Essay Workshop Day 1[1]

ESSAY WORKSHOP Use IRAC. Make sure you use the facts in the analysis section. Spotting the issue and stating the rule is not enough. Actually make a conclusion, don’t say this is an issue of the jury. Entertain arguments on both sides but then just come to a conclusion. Write like a lawyer 1) State the rules 2) Focus on the more disputed points Typically 5-7 major issues in any question. Discuss California law for community property, wills, and professional responsibility. If you are stuck then here are your options: 1) Make up the rule of law. Throw in key words like reasonable, unjust, balancing, etc. 2) If you can’t make up rules of law then just use every fact and argue them in a common sense way. 3) Go through the list of subjects and start eliminating things that are definitely out and then consider the things that may be in. a. MBE subjects b. Non-MBE subjects TORTS Feb 06 had products liability on the first essay. Unlikely to come back on this exam. Question 2: Prof James v. Dan Defamation -- Libel Defamatory statement Of and Concerning Publication Damages, Maybe FIRST AMENDMENT CONCERNS Re-publication False Light Displaying in a false light that is highly objectionable to a reasonable person Publication to larger group FIRST AMENDMENT CONCERNS Public Disclosure of Private Fact – But not facts James v. Ned and Daily Record Vicarious Liability through Respondiat Superior Defamation False Light Pam v. Dan, Ned, and Daily Record Defamation Of and concerning False Light Of and concerning Calbar.ca.gov Go to admissions Go to statistics/examinations EVIDENCE Was not on the last exam, likely to appear on this one. 1) Form a. The moment you see a question of a lawyer quoted on the exam you need to ask if the form is proper. Load up the objections there, leading, speculative, etc. 2) Purpose a. Relevant? b. Should it be excluded because of public policy exclusions or danger of unfair prejudice? c. Character Evidence being offered substantively (to prove actions in conformity therewith) 3) Presentation 4) Hearsay 5) Privileges Question 1 1. Testimony of Officer about Wit’s Statement of Dunn’s Statement. a. Relevant to show fault on part of Truck b. Witnesses had personal knowledge c. Dunn’s statement is hearsay, and Wit’s statement is hearsay. i. Dunn’s Statement to Wit 1. To get Dunn’s statement go Wit we need an exception. Dying Declaration (but Dunn is not unavailable). 2. 3. 4. 5. 2. Also Excited Utterance 3. Also Present Sense Impression ii. Wit’s Statement to Officer 1. Excited Utterance (but 30 min elapsed, did he witness the event, etc.) The transcript is hearsay. a. Former testimony of Sigel. He is unavailable. Does it get read into evidence or admitted? Admissible a. Relevant. Yes b. Personal Knowledge c. Opinion, did she perceive it. Yes Admissible? a. Relevant. Yes b. Conviction is hearsay but admitted under prior convictions exception if felony. c. Not admitted as character evidence to impeach. d. Can not discuss the specific instance of conduct, no details, only the conviction comes in. Admissible? a. Liability insurance is off limits to show fault. b. But here, used as impeachment to show bias. c. Relevant, balance the probativeness and danger of unfair prejudice. d. This is a specific instance to impeach, ok because it is on cross. Can not use collateral evidence, must stick to the cross. ESSAY WORKSHOP # 2 p. 138 – Real Property 1. O v. T Lessor – lessee relationship Term of years lease T has right to possess and O has right to re-enter if T breaches. Implied covenant of quiet enjoyment – Right to use and possess without the interference of Owen. Partial eviction because can not use the whole property. Constructive eviction Implied warranty of inhabitability QUESTION 2 Donna and Paul’s rights? Easement from Stan Statute of frauds Writing, signed, describing the property, intent, delivery, acceptance. 