered to prove
the truth of the matter asserted and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter
asserted. If not, the statement is non-hearsay and admissible.].
Effect on the Listener
Statements offered to show the effect on the listener are not offered to prove the truth of the
matter asserted, and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter
asserted. If not, the statement is non-hearsay and admissible.].
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Declarant’s Mental State
Statements offered to show the declarant’s mental state or state of mind are not offered to prove
the truth of the matter asserted, and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter
asserted. If not, the statement is non-hearsay and admissible.].
Impeachment Purposes
Statements offered for impeachment purposes are not offered to prove the truth of the matter
asserted, and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter
asserted. If not, the statement is non-hearsay and admissible.].
Prior Inconsistent Statements
Prior inconsistent statements are admissible for substantive purposes if: (1) the declarant is testifying
at trial and is subject to cross-examination; (2) the statements were previously made under penalty of
perjury (i.e., under oath); and (3) the prior statements are inconsistent with present testimony being
given at trial. If the statements were not previously made under penalty of perjury, they can be offered
only for impeachment purposes – not substantive purposes.
[*If a prior inconsistent statement is offered for substantive purposes]
Here, _____ [Discuss whether all three elements are satisfied. If so, the statement is
admissible.].
[*If a prior inconsistent statement is offered for impeachment purposes]
Here, _____ [Discuss whether elements (1) and (3) are satisfied. If so, the statement is
admissible.].
Prior Consistent Statements
Prior consistent statements are admissible to rebut a claim that the declarant is fabricating or has a
recent motive to fabricate the statement in court if: (1) the declarant is testifying at trial and is subject
to cross-examination; and (2) the prior consistent statement was made before the declarant had a
motive to fabricate the statement.
Here, _____ [Discuss whether both elements are satisfied. If so, the statement is admissible.
Prior Statements of Identification
Prior statements of identification (e.g., prior out-of-court identifications in lineups, photo arrays,
etc.) are admissible for substantive purposes if the declarant is testifying at trial and is subject to
cross-examination.
Here, _____ [Discuss whether the declarant is testifying at trial and subject to cross-examination. If so,
the statement is admissible.].
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Admissions by a Party Opponent
Prior out-of-court statements made by a party to the current litigation that are offered by the
opposing party are admissible as non-hearsay.
Here, _____ [Identify whether the prior out of court statement was made by a party to the current
litigation and whether it is being offered by the opposing party. If both are satisfied, the statement is
admissible.].
[*If a decision to remain silent is offered as an admission by a party opponent]
Adoptive Admissions
Silence is considered an adoptive admission if the party heard and understood the statement
and remained silent where a reasonable person would have denied the statement.
Here, _____ [Discuss whether a reasonable person would have denied the statement].
[*If a reasonable person would NOT have denied the statement]
Therefore, _____ [the party’s] silence does not constitute an adoptive admission
and is not admissible.
[*If a reasonable person would have denied the statement]
Therefore, _____ [the party’s] silence constitutes an adoptive admission.
In addition, _____ [Identify whether the person who remained silent was a
party to the current litigation and whether the decision to remain silent is
being offered by the opposing party.].
[*If the person who remained silent was a party to the
current litigation and its being offered by the opposing party]
Thus, _____ [the party’s] adoptive admission is admissible as nonhearsay.
[*If the person who remained silent was NOT a party to the current
litigation and/or its NOT being offered by the opposing party]
Thus, _____ [the party’s] adoptive admission is not admissible as nonhearsay.
[*If an authorized spokesperson, agent, or co-conspirator made a statement]
Vicarious Admissions
Statements made by an authorized spokesperson, an agent within the scope of and during
the agency relationship, or co-conspirators during and in furtherance of the conspiracy are
considered vicarious admissions and are imputed on the party opponent.
Here, _____ [Discuss whether either of these three apply. If so, the statement is imputed.].
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HEARSAY EXCEPTIONS: DECLARANT UNAVAILABILITY REQUIRED
The issue is whether the hearsay statement can be admitted under a valid exception.
Hearsay is not admissible unless it falls under a valid exception. The following four exceptions apply only if
the declarant is deemed unavailable: former testimony; dying declarations; statements against interest; and
forfeiture by wrongdoing.
A declarant is deemed to be unavailable as a witness if the declarant: (1) is exempted from testifying because
the court rules that a privilege applies; (2) refuses to testify despite a court order to do so; (3) testifies to not
remembering the subject matter; (4) cannot be present or testify because of a death or then-existing infirmity,
physical illness, or mental illness; or (5) is absent and the statement’s proponent has not been able, by process
or other reasonable means to procure the declarant’s attendance.
Former Testimony
Former testimony is admissible if: (1) the declarant is unavailable; (2) the statement was prior testimony
given at a trial hearing or deposition; and (3) the opposing party had an opportunity and similar motive
to develop the testimony through cross or direct examination.
Here, _____ [Discuss whether all three elements are satisfied. If so, the hearsay statement is admissible
under the former testimony exception.].
Dying Declarations
A statement is admissible if: (1) the declarant is unavailable; (2) the declarant believed that her death
was imminent when she made the statement; (3) the statement pertains to the cause or
circumstances of her death; and (4) the statement is being introduced in a homicide or civil case.
Here, _____ [Discuss whether all four elements are satisfied. If so, the hearsay statement is admissible
under the dying declaration exception.].
Statements Against Interest
A statement is admissible if: (1) the declarant is unavailable; (2) the statement is against the declarant’s
self-interest; and (3) a reasonable person would not have made the statement unless he believed it to
be true.
Here, _____ [Discuss whether all four elements are satisfied. If so, the hearsay statement is admissible
under the statements against interest exception.].
Forfeiture by Wrongdoing
A party forfeits her hearsay objection if the party intentionally or wrongfully makes the declarant
unavailable to testify as proven by a preponderance of the evidence. This allows statements that would
normally be inadmissible hearsay to be introduced against the wrongdoer by forfeiture.
Here, _____ [Discuss whether a party intentionally or wrongfully made the declarant unavailable to
testify. If proven by a preponderance of the evidence, the party forfeits their hearsay objection.].
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HEARSAY EXCEPTIONS: DECLARANT UNAVAILABILITY NOT REQUIRED
The issue is whether the hearsay statement can be admitted under a valid exception.
Hearsay is not admissible unless it falls under a valid exception. The following six exceptions apply regardless of
whether the declarant is deemed unavailable: present sense impression; excited utterance; state of mind;
medical diagnosis or treatment; recorded collection; and business records.
Present Sense Impression
A present sense impression is an admissible statement made by the declarant in which she describes
an event as it takes place or immediately thereafter.
Here, _____ [Discuss whether the declarant’s statement was made while she described an event as it
took place or immediately thereafter. If so, the hearsay statement is admissible under the present
sense impression exception.].
Excited Utterance
An excited utterance is an admissible statement that concerns a startling event that is made by the
declarant when the declarant is still under stress from the startling event.
Here, _____ [Discuss whether the declarant’s statement concerned a startling event, and whether the
statement was made while the declarant was still under stress from the startling event. If both are
satisfied, the hearsay statement is admissible under the excited utterance exception.].
State of Mind
A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is
admissible to prove the declarant’s state of mind or the declarant’s conduct. A statement regarding
memory, a past belief, or a past state of mind to prove the fact remembered or believed is not
admissible unless it relates to the validity or terms of the declarant’s will.
Here, _____ [Discuss whether the statement concerned the declarant’s then-existing state of mind or
emotional, sensory, or physical condition, and whether the statement was offered to prove the
declarant’s state of mind or conduct. If both are satisfied, the hearsay statement is admissible under
the state of mind exception.].
Medical Diagnosis or Treatment
A statement of a person’s past or present condition is admissible so long as it is made for the purpose of
medical diagnosis or treatment, regardless of whether the statement is made to a medical professional.
Here, _____ [Discuss whether the statement was made for the purpose of medical diagnosis or
treatment. If so, the hearsay statement is admissible under the medical diagnosis or
treatment exception, even if the statement is made to a non-medical person.].
Recorded Recollection
The record may be read into evidence if the witness cannot recall events or information, provided that:
(1) the record is about a matter the witness once had personal knowledge of; (2) the record was made
or adopted by the witness when the matter was fresh in the witness’s mind. (3) the record accurately
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reflects the witness’s personal knowledge; and (4) the witness can no longer recall the events or
information well enough to testify, even after reviewing the writing while on the stand. Under recorded
recollection, the record may be read into evidence, but only opposing counsel can decide to enter it as
an exhibit.
Here, ____ [Discuss all four elements to determine whether the record may be read into evidence.
Remember, only opposing counsel can decide to enter it as an exhibit.].
Business Records
A business record is admissible as a valid exception to the hearsay rule if the record is: (1) kept in the
course of regularly conducted business; and (2) made by a person with knowledge of the matter at or
near the time of the matter's occurrence. However, a business record is not admissible if the opponent
can show that the source or preparation of the record lacks trustworthiness.
Here, _____ [Discuss whether both elements are satisfied and whether the opponent can show that the
source or preparation of the record lacks trustworthiness. If both elements are satisfied and
the opponent cannot show the record lacks trustworthiness, the record is admissible.].
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UBE Self-Study Program | Essay Templates | Evidence
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FAMILY LAW
GETTING MARRIED
MARRIAGE REQUIREMENTS: A valid marriage requires that:
1. The parties obtain a marriage license;
2. The marriage is solemnized by a ceremony that is
conducted by an authorized cleric or judge; AND
3. Both parties consent.
COMMON LAW MARRIAGE: In jurisdictions that recognize
common law marriage, the proponent of the marriage
must prove that the parties:
1. Cohabitated for the statutory period;
2. Held themselves out as married; AND
3. Intended to be married.
PREMARITAL CONTRACTS: Most states will enforce a
premarital agreement as a valid contract if it is:
1. In writing and signed by both parties;
2. Executed after full disclosure of the property
and financial obligations of both parties; AND
3. Voluntary – courts consider the following factors to
determine whether an agreement was voluntary:
a. The presence of independent legal counsel;
b. The length of time between the
agreement and the marriage;
c. The sophistication of the parties; AND
d. The presence of other pressing reasons to
proceed with the marriage (e.g., pregnancy).
UNENFORCEABLE TERMS: Most courts decide child custody
according to the best interests of the child, regardless of any
premarital agreements. Similarly, a premarital contract that
adversely affects a child’s right to support is unenforceable.
ENDING THE MARRIAGE
ANNULMENT: Annulment is a judicial declaration that a
marriage never existed and was invalid from when the parties
entered into it (e.g., bigamy, underage minors, etc.).
DIVORCE: Today, every state has adopted a form of nofault divorce. Common grounds for a no-fault divorce are:
1. A minimum duration of separation; AND/OR
2. Irreconcilable differences.
MARITAL ACTION JURISDICTION: Under the majority view, a
state where either party is domiciled has jurisdiction to enter
an annulment decree. Under the Full Faith and Credit Clause,
a divorce validly granted in one state is entitled to full faith
and credit in other states if the petitioning party:
1. Was domiciled in the state the granted the divorce;
AND
2. Provided adequate notice of the proceeding to the
other spouse.
