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Intentional torts - be ready to discuss the element of intent - look for related intentional torts - do not forget causation, damages and defenses 2. Negligence - focus on duty and breach - if there is a statute, consider both negligence per se and common law - remember the elements of causation and damages - do not forget the defenses 3. Defective products - discuss both strict liability and negligence 4. Defamation - determine the status of the speaker - determine the status of the plaintiff - consider invitation of privacy 5. Business torts - be ready for issues involving interference with a contractual relationship 6. Third party torts - consider defamation, invasion of privacy, business torts - consider issues of joint and several liability - respondeat superior STURCTURE OF ANSWER Intentional Torts In this example, underlined words show the proper thought process and organization. Do not literally write these headings in your bluebook. Battery example: Theory: P is suing D for a battery Prima facie Case: To establish the prima facie case for battery, P must prove Defenses: Defendant may be able to assert the privilege of self- defense. To do so, defendant must show … General Considerations: on these facts there is also a vicarious liability issue, in that the employer may also be liable. To establish this, P must show. Defamation P is suing D for defamation Prima Facie Case: To establish the prima facie cas for defamation, P must prove the following: (1) Defamatory statement about P (2) Publication (3) Injury to reputation (presumed or money damages) (4) Fault (depending on fact pattern) (5) Falsity (depending on fact pattern)
Defenses: Negligence Plaintiff is suing Defendant for negligence. Prima Facie Case: To establish the prima facie case for negligence P must prove the following: Duty: (1) Foreseeable P (2) Standard of Care Breach (i.e. negligent conduct): This is a fact discussion as to whether D complied with standard of care. Causation (1) Actual Causation (2) Proximate Causation Damages Defenses: Comparative Negligence State: AZ Rule : AZ is a comparative negligence state General Considerations: Products Liability P is suing D in a products liability action. Several theories may be available as follows: Negligence: Strict Liability: Warranty Liability: Discuss defenses for each theory in discussion of that theory. I. Intentional Torts A. Prima Facie Cases – First sEntence : To establish the prima facie case, P must prove… 1. BATTERY: an intentional act causing a harmful or offensive contact w/P’s person 2. ASSAULT: an intentional act causing a reasonable apprehension by plaintiff of an immediate harmful offensive contact with his/her person 3. FALSE IMPRISONMENT: an intentional act confining the plaintiff to a bounded area 4. INTENTIONAL INFLITION OF EMOTION DISTRESS: intentional and outrageous conduct causing severe emotional distress (AS : memorize precise language) 5. TRESSPASS TO LAND: AN INTENTIONAL ACT CAUSING A PHYSICAL INVASION OF p’S LAND 6. trespass to chattels/conversion: an intentional act causing damage to P’s personal property interest B. Defenses 1. Consent:
a. Was the privilege available on these facts? (1) Did plaintiff have capacity? (2) Was consent expressly given? (3) Implied by custom and usage or plaintiff’s conduct? b. If yes, did defendant stay within its boundaries? 2. DEFENSE PRIVILEGES ( self-defense, defense of others, defense of property): a. Was privilege available on these facts? (1) Self-defense: reasonable belief that tort is being or about to be committed on D (2) Defense of others: reasonable belief that tort is being or about to be committed on third person (3) Defense of property: reasonable belief that tort is being or about to be committed on property b. If yes, did defendant use a proper amount of foce? (1) test: reasonable force. NOTE: What is reasonable depends on the tort against which you are defending e.g., if someone is trying to murder you, you may use deadly force to defend yourself. 3. NECESSITY (Applicable only to property torts): II. DEFAMATION/PRIVACY A. Defamation 1. Prima Facie Case First Sentence: To establish the prima facie case, P must prove… a. defamatory statement about P b. publication c. injury to reputation – presumed if libel per se or slander w/in four slander per se categories; special damages ( i.e. money injury) require if a slander not w/in the four slander per se categories d. fault if the matter is one of public concern e. falsity if the matter is one of public concern 2. Defenses a. truth (if the matter is not one of public concern) b. absolute or qualified privilege B. Privacy 1. elements: a. appropriation by D of P’s name or picture for D’s commercial advantage b. intrusion by D into P’s privacy or seclusion c. publication of facts placing p in a false light d. publication of private facts about P
Five different theories are possible 1. proximate (based on lack of foreseeability) (1) direct cause case (2) indirect cause case 4. NOTE. NOTE: “Publication” in privacy law means broad dissemination III. Defenses 1.” 3. Damages B. Duty of Care a. Absolute duty owed by commercial supplier a. Prima FACE Case 1. Contributory negligence 2. proximate 4. actual (causation in fact) b. ProDUCTS LIABILITY A. Breach a. Strict products liability 1. Absolute duty on the part of the defendant to make safe 2. Breach of that duty 3. D’s conduct must be objectionable to the average person of ordinary sensibilities. Strict Liability for Dangerous Animals C. Implied warranty 5. NOTE: res ipsa loquitur is discussed when facts are unclear as to whether defendant’s onduct was negligent 3. Intentional tort 4. Strict products liability 2. wholesaler or retailer . B. FOR LAST three privacy branches in the prima facie case discussion use this sentence in answer and then discuss facts: a. Prima Facie Case 1. actual b. fact discussion as to whether defendant met statndard of care b. Comparative negligence(AZ) IV. commercial supplier includes manufacturer. Negligence 3. Strict liability A. 2. Causation a. Causation a. Damages B. Express warranty/misrepresentation 6. NEGLIGENCE A. foreseeable P b. Strict Liability for Ultrahazardous or Abnormally Dangerous Activities V.2. standare of care NOTE: A miscellaneous duty question deals with whether there is ever an affirmative duty to act.
Causation a. Express Warranty/Misrepresentation VI. vicarious liability (liability for someone else’s tortuous conduct) a. duty is owed to users. Causation a. Implied warranty of merchantability or fitness for ordinary purpose 2. Damages a. or (2) product could have been made safe without serious impact on its price or utility b. privity is no longer required c. failure to warn (1) product is unsafe because the manufacturer has not given adequate warnings of the dangerousness of the product d. Breach of duty: three types od breach a. Are there two or more defendants? If so. product is defectively designed (1) product was not safe for its intended use. Intentional Torts 1. use the prima facie case for battery E. no breach where the product was substantially altered after it left the defendant’s control 3. actual b. If defendant intentionally put a dangerous product in the stream of commerce. duty only applies to products. D. Negligence (same as any negligence action) 1. consumers and bystanders. same as negligence b. Rarely used for products liability because a P must prove that the D acted intentionally 2. D’s fault must be established) 3. many courts will deny recovery if only economic loss is involved C. product is defectively manufactured (1) a mistake is made in the manufacturing of the product that causes the product to be unreasonably dangerous. proximate 4. standard of care b. respondeat superior (!) employer/employee relationship . proximate 4.b. services are not included 2. c. think about: 1. unlike strict products liability. General Considerations A. Implied Warranty 1. Implied warranty of fitness for a particular purpose F. Damages. Breach (note. actual b. Duty a. foreseeable plaintiff 2.
in rem jurisdiction 4. Federal courts only have jurisdiction over two types of claims: . Appointment of agent for service iv. tort immunites VII.g. State’s interest 3. Injunctive Relief B. Assertion of jurisdiction over non-residents a. Tort Remedies A. The only limits are statutory 2. Traditional ways of asserting jurisdiction a.(2) tort committed w/in the scope of employment 2. think about: 1. e. Purposeful availment ii. Implied consent. Constructive Trust/ Equitable Lien b. Is D an immediate family member. Restitution C. Notice –service of process B. releases b. Traditional notions of fair play and substantial justice i. Quasi-in rem jurisdiction 5. Personal 1. State long-arm statute. Civ Pro Outline For Essay I. Appearing in the action ii. State courts are generally courts of unlimited jurisdiction. Presence in state when served c. joint tortfeasor problems a. Convenience iii. indemnification B. Relatedness between claim and contact (less important if contact is great) ii. Did someone die? If so. contribution c. and b. Domicile b. survival acts/wrongful death acts C. Consent i. Minimum contacts i. government or charity? If so. b. think about: 1. non-resident motorist statutes 2. Foreseeability c. Jurisdiction A. Subject Matter JX 1. By contract iii.
Rule 12 motions D. Complete diversity ii. Diversity actions i. . In diversity cases: a. Residence a. If none of the above. Good faith allegation of damages over $75K c. B. Federal cts are required to apply state substantive law to non federal causes of action B. statement of the claim 3. PLEADINGS A. fed cts will apply some state “procedural” rules when those rules have no bearing on the mechanics of the fed court system.. Forum non conveniens ERIE DOCTRINE A. Requirements for all pleading s in fed cts 1. For individuals. Supplemental jurisdiction C. If not district meets a. Where all defendants reside. residence equals domicile b. Answer 2. Cts use notice pleading – the pleading must put the opposing party on notice of the claim. Fed question b. By contrast. or b. Where a substantial part of the claim arose c. Fed. In all other cases: a. or b. Defendant’s response 1. Permissive II. where any defendant can be found 3. or b. Compulsory 2. Transfer b. statement of smj 2. where all defendants are subject to personal jurisdiction. The Necessary and Proper Clause allows federal courts to apply federal procedural rules. some states use code pleading.a. Complaint 1. A corporation “resides in all districts where it is subject to personal jurisdiction 4. Venue 1. Removal d. Where all defendants reside. Counterclaim 1. In addition. demand for relief C. 2. III. Improper or inappropriate venue a. Where a substantial part of the claim arose c.
motion to compel plus costs 2. 2. TPD 3. 3. Permissive intervention 3. Other claims: TPD v. Enforcement of discovery rules(sanctions) 1. An action must be brought by the real party in interest B. Joinder of parties 1. F. Privileged matter not discoverable 3. Scope of discovery 1. court must either proceed w/o absentee or dismiss the case. Interrogatories. If joinder of necessary party not feasible (e. typicality. Class Actions 1. Requests to Produce. commonality (law or fact).” C. Required disclosures B. Depositions. Supplemental jurisdiction (if needed) for impleader and TPD v.IV. A Types of discovery 1. common question predominate D. Prejudice 2. Types 1. Partial failure. RAMBO sanctions include: . Anything reasonably calculated to lead to admissible evidence 2. Amendment of pleadings PARTIES A. Cross-Claims 1. V. Work product C. Initial requirements (Numerosity. Indemnity or contribution 2. Intervention as a right 2. Interpleader 1. Supplemental jurisdiction (if needed) F. adequacy (of representation). Injunction/declaratory judgment 3. Supplemental jurisdiction (if needed) for intervention of right or defendant E. Impleader 1. call the absentee “indispensable. Statutory Interpleader Discovery A. Violation of order compelling : Rambo plus costs and attorney’s fees and contempt (although no contempt for failure to submit to physical/mental exams) 3. Necessary parties should be joined 2.g. Supplemental jurisdiction (if needed) for compulsory E. if dismiss. Physical or Mental Examinations. Total failure : RAMBO plus costs and attorney’s fees 4. would destroy diversity jurisdiction). Rule 22 Interpleader 2. P. Intervention 1. plaintiff and plaintiff v. Requests for Admission.