3rd party delivery – Proper delivery would have required that Donna receive it before death. This was like a 3rd party escrow so valid delivery. Express easement appurtenant for a road 30 feet wide. If no good, then easement by prescription, possible color of title Possible easement by necessity, but does not seem like it License coupled with estoppel if no easement. Construction of the road. Carry out plans? Scope of the easement – Runs to every inch of land of the dominant estate Reasonable development No overuse Putting utilities is not in the easement Pro Conduct Conflict of interest CON LAW Question 1 Equal Protection Involving fundamental right of speech Classifying based on cable v. other media Classifying based on govt. Licensing by National Movie Rating Board – Unfettered Discretion First Amendment Obscenity – Prurient, patently offensive, no serious LAPS merit Protect minors -- Channeling into Safe Harbor Hours Govt. regulation of airwaves (due to limited availability), but this is cable. Retroactive impairment of Contract Substantial impairment Relate to legitimate govt. interest Balance benefit v. burden No Takings Clause QUESTION 2 Justiciability Standing Injury in fact Causation Redressability Ripeness Mootness Politicial Question Prudential Standing Issues – As taxpayers STATE ACTION STATE ACTION STATE ACTION STATE ACTION STATE ACTION STATE ACTION STATE ACTION Substantive Due Process Right to privacy – This is a fundamental right that encompases Procreation, child rearing decisions, contraception and abortion Strict scrutiny to impair the fundamental right – Necessary to a compelling state interest. Must be least restrictive means, no way to achieve interest without impairing fundamental right Procedural Due Process – Taking of life, liberty, or property interest without due process of law. Not property interest, but possibly liberty interest. Do they want notice and hearting? Equal Protection – Classification between residents who moved after effective date and those who moved before. Not a suspect class so rational basis. But relates to fundamental right so strict scrutiny. Fundamental right to interstate travel. What about leaking that the want to adopt a child. Possible fundamental right to keep some medical records sealed. Not fully vetted by the Supreme Court. If this qualifies then possibly a privacy right is violated. If it does not qualify then no constitutional issue, but maybe civil action for invasion of privacy. CRIM PRO AND CRIM LAW QUESTION 1 1. Felony murder, need Act, mens rea for commission of felony, then causation and death. The felony must be different than the killing and the felony must be either enumerated or inherently dangerous. Here probably enumerated because of first degree murder.  Al definitely caused the death  Bill may have argument that Al caused the death and not him. But, they were likely co-conspirators or accomplices and thus are liable for crime that are reasonably foreseeable. 2. Generally defendants are entitled to have jury pool represent cross section of society, but not the actual jury need not be cross-section. In any case, does not seem like a problem. 3. Retardation may be able to negate the mens rea of rape (if rape is not a strict liability crime). Also if jurisdiction has insanity defense then retardation may be used as a defense. Also, jury must be able to hear relevant mitigating factors in determining death penalty. – Due Process 4. Evidence issue – Typically can not testify about juror misconduct unless it relates to outside influence. Alcohol is not considered outside influence. 5. Impact on victim’s family is admissible in penalty phase. – Due process. 6. 8th amendment cruel and unusual punishment – Can give death penalty for felony murder if defendant participated in a major and acted with reckless indifference. QUESTION 2 1. Cody has no standing – Must be violation of your constitutional rights. Duce has standing and he will argue that they were fruit of poisonous tree. Miranda violation, hours of questioning, then ask for consent. Must be knowing and voluntary. Must not be coerced. Cops will argue that they would have gotten the stuff anyway because Cody gave them info and they would have gotten warrant. 2. Duce’s confession – No good because violates Miranda. Custodial interrogation, actions to illicit incriminating response. But can be used to impeach. With limiting instruction it would be ok. 3. Cody’s confession is probably ok against him, but not against Duce because of confrontation clause. Problem is that it is a joint trial. Depends if Cody testifies. If not, prosecution can redact, can empanel two juries. CRIM LAW MURDER ANALYSIS Define Murder – Murder is killing of another human being with malice aforethought. Then go through the 4 intents of murder. Then go to determine if it is first or second degree murder. If there is no statute turn to whether the defendant has pre-meditated and deliberated (can happen in an instant). Also look to see if there are facts of mitigation, like intoxication. ESSAY WORKSHOP #3 6-28-06 CONTRACTS