PROPERTY DIVISION AT DIVORCE
APPROACHES: Some states follow the community property
approach; however, most states have adopted the equitable
distribution approach for division of property at divorce.
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The analysis is relatively similar under both approaches:
1. Categorize the property as separate or marital; THEN
2. Determine an equitable distribution of the marital
property between the spouses.
CATEGORIZATION: Generally, marital property includes
all property acquired during the marriage that is not
separate property. Separate property includes:
1. All property acquired by either spouse before
the marriage;
2. All property acquired by a spouse during marriage
by gift, bequest, devise, or descent;
3. All property either spouse acquires with the
proceeds of the spouse’s separate property; AND
4. All passive appreciation of separate property.
DISTRIBUTION: Once the court categorizes the property as
either separate or marital, the court will then equitably
distribute the marital property between both spouses. Courts
are afforded significant discretion in determining the
equitable distribution of martial property at divorce. General
factors include:
1. The income, property, and liabilities of each party;
2. The duration of the marriage;
3. The obligations for support arising out of a prior
marriage;
4. The lifestyle each spouse is accustomed to; AND
5. The contributions made by each spouse toward
the accumulation of marital property.
SUPPORT ORDERS
SPOUSAL SUPPORT: Under the UDMA, a spouse is eligible
for spousal support if the spouse seeking support:
1. Lacks property sufficient for his or her reasonable
needs and is unable to support himself through
appropriate gainful employment; OR
2. Is the custodian of a child that it would
inappropriate for him to work.
Once the court determines that a spouse is eligible for
support, the court will then determine the appropriate
amount to award. General factors include:
1. The financial resources of the party
seeking maintenance;
2. The time needed for the spouse seeking support to
obtain an appropriate job;
3. The duration of the marriage;
4. The standard of living established during marriage;
5. The physical/mental condition of the spouse
seeking maintenance; AND
6. The ability of the spouse paying support to meet
her own needs while meeting those of her spouse.
CHILD SUPPORT: Parents have an absolute obligation to
support their children. Federal law requires every state to
provide guidelines to determine the proper amount of
child support owed by a non-custodial parent, which must:
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1. Consider the income of the non-custodial parent;
2. Provide for the child’s healthcare needs; AND
3. Be based on specifically descriptive numeric criteria.
MODIFICATION OF SUPPORT ORDERS: In most states, a
child/spousal support order can only be modified when there
is a substantial change in circumstances of either party
making the prior order unreasonable. Under the UDMA, a
modification of child/spousal support is allowed only upon a
showing of changed circumstances so substantial and
continuing to make the terms unconscionable. Some courts
will not permit a modification of child/spousal support if the
change in circumstances was anticipated or voluntary.
CHILD CUSTODY
BEST INTERESTS STANDARD: Generally, courts determine
child custody based on the best interests of the child. Courts
consider multiple factors to determine what custody order
will serve the child’s best interests. General factors include:
1. The needs of the child for a meaningful
relationship with both parents;
2. The ability and willingness of the parents to actively
perform their functions as mother and father for
the child’s needs;
3. The interaction and interrelationship of the child
with parents, siblings, and any other person who
may affect the child’s best interests;
4. The child’s adjustment to the child’s home,
school, and community;
5. The physical/mental health of all involved
individuals;
6. The intention of either parent to relocate the
principal residence of the child;
7. The wishes of the child’s parents as to custody; AND
8. The wishes of the child as to the child’s custodian.
MODIFICATION OF CHILD CUSTODY: In order to modify
a child custody order, the parent must show that:
1. The circumstances have substantially changed; AND
2. The modification would be in the child’s
best interests.
UNMARRIED COHIBITANTS
ECONOMIC SHARING: In most states, an express agreement
(written or oral) between unmarried cohabitants to share
property or otherwise engage in forms of economic sharing
is enforceable, so long as the economic sharing is not
intended as payment for sexual services. However, some
states refuse to recognize such contracts between unmarried
cohabitants as against public policy.
REMEDIES: Some states allow unmarried cohabitants to seek
a remedy based on an implied-in-fact contract theory. An
implied-in-fact contract is formed by the conduct of the
parties rather than express statements (e.g., commingling
funds). Possible equitable remedies include a resulting trust, a
constructive trust, or quantum meruit.
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FATHER DENYING PATERNITY
ESTABLISHING PATERNITY: Under the Uniform Parentage
Act (UPA), the father-child relationship is established
between a man and a child by:
1.
An effective acknowledgement of paternity by the
man (unless rescinded or successfully challenged);
2. A valid adoption of the child by the man; OR
3. An adjudication of the man’s paternity.
PATERNITY PRESUMPTION: A presumption of paternity
under the UPA may only be rebutted by clear and convincing
evidence. Under the UPA, a man is presumed to be the father
of the child if:
1. He and the child’s mother are or have been
married to each other and the child is born during
the marriage, or within 300 days after the marriage
is terminated;
2. Before the child’s birth, he and the child’s mother
attempted to marry each in apparent compliance
with law, although the attempted marriage is or
could be declared invalid, and the child is born
during the invalid marriage or within 300 days after
its termination; OR
3. While the child is under the age of majority, he
receives the child into his home and openly holds
out the child as his own.
EQUITABLE ESTOPPEL: Under equitable estoppel, a man
who is not the biological father will be estopped from
denying paternity if:
1. He has held himself out as the father; AND
2. Paid support.
FATHER ESTABLISHING PATERNITY
LEGITIMATION BY PETITION: To establish his rights,
the father may file a petition seeking to legitimate his
child. Generally, the father must show that he has:
1. Assumed parental responsibilities; AND
2. Established a substantial parent-child relationship.
LEGITIMATION BY MARRIAGE: The marriage of the mother
and biological father renders the nonmarital child legitimate so
long as the father recognizes the child as his child.
EFFECT OF LEGITIMATION: Upon valid legitimation by
petition or marriage, the father stands in the same position as
any other parent regarding parental and custodial rights with
respect to the child.
ADOPTION
ADOPTION: Adoption is a statutory procedure that
terminates the rights of the biological parents and
establishes the rights of the adoptive parents. In most states,
the biological parents lose the right to visit their child after
the adoption. However, some states will permit visitation if it
is in the child’s best interests
CONSENT: Generally, the consent of both parents is required to
place a child up for adoption. However, if the child is born
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out of wedlock, consent of the father is only required when
he has assumed parental responsibility. Moreover, an unwed
father who knew of his child’s pending birth is not entitled to
notice of the adoption if he did not take steps to establish a
parent-child relationship with the child.
CONSENT CHALLENGES: A biological parent may challenge
the validity of his/her consent to an adoption on the ground
that his/her consent:
1. Was procured by fraud or duress; OR
2. Failed to comply with statutory formalities.
CONSENT REVOCATION: Generally, there are three different
statutory approaches to a biological parent’s revocation of
valid consent to an adoption:
1. Consent is revocable until the final adoption
decree is entered with the court;
2. Consent is revocable at the court’s discretion up to a
specified amount of time so long as the revocation is
in the child’s best interests; OR
3. Absent fraud or duress, consent is not revocable.
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REAL PROPERTY
PRESENT ESTATES AND FUTURE INTERESTS
FEE SIMPLE: In present estates, fee simple is the default
estate. A fee simple is created when the grantor uses any of
the following language: “O to A,” “O to A and his/her heirs,”
or “O to A forever.”
FEE SIMPLE DETERMINABLE: A fee simple determinable is a
conditional conveyance in which the grantor retains a future
interest as a possibility of reverter. The possibility of reverter
vests automatically when the condition fails. A fee simple
determinable is created when the grantor uses durational
language, such as: “while,” “during,” or “until.”
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT: A fee
simple subject to condition subsequent is a conditional
conveyance in which the grantor retains a future interest as a
right of entry. The right of entry does not vest automatically
when the condition fails (i.e., the grantor must reclaim the
property). A fee simple subject to condition subsequent is
created when the grantor uses conditional language, such as:
“provided that,” or “on the condition that.”
FEE SIMPLE SUBJECT TO EXECUTORY INTEREST: A fee simple
subject to executory interest is a conditional conveyance in
which a third party (not the grantor) is granted an executory
interest in the property. An executory interest is a future
interest that divests (i.e., terminates) an earlier interest.
LIFE ESTATE: A life estate is a present possessory estate that
is limited by a person’s life (terminates when the measuring
life dies). A life estate is created when the grantor uses any of
the following language: “O to A for A’s life,” or “O to A for B’s
life (life estate pur autre vie)”
REVERSIONS AND REMAINDERS: Similar to fee simple, a
future interest can follow a life estate. If possession of the
land goes back to the grantor after the life estate terminates,
then the grantor retains a reversion. If possession of the land
goes to a third party after the life estate terminates, then
the third party takes a remainder. A remainder can be vested
or contingent. A vested remainder is a future interest that is:
1. Given to an ascertainable (i.e., readily identifiable)
grantee; AND
2. Not subject to a condition precedent (i.e., a
condition that must be satisfied in order for the
interest to vest).
A contingent remainder is a future interest that fails either of
the two above elements.
COTENANCY
TENANCY IN COMMON: A tenancy in common is the default
estate created by a conveyance of real property to two or
more people. The grantor need not use any type of explicit
language to create a tenancy in common (“O to A and B”).
Each tenant in common has:
1.
A separate but undivided interest in the property
(property does not have to be physically divided);
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2. The right to possess the entire property; AND
3. The right to transfer their interest in the property
freely during their lifetime or at death (i.e., no right
of survivorship).
JOINT TENANCY: A joint tenancy is a conveyance of real
property to two or more people that is distinguished by a
right of survivorship, whereby the surviving joint tenants
automatically take the deceased tenant’s property interest.
Thus, joint tenants cannot pass their property interest by will
or intestate succession (at death, their property interest
automatically passes to the other joint tenants). To create a
joint tenancy, the grantor must clearly express his intent to
create a joint tenancy by using survivorship language (e.g.,
“as joint tenants with a right of survivorship”). Additionally,
the four unities must be in place to create a joint tenancy:
1. Possession. Each joint tenant must have an equal
right to posses and enjoy the whole property
(also required for tenants in common).
2. Interest. Each joint tenant must have an equal share
of the same type of interest (e.g., two joint tenants
each have a 50% share in fee simple).
3. Time. Joint tenants must receive their property
interests at the same time.
4. Title. Joint tenants must receive their property
interest in the same instrument of title.
SEVERANCE OF THE JOINT TENANCY: If any of the four
unities are severed, then the joint tenancy is terminated.
When a joint tenant conveys her interest to a third party, that
party takes the property as a tenant in common (clearly
destroys the time and title unities). When a joint tenant
grants a mortgage interest in the joint tenancy to a creditor,
the effect will depend on the jurisdiction:
1. In a lien theory jurisdiction (majority view), the
mortgage is treated as a lien and does not
terminate the joint tenancy.
