Questions and Answers
Under the 'fresh pursuit' exception, a defendant may use deadly force to regain possession of personal property taken from them
False
A court may exercise supplemental jurisdiction over additional claims that are related to a claim based on diversity jurisdiction, regardless of the amount in controversy
False
A plaintiff can properly serve a defendant who is an individual located in the United States by following the rules of the state where the defendant resides
True
If monetary damages can make the defendant whole, then an injunction is always granted
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The failure to deny an allegation relating to the amount of damages in an answer deems that allegation admitted
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A party may amend its original pleading as a matter of course only with the court's permission
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A defendant who fails to raise lack of personal jurisdiction in their answer waives that defense
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A court may impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order
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A third-party defendant may be added to a suit only if they are liable to the defendant for all of the plaintiff's claim
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To challenge a jury instruction on appeal, a party need not preserve the issue at trial by timely objecting to the instruction on the record
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A product defect must have existed at the time it left the defendant’s control to establish liability.
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A security interest in money can be perfected solely by filing.
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Under market share liability, juries may assign liability based on each defendant’s market share.
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To perfect a security interest in accounts, possession of the collateral is required.
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A PMSI in consumer goods is automatically perfected upon attachment without additional actions.
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A secured party must file a financing statement for a perfected PMSI in consumer goods.
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Perfection by control of collateral can be achieved for investment properties and deposit accounts.
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A financing statement must include the security interest's value to be valid.
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A court order granting a motion for a new trial is an exception to the final judgment rule.
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A party can appeal a district court order granting or denying class action certification as of right.
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An injunction is appealable by right.
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A district court may enter final judgment as to fewer than all claims or parties without an express determination that there is no just reason for delay.
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A buyer can rely on a forged or altered document to establish priority under a recording act.
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The two dismissal rule applies when a plaintiff voluntarily dismisses two actions in federal court without an order.
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A private encumbrance is not a defect in title.
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A buyer must enforce marketable title at the time of contracting.
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A time is of the essence notice must be given at the time of contracting.
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A buyer has no duty to conduct a reasonable inspection of the residence for patent defects in an implied warranty of good worksmanship context.
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The rights of an intended beneficiary vest when the beneficiary files a lawsuit to enforce the contract.
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Impracticability requires that the nonoccurrence of the event was not a basic assumption on which the contract was made.
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The doctrine of anticipatory repudiation is applicable when a promisor repudiates a promise after the time for performance is due.
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A temporary restraining order may remain in effect for more than 14 days without good cause or the adversary's consent.
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The plaintiff is responsible for serving the summons and complaint upon the defendant within 120 days after filing the complaint.
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In cases of removal based on federal question jurisdiction, all defendants must join in or consent to the removal.
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Permanent spousal support is typically awarded only when the marriage was of short duration.
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Ps and Ds may join/be joined in one action if any right to relief is asserted separately, and question of law or fact common to all Ps or Ds will arise.
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Class notice must include the definition of the class, but not the nature of the action.
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A class member may not enter an appearance through an attorney if the member so desires.
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A violation of one of the provisions of Federal Rule of Civil Procedure (FRCP) 11(b) can subject a law firm or attorney to sanctions, but not a party.
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When sanction proceedings are initiated by a party's motion, the safe-harbor rule requires the party serving the motion to refrain from filing it for 14 days.
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If subject-matter jurisdiction is based on diversity jurisdiction, then a party may aggregate all claims to be joined against multiple opposing parties to satisfy the amount-in-controversy requirement.
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A plaintiff must provide the defendant with adequate notice of a lawsuit through service of process, and the defendant must waive service of process within 20 days.
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In a suit against a federal officer or employee in individual capacity, the general venue statute permits suit in the district where any defendant resides or where substantial events occurred, but not where the plaintiff resides.
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A witness's prior out-of-court identification of a person after perceiving that person is hearsay and inadmissible as substantive evidence.
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The export clause prohibits federal taxation of exported goods, services, and activities closely related to the import process.
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A public employee who can only be terminated for cause has no property interest in such employment.
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Taxpayers have standing to challenge the way the government spends tax dollars without a nexus between the plaintiff's status as a taxpayer and the challenged expenditures.
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Removal of a case to federal court is proper in the federal district where the state action was pending, but only if the federal court has subject-matter jurisdiction.
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A nonparty may intervene in a lawsuit if they have an interest in the subject matter and the disposition of the action may impair their interest, even if their interest is adequately represented by existing parties.
