SAINT LOUIS UNIVERSITY SCHOOL OF LAW

FALL SEMESTER, 2009-2010

FINAL EXAMINATION

CIVIL PROCEDURE I

Professor Petroski Open Book

3 hours Laptop Option: Open

Instructions

1. This exam consists of 4 questions on a total of 5 pages, including this one. Please be sure
you have all 5 pages and read these instructions completely before beginning.

2. You must answer every question. Several questions have multiple parts; be sure you
provide an answer to each part of each question. Answer only the questions asked.

3. Each question is accompanied by a recommendation regarding the time you should spend
on your answer and the number of total points available for that answer. The suggested
time allocations total 150 minutes, with 30 minutes set aside for you to review the exam
and begin planning your answers. The maximum number of possible points is 150.

4. This is an open-book, open-note exam. You may consult any materials that you bring
with you to the exam. You may not access the Internet or communicate with anyone
while you are taking the exam.

5. Some questions may prompt you to describe additional facts that would change your
analysis. If you are prompted in this way, propose facts that are reasonably consistent
with the facts supplied in the question. If there is no such prompt and it is possible to
answer the question without assuming additional facts, please don’t assume any. If you
cannot answer one of the questions based on the facts provided, make only reasonable
assumptions consistent with the facts supplied, and clearly state any assumptions you are
making.

6. State your conclusions clearly and provide a full analysis of the issues, even if you
believe one part of your analysis should be dispositive. Write in full sentences. Include
paragraph breaks.

7. If you are writing your answers on a laptop, please use a 12-point font. The exam
software will double-space your answers for you. If you are handwriting your answers,
please write legibly on every other line and on only one side of the page.

1
 Background Facts
You have just started as an associate attorney at a Saint Louis law firm, Clever & Dixon
(C&D). Your first assignment is to assist Carla Clever, one of the founding partners, in
the matter of Preston v. Able. In this action, C&D represents Philip Preston, a Chicago
resident, in his lawsuit against David Able, an attorney with another Saint Louis firm,
Able & Baker (A&B). Preston’s lawsuit arises out of Able’s conduct in connection with
an action filed against Preston in 2007 in Missouri state court. Before you arrived at
C&D, Clever personally interviewed Preston, and based on the interviews, drafted the
complaint below. It was filed in federal district court in Saint Louis in late October 2009.

To get up to speed on the case, you have been given the Preston v. Able complaint to
review. You may assume that it has been properly served on Able, that subject-matter
and personal jurisdiction are proper, and that the complaint contains a proper
jurisdictional statement. In addition, it contains the following:

The Parties
1. Plaintiff Philip Preston is a citizen of Illinois.
2. Defendant David Able, a citizen of Missouri, is a founding partner of the firm
of Able & Baker, located at 3137 Olive Street in the City of Saint Louis.

Background Facts
3. On the afternoon of October 25, 2007, while Plaintiff was playing softball at a
recreational field in Forest Park in Saint Louis, he hit a softball into an
adjacent pathway.
4. This ball struck a two-year-old child, Laura Pfeiffer, who was being walked in
a stroller by her mother, Frieda Pfeiffer (Pfeiffer).
5. Plaintiff immediately rushed to the Pfeiffers to apologize and waited with
them until an ambulance arrived.
6. On or about November 17, 2007, Plaintiff was personally served with a
summons and complaint in a civil action arising out of this October 25
accident, filed in Missouri state court against Plaintiff by Pfeiffer.
7. Pfeiffer’s complaint alleged that Laura Pfeiffer had died at the hospital on the
evening of October 25, 2007, as a result of the softball injury, and requested
damages in the amount of $500,000 for loss of the society of Laura Pfeiffer,
for Pfeiffer’s pain and suffering, and for Laura Pfeiffer’s wrongful death.
8. On November 18, 2007, Plaintiff spoke by telephone with Able at Able’s
Saint Louis office, and during the conversation Able agreed to represent
Plaintiff in the action brought by Pfeiffer.
9. On November 25, 2007, after receiving by mail two copies of a retainer letter
stating the terms of Able’s engagement by Plaintiff, Plaintiff returned a signed
copy of the letter to Able, who confirmed receipt by e-mail the following day.
10. On January 15, 2008, Plaintiff received from Able an invoice requesting
payment of $5000 for services rendered, which amount Plaintiff paid by
personal check on January 16, 2008.
11. Plaintiff received no further communication from any individual about the
Pfeiffer lawsuit until January 15, 2009, when Plaintiff received a copy of the