2. In a title theory jurisdiction (minority view), the
mortgage will terminate the joint tenancy, and the
tenants will then hold the property as tenants in
common.
THE LEASEHOLD
LEASEHOLD INTEREST: The relationship between a landlord and
a tenant can create four types of possessory estates (tenancy for
years, periodic tenancy, tenancy at will, and tenancy at
sufferance). This relationship is generally governed by a contract
(the “lease”), which contains the covenants of the parties.
Generally, the tenant has a duty to pay rent in exchange for his
possessory interest in the property.
TENANCY FOR YEARS: A tenancy for years is an interest that
lasts for a fixed and ascertainable amount of time. If the
term is longer than one year, then the agreement must be in
writing due to the statute of frauds. A tenancy for years
automatically terminates when the term expires.
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PERIODIC TENANCY: A periodic tenancy is a repetitive and
ongoing interest that continues for a set period of time until it
is terminated by proper notice from either party (e.g., monthto-month lease, year-to-year lease, etc.). The parties must
intend to create a periodic tenancy. Intent can be express
(e.g., a specific term in the signed lease agreement) or
implied (e.g., ongoing payment of rent).
TENANCY AT WILL: A tenancy at will continues until it is
terminated by either party. It may be terminated at any time
for any reason, and may be terminated without notice. The
parties must intend to create a tenancy at will. Intent can be
express (e.g., a specific term in the signed lease agreement
gives either party or both parties the “right to terminate at
will”) or implied (e.g., ongoing payment of rent at will). If the
agreement gives only the landlord the right to terminate at
will, the tenant also gets the right to terminate implicitly. If
the agreement gives only the tenant the right to terminate
at will, the landlord is not given the right to terminate at will.
TENANCY AT SUFFERANCE: A tenancy at sufferance is
created when the tenant refuses to vacate the premises after
his lease has terminated. This situation creates a temporary
tenancy, where the terms of the prior lease control, until:
1. The landlord evicts the tenant;
2. The landlord re-leases the property to the tenant;
OR
3. The tenant voluntarily vacates.
HABITABILITY AND SUITABILITY
3. Landlord did not correct the problem; AND
4. Tenant vacates the premises after a
reasonable amount of time passed.
ASSIGNMENTS AND SUBLEASES
ASSIGNMENTS: An assignment is a complete transfer of the
tenant’s entire remaining term under the lease. In an
assignment, the landlord can collect rent from the assignee
or the original tenant.
SUBLEASES: A sublease is a transfer of less than the tenant’s
entire remaining term under the lease. In a sublease, the
landlord can only collect rent from the original tenant. The
subtenant only has rent obligations to the original tenant.
TERMINATION OF LEASES
SURRENDER: A surrender terminates the lease agreement
and ends the landlord-tenant relationship between both
parties (releases both parties from their duties and
obligations under the lease agreement). A surrender occurs
when a tenant returns possession of the leased premises
to the landlord before the expiration of the lease and the
landlord consents.
ABANDONMENT: An abandonment occurs when the tenant
unilaterally returns possession of the leased premises before
expiration of the lease without the landlord’s consent. Here,
the tenant will have to continue paying rent until the
landlord is able to find a replacement tenant. If the tenant
refuses to pay rent, the landlord is entitled to damages for
the difference between the original rent and the rent
IMPLIED WARRANTY OF HABITABILITY: A warranty of
received from the replacement tenant.
habitability is implied in every residential lease (not
DUTY TO MITIGATE: Under the majority rule, the landlord
commercial leases). The implied warranty of habitability
has a duty to mitigate damages if the tenant abandons the
requires landlords to maintain their property such that it is
reasonably suitable for basic human needs (failure to comply property early or is evicted by making reasonable efforts to
re-rent the property to another tenant. The landlord is
with applicable housing codes constitutes a breach). The
entitled to damages for the difference between the original
tenant cannot waive habitability protection. If the landlord
breaches the implied warrant of habitability, the tenant may: rent and the rent received from the replacement tenant.
Under the minority rule, the landlord does not have to
1. Vacate the premises and terminate the lease (the
mitigate damages.
tenant is not required to vacate the premises);
2. Withhold or reduce the rent (if the tenant chooses to
EASEMENTS AND FIXTURES
withhold rent, the tenant must first notify the
EXPRESS EASEMENT: An express easement by grant arises
landlord of the problem and give the landlord a
when the easement is affirmatively created by the parties in
reasonable opportunity to correct the problem);
a writing that satisfies the statue of frauds. An express
3. Remedy the defect and offset the costs against the
easement by reservation is created when a grantor conveys
rent; OR
land but reserves an easement right in that land for his own
4. Defend against eviction.
use and enjoyment.
IMPLIED COVENANT OF QUIET ENJOYMENT: Every lease
IMPLIED EASEMENT BY IMPLICATION: An implied
(commercial and residential) includes an implied covenant of easement by implication is created when:
quiet enjoyment. The implied covenant of quiet enjoyment is
1. A single tract of land is divided by a common owner
breached (tenant may withhold rent or seek damages) if the
and a piece of the land is conveyed to another;
tenant is constructively evicted. A constructive eviction
2. Before the division, the common owner used the single
occurs if the:
tract of land as if there was an easement on it;
1. Landlord caused the premises to be unsuitable for
3. After the division, the common owner’s use of the
their intended purposes;
conveyed land must be continuous and apparent;
2. Tenant notified the landlord of the problem;
AND
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4. Such use must be reasonably necessary for the
owner’s use and enjoyment.
IMPLIED EASEMENT BY NECESSITY: An implied easement by
necessity is created when:
1. A single tract of land is divided by a common owner
and a piece of the land is conveyed to another; AND
2. Necessity arose when the land was divided into
two separate estates where one of the properties
became virtually useless without the easement.
IMPLIED EASEMENT BY PRESCRIPTION: An implied
easement by prescription is created when a landowner
allows a trespasser to use his land continuously for the
statutory period. The trespasser’s use must be:
1. Hostile (i.e., without permission from the owner of
the land);
2. Open and notorious (i.e., not hidden); AND
3. Continuous for the statutory period.
TERMINATION OF AN EASEMENT: An easement may be
terminated by any of the following:
1. Release. An easement is terminated if the holder
expressly releases it. The release must be in writing
and satisfy the statute of frauds.
2. Merger. An easement is terminated if the holder
acquires fee title to the underlying estate – the
easement merges into the title.
3. Abandonment. An easement is terminated if the
holder demonstrates an intent to never use the
easement again through physical action (i.e.,
requires more than non-use or statements).
4. Prescription. An easement is terminated if the
holder fails to protect against trespassers for the
statutory period.
5. Sale to a Bona Fide Purchaser. An easement may be
terminated if the landowner sells the property.
6. Estoppel. An easement is terminated if the
landowner reasonably relies to his detriment on the
easement holder’s assurance that the easement will
no longer be used.
7. End of Necessity. An easement by necessity lasts as
long as the easement is necessary – if it is no longer
necessary, the easement terminates.
FIXTURES: A fixture is tangible personal property (i.e., chattel)
that is attached to real property in such a manner that it is
treated as part of the real property when determining its
ownership. Generally, a chattel is considered a fixture if the
owner of real property intends for the chattel to become a
fixture by attaching it to the real property. Such intent is
judged by applying an objective, reasonable person standard
that examines such factors as:
1. The importance of the chattel to the real property;
2. Whether the chattel was specially designed for
use on the real property; AND
3. The amount of damage that removal of the chattel
would cause to the real property.
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REAL ESTATE CONTRACTS
LAND SALE CONTRACT REQUIREMENTS: A valid contract for
the sale of land must satisfy the statute of frauds. Generally,
the contract must be in writing, signed by the party to be
charged, and contain all essential terms (e.g., parties, property
description, price). However, promissory estoppel operates as
a valid exception where a party reasonably and foreseeably
relied on the land sale contract to his detriment and would
suffer hardship if the contract is not enforced. Also, partial
performance by either the seller or buyer is treated as a valid
exception to the writing requirement in many jurisdictions if
any two of the following three are met:
1. Possession by the purchaser;
2. Payment of all or part of the purchase price; OR
3. Improvements to the land made by the purchaser.
MERGER: Covenants under the land sale contract are
merged into the deed and cannot be enforced unless the
covenant is also in the deed. Prior to closing, any liability
must be based on a provision in the land sale contract. After
closing, any liability must be based on a deed warranty.
IMPLIED COVENANT OF MARKETABLE TITLE: In every land sale
contract, the seller has a duty to convey marketable title to the
buyer at closing. Marketable title is title that is free from an
unreasonable risk of litigation. If there is a defect in title
rendering title unmarketable, it must be fixed or cured before
closing (at which point the contract and deed merge and the
deed controls). If the seller cannot deliver marketable title at
closing, the buyer can rescind the contract.
IMPLIED WARRANTY OF FITNESS AND SUITABILITY: The
implied warranty of fitness or suitability applies to defects in
new construction. It protects against latent defects (i.e.,
defects that are not discoverable from a reasonable
inspection) and warrants that the new construction is safe
and fit for human habitation. In most jurisdictions, both the
initial purchaser and subsequent purchasers may recover
damages. In other jurisdictions, only the initial purchaser
can enforce this warranty.
DUTY TO DISCLOSE DEFECTS: Most jurisdictions impose a
duty on the seller to disclose material defects to the buyer.
Material defects are defects that substantially impact the
value of the property, desirability of the property, or
health and safety of its occupants.
EQUITABLE CONVERSION AND RISK OF LOSS: In the majority
of jurisdictions, the purchaser holds equitable title during
the period between the execution of the contract and the
closing and delivery of the deed. During this period, the
purchaser is responsible for any damages to the property
while the seller, as holder of legal title, has the right to
possess the property. In a minority of jurisdictions, the risk
of loss is on the seller until closing and delivery of the deed.
MORTGAGES
THE MORTGAGE: A mortgage is a security device used to
secure repayment of a debt. The note is the borrower’s
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promise to repay the debt or loan. The mortgage is the device
that provides security to the note by allowing the lender to force
a foreclosure sale to recover the outstanding debt if the
borrower defaults on the loan. A purchase-money mortgage is a
mortgage where the borrower takes out a loan for the purpose
of purchasing property. A future-advance mortgage is a line of
credit used for home equity, construction, business, and
commercial loans (i.e., a “second mortgage”).
ALTERNATIVE SECURITY DEVICES: There are three main
alternatives used instead of mortgages as security devices:
1. Deed of Trust. A deed of trust operates like a
mortgage, but involves three parties: the borrower,
the lender, and a third-party trustee who holds title
of the property until the loan is paid off.
2. Installment Land Contract. The seller finances the
purchase in an installment land contract retaining
title until the buyer makes the final payment on the
installment plan.
3. Absolute Deed. An absolute deed is an instrument
used by the borrower to transfer the deed to the
property instead of conveying a security interest in
exchange for a loan.