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A court may permit permissive intervention if the movant has a claim or defense that shares a common question of law or fact with the original action.
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A class action is appropriate when common questions of law or fact predominate, the parties are seeking common equitable relief, and separate actions would create a risk of prejudice.
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To be entitled to an adverse inference based on the spoliation of evidence, the alleged victim must establish that the destroyed evidence was relevant to the issue about which the party seeks such inference.
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Lay witness opinion is admissible if it is based on the witness's perception and helpful to the factfinder.
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A party may use a prior conviction to impeach a witness if the conviction is more than 10 years old, even if the conviction is not substantially more probative than prejudicial.
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The Confrontation Clause requires that a declarant be unavailable and that the defendant had a prior opportunity to cross-examine the declarant before a testimonial statement can be used against a criminal defendant.
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The business records exception to the hearsay rule requires that the record be made by someone with knowledge of the act or event recorded.
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A business record is admissible under the business records exception even if it is created solely for the purpose of litigation.
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A defendant can be found guilty of murder if they acted with reckless indifference to human life.
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The knock-and-announce rule aims to protect the privacy of individuals from unreasonable searches.
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A suspect's silence can be interpreted as a waiver of their Miranda rights.
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If a coerced confession is admitted into evidence, the conviction is automatically reversed.
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A party who has received and understood their Miranda warnings can still invoke their right to remain silent after making a statement.
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Physical evidence discovered as a result of an illegal search cannot be used in court.
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Derivative physical evidence obtained from a non-Mirandized confession can be used in court if the confession was voluntary.
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The burden of persuasion shifts completely to the opposing party once any evidence is introduced against a presumption.
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Miranda violations provide grounds for a federal civil action under 42 U.S.C. § 1983.
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The failure to provide defense counsel at trial requires a new trial.
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A defendant's guilty plea to a lesser included offense prevents subsequent prosecution for a greater offense.
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The Edwards rule applies to all interactions between an accused and the police, regardless of whether the accused is in custody.
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A defendant's right to counsel attaches automatically at the time of arrest.
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A retrial after a conviction is overturned due to insufficient evidence is barred by the Double Jeopardy Clause.
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If a defendant requests counsel, any incriminating statements made by the defendant during a subsequent police interrogation may still be used against the defendant for impeachment purposes.
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A grant of a demurrer or motion to dismiss in favor of the accused at the close of the state’s case is considered an acquittal for purposes of the Double Jeopardy Clause.
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Capital sentencing courts must instruct juries that the defendant need not prove mitigating circumstances beyond a reasonable doubt.
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A lawyer's deficient performance that costs a defendant an appeal is presumed to be prejudicial to the defendant, requiring no further showing of the merits of the underlying claims.
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If a defendant signs a waiver of his right to appeal as part of a guilty plea, he cannot later claim that he was prejudiced by his lawyer's deficient performance.
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The Double Jeopardy Clause generally prevents the retrial of a defendant after an appeal on the basis of an error made at trial.
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Robbery is defined as larceny plus the removal of the property from the presence of the victim with the use of threat or force.
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Consent obtained by fraud in the inducement is not a valid defense in rape cases.
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Involuntary manslaughter can involve a killing committed while engaging in a felony that is classified as first-degree murder.
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The common law requires an overt act in furtherance of a conspiracy for it to be charged.
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Withdrawal from conspiracy is considered a defense under common law once an overt act has occurred.
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Factual impossibility can be used as a defense in attempt charges.
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The elements of kidnapping include hiding or moving another person against their will.
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Perjury involves willingly promising to tell the truth about insignificant matters.
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Voluntary renunciation can serve as a defense to solicitation under the MPC if the defendant acts to thwart the solicited crime.
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The exclusionary rule has seven exceptions, including the good-faith exception.
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Derivative physical evidence obtained from a non-Mirandized confession is always admissible if the confession was not coerced.
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The Fourth Amendment requires police to obtain a warrant to search a vehicle if probable cause exists.
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Voluntary intoxication can be used as a defense against malice crimes.
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Ben's initial taking of his neighbor's print was considered trespassory.
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Police may enter a person's home to execute an arrest warrant without any conditions.
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A valid arrest warrant can justify the admission of evidence obtained from an illegal stop.
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The act of conversion involves serious interference with the owner's rights to the property.
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A police officer must always have reasonable suspicion to stop an individual for questioning.
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Evidence obtained from an illegal stop is always excluded from trial.
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Testimony encouraged by a promise of immunity is considered involuntary.