Partial summary judgment can be granted. voluntary or involuntary C. Judgment as a matter of Law 3. Disregarding jury verdicts 1. 12(b)(6). Exceptions to the Final Judgment Rule 1. Summary Judgment 1. State constitutional provisions and statutes also guarantee jury trials B. Disallow evidence on an issue b. a special verdict or a general verdict with interrogatories E.VI. but not for equitable actions.failure to state claim B. Renewed Motion for Judgment as a Matter of Law a. VII. Strike the pleadings d. Equitable actions involve specific performance. state courts will generally not permit a jury trial if the legal claims are incidental. The moving party must show that there is not triable issue of fact and entitled to judgment as matter of law 2. Dismiss the cause of action or the entire action (bad faith) e. D. Legal Actions are actions for money damages or to recover property. Dismissal 1. Evidence is considered in the light most favorable to the party opposing the motion. Must certify that tried to get information w/o court involvement Pre-Trial Motions A. Federal courts have rejected the “clean-up” doctrine and guarantee a jury trial even for incidental legal issues. a. At the close of all evidence is a prerequisite to a renewed motion for judgment as a matter of law b. Motion for a New Trial APPEALS A. The verdict can be a general verdict. 7th Amendment guarantees a right to jury trial for actions at common law. Nonsuit 2. Enter a default judgment (bad faith) 5. Evidence must be such that reasonable persons could not differ as to which party ought to prevail 4. reformation or injunctive relief for example. JURY TRIAL A. In deciding whether an action is legal or equitable. VIII. Pretrial orders involving temporary remedies . When an action contains legal and equitable claims. courts will focus on the nature of the remedy and the nature of the action C. The final Judgment Rule requires a final judgment of the entire case before an appeal may be taken B. Establish the issue adverse to the party who violated discovery rules c.
Supplemental jurisdiction – pendent /ancillary w/discretion d. The Constitution requires that full faith and credit be given to public acts. a. 2. ID the court and define the type of case allowed. E. Does the court have authority over the parties (Personal Jurisdiction) 1.IX. es the Court Have the Authority to Decide the Dispute D. Collateral Estoppel (Issue Preclusion) 1. Final judgment on collateral matters 3. 2. SMJ can’t be waived. or indispensable parties B. Rulings on motions for Renewed Judgment as a matter of Law. Who is bound by the judgment? 1. res judicata prevents re-litigation of the plaintiff’s cause of action. On the merits is any judgment except one based on jurisdiction. venue. fine notice w/in 30 days in the Superior ct of any county e. To appeal. Binding in Future Cases? A. Full faith and credit is not required for foreign country judgments i. Other JX a. Full faith and credit is only required when the court had personal jurisdiction over the parties and the court issued a final judgment on the merits c. 2. although different. . Default and consent judgments do not involve litigation of the merits and therefore do not give rise to collateral estoppel. Attack at any time. 3. When there is a final judgment on the merits. Strangers are generally not bound. Diversity all plaintiffs and defendants + >75k in controversy c. Fed Ct. Does the court have authority over the subject matter? (subject matter jurisdiction) 1. records and judicial proceeding of sister states. Parties are bound 2. action between the plaintiff and defendant or their privies. 4. C. Federal statutes compel recognition of federal court judgments b. Privies to parties are also bound including those who control the litigation and will be affected by the outcome. Issues of fact actually litigated and essential to a judgment in a first action are conclusive in a subsequent. Courts have “PJ to the max” extend permitted by the consitituion. Fed Question – right founded substantially on Fed law b. 2. Interlocutory orders of great importance that may be determinative of the ultimate decision. 4. Res Judicata (Claim Prelusion) 1.
Is grant of jurisdiction consititutional? a. Is method reasonably calculated to apprise D of the litigation? C. Partnership D. Did Def Receive Proper Service of Process? A. B. 2. Actions against a corporate defendant must be brought where the action arose or where the agent for service resides. XII. Is service upon an entity? 1. 3. Actions against non-residents and actions for divorce must be brought in the county where the plaintiff resides. Presence (a) physical (b) domicile (c) Doing business b. Actions involving real property must be brought in the county where the property is located. . B. AZ courts use notice pleading – the pleading must put the opposing party on notice of the claim. Fairness – Does Defendant have minimal contacts with AZ so as not to offend fair play and substantial justice? b. Publication B. Removal to Federal Ct 1. Mail and acknowledgment 5. General i. 2 types of PJ in AZ: a.2. ID method used 1. If case could have been brought in Fed Ct Originally Are the Pleadings Proper? A. Personal service 2. Requirements for all pleadings 1. Corporation 2. object to improper venue with motion to transfer at or befor the time the answer is due C. In AZ. Consent ii. Specific (Long arm statute) 3. the D ordinarily must be sued in the county where she resides. Object to improper service within 20/30 rule by motion to dismiss Is the Court the proper place to resolve the dispute (venue)? A. Complaint XI. Abode service 3. w/in 30 days 2. Agent service 4. EXCEPT 1. Purposeful availment c. If all defendant agree 3. Reasonalbe expectation of being haled in AZ court X.
Arizona 2. Statement of subject matter juris 2. Conclude either necessary or indispensable Can additional parties participate in the resolution of the Dispute? A. Approach to analyzing whether a party must be joined: a. Indispensable parties must be joined. Necessary parties must be joined if feasible 2. Zlaket Rules analysis 1. Counter claim 1. XV. Courts are reluctant to find a party indispensable. Was the scope proper? B. Was the method proper? 2. A party is indispensable if her absence would prevent the court from rendering an effective judgment or would prejudice any party before the court. Answer (20/30) 2. An action must be brought by the real party in interest. Class Actions 1. Commonality. Is there prejudice from the 3rd party whether a party must be joined: b. Federal Have Parties Properly propounded and Replied to Discovery? A. Demand for relief C. under oath and signed b. Compulsory 2. Numerosity. In writing. the action must be dismissed. Statement of claim 3. File notice of disclosure with court . Rule 12 motion D. If an indispensable party cannot be joined. Can the third party be joined? (analyze Pj) c. Def’s response 1. 1. Cross-claims F. Joinder of parties – same transaction(S) or occurrence(s) 1. Impleader (Third-Party Practice – indemnity/contribution) D. or Damages – common question predominates 3. Intervention as of right 2. Equitable relief sought. 3. XIV. Prejucide to class/D. Typicality 2. B. Interpleader 1. Subject matter jurisdiction (CAFA) B. Amendment of pleadings Are the Proper Parties Before the Court? A.XIII. Adequacy. Automatic prompt disclosure a. Methods of Discovery 1. Permissive E. Permissive intervention C. Intervention (non-party wants to join) 1.
. but not for equitable actions. Enforcement of discovery rules (sanctions) 1. Dismiss the cause of action or the entire action 6. Offer of Judgment B. Interrogatories c. Due diligence used D. Requests to admit e. Equity says unconscionable to let stand 3. Relief from Judgment 1. Hold the party in contempt. Moving party shows no genuine issue of material fact 2. Notify defendant 3. Strike the pleadings 5. Scope of discovery = what is relevant and not privileged 1. Enter a default judgment 7. Prove-up hearing for damages or exception C. Involuntary E. Depositions d. 10 day grace period 5. New facts arose 4. Can the dispute be resolved without a Trial? A. Duty to supplement w/in 30 days C. Dismissal 1. Disallow evidence on an issue 3. Presumptively relevant 2. Voluntary 2. but only if there has been a violation of a prior court order to make discovery. Partial summary judgment can be granted XVII. Production of documents b. Award costs and attorney’s fees 2. Seek entry of default 4. Work product is not discoverable without special showing D. Default judgment entered 6. XVI.2. pretrial Conference mandatory once requested E. presumptive limits – rebut with good cause a. Merits exist 2. Who will decide the Matter? A. Must keep log of privileged material 3. State constitutional provisions and statutes also gurantee jury trials. Summary Judgment 1. 7th Amendment guarantees a right to jury trial for actions at common law. Default 1. If there is a Trial. Experts 3. Establish the issue adverse to the party who violated discovery rules 4. File written application 2.
reformation or injunctive relief for example. Default and consent judgments do not involve litigation of the merits and therefore do not give rise to collateral estoppel. although different.B. Issues of fact actually litigated and essential to a judgment in a first action are conclusive in a subsequent. Pretrial orders involvind temporary remedies 2. Evidence must be such that reasonable persons could not differ as to which party ought to prevail. Renewed Motion for Judgment as a Matter of Law(15 days) 1. Equitable actions involve specific performance. Evidence is considered in the light most favorable to the party opposing the motion. Who is bound by the judgment? 1. Privies to parties are also bound including those who control the litigation and will be affected by the outcome. When there is a final judgment on the merits. Motion for a New Trial (15 days) XIX. The Final Judgment Rule requires a final judgment of the entire case before an appeal may be taken B. action between the plaintiff and defendant or their privies. Legal Actions are actions for money damages or to recover property. Can the Decision Be Appealed? A. motion for JMOL is a prerequisite to a renewed JMOL motion. C. Rulings on motions for Renewed Judgment as a matter of Law. Res Judicata (Claim Prelusion) 1. 3. 4. C. Final judgment on collateral matters 3. Judgment as a Matter of Law (formerely Directed Verdict) B. Parties are bound 2. Exceptions to the Final Judgment Rule 1. courts will focus on the nature of the remedy and the nature of the action. XX. If there is a Jury. 2. res judicata prevents re-litigation of the plaintiff’s cause of action. XVIII. Colateral Estoppel (Issue Preclusion) 1. . Interlocutory orders of great importance that may be determinative of the ultimate decision. In deciding whether an action is legal or equitable. Is the Decision Binding in Future Cases? A. Strangers are generally not bound. Can the Jury be Disregarded? A. 2. B.