TRANSFERS: The borrower may transfer the property by deed
(i.e., selling), will, or intestate succession. The borrower remains
personally liable after the transfer unless the lender releases the
borrower from his obligation or the lender modifies the
transferee’s obligation. If the transferee assumes the mortgage,
the transferee is primarily liable upon default while the original
borrower is secondarily liable. If the transferee takes title subject
to the mortgage, the transferee is not personally liable upon
default while the original borrower remains liable (this is the
default/presumed option).
4.
Hostile (the adverse possessor cannot have the true
owner’s consent to possess or use the property).
DEED REQUIREMENTS: A valid deed must:
1. Satisfy the statute of frauds;
2. Identify the parties and describe the property;
3. Be delivered (a deed is delivered when the grantor
demonstrates a present intent to transfer the
property to the grantee or his agent – physical
transfer of a deed is not required); AND
4. Accepted (acceptance is presumed).
DEED TYPES: There are three kinds of deeds:
1. General Warranty Deed. General warranty deeds
provide the greatest amount of title protection.
The grantor warrants title against all defects, even
if the grantor did not cause the defects.
2. Special Warranty Deed. Special warranty deeds
provide less title protection than general warranty
deeds. The grantor warrants titles against defects
caused by the grantor.
3. Quitclaim Deed. Quitclaim deeds provide the least
amount of title protection. The grantor makes no
warranties as to the health of the title.
COMPETING CLAIMS TO TITLE
FIRST IN TIME, FIRST IN RIGHT: Under the common law, if
a grantor transfers the same piece of property to multiple
grantees, the first grantee to receive the deed acquires
rightful title. In the absence of a recording statute, the
common law rule controls.
RECORDING STATUTES: There are three types of
recording statues that have been adopted by the states to
resolve competing claims to title:
1. Race Statutes. The first grantee to record acquires
TITLES
title, regardless of notice.
ADVERSE POSSESSION: Adverse possession allows a
2. Notice Statutes. A subsequent purchaser acquires
trespasser in unlawful possession of land owned by
title if the purchase is made without notice of a
another to acquire title to that land if their possession is:
prior unrecorded conveyance.
1. Continuous for the statutory period;
3. Race-Notice Statutes. A subsequent purchaser
a. Seasonal or infrequent use will suffice if the
acquires title if the purchase is made without
use is consistent with the type of property
notice of a prior unrecorded conveyance and the
being possessed.
subsequent purchaser records first.
b. An adverse possessor can tack on the time
NOTICE: There are three types of notice:
of possession of a prior adverse possessor to
1. Actual Notice. A subsequent purchaser has actual
meet the statutory period requirement if
notice when he has personal knowledge of a prior
the adverse possessors are in privity with
interest.
one another.
2. Constructive Notice. A subsequent purchaser is on
c. The statutory period will not run against a
constructive notice when the prior interest is
true owner who had a disability (e.g.,
recorded (i.e., validly recording a deed by publicly
insanity, imprisonment, etc.) at the time the
registering it automatically puts the entire public
adverse possession begun.
on notice).
2. Open and notorious (the adverse possessor must
3. Inquiry Notice. A subsequent purchaser has inquiry
use the property as if they were a true owner – their
notice when a reasonable investigation would have
possession cannot be hidden from the true owner);
3.
Exclusive (the adverse possessor cannot share
possession of the land with the true owner); AND
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revealed the existence of prior claims (e.g., someone is
clearly living on the property in question).
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TORTS
INTENTIONAL TORTS
ELEMENTS GENERALLY: To establish a prima facie case for
an intentional tort, the plaintiff generally must prove:
1. Voluntary Act. The defendant’s actions must be
voluntary (e.g., not a reflex).
2. Intent. The defendant must have specific or general
intent.
a. Specific Intent. An actor has specific intent
when the actor acts with the purpose of
causing the consequence.
b. General Intent. An actor has general intent
when the actor knows that the consequence is
substantially certain to occur.
c. NOTE. The actor need not intend the
specific injury that results from her actions
to be liable for an intentional tort (e.g., D
punches P in the shoulder breaking P’s arm;
it is irrelevant whether D intended to break
P’s arm, only that D intended to cause
the contact that resulted in injury).
3. Causation. Causation is satisfied if the defendant’s
conduct was a substantial factor in bringing about
the harm.
BATTERY: A battery occurs when the defendant:
1. Causes or is a substantial factor in bringing about;
2. Harmful or offensive contact;
3. To the plaintiff’s person; AND
4. Has specific or general intent
ASSAULT: An assault occurs when the defendant:
1. Causes or is a substantial factor in bringing about;
2. Reasonable apprehension in the plaintiff;
3. Of imminent harmful or offensive bodily contact to
the plaintiff’s person; AND
4. Has specific or general intent
FALSE IMPRISONMENT: A false imprisonment occurs
when the defendant:
1. Causes or is a substantial factor in bringing about;
2. The confinement of the plaintiff within fixed
boundaries (the plaintiff must be aware of
the confinement or harmed by it); AND
3. Has specific or general intent
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
IIED occurs when the defendant:
1. Acts with extreme or outrageous conduct;
2. Which causes or is a substantial factor in bringing
about;
3. Severe emotional distress; AND
4. Has intent to cause severe emotional distress or acts
with recklessness as to the risk of causing severe
emotional distress.
TRESPASS TO LAND: A trespass to land occurs when the
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defendant:
1. Causes or is a substantial factor in bringing about;
2. A physical invasion of the plaintiff’s real property;
AND
3. Has specific or general intent.
TRESPASS TO CHATTELS: A trespass to chattels occurs
when the defendant:
1. Causes or is a substantial factor in bringing about;
2. An interference with the plaintiff’s right
of possession in a chattel; AND
3. Has specific or general intent.
CONVERSION: A conversion occurs when the defendant:
1. Causes or is a substantial factor in bringing about;
2. An interference with the plaintiff’s right
of possession in a chattel;
3. Where the interference is so serious, it deprives the
plaintiff entirely of the use of the chattel; AND
4. Has specific or general intent.
DEFENSES TO INTENTIONAL TORTS
CONSENT: The plaintiff’s consent (express or implied) to
the defendant’s conduct is a defense to intentional torts if:
1. The consent was valid (e.g., no fraud,
incapacity, etc.); AND
2. The defendant’s conduct remained within the
boundaries of the plaintiff’s consent (e.g., cannot
use a knife in a boxing match).
SELF-DEFENSE: Generally, a defendant is not liable for
harm to the plaintiff if:
1. The defendant reasonably believed that that the
plaintiff was going to harm him or another; AND
2. The defendant used only the amount of force that
was reasonably necessary and proportionate to
protect himself or another.
NECESSITY: The defense of necessity is available to a
defendant that enters onto the plaintiff’s land or interferes
with the plaintiff’s personal property when the defendant
does so to prevent an injury or some other severe harm.
Under private necessity (the defendant’s act is done to
benefit a limited number of people), the defendant must
pay for the actual damages that he caused. However, the
landowner may not use force to exclude the defendant.
Under public necessity (the defendant’s act is done for the
public good), the defendant is not liable for property
damage that he caused.
NEGLIGENCE REQUIREMENTS
ELEMENTS: The elements of the prima facie case
for negligence are as follows:
1. The defendant owed a duty to the plaintiff
to conform to a specific standard of care;
2. The defendant breached that duty;
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3. The breach was the actual and proximate cause of
the plaintiff’s injuries; AND
4. The plaintiff sustained actual damages or loss.
NEGLIGENCE: DUTY
reasonable person in the patient’s position would not
have consented upon learning of the risk.
PSYCHOTHERAPISTS: In the majority of states,
psychotherapists have a duty to warn potential victims of a
patient’s serious threats of harm if the patient has the
TO WHOM A DUTY IS OWED: A duty of care is owed to all
apparent intent and ability to carry out such threats and
foreseeable plaintiffs that may be harmed by the
the potential victim is readily identifiable.
defendant’s breach of the applicable standard of care. There
LANDOWNERS/LAND POSSESSORS: Under the traditional
are two separate views:
1. Under the majority view (Cardozo), the defendant is approach, the standard of care that landowners owe to
entrants upon their land varies depending on the status of
only liable to plaintiffs within the foreseeable zone
of danger.
the entrant. There are three types of entrants to consider:
2. Under the minority view (Andrews), the defendant
1. Trespassers. A trespasser is a person who enters the
owes a duty to everyone harmed.
landowner’s property without valid consent or
necessity. There are two types of trespasser:
AFFIRMATIVE DUTY TO ACT: In general, there is no affirmative
a. Discovered/Anticipated. Discovered or
duty to act affirmatively or help others. However, a duty to act
anticipated trespassers enter the land
affirmatively will arise if the defendant:
without consent, but may be expected by the
1. Places the plaintiff in danger;
landowner. The landowner owes a duty to
2. Has a special relationship with the plaintiff (e.g.,
discovered/anticipated trespassers to warn
common carrier/passenger, innkeeper/guest, family
of (or make safe) hidden dangers on the land
members, etc.);
that pose a risk of death or serious bodily
3. Has a duty to act affirmatively imposed by law; OR
harm (only applies to artificial conditions that
4. Begins to administer aid or attempt to rescue the
the landowner is aware of).
plaintiff.
b. Undiscovered. Undiscovered trespassers
NEGLIGENCE: STANDARDS OF CARE
enter the land without consent, and are not
THE REASONABLE PERSON STANDARD: The reasonable
expected by the landowner. The landowner
person standard is the default standard of care. It should be
owes no duty to undiscovered trespassers.
applied unless a special standard of care applies (e.g.,
2. Licensees. A licensee is a person who lawfully enters
children, professionals, physicians, landowners, negligence
the landowner’s property for her own purpose or
per se, etc.). Here, the standard of care owed by the
benefit, rather than for the landowner’s benefit (e.g.,
defendant to the plaintiff is that of a reasonably prudent
social guests). The landowner has no duty to inspect his
person under the circumstances as measured by an objective
property for licensees. However, the landowner does
standard. The defendant is presumed to have average mental
owe a duty to licensees to warn of (or make safe)
abilities and knowledge. Physical disabilities may be taken
hidden dangers on the land that pose an unreasonable
into account (e.g., the standard of care for a blind person
risk of harm (applies to both artificial + natural
would be that of a reasonable prudent blind person under the
conditions that the landowner is aware of).
circumstances as measured by an objective standard).
3. Invitees. An invitee is a person who is invited on the
Intoxicated people are held to the same standard as sober
property for the owner’s own benefit or mutual
people unless the intoxication was involuntary.
benefit with the invitee (e.g., a customer shopping
CHILDREN: Children are held to the standard of care of a
in a store that is open to the public). The landowner
reasonably prudent child of similar age, experience, and
owes a duty to the invitee to reasonably inspect the
intelligence under the circumstances (more subjective).
land for hidden dangers (artificial or natural) that
However, if the child is engaged in adult activity, the court
pose an unreasonable risk of harm, and if
will not take the child’s age into account (i.e., the child will be
discovered, make them safe.
held to an “adult” standard).