2
 Missouri court’s default judgment against Plaintiff, ordering Plaintiff to pay to
Pfeiffer damages in the amount of $500,000.

First Claim for Relief: Breach of Contract

12. The retainer letter of November 2007 was a valid and binding contract
between Plaintiff and Able.
13. Plaintiff fully performed all of his obligations under this contract, but
Able breached his contractual obligations to Plaintiff by failing to take any
action in the Pfeiffer case.
14. Plaintiff’s damages from this breach include the judgment against him in the
Pfeiffer lawsuit and the $5000 in fees paid by Plaintiff to Able.

Second Claim for Relief: Legal Malpractice

15. The conversation of November 24, 2007 and the letter described in Paragraph
7 created an attorney-client relationship between Plaintiff and Able.
16. As set forth in Paragraphs 1 through 12 above, Able breached his contractual
relationship with Plaintiff.
17. In addition, Able was negligent in failing to take any action in representation
of Plaintiff in the Pfeiffer lawsuit.
18. But for Able’s conduct, Plaintiff would not have had a judgment entered
against him in Pfeiffer’s action.
19. Able’s breach of contract and negligence were the proximate cause of
Plaintiff’s injury as set forth in Paragraph 12 above, as well as of Plaintiff’s
fees incurred in the present action.

Prayer for Relief

Plaintiff respectfully prays that the Court award him the following relief:
A. Restitution of the money wrongfully retained by Able in the amount of $5000.
B. Compensatory damages in the amount of $500,000.
C. Attorney’s fees and costs in this action.

***
Question 1 (30 minutes, 30 points)
Able, through his attorney, files a Rule 12(b)(6) motion to dismiss the complaint, but
thanks in part to your work on the brief opposing the motion, the motion is denied. Able
then files a timely answer, admitting only the allegations in Paragraph 6 of the complaint,
and denying all other allegations (some on the basis of lack of information or belief).
The answer asserts the affirmative defenses of impossibility and contributory negligence.

Clever and Able’s attorney have agreed to exchange their Rule 26(a)(1) disclosures at the
parties’ upcoming Rule 26(f) discovery conference. Clever has asked you to help her
prepare for the conference. She has told you that she knows that Preston does not have
an insurance policy relevant to his action against Able.

Question 1: Draft a memo identifying the information Preston must include in his initial

3
disclosures. Describe any further investigation you would suggest doing to ensure that
his disclosures are complete. To prepare Clever to review the adequacy of Able’s
disclosures at the conference, briefly describe what information she should expect Able
to disclose at a minimum. Assume you are not yet aware of the facts described below.

***
Questions 2 (20 minutes, 20 points) and 3 (35 minutes, 35 points)
The discovery conference goes smoothly, and the parties agree on a discovery schedule.
You serve interrogatories and requests for production on Able. His responses to your
interrogatories include the following:

PLAINTIFF’S INTERROGATORY NO. 15: For each affirmative defense

asserted in your answer, set forth in detail each fact or theory and identify each
document that supports or relates to such defense. 
DEFENDANT’S RESPONSE TO INTERROGATORY NO. 15: Defendant is
not liable to Plaintiff because unforeseen circumstances caused Plaintiff’s alleged
injury. Defendant reasonably assigned responsibility for Plaintiff’s case to
Brighton Brimmer, an Able & Baker associate who concealed from Able her
failure to take any action in the case. In January 2009, Brimmer was diagnosed
with a brain tumor that impaired her judgment during the period in question.