Liability insurance 2. “On cross examination … or “in rebuttal”) 2. Ask yourself whether it is being offered for impeachment. Subsequent remedial conduct 3. Bad reputation for truth 3. . Criminal (1) Prosecution (a) 404b (b) Defendant opened door (2) Defense – anytime b. misleading the jury d. Civil (1) Habit (2) Character in issue by virtue of case. B. look for: CHARACTER EVIDENCE 1. prior bad acts A. Bad acts e. Legal relevance Extrinsic social policy exclusions 1. Substantive Character Evidence a. I.EVIDENCE Begin each discussion with the issue of relevance Consider whether legal relevance applies. Bias c. Guilty pleas Prejudicial impact v. Settlement offers 4. A. II. Start by defining logical relevance: Evidence is relevant if it tends to prove or disprove a fact in consequence. confusion of issues c. If testimony. Prior conviction of crime d.g. does it fall within those areas of common perception? These areas are ones that laypersons frequently observe: A. documents. Common Impeachment Techniques a. inflammatory b. B. probative value 1. Prior inconsistent statement b. Prejudice must substantially outweigh probative value a. Payment or offers to pay medical expenses 5. Relevance Approach Always analyze whether each item of evidence is logically relevant 1. (Look for key words (e. Ask yourself whether it is lay opinion or expert opinion If it is lay opinion. undue consumption of time III. OPINION 1. Hearsay.
Offered for the truth of the matter asserted? What is the out of court statement? C. Is the expert qualified on the subject? If documentary evidence. Learned treatises B. Past recollection recorded 2. Sanity e. What exceptions are Raised by the facts? Hearsay Exceptions A. Ancient Document 5. Photographs 6. Speed c. Handwriting f. Exceptions Which Do not Require the Declarant to be Unavailable: 1. Authentication 1. Business records 3.IV. Collateral writing c. Self. V. Present sense impression . Is the testimony based on matters upon which an expert might reasonably rely? c. look for: A. Is the subject matter one whre expert testimony would assist the trier of fact? b. Eyewitness testimony 3. a. Summaries of voluminous records d. does it satisfy the three part test: a.authentication B. Exceptions a. Admission by party 4. 2. Excited utterance 1. Ancient documents 5. Public records Hearsay Approach A. the original must be produced. Fact exists independently b. If expert opinion. When proving the terms of writing. Other 2. Handwriting verification 2. Official records 4. Intoxication d. Best Evidence Rule 1. Is the out of Court Statement a Document? D. Weather b. VI. Documentary Exceptions: 1. Is it an out of court statement? What is the witness testifying about? B.
Declaration against interest 2. Cat-All Exception Under Federal Rules. Former testimony D. Is the communication within the scope of the privilege? 5. Dying declaration 3. VIII. Settlement offers and withdrawn guilty pleas D. Liability insurance C. Approach 1. Are there any exceptions or waivers? Policy Exclusions A. Exceptions Which Require the Declarant to e Unavailable. State of mind 3.VII. Bodily conditions C. Who is the holder of the privilege? 4. Offers to pay medical expenses . 1. Subsequent remedial measures B. Privileges A. Identify the privilege and its scope 2. Analyze whether the privilege applies here 3. 2.
Tenant Duties and LandLord Remedies 1. Duty to Repair d. Tenancy in Common C. Landlord Remedies’ Eviction / Unlawful Detainer Rents and Damages C. Tenancies for Years Periodic Tenancies 2. Duty of Reasonable Care CONCURRENT OWNERSHIP A. b. Rights and Duties of Co-Tenants 1. LandLord – Tenant A. Tenant Duties a. Duty to Deliver Possession of Premises c. Avoid Waste 2. a. Joint Tenancy 1. Covenants Against Assignment or Sublease 4. Nature of Leasehold 1. c. Express Provisions of the lease b. LL Duties a. Consequences of Assignment 2. Possession . Tort Liability of LL and T 1. b. Public Use d. Quiet Enjoyment d. Repairs e. Tenancies at Will B. Severance B. Assignments and Subleases 1. Express Provisions of Lease b. Latent Defects b. Duty Not to Use Premises for Illegal Purposes e. Common Area Defects c. d. Consequences of Sublease 3. Avoid Retaliatory Eviction D. II. LL Liability a. I. look out for landlord – tenant be ready to discuss remedies know easements and analyze all 4 types of easements be ready to address adverse possession. Creation 2. Assignment by LL E. LL Duties and T Remedies 1. Duty to pay rent c.REAL PROPERTY a. Implied Warranty of Habitability e.
Duty of Fair Dealing III. Requirements for Benefits to Run 4. Rights and Duties of Easement Holders 4. Types of Easements a. Easements 1. Actual and Exclusive 3. Termination of Easement Express Conditions Merger Release Abandonment Estoppel Prescription Necessity Condemnation and Destruction. Adverse Possession A. Implication (by operation of law) d. Remedy D. Equitable Defenses to Enforcement 5. Covenants Running with the Land 1. IV. Rights and duties 3. Easement Appurtenant d. Necessity c. Requirements for Benefits to Run 3. Termination C.1) 2) 3) 4) 5) 6) 7) 8) 2. B. Requirements for Burden to Run 3. Encumbrances 4. Termination. Negative c. Requirements for Burden to Run 2. Open and Notorious 2. Requirements 1. Creation 2. Licenses and Profits 1. Expenses for Preservation 6. Easement in Gross 2. Equitable Servitudes 1. Rents and Profits 3. Prescription 3. Continuous . Creation of Easements a. Affirmative b. Creation 2. Express Grant b. Rights in the Land of Another A. Partition 5.
Recording Security Interests in Real Estate A. Seller’s Liability for Defective Property B. Water Rights C. Statutory period Conveyance A. Delivery and Acceptance 4.V. Statute of Fraud 2. Covenants in Deeds 5. Hostile 5. Time for performance 5. Redemption. Remedies 7. VI. Sale. Deeds 1. Transfers by Mortgagor and Mortgagee Natural Rights A. Land Sale Contracts 1. Installment Land Contract 4. Deed of Trust 3. Foreclosure. Types of Interest 1. VII. and Priorities C. Formalities 2. Absolute Deed 5. 4. Right in Airspace . Lateral and Subjacent Support B. Description of aland 3. Doctrine of Equitable Converision 3. Tender of Performance 6. Marketable Title 4.Leaseback B. Mortgages 2.
What is the law and analysis regarding the issue. b. 5. always consider both sided and preentth present the counter arguments. Taxing d. Mootness D. Scope of Fed Powers 1. Abstention C. Ripeness B. Is there a justiciable case or controversy 2. What kind of constitutional issue is involved? a. is there state action 4. ID the individual right involved. Source of power a.a. . Structure of the answer 1. Congress B. Justiciable case or controversy A. Spending c. Separation of Powers 1. Con Law . Civil Rights g. State Interference with Fed System Preemption Dormant Commerce Clause Discrimination against out of state interest Undue burden on interstate commerce 3. Branches of Gov a. Judicial b. such as case or controversy. Inividual rights? 3.always begin by briefly discussing issues of standing. Privileges & Immunities Clause . If individual rights. Executive c. Commerce Clause b.For balancing tests. attack law as applied to the facts . Political Question E.1st amendment issues attack law on its face. What kind of constitutional issue? A. War i. Elections Limitations on power of 10th Amendment C. Standing II. Scope of fed powers? c. Citizenship f. Taking Property e. State interference w/federal powers? d. Foreign Affairs h. Separation of powers? b. including any defenses that an adverse party may interpose? I.
D. Individual Rights 1. State Action – analyze first 2. Speech a. Prior Restraint? b. Vagueness or overbreadth? c. Content Regulation or Content neutral? (1) Content Regulations – Advocacy of Unlawful Conduct, Defamation, Obscenity, Fighting Words, Commercial Speech. Know the tests for each. (2) Content Neutral – Time, place & Manner, Public Forums, Symbolic Expression, Freedom of Association. Know tests for each; generally compelling state interest standard. 3. Taking (5th Amendment) a. Taking must be for public use b. Taking requiring just compensation v. a regulation under police power not requiring just compensation. (1) Just compensation? Usually fair market value 4. Religion a. Establishment Clause (1) Constitutional if: (a) Secular Purpose (b)Secular Effect © No undue entanglement b. Free Exercise Clause 5. Equal Protection a. Classification of Fundamental Interest? (1) Fundamental Right (1st Amendment, Privacy, Voting) (a) Requires Strict Scrutiny (2) Classification (a) Suspect – race and alienage, requiring strict scrutiny (b) Quasi suspect – gender and illegitimacy, requiring middle tier analysis (c) Other classes – wealth, age, and others requiring rational basis b. Scrutiny? (1) Strict Scrutiny – compelling state interest and means necessary to achieve state interest (2) Middle Tier – important state interest and means substantially related Rational Basis – legitimate state interest and means rationally related (3) Rational Basis – legitimate state interest and means rationally related 6. Substantive Due Process a. Marriage, Procreation, Privacy b. Strict Scrutiny
7. Procedural Due Process a. Life, Liberty or property interest? b. What process is due?
RemediesAlways look first to Legal Remedies then Look to Equitable Remedies i) 4 b) .
check. Indorser 3. Presenter 6. but subject to real defenses III. Identify trigger instrument (note. draft. HDC takes free from personal defenses/ claims. Analyze the issue 1. Drawee (Payor) Bank v. Unconditional c. Order or Bearer instruments c. transfers or gives instrument to a third party 3. Holder v. Maker (Drwer) HDC rule 2. review the checklist of possible issues 1. Holder b. Analyze required elements of the Indorser’s contract 1. W/O any other unauthorized promise 2. Promise or order b. Notice of dishonor . 2. To pay a fixed sum d. Is the holder a holder in due course (HDC)? a. Maker (Drawer) A. Accord and Satisfaction II. ISSUE SPOTTING A. etc. On demand or at a definite time e. Holder v. Drawee 5. The third party sues the maker (not the original payee) B. Basic obligation: Indorser’s signature C. Last indorsement rule (Special/Order. Is the instrument a negotiable instrument? a. Drawee 4. Has the instrument been negotiated? a. Look for an instrument in the fact pattern (note.Commercial Paper I. INDORSER A. w/o notice e. Holder v. lBank/Bearer) 3. draft. check or an “instrument”) B. Original payee indorses. Presentment 2. Spot and set up the issue 1. To bearer or to order f. HDC Issue – Holder v. Value ‘ c. Good Faith d. HOLDER v. Identify theory of recovery: Contract of secondary liability B. Dishonor 3. Drawer v. Original payee must negotiate the instrument to another b. Exception: Non-holders in due course 4.