Several states have rejected the traditional approach
PROFESSIONALS: A professional (e.g., nurses, lawyers,
distinctions between licensees and invitees simply applying a
accountants, engineers, architects, etc.) is expected to
reasonable person standard to landowners. In these states,
exhibit the knowledge and skill of a member of the
landowners owe the same duty of reasonable care to all
profession in good standing in similar communities.
entrants on their land regardless of their status as invitees or
licensees (although, status of the entrant may still be relevant to
PHYSICIANS: Physicians are held to a national standard of
determine reasonableness under the circumstances).
care and have a duty to disclose the risks of treatment to
ATTRACTIVE NUISANCE DOCTRINE: A landowner owes a
enable a patient to give informed consent. This duty is only
duty to child trespassers to warn of (or make safe) artificial
breached if an undisclosed risk was so serious that a
conditions on the land, provided that:
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1. The artificial condition exists in a place where the
landowner knows or has reason to know that
children are likely to trespass;
2. The landowner knows or has reason to know that
the artificial condition poses an unreasonable risk of
death or serious bodily harm;
3. The children, due to their age, do not appreciate the
danger involved; AND
4. The risk of harm outweighs the expense of making
the condition safe.
NEGLIGENCE PER SE: When a statute imposes upon any
person a specific duty for the benefit or protection of others,
a violation of the statute will constitute negligence per se if
the plaintiff:
1. Is in the class of people meant to be protected by
the statute; AND
2. Suffers the type of harm the statute was designed to
protect against.
NEGLIGENCE: PROOF OF FAULT
RES IPSA LOQUITUR: Res ipsa loquitur (“the thing speaks
for itself”) is applied when an element of negligence
is difficult to prove, but the circumstances make it obvious that
the defendant’s negligence was the most likely cause of the
harm. In order for res ipsa loquitur to apply, the plaintiff must
show that the accident resulting in the harm was:
1. Of a kind that ordinarily does not occur in the
absence of negligence; AND
2. Caused by an agent or instrumentality within the
defendant’s exclusive control.
NEGLIGENCE: CAUSATION
CAUSATION: In order to prove negligence, the plaintiff must
show that the defendant’s conduct was both the actual and
proximate cause of the plaintiff’s injury.
ACTUAL CAUSE: To prove actual cause, the plaintiff must show
that her injury would not have occurred but for the
defendant’s breach of the applicable standard of care owed.
PROXIMATE CAUSE: To prove proximate cause, the plaintiff
must show that her injury was a foreseeable result of the
defendant’s conduct. An intervening cause is an outside force
or action that contributes to the plaintiff’s harm after the
defendant’s act or omission has occurred. If the intervening
cause is unforeseeable, it is a superseding cause and the
defendant’s liability to the plaintiff will be cut off.
EGGSHELL PLAINTIFF RULE: Under the eggshell plaintiff rule
(“take your victim as you find him rule”), the defendant is
liable for all harm suffered by the plaintiff, even if the plaintiff
suffered from an unforeseeable, preexisting mental or
physical condition that aggravates the harm.
SPECIAL RULES OF LIABILITY
RESPONDEAT SUPERIOR: Under the doctrine of respondeat
superior, an employer may be liable for torts committed by
an employee if:
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1. An employer-employee relationship exists (not an
independent contractor relationship); AND
2. The employee’s commission of the tort occurs
within the scope of employment.
BUSINESS PARTNERS: The negligence of one business
partner can be imputed on other business partners if it is
committed within the scope of the business’s purpose.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
ZONE OF DANGER: The plaintiff can recover for NIED if:
1. The defendant negligently caused a threat
of physical impact;
2. The plaintiff was within the “zone of danger”
of the threatened physical impact; AND
3. The threat of physical impact caused emotional
distress.
BYSTANDER RECOVERY: The plaintiff bystander can
recover for NIED if:
1. The defendant negligently inflicted bodily injury
to another;
2. The plaintiff is closely related to the
person injured by the defendant;
3. The plaintiff was present at the scene of
the injury; AND
4. The plaintiff personally observed the injury.
5. Some jurisdictions also require that the plaintiff
manifest physical symptoms after witnessing
the injury.
SPECIAL RELATIONSHIP: The plaintiff can recover for NIED in
certain circumstances where a pre-existing relationship
exists between the defendant and plaintiff (e.g.,
doctor/patient). This commonly arises when:
1. The defendant negligently mishandles a corpse; OR
2. The defendant negligently provides false medical
information (e.g., healthy plaintiff is told that she has
terminal cancer).
LIABILITY OF MULTIPLE DEFENDANTS
JOINT AND SEVERAL LIABILITY: When two or more parties
are jointly and severally liable, each party is independently
liable for the full extent of the damages stemming from the
tortious act. Thus, if a plaintiff wins a money judgment
against jointly and severally liable defendants, the plaintiff
may collect the full value of the judgment from any one of
them. A contribution action allows a defendant who pays
more than his share of the total liability to recover from
the other liable defendants.
ALTERNATIVE LIABILITY: If a plaintiff cannot identify with
specificity which among multiple defendant’s caused
his harm, alternative liability allows the plaintiff to shift the
burden of proving causation to the defendants (even
though only one of them could have been responsible).
INDEMNIFICATION: In torts, indemnification usually arises
in situations involving vicarious liability or strict liability.
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Indemnification allows a passive tortfeasor who was forced
to pay damages to recover a complete reimbursement from
an active tortfeasor.
DEFENSES TO NEGLIGENCE
CONTRIBUTORY NEGLIGENCE: In a contributory negligence
jurisdiction, a plaintiff cannot recover damages if his own
negligence contributed to his injury in any way, unless the
defendant:
1. Was engaged in wanton and willful misconduct; OR
2. Had the last clear chance to avoid injuring the
plaintiff, but failed to do so.
COMPARATIVE FAULT: In a comparative fault jurisdiction,
the plaintiff’s own negligence limits recovery but is not
necessarily a complete bar to recovery. Jurisdictions have
adopted two different approaches to comparative fault:
1. Pure Comparative Negligence. Under pure
comparative negligence, the plaintiff’s recovery is
limited by the percentage of fault the jury attributes
to the plaintiff’s own negligence (e.g., if the jury
finds the plaintiff is 95% at fault, the plaintiff can
recover 5% of her damages).
2. Modified Comparative Negligence. Under modified
comparative negligence, the plaintiff’s recovery is
limited by the percentage of fault the jury attributes
to the plaintiff’s own negligence. However, if the
plaintiff is more at fault than the defendant, the
plaintiff’s recovery is completely barred. In some
modified comparative negligence jurisdictions, the
plaintiff’s recovery is completely barred if the
plaintiff and defendant are equally at fault.
STRICT LIABILITY
STRICT LIABILITY: Under strict liability, a defendant will
be liable for damages regardless of how careful she was
(i.e., negligence is not required to be held liable).
DOMESTIC ANIMALS: An owner of a domestic animal (e.g.,
cats, dogs, livestock, etc.) will not be strictly liable for harm
caused by the animal unless the owner knows or has reason
to know of the animal’s dangerous propensity.
WILD ANIMALS: An owner of a wild animal (e.g., tigers,
monkeys, etc.) is strictly liable for any harm caused by the
animal regardless of safety precautions taken by the
owner. However, owners are generally not strictly liable for
harm caused to trespassers.
ABNORMALLY DANGEROUS ACTIVITIES: A defendant is
strictly liable for damages caused to the plaintiff if he is
engaged in abnormally dangerous activities. An
abnormally dangerous activity is one that is:
1. Inherently dangerous;
2. Inappropriate for the location chosen;
3. Virtually impossible to make safe; AND
4. Of little value to the community.
PRODUCTS LIABILITY: A strict liability claim under products
liability requires the plaintiff to show:
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1. The product was defective in manufacture, design,
or failure to warn;
2. The defect existed when the product left
the defendant’s control; AND
3. The defect caused the plaintiff’s injury when
the product was used in a foreseeable way.
MANUFACTURE DEFECTS: A defect in manufacture
requires the plaintiff to show that the product:
1. Deviated from its intended design; AND
2. Fails to conform to the manufacturer’s own design.
DESIGN DEFECTS: There are two tests for a defect in design:
1. Under the consumer expectation test, the
plaintiff must show that the product is less safe
than the ordinary consumer would expect.
2. Under the risk-utility test, the plaintiff must show
that the product’s risks outweigh its benefits and
that there is a reasonable alternative design.
FAILURE TO WARN: A failure to warn defect requires
the plaintiff to show:
1. The plaintiff was not warned of the risks
regarding the use of the product;
2. The risks are not obvious to an ordinary user; AND
3. The designer/manufacturer was in fact aware
of such risks.
SCOPE OF PRODUCTS LIABILITY: Any person foreseeably
injured by a defective product (e.g., purchasers, other users,
bystanders, etc.) may pursue a products liability claim. A
strict liability claim under products liability may only be
brought against a merchant who is in the chain of distribution
(e.g., manufacturer Ö wholesaler Ö retailer).
DEFAMATION
DEFAMATION: Defamation occurs when the defendant:
1. Publishes (the statement must be communicated
to a third party who understands the content of it);
2. A defamatory statement (the statement must be
false and not an opinion);
3. Of or concerning the plaintiff;
4. Causing damage to the plaintiff’s reputation.
PUBLIC OFFICIALS: A public official is a person who has
control over government office (includes political
candidates). A general purpose public figure is a person of
persuasive power and influence in society. A limited purpose
public figure is a person who has injected himself into a
public controversy. If the plaintiff is a public official or a
public figure, the plaintiff must prove actual malice. This
requires the plaintiff to show that the person who made the
defamatory statement either knew it was false or acted with
reckless disregard for the truth.
PRIVATE INDIVIDUALS: A private individual is any person
that is not a public official or public figure. If the plaintiff is a
private individual and the defamatory statement is a matter
of public concern, the plaintiff need only prove that the
statement was false and the speaker was at least negligent.
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TORTS
NOTE: Unless otherwise noted, templates are written under the assumption that all comprised rules are at issue.
Paragraph indentions are included to help differentiate issues and sub-issues and are unnecessary for actual essays.
NEGLIGENCE
The main issue is whether the plaintiff can hold the defendant liable for negligence.
To hold a defendant liable for negligence, the plaintiff must establish the following four elements by a preponderance of
the evidence: (1) the defendant owed a duty to the plaintiff to conform to a specific standard of care; (2) the defendant
breached that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injuries; AND (4) the plaintiff
sustained actual harm.
DUTY
The first issue is whether the defendant owed a duty to the plaintiff to conform to a specific standard of care.
Cardozo/Majority
The majority rule is that a duty of care is owed to all foreseeable plaintiffs. Under Justice Cardozo’s
majority opinion in Palsgraf, the defendant owes a duty to plaintiffs who are within the zone of
foreseeable danger.
Here, _____ [Discuss whether the plaintiff was in the zone of foreseeable danger.].