Question 2: Based on this new information, Clever wants to consider amending

Preston’s complaint to add a claim for negligent supervision against Able. For purposes
of this exam, assume that you learn that the statute of limitations for negligent
supervision claims is six months, and that the elements of such a claim are (1) the
defendant’s duty to the plaintiff to supervise a third party, (2) a negligent breach of that
duty, and (3) that the breach directly caused the plaintiff’s damages. Draft a short memo
for Clever providing your advice on whether and how to move for leave to amend
Preston’s complaint to add this claim. Explain what issues the court will consider in
deciding the motion and what you expect the outcome to be if Preston files the motion.

Question 3: You draft a second set of requests for production directed to Able. Request
11 asks Able to produce “All documents or recordings of any kind relating to Able’s
communications with Brighton Brimmer concerning Pfeiffer’s action against Plaintiff.”
Able’s responses include the following:

Defendant objects to Plaintiff’s Request No. 11 on the ground that the request
seeks material that is protected by attorney-client privilege and seeks attorney
work product prepared in anticipation of litigation.

Clever wants to move to compel Able to produce this material. Draft a memo for Clever
outlining the best arguments for the motion, explaining whether you think the court is
likely to grant it, and providing the reasons for your conclusions.

***

4
 Question 4 (65 minutes, 65 points)
Rightly or wrongly, the court grants your motion for leave to amend. Two days before
the date agreed upon by the parties for summary judgment motions, the court tentatively
denies your motion to compel, but the court’s order indicates that it is willing to revisit
the issue. Able then files a timely summary judgment motion. You are surprised to see
that it addresses only the malpractice and negligent supervision claims. You know from
Able’s 12(b)(6) motion that under relevant case law, to prevail on a malpractice claim,

a plaintiff must prove that (1) an attorney-client relationship existed; (2) the
attorney acted negligently or in breach of contract; (3) such acts were the
proximate cause of the client’s damages; and (4) but for the attorney’s conduct the
client would have been successful in the prosecution of the underlying claim.

In support of his motion, Able submits the following evidence and argument:
 An affidavit from Able, in which he states that although he entered into an
agreement that A&B would represent Preston, the retainer letter provided that
Able might assign responsibility for the case to an A&B associate, and that by
signing the letter, Preston agreed to such assignment; that Brimmer had
previously done outstanding work for Able and had required no supervision; and
that in his initial phone conversation with Preston, Preston admitted that he felt
responsible for the accident and the death of Laura Pfeiffer.
 A copy of the retainer letter, which is consistent with Able’s description.
 A copy of an e-mail dated December 1, 2007, in which Able asked Brimmer to
take over the case, with a copy of Brimmer’s acceptance, dated the same day.
 An affidavit from Dr. Smith, identifying him as the doctor who diagnosed
Brimmer’s brain tumor in January 2008 and later operated to remove it, stating
that the type of tumor from which she suffered affected her cognitive ability and
judgment, and stating that in January 2008, the size of the tumor was such that
Brimmer would likely have been displaying such symptoms for several months.
 A brief arguing that given this evidence, Preston cannot carry his burden of
persuasion as to the second, third, or fourth elements of his malpractice claim or
as to the second or third elements of his negligent supervision claim.

Question 4: Clever has asked you for a memo (1) outlining the best arguments for
defeating Able’s motion, with an evaluation of their likely success and explanations for
your conclusions, and (2) explaining what, if any, evidence Preston must include with his
opposition to Able’s motion, and why. For reasons unknown to you, Able has not
deposed Preston, but you have talked with Preston about Able’s affidavit, and he has
admitted telling Able he felt responsible for Pfeiffer’s death but insists that he was
referring to a feeling of moral responsibility, and neither believes nor admitted to Able
that he was legally at fault in the accident. Assume Brimmer’s health made it impossible
to depose her and would make it impossible for her to testify at trial. Without making
any additional assumptions about facts, draft the memo requested by Clever.

END OF EXAM