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Study Notes
Product Liability
- To prove product liability, the plaintiff must show:
- The product was defective (in manufacture, design, or failure to warn)
- The defect existed at the time the product left the defendant's control
- The defect caused the plaintiff's injuries when the product was used in an intended or reasonably foreseeable way
- Market share liability doctrine: if the plaintiff's injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant's share of the market
Securities and Financing
- A security interest in money can only be perfected by possession
- A deposit account or letter-of-credit rights that are not a supporting obligation can only be perfected by control
- A security interest in accounts can only be perfected by filing
- A financing statement must contain:
- The debtor's name
- The name of the secured party or a representative of the secured party
- The collateral covered by the financing statement
- Perfection by control of the collateral may only be achieved with respect to a security interest in investment property, deposit accounts, letter-of-credit rights, electronic chattel paper, or electronic documents
- A PMSI in consumer goods is automatically perfected upon attachment
Buying and Selling Goods
- A buyer, other than a secured party, of collateral that is goods, tangible chattel paper, tangible documents or a security certificate takes free of an unperfected security interest in the same collateral if the buyer:
- Gives value
- Receives delivery of the collateral
- Does so without knowledge of the existing security interest
- A buyer in the ordinary course of business (BOCB) takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence
- A BOCB is a person who:
- Buys goods (other than farm products)
- In the ordinary course
- From a seller who is in the business of selling goods of that kind
- In good faith
- Without knowledge that the sale violates the rights of another in the same goods
Landlord's Liability
- Bases for landlord's liability:
- Common areas
- Hidden dangers
- Public use premises
- Negligent repair
- Landlord agrees to repair
Civil Procedure
- A court may exercise supplemental jurisdiction over additional claims that are related to a claim based on diversity jurisdiction—even if those additional claims do not satisfy the amount-in-controversy requirement
- Supplemental jurisdiction over additional claims is barred when, as here, those claims would destroy complete diversity of citizenship
- Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:
- Following the rules of the state where the court sits or where service is made
- Having process delivered to the defendant personally (or to an agent authorized to receive process)
- Having process delivered to the defendant's dwelling and left with a resident of suitable age and discretion
- For injunctions, if monetary damages can make the defendant whole, then no injunction
- For answers, the failure to deny an allegation relating to the amount of damages does not deem that allegation admitted
- Amended pleadings: under Federal Rule of Civil Procedure 15, a party may amend its original pleading (e.g., complaint) once as a matter of course (i.e., without the court's permission)
Jurisdiction and Appeals
- List of permissible interlocutory appeals:
- Injunction (grant/denial)
- Certification by district court
- Appointment of receiver
- Admiralty case
- Collateral-order doctrine
- Bankruptcy cases (certain orders)
- Mandamus (petition for writ)
- Patent infringement order (only accounting left)
- Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical harm even in the exercise of reasonable care, and the activity is not commonly engaged in### Constitutional Law
- Failure to disclose evidence that is favorable to the defendant and causes prejudice is grounds for reversal, regardless of intent
- Improper exclusion of a juror from a jury that imposes a death sentence is subject to automatic reversal
- In capital sentencing, a jury must determine the existence of certain facts beyond a reasonable doubt
- Double Jeopardy Clause does not prevent retrial after an appeal on the basis of an error made at trial
- However, retrial is barred if the conviction is overturned due to insufficiency of the evidence
Contracts
- Rights of an intended beneficiary vest when:
- The beneficiary materially changes position in justifiable reliance on the rights created
- The beneficiary manifests assent to the contract at one party's request
- The beneficiary files a lawsuit to enforce the contract
- Impracticability: unforeseeable event, nonoccurrence is a basic assumption of the contract, and the party seeking discharge is not at fault
- Anticipatory repudiation is applicable when a promisor repudiates a promise before the time for performance is due
Class Actions
- Seven things that must be in a class notice:
- Nature of the action
- Definition of the class
- Class claims, issues, or defenses
- Ability to enter an appearance through an attorney
- Exclusion of class members who request it
- Time and manner for requesting exclusion
- Binding effect of a class judgment on members
- Three situations where a class action is appropriate:
- Common questions of law or fact predominate
- Parties seek common equitable relief
- Separate actions would create a risk of prejudice
Evidence
- To be entitled to an adverse inference, the alleged victim must establish:
- Intentional destruction of evidence
- Relevance to the issue at hand
- Due diligence in preserving evidence
- Hearsay exceptions:
- Dying declaration