Andrews/Restatement
Under Justice Andrew’s dissent in Palsgraf and the Restatement, if the defendant can foresee harm to
anyone as a result of his negligence, then a duty is owed to every person harmed as a proximate cause
of his breach. Under the Andrews/Restatement approach, the issue of whether the plaintiff was
foreseeable is reserved for the analysis of proximate cause.
Here, _____ [Discuss whether the defendant could have foreseen harm to ANYONE as a result of his
negligence. If so, then a duty is owed to the plaintiff so long as the defendant’s breach was the
proximate cause of the plaintiff’s injury. Reserve your proximate cause analysis for your discussion of
the third element of negligence – causation.].
STANDARD OF CARE
Once we establish whether the defendant owed a duty of care to the plaintiff, the next issue is what standard
of care did the defendant owe to the plaintiff.
In most cases, the standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person
under like circumstances as measured by an objective standard (the reasonable person standard). However, the
standard of care owed may change when certain types of defendants are involved, or a statute defines a specific
standard of care as a matter of law (negligence per se). Traditionally, the standard of care owed by the
defendant to the plaintiff is subject to modification if the defendant is: a child, a professional, a physician, a
common carrier or innkeeper, an automobile driver, a bailor or bailee, or a possessor of land.
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[*If the defendant is not a member of a class that requires a different standard of care, and a statute does not
define a specific standard of care as a matter of law]
Reasonable Person Standard of Care
The reasonable person standard of care is the default standard of care that is applied in most cases. Under the
reasonable person standard of care, the defendant owes a duty to the plaintiff to exercise the care that a
reasonable person under like circumstances would recognize as necessary to avoid or prevent an
unreasonable risk of harm to another person.
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the reasonable person standard
of care, because _____ [the defendant] is not a member of a class that requires a different standard, and there
is not a statute that defines a specific standard of care as a matter of law.
[*If the defendant is a child]
Standard of Care: Children
A child owes a duty to exercise the care that a reasonable child of similar age, intelligence, and experience
would under like circumstances. However, a child will be held to the same standard of care as an adult if the
child is engaged in a high-risk activity that is usually undertaken by adults.
[*If the defendant-child is not engaged in high-risk adult activity]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care
imposed on children, because _____ [the defendant] is a child who was not engaged in a high-risk
activity that is usually undertaken by adults.
[*If the defendant-child is engaged in high-risk adult activity]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care
imposed on adults, because _____ [the defendant] was engaged in a high-risk activity that is usually
undertaken by adults.
[*If the defendant is a professional]
Standard of Care: Professionals
A professional owes a duty to exercise the same skill, knowledge, and care of a member of the profession
in good standing in similar communities.
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care imposed on
professionals, because _____ [the defendant] is a professional, and the harm occurred while _____ [the
defendant] was operating in the capacity of a professional.
[*If the defendant is a physician]
Standard of Care: Physicians
A physician owes a duty to: (1) conform their conduct to the customary practice of other physicians in like
circumstances, as measured by a national standard; and (2) explain the risks of a medical procedure to a patient
before the patient decides to consent to treatment. However, a physician is not required to explain the risks of a
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medical procedure when: the risk is commonly known; the patient is unconscious or otherwise incapable of
giving consent; the patient waives or refuses the information; the patient is incompetent; or the explanation of
risks would be detrimental to the patient.
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care imposed on
physicians, because _____ [the defendant] is a physician, and the harm occurred while _____ [the defendant]
was operating in the capacity of a physician.
[*If the defendant is a common carrier or innkeeper]
Standard of Care: Common Carriers and Innkeepers
At common law, most jurisdictions held that common carriers and innkeepers owed the highest standard of care
to their customers and guests. Under this heightened standard of care, common carriers and innkeepers could
be held liable for “slight negligence” by their customers and guests. Today, most courts continue to hold
common carriers to this heightened standard of care. However, most courts do not impose a higher standard of
care on innkeepers, instead applying an “ordinary” negligence standard.
[*If the defendant is a common carrier]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the heightened standard
of care imposed on common carriers, because _____ [the defendant] is a common carrier, and the harm
occurred while _____ [the defendant] was operating in the capacity of a common carrier.
[*If the defendant is an innkeeper]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the reasonable person
standard of care, because most courts do not impose a higher standard of care on innkeepers.
[*If the defendant is an automobile driver]
Standard of Care: Automobile Drivers
In most jurisdictions, an automobile driver owes a duty to conform to a reasonable person standard of care to
their guests and passengers (passengers confer an economic benefit to the driver in exchange for the ride).
However, in a minority of jurisdictions, an automobile driver only owes a duty to refrain from gross or wanton
and willful misconduct to their guests, while still owing a duty to conform to the reasonable person standard
of care to their passengers.
[*If the plaintiff is a guest]
Here, under the majority approach, _____ [the defendant] owed a duty to _____ [the plaintiff] to
conform to the reasonable person standard of care, because the majority approach does not make a
distinction between guests and passengers.
However, under the minority approach _____ [the defendant] owed a duty to _____ [the plaintiff] to
conform to the lower standard of care imposed on automobile drivers, because _____ [the plaintiff] was
a guest, and the harm occurred while _____ [the defendant] was operating in the capacity of an
automobile driver.
[*If the plaintiff is a passenger]
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Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the reasonable person
standard of care, because _____ [the plaintiff] was a passenger (not a guest), and both approaches
impose a duty on automobile drivers to conform to the reasonable person standard of care when
transporting a passenger.
[*If the defendant is a bailor or bailee]
Standard of Care: Bailors and Bailees
A bailment occurs when a person (the bailee) temporarily takes possession of another person’s (the
bailor’s) personal property.
[*If the defendant is a bailor]
A bailor owes a duty to inform an unpaid-bailee only of known dangerous defects in personal
property, but must inform a paid-bailee of defects that are known or should have been known by the
bailor had he used reasonable diligence.
[*if the plaintiff is an unpaid-bailee]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to inform the bailee of known
dangerous defects in the property, because _____ [the defendant] was not paying _____ [the
plaintiff] for [his/her] services.
[*if the plaintiff is a paid-bailee]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to inform the bailee of defects
that were known or should have been known by _____ [the defendant] had [he/she] used
reasonable diligence, because _____ [the defendant] was paying _____ [the plaintiff] for
[his/her] services.
[*If the defendant is a bailee]
A bailee owes a lower duty of care to avoid gross negligence if the bailor receives the sole benefit from
the bailment. However, a bailee owes a very high duty of care to exercise extraordinary care for the
bailor’s property if the bailee receives the sole benefit from the bailment.
[*If the bailor receives the sole benefit from the bailment]
Here, _____ [the defendant] owed a lower duty of care to avoid gross negligence to _____ [the
plaintiff], because the bailor received the sole benefit from the bailment.
[*If the bailee receives the sole benefit from the bailment]
Here, _____ [the defendant] owed a very high duty of care to exercise extraordinary care to
_____ [the plaintiff], because the bailee received the sole benefit from the bailment.
[*If the defendant is a possessor of land]
Standard of Care: Possessors of Land
For standard of care purposes, a possessor of land includes: owners, tenants, adverse possessors, and others in
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possession of land (not easement holders or those licensed to use land).
Traditional Approach
Under the traditional approach, the standard of care that possessors of land owe to entrants upon their
land varies depending on whether the entrant is a trespasser, licensee, or invitee.
A trespasser is a person who enters the land possessor’s property without valid consent or necessity.
Discovered trespassers enter the land without consent, but may be expected by the land possessor.
Undiscovered trespassers enter the land without consent, and are not expected by the land possessor. A
land possessor owes a duty to discovered trespassers to warn of, or make safe, hidden dangers on the
land that pose a risk of death or serious bodily harm so long as the hidden dangers are artificial, and the
land possessor is aware of them. By contrast, a land possessor owes no duty to undiscovered
trespassers.
A licensee is a person who lawfully enters the land possessor’s property for her own purpose or benefit,
rather than the land possessor’s benefit. A land possessor owes a duty to licensees to warn of, or make
safe, hidden dangers on the land that pose an unreasonable risk of harm, whether the dangers are
artificial or natural, so long as the land possessor is aware of them.
An invitee is a person who is invited on the property for the land possessor’s own benefit or mutual
benefit with the invitee. The land possessor owes a duty to invitees to reasonably inspect the land for
hidden dangers, both artificial and natural, that pose an unreasonable risk of harm, and if discovered, to
make them safe (usually by fixing the danger or posting a warning sign).
Here, under the traditional approach, _____ [the defendant] owed a duty to _____ [Identify the applicable
standard of care based on the entrant’s status as a trespasser, licensee, or invitee], because the entrant was a
_____ [discovered trespasser/undiscovered trespasser/licensee/invitee].
Modern Approach
Today, several states have rejected the traditional distinctions between licensees and invitees holding that a
land possessor owes a duty to all entrants, regardless of their status as an invitee or licensee, to conform to
the reasonable person standard of care. Although, status of the entrant may still be relevant to determine the
reasonableness of the land possessor’s actions under the circumstances.
Here, under the modern approach, _____ [the defendant] owed a duty to conform to the reasonable person
standard of care, because of the rejection of distinctions between entrant status.
[*If the defendant is a possessor of land and there is an injury to a child trespasser]
Standard of Care/Duty: Attractive Nuisance Doctrine
A possessor of land owes a duty to child trespassers to warn of, or make safe, artificial conditions on the land,
provided that: (1) the artificial condition exists in a place where the possessor of land knows or has reason to know
that children are likely to trespass; (2) the possessor or land knows or has reason to know that the artificial condition
poses an unreasonable risk of death or serious bodily harm; (3) the children, due to their age, do not appreciate the
danger involved; and (4) the risk of harm outweighs the expense of making the condition safe.
Here, _____ [the defendant] _____ [owed/did not owe] a duty to warn of, or make safe, artificial conditions on
the land, because _____ [Discuss all 4 elements to determine whether the defendant owed the child trespasser
a duty to warn of, or make safe, the artificial condition on the land.].
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[*If the fact pattern gives you a statute that imposes a duty]
Negligence Per Se
In most jurisdictions, the violation of a statue that imposes a duty of care establishes negligence as a matter of
law, so long as: (1) the defendant violates the statute by failing to perform the imposed duty; (2) the plaintiff is
in the class of people meant to be protected by the statute; (3) the plaintiff suffers the type of harm the statute
was designed to protect against; and (4) the defendant’s violation of the statute was the proximate cause of the
plaintiff’s injury.
Here, _____ [Discuss all four elements. If all four elements are satisfied, there is a conclusive presumption of
duty, breach, and causation, and damages.].
BREACH
Once we establish the duty and standard of care that the defendant owed to the plaintiff, the next issue is
whether the defendant breached the duty owed to the plaintiff.
[*If you are applying the reasonable person standard of care]
Majority/Traditional Approach
Under the majority approach, a breach of duty occurs when a defendant fails to exercise the care that a
reasonable person under like circumstances would recognize as necessary to avoid or prevent an
unreasonable risk of harm to another person, as measured by an objective standard.
Here, under the majority approach, _____ [Discuss whether the defendant failed to exercise the care that
reasonable person under like circumstances would recognize as necessary to avoid or prevent an
unreasonable risk of harm to another person, as measured by an objective standard.].