Warranty liability – Indorser becomes a transferor by indorsing the instrument. Reimbursement w/in 90 days V. Analyze possible claims 1. No knowledge of insolvency proceedings IV. Failure to inspect/ notify (consider Statute of limitation) VI. Foprged indorsement rule – breach of presentment warranty VI. Drawer negligence 5. Payor (Drawee) Bank A. There are five transfer warranties: 1.D. Forgery liability a. Collection constitutes discharge B. Signatures are genuine 3. Drawer forgery rule B. Drawee (Customer v. Accord and Satisfaction A. Drawee Certification Drawer liability release Remedies Drawer v. Defenses 1. Paid in full 3. Ratificatoin 2. Hoder v. Good faith disputed claim 2. Forged indorsement B. Elements to be shown by moving party 1. Fictitious payee rule 3. No defenses 5. . Entitled to enforce 2. Analyze possible defense (comparative negligence applies) 1. No material alteration 4. Maker’s forgery b. Employer responsibility rule 4. Designation of central address for receipt 2. Wrongful dishonor (should have paid but did not) 2. Bank) A.
If time allows. If the decedent dies intestate. What is the resulting character of the property? For each item of property. Analyze the character of the property. All property acquired during the course of the marriage is presumed to be community (CP). I. analyze what will be done with it for purposes of the question (e. the surviving spouse is entitled to the decedent’s share of the CP and 1/3 of all of the decedent’s separate property depending on whether the decedent’s separate property depending whether the decedent left issue or parents surviving. 2.g. What presumptions apply to the property? d. Repeat steps 1-3 of each item of property. What was the source of funds used to acquire the asset? c. the decedent may leave all of his separate property and one half of the community property. if the petition results in a decree. Isolate each asset acquired by the spouses and use a heading to break up your discussion by asset. In addition. add: In order to determine the character of any asset courts will trace back to the source of funds used to acquire the asset. When was the property acquired b. a. devise or bequest is presumed to be separate property.” C. legal separation or annulment. Transmutation: Transmutation may affect all of the assets. the community assets will be equitably divided unless some special situation requires deviation from the substantially equal division requirement. . 1. All property acquired before marriage or after service of a petition.” Or Death: At death.Community Property Divide the question by item of property. Analyze whether there are any issues that affect all of the assets. Have any actions been taken by the parties which would change the character of the property? e. therefore you may want to discuss an issue like this at the outset. Start your essay by explaining the basic presumptions which govern the law of community property: “Arizona California is a community property state. A mere change in form of an asset does not change its characterization.Community Property Wring an Essay A.. Separate each item of property 1. or service of a petition that results in such) “At dissolution. if the question involves divorce. a substantially equal division of the community assets will be ordered). is presumed to be separate property (SP).” B. any property acquired by gift. Are there any issues that affect all items of property? Conclude with who gets what corresponding to the call of the question. Termination of the community (decree of dissolution.
6. Isolate each asset acquired by the spouses and use a heading to break up your discussion by asset. Analyze under contract and equity principles 3. and b. capacity. 3. D. Isolate any liabilities incurred by the spouses and use a heading to break up your discussion by liability. Personal injury awards are CP to the extent they compensate for loss of wages and medical expenses. Creditors 2. To the extent disability benefits re taken in lieu of retirement benefits. Premarital agreement: May be used to “opt out” of community property rules. Retirement benefits are CP if earned during the course of the marriage. . Separate each item of property. 5. not unconscionable and full and fair disclosure.2. If: a. E. Business and professional goodwill is CP if earned during marriage. 4. A spouse who supported the other spouse in obtaining a degree may be entitled to a maintenance award as a result of the contributions to the education. Education and training are not CP. and c. Invalid Marriage a. Disability pay and worker’s compensation benefits are treated like tort recoveries. Courts use the time rule to determine the respective CP or SP shares. 1. Courts which treat severance as SP do so because they believe the severance pay replaces future wages which would have been received. 7. courts use the “present cash value” rule to determine how much of the pension is attributable to CP labor and how much is attributable to SP labor. 2. Personal Injury awards are divided between CP and SP. Severance pay – If it arises on the bar exam. 1. Voluntary. If it can’t be determined. signed by both parties. 1. In writing. license and ceremony b. Stock options are a form of employee compensation and they are treated as CP or SP depending when they were earned. the disability benefits are treated as retirement benefits. all of the decedent’s SP unless the decedent left issue who are not also issue of the surviving spouse. Non-drafting spouse has adequate property or adequate earning capacity or independent counsel. The remainder is SP. For each asset or liability determine whether any special classification exists and set forth the special classification rule. F. courts use reserve jurisdiction method. Fore retirement benefits earned before and during the marriage. Look at age. raise arguments on both sides.
Retirement benefits are CP if earned during the course of the marriage. Personal injury awards are CP to the extent they compensate for loss of wages and medical expenses. courts use the “present cash value” rule to determine how much of the pension is attributable to CP labor and how much is attributable to SP labor. Fore retirement benefits earned before and during the marriage. a gift is presumed. 5. 3. When community and separate funds are used to purchase an asset. H. The remainder is SP. 2. 4. Disability pay and worker’s compensation benefits are treated like tort recoveries. Pay off When property is acquired with community and separate funds the community and separate property interests are determined by apportioning their respective contributions. Business and professional goodwill is CP if earned during marriage. Property acquired with community and separate funds. you start by figuring the percentage that each contributed to the purchase. A spouse who supported the other spouse in obtaining a degree may be entitled to a maintenance award as a result of the contributions to the education. G. For each asset or liability determine whether any special classification exists and set forth the special classification rule. To the extent disability benefits re taken in lieu of retirement benefits.2. . the disability benefits are treated as retirement benefits. courts use reserve jurisdiction method. (a) When a spouse uses CP to benefit the SP of the other spouse. the CP is entitled to the rest. the CP is entitled to reimbursement. Personal Injury awards are divided between CP and SP. 1. 1. If it can’t be determined. The CP is entitled to the cost of the improvement or the increase in value of the SP whichever is greater. At divorce the SP is entitled to its actual contribution to the purchase plus its pro rata share of the appreciation. the CP and SP acquire a pro rata ownership interest in the asset. the CP does not obtain a pro rata ownership interest in the asset but may be entitled to reimbursement. Then subtract the amount the CP contributed to pay off the MTG. Education and training are not CP. 1. When spouse uses CP to improve the SP of a spouse. (b) When a spouse uses CP to benefit the spouse’s own SP. Isolate any liabilities incurred by the spouses and use a heading to break up your discussion by liability. To determine the respective shares of ownership. 2.
Set for the applicable rule comopeletely: “At death. The legislation was later revised so that property taken by a married couple in any joint . the community is entitled to the amount applied to principal plu a pro-rata share in the appreciation. 4. The MWSP is based on the face that prior to 1975 the husband was given sole management and control of he community assets and thus. Or “At divorce. Under California Family Lw. there (was/was not) a valid transmutation because…” 3. Actions by the spouses altering the character of property. To determine the respective shares. Improvements: When CP is used to improve the SP of a spouse.” 2. you start by figuring out the percentage that each contributed to the purchase price. Separate Property funds used to pay-off or improve CP is presumed to be a gift.” a. property taken in the name of the married woman prior to 1975 is presumed to be her separate property. Any SP used to acquire the asset is presumed to be a gift of the SP unless there is an oral or written agreement to the contrary.a. but must be in writing and signed by bothe parties to satisfy the statute of frauds. Married Woman’s Special Presumption . When community funds are used to pay off a mortgage on a piece of separate property. Premarital agreements (agreements before marriage) are enforceable. Does not apply to assets where some intent other than a gift is shown or where the woman controlled how title to the asset was taken. it is inconsistent with the preservation of a SP interest in the asset.a special presumption which applies to property taken in the woman’s name alone prior to 1975. the rules vary depending on when the asset was acquired. the asset is presumed to be community property for purposes of divorce. Define what it is: “A transmutation is an agreement between spouses to change the character of an asset or series of assets. b. 3. when a married couple takes title to an asset in JT after 1984. Transmutations (agreements during marriage) a. 1. the CP is entitled to the appreciation in value due to the improvement. First ID whether the characterization is taking place at divorce or at death. According to the MWSP. Apply to the facts: “Here. Property held in joint tenancy a. Under Lucas when a married couple takes title in joint and equal form. any property in the woman’s name was presumed to have been a gift to her.) 2. I. Lucas applies.” b.
State the basic rule: The basic rule at divorce is to divide each of the community assets in a substantially equal manner. c. but rather the SP of both spouses. Family home may be awarded to the person who is given custody of the minor children. Determine the value of the SP at the beginning of the business and give it a fair rate of return over the course of the marriage. . misappropriation by one spouse c. The result is your CP share.” 1. Thus any SP used to acquire the jointly titled asset does not give the SP a pro rata ownership interest in the asset. Rate of Return (Pereira) This method is used when the increase in value of a separate property is primarily the result of community labor. Value of Community Services (Van Camp)This method is used when the increase in value of a business is primarily the result of the inherent nature of the SP asset. Distribution at Divorce 1. Subtract any salary already received and any amounts paid for community expenses.” 2. the SP is entitled to reimbursement for its contributions to the purchase price of a jointly titled asset.” K. J. Determine what a fair salary would be for the community labor and multiply that by the years of the marriage. educationalEducational debts will be assigned to the spouse who received the education. the CP is entitled to a share of the appreciation of that business because H’s labor during the course of the marriage was used to increase the value of the business. e. The remainder is CP. L. although H’s business is SP. Explain whether there are any reasons to deviate from the equal division rule. Jointly titled assets acquired before 1984 are governed by Lucas. The rest is SP. liabilities exceed assets d.” b. f.” JT is not CP. Distribution at Death. At divorce JO are divided equitably along with the CP.form after 1987 is now presumed to be community property for purposes of divorce. Tort liabilities will be assigned to the spouse who incurred the liability if the liability was not for the benefit of the community. Marriage of Toth: When SP is used to buy property titled as JTWROS. Community labor enhancing the value of SP business. Normally this is the legal interest rate (10% simple interest) calculated annually. However. b. a give of one-half to the other spouse is presumed. Explain the different formulas for calculating the CP’s interest and explain how they apply to the facts of the case: a. “Here . The SP is given the initial value plus the fair rate of return.