- Prior testimony
- Spoliation rule
- Against interest
- Personal or family history
- Confrontation clause requirements:
- Declarant is unavailable
- Prior opportunity for cross-examination
- Business records rule:
- Record kept in the course of a regularly conducted activity
- Made as a regular practice for that activity
- Made at or near the time of the act or event by someone with knowledge
Criminal Law
- Elements of kidnapping:
- Hiding or moving another person
- Confinement against that person's will
- Embezzlement:
- Defendant has title or lawful control over the property
- Fraudulent conversion of the property
- Of another
- Involuntary manslaughter:
- Negligent homicide
- Killing committed in the commission of a malum in se misdemeanor or a felony
- Larceny:
- Trespassory taking and carrying away
- Of property
- Of another
- With intent to permanently deprive
Procedure
- Intervention as of right:
- Nonparty has an interest in the property or transaction
- Disposition of the action may impair nonparty's interest
- Nonparty's interest is not adequately represented by existing parties
- Permissive intervention:
- Movant has a conditional right to intervene under federal statute
- Movant's claim or defense and the original action share a common question of law or fact
- Ways to authenticate a telephone call:
- Voice recognition
- Particular facts
- Number and ID on answering
- Dialed business and spoke about business
Sentencing and Appeals
- Seven exceptions to the exclusionary rule:
- Inevitable discovery rule
- Independent source doctrine
- Attenuation principle
- Good-faith exception
- Isolated police negligence
- Knock and announce
- In-court identification
- Good faith exception does not apply if:
- No reasonable officer would rely on the affidavit underlying the warrant
- The warrant is defective on its face
- The warrant was obtained by fraud
- The magistrate has "wholly abandoned his judicial role"
- The warrant was improperly executed### Service of Process
- If the defendant timely waives service of process, the defendant's answer to the complaint need not be served until 60 days after the request was sent.
Venue for Suits Against Federal Officers or Employees
- Official capacity (recovery from government): suit can be brought in the district where the defendant resides, a substantial portion of the events occurred, or the plaintiff resides if no real property is involved.
- Individual capacity (recovery from officer/employee): suit can be brought in the district where the defendant resides, a substantial portion of the events occurred, or the defendant is subject to personal jurisdiction if neither of the above applies.
Standing to Challenge Government Spending
- Taxpayers have standing to challenge government spending if they can show a nexus between their status as taxpayers and the challenged expenditures, and if the challenge is to legislation enacted under Congress's taxing and spending power that violates a specific constitutional limitation.
Witness Identification
- A witness's prior out-of-court identification of a person is not hearsay and is admissible as substantive evidence if the witness testifies at the present trial or hearing and is subject to cross-examination.
Public Employee Rights
- A public employee who can only be terminated for cause has a property interest in their employment and is entitled to due process, including notice of alleged misconduct, a pre-termination opportunity to respond, and a post-termination evidentiary hearing.
Export Clause
- The export clause prohibits federal taxation of exported goods and services and activities closely related to the export process.
State Taxation of Federal Instrumentalities
- A state can tax federal instrumentalities of interstate commerce if the instrumentality has a taxable situs within the state and the tax is fairly apportioned to the amount of time the instrumentality is in the state.
Content-Based Speech Restrictions
- There are five categories of content-based speech restrictions: commercial speech, obscenity, fighting words, incitement, and defamation.
Dormant Commerce Clause
- For a state regulation to be upheld, it must not discriminate against out-of-state interests, not unduly burden interstate commerce, and not purposefully apply to wholly extraterritorial activity.
Governmental Regulation of Expressive Conduct
- A governmental regulation of expressive conduct will be upheld if it furthers an important governmental interest, is unrelated to the suppression of ideas, and is narrowly tailored.
Political Association
- A person can only be punished or deprived of public employment based on political association if they are an active member of a subversive organization, have knowledge of the organization's illegal activity, and have specific intent to further those illegal objectives.
Secured Interests
- A secured interest (SI) in certificated securities, negotiable documents, or instruments is automatically perfected for 20 days from attachment if new value is given under an authenticated security agreement.
- An SI in goods, instruments, negotiable documents, money, tangible chattel paper, and certificated security may be perfected by possession, with perfection existing only during the period of possession.
- Interstate movement of collateral or debtor has specific rules regarding perfection of an SI.
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Description
Test your knowledge on product liability, including the elements to prove liability and the market share liability doctrine. Learn about defective products and their consequences.