Modern Trend and Restatement: Cost-Benefit Analysis
However, under the modern trend and Restatement approach, courts apply a cost-benefit analysis to determine
whether a breach of duty occurred by balancing: (1) the foreseeable likelihood that the defendant’s conduct
would cause harm; and (2) the foreseeable severity of any resulting harm; with (3) the defendant’s burden (costs
or other disadvantages) in avoiding the harm.
Here, under the modern trend and Restatement approach, _____ [Balance factors (1) and (2) with factor (3) to
determine whether a breach of duty occurred.].
[*If you are not applying the reasonable person standard of care]
A breach of duty occurs when the defendant departs from the required standard of care.
Here, it appears that _____ [the defendant] _____ [departed/did not depart] from [his/her] duty to _____
[Insert the applicable standard of care you determined above], because _____ [Discuss facts that suggest
whether the defendant departed from the applicable standard of care.].
CAUSATION
Once we establish whether the defendant breached a duty owed to the plaintiff, the next issue is whether
the breach was the actual and proximate cause of the plaintiff’s injuries.
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To hold the defendant liable for negligence, the plaintiff must show that defendant’s breach was both the actual
and proximate cause of her injury.
Actual Cause
To prove actual cause, the plaintiff must show that her injury would not have occurred but for
the defendant’s breach.
Here, _____ [Discuss whether the plaintiff’s injury would have occurred but for the defendant’s breach
of the applicable standard of care.].
Proximate Cause
To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the
defendant’s breach. An intervening cause is an outside force or action that contributes to the plaintiff’s
harm after the defendant’s breach has occurred. If the intervening cause is unforeseeable, it is a
superseding cause and the defendant’s liability to the plaintiff is cut off from that point forward.
Here, _____ [Discuss whether the plaintiff’s injury was a foreseeable result of the defendant’s breach,
and whether there were any superseding causes that cut off the defendant’s liability.].
[If the plaintiff suffers from a preexisting mental/physical condition that aggravates the harm]
Eggshell Plaintiff Rule
Under the eggshell plaintiff rule, the defendant is liable for all harm suffered by the plaintiff,
even if the plaintiff suffered from an unforeseeable, preexisting mental or physical
condition that aggravates the harm.
Here, it is irrelevant as to whether the plaintiff’s _____ [preexisting mental/physical condition]
was unforeseeable. Under the eggshell plaintiff rule, the defendant remains liable for all harm
aggravated by a preexisting physical or mental condition.
DAMAGES
Once we establish whether the defendant’s breach of duty was the actual and proximate cause of the plaintiff’s
injuries, the next issue is whether the plaintiff sustained actual harm.
The plaintiff must prove actual harm (usually personal injury or property damage) to complete the requirements
needed to hold a defendant liable for negligence. While a plaintiff who suffers physical injury may also seek
emotional distress damages; in most jurisdictions, a plaintiff may not recover pure emotional distress damages
without accompanying physical injury through a negligence action. Similarly, a plaintiff who suffers only
economic loss without any related personal injury or property damage cannot recover such loss through a
negligence action.
Here, _____ [Discuss whether the plaintiff suffered actual harm (physical injury or property damage).].
In conclusion, the plaintiff [can/cannot] hold the defendant liable for negligence, because _____ [Identify whether the
plaintiff proved duty, breach, causation, and damages by a preponderance of the evidence.].
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UBE Self-Study Program | Essay Templates | Torts
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TRUSTS AND ESTATES
INTESTACY
INTESTATE SUCCESSION: Any property that does not pass by
will upon the decedent’s death will be distributed according
to the state’s applicable intestacy statutes. In most states:
1. If the decedent is survived by only a spouse (no
descendants), the surviving spouse will inherit the
entire estate. However, some states provide that a
certain portion of the estate will be given to the
decedent’s parents and the parents’ issues.
2. If the decedent is survived by a spouse and
descendants, the surviving spouse will inherit onehalf or one-third of the decedent’s estate with the
surviving descendants inheriting the rest. Under the
Uniform Probate Code (UPC), the surviving spouse
will inherit the entire estate if all of the descendants
are descendants of the surviving spouse.
3. If the decedent is not survived by a spouse, the
decedent’s surviving descendants will inherit the
entire estate equally.
4. If the decedent is not survived by a spouse or
descendants, the decedent’s surviving parents will
inherit the entire estate equally. If there are no
surviving parents, the descendants of the decedent’s
parents will inherit the estate.
ADOPTED CHILDREN: Today, adopted children are entitled to
receive the same share, under intestacy laws, as biological
children. In some states, a child may be informally adopted
through adoption by estoppel when a person takes a child in
and assumes parental responsibilities. Generally, adoption in
fact or by estoppel terminates the adopted child’s right to
inherit from her biological parents.
NON-MARITAL CHILDREN: Today, non-marital children may
inherit from either parent so long as the facts establish a legal
parent-child relationship (non-marital children inheriting from
a father must first establish paternity).
HALF-BLOOD CHILDREN: Today, in almost every state, halfblood children (i.e., two people who share one parent, but
not the other) are treated equally as whole-blood children. In
a minority of jurisdictions, they are treated less favorably
and sometimes excluded if whole-blood kin exist.
ADVANCEMENTS: Today, gifts to heirs during a
testator’s lifetime are not considered advancements on
the heir’s intestate share of the estate unless:
1. The decedent declared his intent to make the gift an
advancement in a contemporaneous writing; OR
2. The heir acknowledged the gift to be an
advancement in writing.
WILL EXECUTION REQUIREMENTS
WILL EXECUTION: A will is valid if the specific formalities
provided by state law are met. Generally, these formalities
require a valid will to be:
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1. In writing;
2. Signed by the testator; AND
3. Signed by at least two witnesses.
INTERESTED WITNESSES: Under the common law, the signing of
the will must be witnessed by two disinterested witnesses
(individuals who do not receive any benefits under the will).
However, virtually every state has abolished this common
law rule and allow interested witnesses to validly witness the
signing of a will. In a minority of states, the interested
witness forfeits his inheritance unless two additional
disinterested witnesses serve as valid witnesses to the will.
Still, some states only allow interested witnesses to inherit
their intestate share of the estate.
HOLOGRAPHIC WILLS: A holographic will is a handwritten
will that is not witnessed. Most states do not recognize
holographic wills. However in states that do recognize
holographic wills, the holographic will is only valid if the
testator signs it personally. No precise words are required to
make a holographic will valid; however, it must contain
operative words legally sufficient to validly devise the
property.
INTEGRATION OF WILLS
INTEGRATION OF DOCUMENTS: Integration of documents
usually arises when pages or portions of a will become
separated. A document will be integrated into the will if:
1. The testator intended the document to be part
of the will; AND
2. The document was physically present at the time
of the will’s execution.
INCORPORATION BY REFERENCE: Incorporation by reference
deals with the incorporation of extrinsic documents into the
will (rather than pages or portions of the original will). In
most states, a document or writing may be incorporated into
a will by reference if:
1. The testator intended to incorporate the document
into the will;
2. The document was in existence at the time the will
was executed; AND
3. The document is sufficiently described in the will.
REVOCATION
REVOCATION BY SUBSEQUENT INSTRUMENT: A will can
be revoked by:
1. A subsequent written instrument that is executed for
the sole purpose of revoking the prior will; OR
2. A subsequent will containing a revocation clause or
provisions that are inconsistent with those of the
prior will (only revokes to the extent it conflicts with
the prior will).
REVOCATION BY CANCELLATION: A will can be revoked if
the testator (or another person in his presence and at his
direction) burns, tears, obliterates, or destroys the will with
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the intent to revoke the will. Under the common law, words
of cancellation are valid only if they come in physical
contact with the words of the will (e.g., words written over
the original terms of the will). Under the UPC, words of
cancellation need not touch any of the words of the will, but
they must be somewhere on the will to validly revoke.
PARTIAL REVOCATION: In most states, when marks of
cancellation (e.g., putting a line through terms in the will)
are found on a will known to last have been in the testator’s
possession, a presumption arises that such marks were
made by the testator with the intent to revoke. The burden
to overcome this presumption is on the party claiming that
the devise has not been revoked.
DEPENDENT RELATIVE REVOCATION (DRR): Under DRR, the
valid revocation of a will may be ignored if the will was
revoked under the testator’s mistaken belief of law or fact
that the testator could revive an earlier will, or modify his
disposition of property by a new will.
CONSTRUCTION PROBLEMS
2. Describe the interest being disclaimed sufficiently;
AND
3. Be delivered or filed.
ABATEMENT: Beneficiaries under wills are entitled only to the
net value of estate assets. The net value represents what
remains of the decedent’s assets at death after the payments of
debts, expenses, and taxes. If there are more claims against an
estate from creditors than there are assets to cover all of the
devises made under the will, the devises abate.
STOCK SPLITS AND DIVIDENDS: Under the common law (still
followed in some states), a stock dividend constitutes a
property interest that is separate from shares of stock
received through a specific devise. Under this rule, the
beneficiary of the underlying shares of stock does not receive
the additional shares that were obtained through stock
dividends. Under the majority view, beneficiaries are entitled
to additional shares owned by the testator that were
acquired as a result of stock splits or dividends.
DEVISES TO CLASSES: A testator may devise property to a
class of individuals (e.g., “I leave $20,000 to be divided
equally among all my children). A class may increase or
decrease in number until the testator’s death. If a member
of the class predeceases the testator, her share is split
evenly among the remaining members of the class.
DISINHERITANCE: A child that is intentionally omitted from
a will is not entitled to a share of the decedent’s estate.
PRETERMITTED CHILDREN: A pretermitted child is a child who
is unintentionally omitted from a will. Pretermitted children
are entitled to the share that they would have received had
the testator died intestate so long as the testator did not
intend to omit the child from his will.
WILL CONTESTS
LAPSED LEGACIES: If a beneficiary named in a will
predeceases the testator, absent an alternate disposition of
the devise specified by the testator, the devise lapses into the
estate’s residue unless the jurisdiction’s anti-lapse statute
preserves the devise for the beneficiary’s descendants.
ANTI-LAPSE STATUTES: Under an anti-lapse statute, devises
will vest in the descendants of the predeceased beneficiary
if the predeceased beneficiary:
1. Is a blood relative of the testator; AND
2. Has descendant(s) who survive the testator.
ADEMPTION: Under the doctrine of ademption, if the
subject matter of a specific devise is not in the estate at the
time of the testator’s death, the devise to the beneficiary
adeems or fails. However, in most jurisdictions today, a
CAPACITY: A will is invalid if the testator lacked mental
specific devise will adeem only if the testator intended the
capacity when the will was executed. To prevail in a will
devise to fail. If the testator did not intend for a specific
contest for lack of capacity, the contestant must prove
devise to fail, the beneficiary is entitled to:
that the testator did not know or understand:
1. Any property in the testator’s estate, which the
1. The nature and extent of his property;
testator acquired as a replacement for the specific
2. The persons who are the natural objects of
devise; OR
his bounty; OR
2. A monetary devise equal to the value of the specific
3. The disposition he was making of his property.
devise.