b. Explain whether preemption applies or not: a. Management and Control During Marriage 1. Explain whether is a n applicable exception to the equal management rule.” QCP does not apply at death. a. Explain what it is: “Quasi-Community property is property acquired by the couple while living in another jurisdiction which would have been classified as community property had the parties been domiciled in AZCA. In some instances. If the spouse dies with a will. federal law preempts inconsistent state laws. Explain the basic rule : The general rule is that during the marriage the spouses have equal management and control of all the community assets.” 2. failure to name a valid Trustee will not defeat a trust (1) incompetent Trustee named . If the spouse dies w/o a will. unless he decedent leaves surviving issue wha are not also issue of the deceden’t spouse. the community property and the decedent’s separate property are awarded entirely to the surving spouse. Express private trust 1. Explain what happens at divorce: ‘At divorce.” 2. L. quasi-community Property is treated exactly like community property. 2. Real property transfers. J. federal law preempts Arizona from applying community property concepts to certain assets. the spouse is entitled to dispose of all of his or her separate property and one-half of the community property. both spouses must join. Guaranty.S. the decedent can dispose of all of the quasi-cP by will.1. K. Trustee a. Explain what happens at death: “At death. Savings Bonds (4) Social Security benefits b. Explain the basic concept: Under the Supremacy Clause. Preempted (1) federal homestead claims (2) military life insurance benefits (3) U.” 2. Settlor – Retention of too much control over Turst assets Exception: Totten Trust 2. indemnity or surety ship: both spouses must join to bind the community. Preemption 1. Quasi-Community Property 1. Not preempted (1) railroad retirement benefits (2) military retirement benefits (3) copyrights Trusts A.” 3.
duress. Uniform Testamentary Additions to Trust Act D. Trusts created by operation of law 1. duties of constructive trustee (1) convey property to rightful beneficiary (2) five up any profits earned C. Constructive Trust a. Incorporation by Reference – the document must be in existence at the time incorporated b. unspecified members of a class (1) acceptable (a) children of a living person (b) employees of Settlor at his death © heirs (2) unacceptable under traditional view (a) relatives i) some modern courts will save the Turst by interpreting “relaies” to mean “heirs” (b) “friends” Legitimate Trust purpose 6.(2) no Trustee names b. Express Trust has outlived its purpose c. undue influence or misrepresentation b. Res (Corpus) – must be a presently eisting property interest and not a mere expectancy 4. to avoid unjust enrichment caused by fraud. Court will appoint trustee 3. Resulting Trust a. Charitable Trusts 1. to benefit the poor b. Charitable Purpose a. Beneficiary a. must be definite and ascertainable b. Manifestation of present intent to create a trust a. use of magic words is not necessary (1) Trust (2) Trustee B. Failed Express Trust b. Pour-Over Trust a. Independent Legal Significance (1) Properly funded – Trust has independent Significance (2) If not funded – then no Independent Significance c. Trust duties are specified (1) exceptions: (a) close relatives (b) illegitimate purpose 2. to promote education .
Support in the manner the beneficiary is accustomed to 2. A spendthrift clause will be implied 3. Trustee to consider beneficiary’s other income III. Rule against perpetuities Not applicable 4. Failure to diversify B. Trustee contrat and tort liability to third parties 1. Honorary Trust a. failure to act with proper care skill or prudence a. failure to supervise and administer (1) Duty not to delegate Discretionary Trust powers such as choosing investments (2) Duty to properly select and supervise agents b. Prudent Investor Rule (via Unform Act) c. Cy Pres a. failure to follow instructions 2. MISCONDUCT BY THE TRUSTEE a. failure to avoid self-dealing a. beneficiary may ratify b. Discretionary Trust C. Modern View – Third party must proceed directly against the Trust unless Trustee responsible for breach . Charitable purpose but settler will personally benefit – not Charitable Trust 3. then can be reimbursed 2. beneficiary may recover all profits made by trustee even if transaction was fair 3. Exceptions: (1) Child support (2) Alimony (3) Claims for necessities such as food 3. Breaches 1. a. General Charitable Intent Needed b. Protection of Income v Protection of Corpus 4. Support Trust 1. to promote religion d. Voluntary alienation restrained – Exception: Life endanger situation 2. Spendthrift Trust 1. Traditional View – liable.c. to promote a civic or governmental enterprise 2. RESTRAINT ON TRANSFER OF TRUST PORPERTY A. Uphold so long as the Trustee is willing to carry out the intended purpose but the courts will not force Trustee to do so II. Involuntary alienation restrained – a. Modern View – Intent Presumed 5. Liability of successor Trustee for breaches of predecessor – Not liable for prior Trustee’s breaches unless fails to take appropriate action C. to promote health e. failure to earmark and segregate 4. but if no personal breach. A settler cannot set up a Spendthrift Trust for his own benefit B.
ALLOCATION OF INCOME AND EXPENSES A. taxes b. capital gains to principal a. Expenses 1. maintenance costs 2. rent c. stock dividends not payable in cash B. improvements b. ordinary expenditures from Income a. Modification B. ordinary income to income beneficiary a. interest b. all beneficiaries in agreement 2. Termination 1. insurance c.IV. cash dividends 2. Specific Types of Receipts 1. no material purpose remaining . profits from sale of assets Exception: Sale of unproductive assets b. extraordinary expenditures from Corpus a. capital gains taxes (if any) V. MODIFICATIONS AND TERMINATIN A.
not even a scintilla of evidence to support the belief d. General capacity at time of execution 1. must know nature objects of his bounty d. Consequence of an Insane Delusion a. Issues in Trusts *creation of a trust and the duties of the trustee are highly testable. Consequence of lack of capacity : entire Will is invalid B. Consequences – only affected part is invalid (1) remedies can included constructive Trust if necessary D. Testator Issues (Intent) A. Insane Delusion 1. Elements: a. Fraud Representation of a material fact for purposes of inducing action or inaction. 1.Wills Wills and Trusts have always been test together Take time to understand the facts before writing in the bluebook Be aggressive with the facts when issue spotting Issues in Wills: *creation and revocation of a will are highly testable. Cases – Invalid only affected portion C. unnatural result d. false belief b. Fraud in the inducement a. I. confidential relationship b. Code – Will invalid b. affected the disposition in the Will 2. Fraud in the execution a. able to understand the extent of his property c. Lowest capacity recognized in law a. Undue Influence – Testator’s free agency is subjugated or dominated. product of a sick Monday c. known to be false by the wrongdoer. which induces the action or inaction. must understand the nature of the testamentary act 2. Forgery b. Prima facie case . wrongdoer’s acive participation c. 2. Presumption a. wrongdoer benefits directly or indirectly 2. Testator signs testamentary document believing it to be non-testamentary (1) consequences – entire Will invalid. Wrongdoer’s misrepresentation affects disposition b. 1. must be 18 years b.
T signs or acknowledges signature of Will before two witnesses. name of beneficiaries and their gifts in T’s hand 3. witnesses knew it was T’s will 2. Laws of state where domiciled V. accidental omission – no relief b. Document Issues A. capacity problems IV. Incorporation by reference 1. Formalities of Execution ( witnessed Wills) 1. Mistake in inducement – erroneous belief – no relief unless mistake and true intent appears on face of Will 4. Mistake 1.a. CHOICES OF LAW – WILL VALID IF IT COMPLIES WITH A. T intended to incorporate C. Arizon AZ Law or B. in existence 3. Interested Witness – A witness may be a beneficiary under the will. Consequence – Invalidates only affected portion E. We presume that the revocation of a bequest was dependent on the validity of the new disposition. HOLOGRAPHS A. clearly identified 4. testamentary intent T’s hand or preprinted or proven by extrinsic evidence B. CODICILS . Acts of independent significance III. Mistake in execution – wrong document so not probated 3. Mistake in content a. inconsistent Wills 2. signed by T anywhere c. signed anywhere 2. there must be a writing b. Laws of state where executed or C. Elements 1. directly or indirectly b. 6. Mistake in description (Ambiguity) – Admit extrinsic evidence 5. DRR – mistake in validity of a subsequent testamentary disposition. DATES. d. Elements (1) Susceptible Testator (2) Wrongdoer’s active participation (3) Unnatural result (4) Wrongdoer benefits. accidental addition – strike out accidental term 2.not necessary but can come up if 1. B. Petermission – Child born or adopted after Will written II. Elements a. writing 2.
After acquired property passes C. all property passes to the parent F. Remember: heirs of the same degree inherit per capita. The other one-half and the decedent’s one-half of the community property is divided equally among the surviving issue. to pay debts E. If the decedent is survived by spouse and issue. D. VIII. they inherit per stripes. Spousal Protection – T can Will away only one half of the community property 1. If none of the above. general 3. specific 2. if the heirs are of a different degree.If no surviving spouse. INTESTATE SUCCESSION A. If the decedent is survived by spouse and surviving issue who are not issue of the surviving spouse. Simultaneous Death Act D. Abatement 1. Must comply with statute of Wills VI. the estate escheats to the state I. Anti-Lapse statute doesn’t apply C. parents. If no surviving spouse. If the decedent is survived by his spouse but no issue. VII. Devisee must survive testate by120 hours 3. all of the decedent’s separate property. If not surviving spouse or issue. If no surviving spouse. No limitation on gifts to charities . will which attempts to dispose of morethan the decedent’s half of the community property forces the survivor to elect 2. DISTRIBUTION OF THE ESTATE A. Unworthy heir (devisee) 1. or issue of deceased parents. omitted spouse or child 2. B. all property to issue of deceases parents G. E. to grandparents or therir issue split. Lapse and Anti-Lapse 2. residuary B. conviction conclusive. all property passes to the surviving spouse. C. and the decedent’s one-half of the community property passes to the surviving spouse. Classification of gifts 1.A. otherwise proven by preponderance of evidence in probate court 3. demonstrative 4. if possible in equal shares between maternal paternal sides H. issue or parents . RESTRICTIONS ON DISTRIBUTION A. Marriage after execution of the will entitles spouse to intestate share B. Exoneration – (extinguishment of encumbrances) No exoneration of liens or mortgages unless testator directs that the specific lien or mortgage be paid out of the estate. issue. all property passes to the issue. Who can take 1. one who feloniously and intentionally killed testator/intestate 2. ½ the decedent’s separate property passes to the surviving spouse.