QUESTION 1 UCC Merchants Contract? Offer is by Jones Acceptance is by Clark – Common law no good because not exact same terms, but under UCC battle of the forms dealing with merchants the acceptance is good and includes the additional terms unless 1) they are material, 2) the offer was made expressly clear that it required acceptance of the terms, or 3) the offeror objects within a reasonable time. Here the additional term of arbitration is considered a material term and thus will not be part of the contract. We have an installment contract where there are to be 2 shipments. Time is mentioned so time will probably become of the essence and become a material term. The modification typically not allowed because there is no new consideration from Jones. Under UCC it will be allowed if good faith. Here not really good faith. First shipment was a day late, this is a breach by Clark. Jones can accept the goods and sue for breach or reject the goods and sue for breach. Here he accepted the goods. Can still sue for breach. Then Jones sends a note of anticipatory repudiation. He may be claiming frustration of purpose, but that will probably not fly. Compensatory damages Consequential for late shipment Duty to mitigate. QUESTION 2 UCC does not apply because this is not a contract for goods. The contract is for shipping services and thus it is a contract for services so common law applies. There seems to be an offer and acceptance because the fact pattern simply states that they negotiated an agreement. This contract is an output contract, where carrier promised to provide for two years all the transportation services required by Maker is going to pay for them. The obligations are somewhat implied in an output contract. Maker must make a good faith attempt at his best efforts of using and promoting Carrier’s business, while Carrier must take care of Maker’s needs to a reasonable point. This will be based on an understanding between the parties as to what the general needs will be. There is also an express condition subsequent that never occurs. The agreement was then memorialized to writing but never signed by Maker. This is a problem due to the statute of frauds. The agreement is one that can not be completed within a year thus it is governed by the statute of frauds. The writing must be signed by the party to be charged and it is not here so that is a defense by Maker. Possible promissory estoppel, Carrier relied on the promise and turned down other jobs. Anticipatory repudiation if there was a contract. Suspend services, breach. Quantum meruit. CIV PRO QUESTION 1 Manco’s Motion – Personal Jurisdiction Would assertion of personal jurisdiction go against traditional notions of fair play and substantial justice. Traditional basis – Physically present, Consent, domicile Minimum contacts Substantial Justice and Fair Play Relatedness of claim Convenience State’s Interest Doc’s Motion – Same as above Res Judicata and Colalteral Estoppel – Collateral Estoppel needs judgement on merits, and same parties Res Judiciata needs issue that was essential to a final judgement and privy parties CORPORATIONS QUESTION 1 Tipper or Tippee Abby to Barb – Abby is a tipper – Must personally benefit and must be an insider (position of trust or confidence). Traditional insider because CEO. And benefit can be anything including increased reputation. Barb is a Tippee – Must have gotten info from an insider who benefited, and must have known or should have known that the tipper was betraying trust or confidence. Info must be material – reasonable person would rely on it. Scienter – Intent to defraud Reliance – Reliance is presumed based on fraud on the market Causation – Generally presumed Barb to Mutual Barb is probably not a tippee – not a traditional or constructive insider Mutual is not a tippee because deritive liability Barb also misrepresentation QUESTION 2 Compco is easy to discuss liability. Did they adopt the contract either express or implied. If so then yes. Artis – Pre-Incorp, Defective Incorp, Pierce Corporate Veil. Consideration Qualitative Test and Quantitative Test REMEDIES WILLS AND TRUSTS Question 1 A. REVOCATION By Writing – New Will or Codicil that expressly revokes, or impliedly revokes with inconsistent terms. Here it was express. DRR – Valid Revocation, based on mistake, would not have revoked but for the mistake, where revocation was in writing the mistake must be set forth in the terms of the writing itself (one court ruled that may take