UNDUE INFLUENCE: A will is invalid if the testator executed
SLAYER STATUTES: A person who feloniously and
the will while under undue influence. Undue influence occurs
intentionally kills the decedent is barred from claiming a
when a person exerts such control and influence over the
share of the decedent’s estate as either an heir or a
mind of the testator as to overcome the testator’s free will.
beneficiary under the decedent’s will. Generally, the
To prevail in a will contest for undue influence, the
decedent’s estate is distributed as if the killer had
contestant must prove that:
predeceased the decedent.
1. The testator was susceptible to undue influence;
DISCLAIMERS: A beneficiary under a will can disclaim or
2. The wrongdoer had the opportunity to exert
undue influence over the testator;
renounce his interest under a testator’s will causing the
3. The wrongdoer actively participated in drafting
disclaimed property to pass as if the disclaiming party
the will; AND
predeceased the testator. A valid disclaimer must:
4. The will evidences a result that appears to be
1. Be in writing and signed by the person making the
the effect of undue influence.
disclaimer;
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TRUST CREATION
TITLE DIVISION: A trust is a fiduciary relationship between the
trustee(s) and the trust beneficiaries. When a trust is created,
title to property is divided between legal and equitable title:
1. Legal Title. The trustee holds legal title to the
property and becomes the owner of record for
the property.
2. Equitable Title. The beneficiary holds equitable title
to the property and is entitled to the financial
benefits of the property.
TRUST RELATIONSHIPS: There are three main parties
involved in the creation of a trust:
1. Settlor. The settlor is the person who creates the
trust (usually the person who places the original
assets into the trust).
2. Trustee. The trustee is the person who holds the
assets of the trust for the benefit of the
beneficiaries. The trustee manages the trust and its
assets under the terms of the trust.
3. Beneficiary. The beneficiary is the person who is
entitled to the assets or profits of the trust.
CREATION REQUIREMENTS: A valid express trust is created if
the following five elements are met:
1. The settlor has intent to create the trust;
2. There is trust property (i.e., the res);
3. An ascertainable beneficiary exists;
4. The trust has a trustee; AND
5. All parties comply with the requisite formalities.
TYPES OF TRUSTS
REVOCABLE/IRREVOCABLE TRUSTS: Under the common
law (majority view), a trust is irrevocable unless the settlor
expressly retains the right to revoke or amend the trust.
Under the Uniform Trust Code (minority view), a trust is
revocable unless the trust expressly provides otherwise.
TESTAMENTARY TRUSTS: A testamentary trust is created
through provisions of the settlor’s will and does not
come into existence until the settlor dies (must meet the
same formalities as the will).
RIGHTS OF CREDITORS
RIGHTS OF CREDITORS: The creditors of the beneficiary of a
trust have no greater rights in the trust property than the
rights of the beneficiary. If the trust prevents a beneficiary
from receiving the trust principal, then his creditors have no
right to reach the trust principal either. While creditors
cannot go after the principal, they may go after the interest
income if there are no spendthrift provisions. Moreover,
once trust income is paid to the beneficiary, a creditor may
initiate appropriate proceedings to reach that income in
order to satisfy a claim.
MODIFICATION OF TRUSTS
DEVIATION: Trustees and beneficiaries can request that the
court permit a deviation from administrative provisions in the
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trust instrument. Generally, a court will permit a deviation
if the purposes of the trust:
1. Have been satisfied;
2. Have become unlawful; OR
3. Are impossible to carry out.
CY PRES DOCTRINE: If it becomes unlawful, impossible, or
impracticable to carry out the purpose of a charitable trust,
the Cy Pres doctrine allows the court to modify the terms
of the charitable trust “as near as possible” to the original
intention of the settlor to prevent the trust from failing.
MODIFICATION BY THE PARTIES: Generally, a trust is
irrevocable and cannot be modified unless the settlor
retained the right to do so in the terms of the trust
instrument. However, in a minority of jurisdictions, the
settlor is free to modify or revoke the trust instrument
without express authorization to do so.
TRUST TERMINATION
TERMINATION: Generally, a trust may be terminated if:
1. The trust is revoked or expires pursuant to its terms;
2. The material purpose of the trust has been
satisfied or becomes unlawful, contrary to public
policy, or impossible to carry out;
3. The settlor and all of the beneficiaries
unanimously agree to terminate;
4. All of the beneficiaries agree AND no
material purposes for the trust remain;
5. Termination will further the purpose of the trust
due to circumstances that were not foreseen by the
settlor; OR
6. The court or trustee determines that the value of
the trust property is too low to justify the cost of
administration.
POWERS AND DUTIES OF TRUSTEES
FIDUCIARY REQUIREMENTS: As a fiduciary, the trustee must:
1. Manage the trust property exclusively for the
benefit of all the trust’s beneficiaries; AND
2. Administer the trust in good faith pursuant to
the terms and purposes of the trust.
DUTY OF CARE: The trustee possesses a duty to exercise the
degree of care and skill as a person of ordinary prudence
would exercise in dealing with his own property. In making
this determination, the focus is on the trustee’s conduct,
not the results of such conduct. Under the majority view,
the settlor may limit the potential liability of a trustee by
including an exculpatory clause in the trust instrument.
However, exculpatory clauses do not excuse the trustee for
acts done in bad faith.
DUTY OF LOYALTY: The trustee owes a duty of loyalty to the
beneficiaries where the trustee may not obtain any personal
gain from administering the trust, except for fees. The
settlor may expressly waive the trustee’s duty of loyalty in
the trust instrument. However, a waiver will not excuse the
trustee for acts done in bad faith.
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UCC SECURED TRANSACTIONS
ARTICLE 9 APPLICABILITY
SCOPE OF ARTICLE 9: Article 9 of the UCC applies to any
transaction intended to create a security interest in personal
property or fixtures (not mortgages on real property). A
security interest gives a creditor (secured party) the right to
sell a debtor’s property in order to satisfy a debt.
COLLATERAL: Collateral refers to the property in which a
security interest is created, and it extends to identifiable
proceeds from the property that serves as collateral. Article
9 defines different types of collateral as follows:
1. Goods. Goods are all things that are moveable when
a security interest attaches.
2. Consumer Goods. Consumer goods are goods that
are used mainly for personal, family, or household
purposes.
3. Inventory. Inventory includes goods that are kept by
a person for sale or lease.
4. Accounts. A security interest in a debtor’s
“accounts” covers any right to payment of a
monetary obligation, whether or not earned by
performance, for property that has been or is to be
sold (i.e., accounts receivable). A secured party can
collect directly from the person who owes the
debtor if the debtor defaults.
ATTACHMENT AND PERFECTION
ATTACHMENT: Attachment is essentially how a security
interest is created. Once a security interest attaches, it
becomes enforceable. A valid attachment requires that:
1. There is a valid security agreement memorializing
the security interest;
2. The debtor possesses rights in collateral beyond
mere possession; AND
3. The creditor extends value to the debtor.
PERFECTION: Once the security interest attaches, it is
enforceable. Perfection of the interest only enhances the
secured party’s rights to the property serving as collateral.
Generally, there are three different methods in which a
security interest may be perfected:
1. Filing. The filing of a financing statement or the
security agreement with the state by an authorized
party is the primary method of perfection.
2. Taking Possession. A secured party may perfect a
security interest in negotiable documents, goods,
instruments, or money by taking mere possession
of such items.
3. Automatic Perfection. The following security
interests are perfected automatically when they
attach:
a. A purchase-money security interest in
consumer goods; AND
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b. An assignment of accounts that does not
transfer a significant part of the
assignor’s outstanding accounts.
PRIORITY RULES
PERFECTED vs. UNPERFECTED: Generally, a perfected
security interest has priority over a conflicting unperfected
security interest in the same collateral.
MULTIPLE PERFECTED CREDITORS: Between multiple
perfected creditors, the first to file obtains priority. Some
collateral is not subject to the state filing system or cannot
otherwise be filed. In these instances, the first to perfect
obtains priority. Generally, knowledge of a prior
unperfected interest will not prevent a potential secured
party from filing first to obtain priority.
EXCEPTIONS TO THE PRIORITY RULES
ORDINARY COURSE OF BUSINESS: Buyers in the ordinary course
of business are protected even though their interest in the
property is created after the attachment or perfection of a
security interest. Buyers in the ordinary course of business take
the collateral free of the security interest created by the seller.
The protected buyer may sell the purchased collateral to a thirdparty free of the secured party’s security interest. A buyer in the
ordinary course of business is a person who:
1. In good faith and without knowledge that the sale to
him is in violation of the security interest of a third
party;
2. Buys in the ordinary course from a person in the
business of selling goods of that kind.
CONSUMER GOODS: A buyer of consumer goods takes
the goods free of a security interest, even if perfected, if
the buyer buys:
1. Without knowledge of the security interest;
2. For value;
3. Primarily for the buyer’s personal, family,
or household purposes; AND
4. Before the filing of a financing statement
covering the goods.
PURCHASE-MONEY SECURITY INTEREST: Generally,
PMSIs have priority over prior perfected security interests
if the PMSI is properly executed. A PMSI is either:
1. A security interest held by the seller of collateral to
secure payment of all or part of the price; OR
2. A security interest of a person that gives value to a
debtor so that the debtor may acquire rights in or
the use of collateral.
However, an unperfected PMSI in inventory will not have
priority over a perfected security interest in the same
collateral. A PMSI in non-inventory collateral has priority
over a conflicting security interest in the same collateral if
the PMSI is perfected at the time the debtor receives
possession of the collateral or within 20 days thereafter.
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RIGHTS OF THE SECURED PARTY
RIGHT TO REPOSSESS: Upon default, the secured party may
attempt to take possession of the collateral without judicial
process so long as they do not commit a breach of the peace.
RIGHT TO DISPOSE: Upon default, a secured party may sell,
lease, license, or otherwise dispose of any or all of the
collateral in its present condition or in any commercially
reasonable manner.
RIGHTS OF THE DEBTOR
NON-COMPLYING DISPOSITION: When a creditor makes a
non-complying disposition of collateral under Article 9, the
debtor can:
1. Recover actual damages;
2. Recover statutory damages; OR
3. Be subject to judicially mandated disposition of
the collateral.
REDEMPTION: Generally, a debtor or any secondary obligor
has the right to redeem (i.e., reclaim) collateral until the
secured party has disposed of it or entered into a contract for
its disposition. To redeem collateral, the debtor must:
1. Fulfill all obligations secured by the collateral; AND
2. Pay the reasonable expenses and attorney fees.
SURPLUS/DEFICIENCY: Generally, when a secured party sells
or disposes of collateral, the amount collected varies from the
amount of the obligation. If the sale brings in more than the
underlying obligation, the secured party must pay the debtor
for any surplus. Conversely, when the sale brings in less than
the underlying obligation, the obligor is liable for any
deficiency.
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