cancellation by interlineations B. revival only when testator intended the revival of the first Will. ademption by satisfaction or advancement (inter vivos doen payment made by T) a. provided for outside Will c. must be contemporaneous writing by T or anytime by devisee b. breach of contract 3. provided for outside Will 4.IX. canceled. elements (1) burned. leaves property to surviving parent of child 2. revival is not automatic. specific performance 2. Remedies (no cause of action until T’s death unless irreparable injury) 1. revocation can be express or by implication 2. Two ways to establish 1. contract mentioned in Will 2. Change in holdings 1. intent to disinherit in Will b. REVOCATION A. pretermitted child takes unless a. X. dissolution of marriage D. value is fair market unless set by T in a contemporaneous writing or by the beneficiary in a contemporaneous “acknowledgment” (can be oral). destroyed (2) simultaneous intent to revoke 2. torn. extrinsic writing evidencing the contract B. constructive Trust . omitted spouse takes statutory share unless a. Revocation by written instrument 1. C. ademption by extinction 2. Revocation by physical act 1. intent to disinherit in Will b. CONTRACTS TO NOT REVOKE OR TO MAKE A WILL A. revocation by physical act a. Revocation by operation of law 1. living child believed to be dead takes intestate share 3.
effective when received b. the UCCC has special rules that apply when merchants are involved. undertaking or commitment. In addition.consider any discharge issues • Remedies . Any contracts not governed by the UCC are governed by common law II.pre-write the issues of offer and acceptance.if the UCC applies.consider quasi-contract remedies I. Thus. Example: “The UCC governs contracts for the sale of goods.conclude by briefly discussing remedies . the UCC will govern this contract. Revocation: words or conduct of the offeror terminating the offer a. Manifestation of a present intent to contract demonstrated by a promise. explain whether the special rules for merchants apply.identify the conditions and covenants to be performed . Because tables are goods. This contract involves the sale of tables. Is THERE A VALID K? Is there a valid offer? 1. Lapse of time 2. counter offer acts as rejection . be ready for an acceptance issue • Performance issues . unless the offer is irrevocable (1) option contract (2) Merchant’s Firm offer under UCC (3) detrimental reliance 3. . effective when received by offeree b. Sale of goods (be able to define goods) Writing tip: Do not confuse the general UCC requirements with the special rules for merchants. Rejection: words or conduct of the offeree rejecting the offer a. both Paul and David are merchants because they regularly buy and sell tables.pay attention to the sequence of the issues • Contract formation issues .understand the facts . the special rules for merchants will apply to this contract. Here. Common Law 1. In a separate sentence.” B. UCC 1. Set for the the basic UCC rule and then explain why the UCC applies. 2. Definite and certain terms 3. Communicated to an identified offeree Has the offer been terminated? 1. What Law Applies? A.Contracts and UCC • Spend a little more time outlining contracts essays .
mailbox rule D. Duress. Under UCC. Incapacity 4. Has the offer been accepted? 1. Parol Evidence Rule D. Interpretation of terms 1. Method of acceptance a. What are the terms of the contract? A. Modification may need to satisfy Statute of Frauds IV. supervening illegality C. Defenses to formation 1. past consideration b. destruction of subject matter of the contract c. Termination by operation of law a. Mistake 3. Substitute: Promissory estoppel or detrimental reliance E. starting to perform c. death or insanity of either party b. acceptance must mirror the offer 2. fraud III. any reasonable manner 5. manner authorized by offer b. part payment existing debt d. the additional terms become part of the contract unless they materially alter the contract. no consideration needed so long as in good faith 3. Additional consideration needed under the common law 2. Legal detriment or legal benefit a.4. payment of debt barred by SOL 3. payment to settle legal claim e. Statute of frauds 2. an acceptance which adds terms to the offer is valid. Consideration 1. Under common law. Unconsciouability 5. Between merchants. unless the offeror objects or unless the offer is limited to tits terms. Mistake and ambiguous terms C. Bargained for exchange 2. complete performance 4. Under the UCC. Effective upon dispatch a. Mode of acceptance a. Course of dealing between the parties B. Modification 1. Custom and usage in the industry 2. promise to perform b. “pre-existing’ duty rule c. (UCC ss 2-207) 3. DO ANY THIRD PARTIES HAVE RIGHTS OR RESPONSIBILITIES UNDER THE CONTRACT? .
A. Third party beneficiaries 1. Satisfaction and Excuse of Conditions C. Damages 1. V. promisor b. promise v. Delegation of duties 1. Duty to mitigate B. extreme and unreasonable difficulty that was unanticipated Frustration of purpose 4. subsequent B. Conditions 1.3. direct undertaking by the promisor to the third party b. accord and satisfaction D. an agreement by all parties to extinguish contractual duties between the original parties and replace them with a new contract b. 2. precedent b. Breach VI. WHAT REMEDIES ARE AVAILABLE IF THE CONTRACT HAS BEEN BREACHED? A. third party beneficiary v. Assignment of rights 1. Types of conditions a. Obligee may sue delegator and delegate. Rescission 5. expectation damages (“benefit of the bargain”) . Assignments are generally valid unless they materially alter the obligor’s duty or risk or unless they are prohibited by law 2. third party beneficiary v. concurrent c. HAVE THERTERMS OF THE CONTRACT BEEN PERFORMED? A. Who can sue whom? a. What happens when there is more than on e assignment of the same right? C. Impracticability a. When does a third party beneficiary contract arise? a. where duties involve personal judgment and skill or where the delegation would change the obligee’s expectations. Does obligor have defenses against assignee: 3. Discharge 1. Impossibility Impossibility Illegality Destruction of subject matter 2. Have rights vested? 3. an intent on the part of the promise to benefit the third party 2. Delegation of tduties is permitted except where prohibited by the contract. Novation a. promise B. promisor c. Compensatory a.
consequential damages available only if foreseeable 2. Liquidated damages a. Quasi-contractual relief . amount is a reasonable forecast of the damages that are likely to occur c. Specific performance D. actual damages difficult to calculate at the time the contract was formed b.b. punitive damages C.
Consideration for stock. Shareholders 1. CAPITAL STOCK STRUCTURE Note: Learn terms – authorized. Voting at a Meeting (1) Unanimous written consent (no meeting required) (2) Annual meeting . Rule 2: Corporation never liable untile there is adoption B. unsecured promissory notes 2. General Rule: Shareholders of a corporation are not subject to personal liability for its debts C. Corporation not properly formed. No general right to distribution 2. OPERATION AND MANAGEMENT OF CORPORATION A. Unpaid stock 4. and corporation by estoppel concepts. Not ok if issuance within 6 months of incorporating.Corporations I. issued. Fact Pattern: Creditor sues insolvent corporation B. future services C. or if shares issued as part of a transaction requiring shareholder approval D. ) 3. Rule 1: Promoter always liable until there is a novation. Promoter liability on preincorporation contracts II. Former limitation to surplus eliminated E. de facto. Irrevocable once declaired a.) 2. Payment would render Corporation insolvent c. a. Preemptive Rights 1. Payable unless: a. (Discussion of de jure. Pierce “Corporate veil” (Fraud. Promoters 1. ORGANIZATION AND FORMATION OF CORPORATION A. Subscription Agreements 1. Every but: 1. Revocation of preincorporation subscriptions 2. Must be in Articles 2. Voting Rights – record shareholder as of record date a. b. III. Look for board acceptance B. undercapitalization and alter ego theories. Exceptions: 1. Dividends 1. outstanding and treasure stock A. Corporation is insolvent b. Insolvency exception 3. Redemptions and Repurchases of Stock Note: Make sure majority shareholders with control are not doing this in way to harm minority shareholders. Fact Pattern: Promoter and/or newly formed corporation are sued on a contract made on behalf of a corporation to be formed.
Director Duties a. Shareholder Agreements to Control Voting (1) Pooling Agreements (2) Voting Trusts (3) Stock Transfer Restriction Agreements (must be reasonable restriction) 2. Standing b. etc. i.. May be filled by other directors or shareholders 3. Duty of Loyalty (1) Insider trading (2) Self-dealing (“Interested director”) transaction) O. Board Vacancy a.K.(3) Special meeting (4) Notice required in writing between 10-60 days prior b. Proxies = authorizing another to vote the shares (1) requirements (a) (b) (c) Written Signed Directed to secretary (2) Expiration – when it says but always after 12 months (3) Revocation – easily revocable unless consideration paid for it – “proxy coupled w/an interest” c. Majority of quorum wins c. May only inspect records. C. Duty of Care b. if either: (a) Fair . Controlling Shareholder a. Requirements (1) Shareholder at time when claim arose (2) Prior written demand on board of directors (might be excused if it would be futile) (3) Bond b. Effective Shareholder Action (1) Quorum necessary – majority of shares entitled to vote (2) Majority of quorum wins – majority of actual votes cast (3) Cumulative voting only allowed if voting for directors d. books. Need proper purpose 3. Note: If suit is successful the recovery goes to corporation and individual is reimbursed for litigation costs 4. No proxies or voting agreements allowed 2. Need quorum b. shareholder lists.e. what’s on paper (as compared to inspecting factory) c. Meeting required unless unanimous written consent a. Directors 1. Inspection Rights a. Derivative Suits a. Is fiduciary to other shareholders and coporation..
Officer.(b) Or. Rule 10b-5 (Federal securities law misrepresentation action) 1. Tipper/Tippee Liability C.. good faith of defendant. officer as compared to outside printer. e. Interstate commerce b. B. e. ii. V. Bar exam issues essentially same as for directors. Purchase and sale of stock w/in six month period. Large corporation i. (3) Corporate Opportunity Doctrine (A) Note: Remedies are i) damages ii) constructive trust or iii) corporation gets opportunity at cost (4) Compete w/corporation (a) Note: Remedies are i) constructive trust on profits ii) injunctive relief D.g. 500 + shareholders and $5 million in assets b. Defendant must be in trust position. NOTE: Remedy may be injunction. Director. (Highest sales are matched w/lowest purchases to maximize recovery) 2. Must be intentional (negligence insufficient) iii. May be overt act or omission to act ii. Common law Duty (owed existing shareholder and generally required “privity” as compared to transactions carried out on stock exchanges). 10% shareholder c. Defendant is i. Three requirements a. or iii. FUNDAMENTAL CORPORATE CHANGES . rescission or damages. or ii. c. Officers 1. e. Traded on national exchange. Act of Misrepresentation i. This requires: a. duties of care and loyalty. Section 16(b) (swing trading) 1. May be in connection nwith either purchase or sale (no privity required) 2.g. after full disclosure of material facts. by a vote of the disinterested i) Directors or ii) Shareholders. if approved. There are no defenses.g. STOCK TRANSACTIONS (SALES AND PURCHASES) A. Agents of Corporation (see agency issues below) 2. IV.