extrinsic evidence). B. HOUSE DEED -- A transfer of property takes place when there is a writing, signed by the transferor, expressing the intent to make a present transfer of a property interest, and there has been delivery. Facts are short but it says valid execution and delivery. So Dona has the house. RECORDING ACT – Dona was first in time so first in right unless someone can trump by qualifying for protection under the recording act. C. TRUST FOR EMPLOYEES POUR OVER WILL – Will attempts to distribute property via a trust instrument Incorporation by reference Acts of Independent sig. UTATA ELEMENTS OF VALID TRUST Intent – Magic Words Funding Ascertainable Beneficiaries Proper Purpose Writing (Maybe) D. PROFESSIONAL RESPONSIBILITY I. Duty to Client A. Duty of loyalty Conflict of interest (between lawyer and client, between two or more clients, or between client and third party). Lawyer can still represent as long as he reasonably believes he can represent competently. Once actual conflict arises then must disclose and get consent. C. Duty of Competence Due diligence in handling the case. Keep client informed. D. Duty of Financial Integrity Fees – Must be reasonable fees, can be a contingency fee agreement that is detailed as to what expenses are deducted and how the fee will be paid. Client Trust Fund – II. Duty to Third Parties A. Duty to opposing parties in litigation Not to withhold evidence Not to talk to represented parties C. Special duty of prosecutors III. Duty to the Court A. Duty of Candor and Honesty – look for frivolous claims, false evidence C. Duty to witnesses and jurors – Do not speak to jurors until after trial IV. Duty to Profession A. Unauthorized practice of law B. Avoid false or misleading ads C. Avoid in person solicitation On test, go through every one of the duties. Then, tell the reader what the lawyer should have done. Question 2 Conflict of interest – Potential conflict, Actual conflict, Duty to represent company not individual board members. Duty of Confidentiality Duty of Candor and Honesty to the board If she is acting as an attorney for the corporation she has a duty to report up any information that will assist the organization. She should advise Dave to seek his own separate counsel. If she was specifically hired to find misconduct then she can not report it out because of the duty of confidentiality. She can represent CAP on a pro bono basis. COMMUNITY PROPERTY Question 1 Home – Purchased with separate property (gift from father before marriage and loan obtained in personal capacity). Payments made from CP – CON LAW – Last tested in winter 05, then in July 04, and Feb 04. Con Law is to be approached from 3 broad categories. Justiciability, governmental conflicts, and individual rights. More likely to be tested and If tested we are looking at individual rights (speech, religion, equal protection) CONTRACTS – Tested on Feb 06 exam. July 05 exam had a contracts issue raised with Real Property. Less likely to appear, but if it appears then it will probably be UCC. CRIM LAW/CRIM PRO – Probably will be on the exam. Be aware of common law crimes. Last time it was Crim Pro so this time probably Crim Law. Look at July 2004. EVIDENCE – More likely than not, probably the most likely to be tested. Tested on 6 of the last 7 exams, not tested on Feb 06. Probably a transcript type question. REAL PROPERTY – Less likely to appear. If tested, then probably easements, or contracts for the sale of land. TORTS – Less likely to appear. But it is typically a summer exam. In Feb 06 it was products liability. If shows it will probably be defamation/1st amendment, or negligence. Be on the lookout with intentional interference with existing contract, and abuse of process and wrongful institution of legal proceedings. CIV PRO –Less likely to appear, but if it did probably the fundamentals like personal jurisdiction and subject matter jurisdiction. Also venue. Look at joinder as well. COMMUNITY PROPERTY – More likely than not. Not tested on the last exam but it was tested in Feb 05. CORPORATIONS – More likely than not. Last time it was a common law problem. So probably federal on this one, 10b5 and 16b. PRO RESPONSIBILITY – Definitely on the exam. Probably a full blown exam. Don’t forget to talk about what the lawyer should have done. REMEDIES – Always a part of the exam, probably joined with another topic. Look for injunctions WILLS AND TRUSTS – More likely to be a trusts question, not likely to be a wills question.