Sale of Assets 1. Dissolution and Liquidation 1. pay outside creditors first. Appraisal rights for seller corporation only a. Requirements: (1) Written objection before meeting (2) Vote against merger (3) File written claim B. Majority of directors and shareholders must approve sale (no quorum concept) 2. D.A. Majority of directors and shareholders must approve (no quorum concept). 2. If liquidation.” If so. C. Appraisal Rights of Dissenting Shareholder a. Mergers 1. . 2. Note: May be treated as “de facto merger. Directors and shareholders of both corporations must approve. merger rules apply. Amendment of Articles 1. Majority of directors and shareholders must approve (no quorum concept).
Duty to Cooperate C. Some present actual authority a. Actual authority 1. Duty under a contract IV. WHAT REMEDIES ARE AVAILABLE? A. WHAT DUTY IS OWED BY THE AGENT? A. Consent C. HAS AN AGENCY RELATIONSHIP BEEN CREATED? A. Prerequisites satisfied 2. Duty of Obedience C. Breach of contract 2. Express 2. By action 2. Method of formation 1. No agent ratification D. HAS A VALID CONTRACT BEEN FORMED – DOES THE AGENT HAVE AUTHORITY? A.2. Express or Implied 3. No actual authority a. Duty to Compensate/Remimburse B. Position 3. Impostors b. Capacity B. By operation of law II. 5. 3. Unilateral act . Termination 1. By its terms 2. Apparent authority 1. Implied B. Lingering apparent authority 2. Ratification 1. TO AGENT 1. Partnership and Agency I. WHAT DUTY IS OWED BY THE PRINCIPAL? A. TO PRINCIPAL 1. Within permitted scope 4. 4. Prior acts b. Breach of contract Tort damages Action for secret profits Accounting Withholding of compensation V. Duty or Reasonable Care III. Duty of Loyalty B. Inherent authority C. Agent’s Lien B.
Capacity and consent 2. Intentional tort if a natural incident to employment VIII. Intent of the parties 2. Motivation to serve employer 4. Sharing of profits/ losses c. Employer – Employee Relationship 1. Exceptions VII. Disclosed Principal 2. Disclosed or partially disclosed Principal 2. Undisclosed Principal a. Third party v. Employee by estoppel B.3. Third party 1. Liability for subservants 3. Amount of activity d. IS THERE TORT LIABILITY – RESPONDEAT SUPERIOR? A. Exception: agency coupled with an interest VI. Nondelegable duties iii. Not a frolic or detour 3. Breach of loyalty 4. Exceptions i. Agent must have actual or apparent authority 3. Inherently dangerous acts ii. Partnership by Estoppel . Statute of Frauds 4. Contract rules apply 1. Degree of control b. Factors to imply a partnership a. How to prove 1. Agent depends on principal’s disclosure 1. Method of compensation c. WHAT IS THE CONTRACT LIABILITY TO THIRD PARTIES? A. Not illegal B. No liability for independent contractors a. Principal (if agent had authority) B. Material change in circumstances 5. Conduct within scope of employment 1. Knowingly hired an incompetent 2. Title to property b. Exceptions C. Death or incapacity 6. Partially disclosed Principal 3. Agent cannot sue Third Party C. Third party v. HAS PARTNERSHIP BEEN FORMED? A. Undisclosed Principal 4. Express or Implied 3. Conduct of general nature or incident to employment 2. Principal v.
Notice 2. Dissolution and distribution of assets . Continued authority to wind up D. Liability limited to capital contribution 1. Tort D. Terminating apparent authority C. Contract 2. Partner’s right to participate in management X. Who maintains. Methods of Dissolution 1. improves C. property or services 2. By operation of law B. Acts of the parties 2. WHAT PROPERTY IS WITHIN THE PARTNERSHIP? A. Distributing assets XII. Records maintained B. How used 3. Fraud excepted unless within scope C. DISSOLUTION OF THE PARTNERSHIP A. Title 4. LIMITED PARTNERSHIP A. Partner’s rights in partnership property 1. Partner’s rights in specific property 2. Civil Liability 1. Partner’s interest in the partnership 3. Determine by the partner’s intent B. WHAT LIABILITIES ARE OWED THIRD PARTIES? A. How purchased 2. Written promise signed by limited partner C. Form of capital – cash. Liability of limited partner D. When knowledge acquired 3. Certificate filed 2. Created by statute 1. Right of limited partner E. Agency theories apply B. Imputing knowledge to the partnership 1.IX. Apply factors 1. Criminal Liability XI.
Performing some act in furtherance of the offense.if the crime was not completed. TIPS: . The fact that the principal is not convicted or cannot be convicted is no defense. agreeing to aid. • Application of the defenses to the fact in question. Conspiracy and Attempt A. providing the opportunity. 2. Inchoate Offenses – Solicitation .do not forget defenses Homicides .unless directed other wise. Intent to promote or facilitate the commission of an offense by the other.do not forget felony murder . If person provided some material must do all possible to retrieve it. discuss all homicide crimes and as to their application explain why or why not it applies . Accessory After the Fact: Helping someone escape – Helping someone escape – Not liable for the crime itself – separate lesser charge. Must be before the chain of events leading to the commission of the crime become unstoppable. • Elements of the crime or essentials for liability. Liability – The crime itself and all other foreseeable crimes. 4. II. 1. • If all the elements are met for conviction of the crime or all essentials for liability are present. a.discuss all crimes that apply to the set of facts . 2. 3. 3. Elements of accomplice liability. Alternative – notify authorities or take some action to provent the commission of the crime. c. C. soliciting or commanding b. Solicitation . • Application of elements to facts in question. discuss the defense(s) available to defendant.Criminal Law • • Divide question by issue Begin – can the d be properly convicted of ______ or the defendant can/cannot be properly convicted of ___________. Defenses Withdrawal – 1. B. 4. Accomplice Liability A. do not forget “attempt’ . If the person merely encouraged the ocmmission of the crime he must repudiate his encouragement. d. Lay out the requisite elements of the defendant(s) defendant might put forward. assisting or attempting to assist.do not forget to discuss all the defenses that apply I.
Causation 1. if voluntary and complete. encouraging. Accomplice liability imposed for foreseeable cromes of co-conspirators (AZ : only if you are an actual party to the crime) DEFENSE 1. Homicide A. (1) Sexual conduct with a minor (2) Sexual assault (3) Sale or importation or narcotics (4) Kidnapping (5) Burglary (even 3rd degree) . or b. Intentional killing 1. It is no defense that the other party did not have the requisite intent or is immune from prosecution. Commanding. proximate cause 3. try attempted murder B. No impossibility defense. 2. may be a defense III. Impossibility no defense 2. if not causation.ELEMENTS 1. D agreed with another (AZ follows unilateral approach) 2. Intent to promote or aid the commission of the offense LIABILITY 1. Attempt ELEMENTS 1. First Degree (3kinds) a. cause in fact 2. Felony murder = death of a person which occurs during commission of an enumerated felony. Intent or knowledge that death would be cause plus premeditation. An overt act. requesting another to commit an offense. 3. 2. or arson of an occupied structure 3. except if object is felony upon the person of another armed burglary. C. Intent to commit the underlying target offense 2. or during immediate flight thereform. Can only withdraw from liability for future crimes – no withdrawal from liability for the conspiracy itself. Conspiracy ELEMENTS 1. OR intentionally engages in conduct that would be a crime were circumstances as believed to be DEFENSES 1. DEFENSES Limited renunciation (AZ) B. Renunciation. No statutory liability for crimes committed by conspirators 2. Intent to promote or facilitate and. a substantial step in furtherance (aZ: any step) of the commission of the crime ( mere preparation not enough) .
Extreme indifference to human life (extreme recklenessness) 3. property offenses . ELEMENTS (define the crime completely before analyzing the elements) A. Unitentional killing 1.3 Burglary . All other Crimes First sentence: The D can/cannot properly be convicted of ________________.8 Criminal damage .2 Robbery . Felony murder (See above) 2. Other crimes against the person 1. Second degree ELEMENTS a. Analytical considerations 1. Second degree murder (see above) 3. Intent or knowledge that death or serious bodily harm would be caused. Reckless killing. with b. Manslaughter a. Defendant unaware of substantial and grame risk b. Reckless endangerment 4.5 Trespass . Was defendant aware of risk (negligent homicide) 2. must have knowledge that victim is law enforcement officer 2. Negligent homicide a.6 Arson of an occupied structure .9 Computer fraud . Assault 2. causes death D. Intent to cause death upon sudden heat of passion caused by adequate provocation by the victim C.7 Arson of unoccupied property or structure . What was the probability death would occur? (extreme indifference) 3.10 Forgery B.1 Theft . or b.4 Extortion . Police Officer – causing death of a law enforcement officer acting in the line of duty.(6) Robbery (7) Arson of a structure (8) Escape (9) Chil abuse (10) Child molestation (11) Unlawful flight from a pursuing law enforcement vehicle c. Threatening or intimidating . Aggravated assault 3. What was the social utility of the Defendant’s conduct? (justifiable risk?) IV.
Crime prevention (AZ Statute) H. Voluntary not a defense 2. Non-deadly Force – if victim reasonably believed he was in imminent danger of harm and the amount of force used was necessary to prevent the threatened harm a. Victim may use dF in self-defense if he reasonably believes DF is about to be use on him. Initial aggressor may assert self-defense a. Sexual assault 8. No strict duty to retreat. B. or b. kidnapping V. Burden on D D. Harassment 6. AZ follows M’Naghten 2. Involuntary. b. AZ broadens self-defense for a battered spouse. however the availability of a safe retreat may demonstrate that deadly force was not immediately necessary 3. Sexual conduct w/ a minor 10. Original victim escalates the fight by using deadly force and no cnance to withdrawal was available c. Self-Defense ELEMENTS of defense 1. Provocation (reduces the crime to voluntary manslaughter 3. No “imperfect” self-defense for an unreasonable belief in needing to use deadly force b. Intoxication 1. Unlawful imprisonment 12. Can be used by original aggressor in appropriate circumstances. 2. If she withdraws and communicates that withdrawal to the original victim. Duress G. Justification (self-defense) 2. Insanity (guilty except insane) 1. Stalking 7. If defendant has a defense to underlying felony. If self-defense fails a.apply insanity test E. he has a defense to felony murder . Can’t be used in response to verbal provocation alone. b. Sexual abuse of a minor 11. Deadly Force a. Homicide Defenses: 1. Defenses A. Mistake of Fact (must negate mental state) C.5. Entrapment (subjective tet) F. Sexual misconduct 9. Defenses to felony murder a. No retreat required in AZ 4.
here D is not proximate cause of victim’s death because __________________ or D was proximate cause of victim’s death because _______________. For example. The co-felons are liable for the felony murder even if the killing was directly caused by someone other that the felons DEFENSED – lack causation 1. non-negligent medial care unless gross negligence or intentional malpractice 2. The killing need not be foreseeable c. Deaths cause while fleeing from a felony are felony murder but deaths that arise after defendant has found some point of temporary safety are not d.b. hastening an inevitable result b. acts of nature 2. General Rule: Defendant is liable for all natural and probable consequences of his conduct unless chain of proximate causation is broken by a superseding factor. . General Rule – D is liable for all natural and probable consequences of his conduct unless the chain of causation is broken by the intervention of some superseding factor Superseding factors: 1. coincidence 3. Two commonly encountered rules a. simultaneous acts by two or more parties Add causation analysis to any homicide question that presents the issue.
Define and address the constitutional foundation before discussing specific rules. otherwise analyze substantive issues first Identify the pocket area might be 4h Amendment for example. A. Stop and frisk? . 5. legitimately on the premises b. SEARCH AND SEIZURE MODEL Overview: State the source of the constitutional right and a brief statement of the right. full probable cause b. Does the D have any 4th Amendment right at all? 1. discovery of fruits of instrumentalities of crime or contraband in plain view 4. Neutral and detached magistrate? 3. Consent? a. Plain view? a. does the good faith defense apply? D. 3. Governmental conduct? 2. arrest must be lawful b.2. Properly executed? C. Reasonable expectation of privacy? 3. 4. voluntary and intelligent b. Did the police have a search warrant? 1. Avoid bias and one-sided analysis by anticipating conclusions that favor both sides. contemporaneous c. follow the call fo the question for the sequence. Search incident to a lawful arrest? a. Critique each physical action of the government and the D one step at a time. For questions containing both substantive and procedural issues. Standing? B. Expect to use every fact in your analysis. third party consent 5. If the warrant is invalid. Automobile? a. geographic scope – person and wingspan 2. (b) I. Criminal Procedure 1. 6. Probable cause? 2. Is there an exception to the warrant requirement? 1. lesser expectation of privacy d: scope: whole car including packages or containers that could reasonable contain item 3. exigency of the car’s mobility c.
police must give Miranda warnings and get waiver 4. Cross-sectional rule 3. Not custodial a. if juror opposed to death penalty. an exclude for cause c. can exclude fro cause b. Showing photos does not give rise to right B.a. voluntary b. Waiver 2. Denial of due process 1.” Duties. A. intelligent c. frisk or pat down 6. Denial of 6th Amendment right to counsel claim? 1. Defensed 1. Substantial likelihood of misidentification C. Hot pursuit II. cannot exclude for cause B. Unnecessarily suggestive 2. Confession must be voluntary B. Miranda 1. no waiver from silence C. If (1) and (2) are present. RIGHT TO JURY TRIAL Overview: State the source of the constitutional right. Opportunity to observe at time of crime IV. PRETRIAL IDENTIFICATION A. A. Post-charge line-ups and show-ups give rise to right 2. traffic stops b. Custody 2. Impeachment III. probation interviews 4. WLEMENTS 1. if juor views about death penalty “substantially impair. CONFESSIONS Overview: State the source of the constitutional right and a brief statement of the right. Waiver a. Independent source for in-court identification 2. Defenses . Right to impartial jury a. Spontaneous statement (no interrogation) 3. reasonable suspicion b. if juror expresses scrupple about death penalty. 6 month rule 2. Interrogation 3. Defenses 1.
Maximum authorized and any mandatory minimum sentence 3. Judge must address defendant personally on record and inform: 1. Defendant not permitted to withdraw plea if. Attacking plea after sentence 1. No exclusion for good faith reliance on: a. Defenses a. Affiant lied to or mislead magistrate 4. No Federally-protected constitutional right to a unanimous jury 2. then verdict must be unanimous V. Search must violate Federal constitution or statute 4. case law later challenged by court decision b. a. Nature of charge 2. Magistrate has wholly abandoned her judicial role D. Warrant defective on its face 3. defective search warrant C.1. Ineffective assistance of counsel 4. waiving right to trial C. Fruit of the Poisonous Tree 1. Exceptions to Good Faith Reliance on Defective Search Warrant 1. intelligent choice b. GUILTY PLEAS A. Failure of prosecutor to keep plea bargain D. Court lacked jurisdiction to take plea 3. Constitutionally required remedy for illegal search and seizure or coerced confession B. Must be at least 6 jurors 3. Plea must be voluntary B. EXCLUSION A. plea arrangement may be changed before defendant enters plea VI. inevitable discovery b. Right to plead not guilty 4. on advice of competent attorney d. Does not apply in civil cases 3. By pleading guilty. Plea involuntary – errors in plea-taking ceremony 2. Exceptions 1. independent acts by defendant that breaks chain . from among alternatives c. No exclusion for violating Federal regulation 5. Elements : excludes all evidence obtained or derived from the illegal police act as tainted “fruit” 2. No exclusion for violating searching agency guidelines 6. Defenses 1. statute or ordinance later declared unconstitutional c. Affidavit so lacking in probable cause that not reasonable officer could rely on it 2. Does not apply to grand juries 2. If 6 jurors used.
Professional Responsibility • Use the checklist • Determine who you represent • Be aggressive w/the fact pattern and take the high road • Discuss all duties that apply. Basic Essay Approach A. Confidentiality 2. Dignity + Other reasonable things II. Client consents in signed writing after full disclosure 4. Common conflicts a. Has the Attorney violated a duty owed the client? A. Can screen off lawyer if conflict is personal/non-litigation based and representation will not be materially limited C. If substantially related matter b. . • Anticipate common dilemmas. Imputed disqualification a. Mandatory exception – future crime involving death/SBI 3. B. Define what a conflict is and explain how one exists on the facts 2. Simultaneous representation of 2 or more clients b. Duty of Loyalty: Conflicts of interest 1. Loyalty 3. Representation on matter related to former client c. The lawyer has a duty of _______to ________. Lawyer reasonably believes no adverse affect ii. Competence + other common sense duties C. No disclosure of any information about representation acquired at any time – includes name of client and how much they owe 2. Mnemonic for duties to client(S): “Clients Love Fierce Counsel” 1. Permissive exceptions 4. Must anticipate relationships where potential conflict exists 3. Knowledge of client confidences imputed to lawyer’s firm unless within limited scope (personal/political conflict) and can be screened B. Fiduciary responsibilities 4. When client is an organization 5. Look for multiple duties w/each action. Fiduciary Duties 1. Exception i. Candor/Truthfulness 2. Attorney Fees – must be reasonable I. Lawyer obtains business interest/relationship d. Material confidential information c. Mnemonic for duties to others: “Courts Feel Differently” 1. Duty of Confidentiality 1. Fairness 3.
Continued representation will result in a rule violation 2. Must keep any disputed portion separate until resolved d. Whenever duty to reject was present in the first instance b.b Contingent fees i. Remember: “An attorney is not a bus” – must not accept everyone 2. At conclusion provide written accounting c. Convince court it is reasonable or client: b. Accepting and rejecting representation 1. safe and in the state b. Fee information restrictions a. Time. Must name attorney responsible for content d. Must follow procedures for termination G. Terminating representation 1. Duty to avoid false or misleading statements – Advertising 1. Advertising content not false or misleading 2. Duty of competence – must be competent or become competent E. Must keep and maintain records c. Has the Attorney violated the duty to maintain integrity of the profession? A. or e. Handling client funds and property a. Never with non-lawyers ii. ii. Must be labeled as “advertisement” b. the fee “might” be refundable 2. Fee splitting i. Contingent – disclose client’s obligation for expenses . Client decisions 2. Cannot predict success or make unverifiable claim 3. place and manner restrictions apply to advertising a. or d. Permissive (mnemonic FAIR) a. Attorney decisions III. Look for issue whether attorney – client relationship exists at all F.a Lawyers must advise clients in writing about fees and scope of representation . Must provide notice of receipt and deliver if requested D. Must keep separate. Financially burdens attorney unreasonably or client c. “nonrefundable” fees 9) Must include statement that client can fire the lawyer. Refuses to cooperate in representation f. Must maintain a copy after the last dissemination c. Client fires attorney c. Permitted but restricted with other lawyers d. Must be in writing and include method of calculation iii. Illegally acts or uses services to commit a past crime. Scope of representation (must advise in writing) 1. Acts against your judgment. if the lawyer is fired. Mandatory a. Never in criminal or domestic relations ii..
Has the Attorney breached the duty owed the court? A. or c. Duty to adhere to rules and supervise associates and non-lawyer assistants C. Duty to report known violations D.. Fixed – Written quote for particular services d. Exceptions D. If lawyer should know that person solicited is unlikely to exercise reasonable judgment in employing lawyer IV. Advertised fees must be honored 90 days or time specified B. Has Attorney violated a duty to third parties? A. No materially prejudicial out of court statements V. Not represented by counsel 2. Exception for current or former client b. Exculpatory evidence must be timely disclosed VI. Generally not allowed 2. If involving coercion. Duty not to improperly solicit clients 1. Duty of Candor 1. Has the Attorney violated the duty to maintain integrity of profession? A.b. harassment. No ex parte communications with juror or judge 2. Duty of candor to opposing counsel B. Fee range/hourly rate – Written estimate c. Relations with others 1. Cases must be supported by probable cause 2. Look for conflict with duty of confidentiality 2. Attorney as witness 1. No false statements of material fact or law C. Prohibited trial conduct C. Duty to avoid unauthorized practice of law – pro hac vice exception B. Special duties of prosecutors 1. If it was made known services were not wanted. No written communication a. Written solicitations allowed if labeled and with disclaimers per rules 3. Duty of candor to others 1. Exception for close personal friend or relative 2. Duty not to make reckless statements about a judge’s integrity . or b. etc. Attorney may not assert frivolous positions – good faith exception B. No personal or telephone solicitation primarily for pecuniary gain a. intimidation.
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