BAR EXAM

Non-Hearsay (at prior hearing) - IICPAAC

Identification, Prior

Inconsistent prior statement

Consistent Prior statement

Party admission

Adoptive Admission

Agent/authorized statement

Co-conspirator Statement

Exceptions to Hearsay (unavailable witness) - SFFFD

Statement against interest

Family History

Forfeiture of wrongdoing, made D unavailable

Former Testimony (hard to get in)

Dying Declaration

Reasons for the Unavailability of a Witness

Privilege

Refusal

Incapable, physical/mental

Memory, lack of

Absent, beyond reach of subpoena

P.R.I.M.A.

Exceptions to Hearsay - PPESTRRR

Public Records

Present sense impression

Excited utterance

State of mind

Treatment, only to treating physician

Recorded recollection

Records, public

Records, business

Character Evidence, D in Criminal

can use Reputation/Opinion for substantive, EE

Can use Specific acts to impeach → No EE

Character Evidence, Of Victim

can use R/O for substantive, EE

can use Specific acts to impeach → No EE

Character Evidence, Civil w/ character at issue

can use R/O for substantive, EE

can use Specific acts for substantive → No EE

Character Evidence, Prior Bad Acts

Motive

Intent

Absence of mistake

Identity

Knowledge

Opportunity

Preparation

Plan

Lack of accident

(MIAMI KOPP)

Impeachment, for truthfulness

can use R/O to impeach, EE

can use Specific Acts to impeach → No EE

Impeachment, Prior Felony or Dishonesty Conviction

can use Specific acts to impeach, EE

can only use prior if Less than 10 years old from date of conviction or release whichever is later

Intentional Torts

Assault

Battery

Conversion

False Imprisonment

IIED

Trespass to land

Trespass to Chattels

A.B.C. F.I.T.T.

Landowner Duties, Discovered/Trespassor

duty to warn of artificial dangers

Landowner Duties, Licensee

Duty to warn on all unknown dangers

Landlord Duties, Invitee

duty to warn, inspect, and make safe

Defamation Elements

1. Defamatory statement

2. published

3. with damage to reputation

Defamation to Private citizen

1. false statement,

2. negligence

Defamation to Public figure

1. false statement,

2. with malice or recklessness

Privacy Torts

Appropriation = use of likeness for commercial

False Light = misrepresentation, highly offensive

Intrusion of seclusion = expectation of privacy, highly offensive, no news exception

public discourse of private events = publication, highly offensive

A.FL.I.P.

Congress Authority

Coin Money

Post office & Roads

Declare war

Federal property (immigration, bankruptcy, patents)

Tax & Spend

Regulated Commerce

Executive Authority

Engage military (but not declare war)

Pardon of federal prisoners

If Congress is silent, President’s acts are almost always valid

Free Exercise of Religion

Government cannot interfere w/ exercise of religion

1. If designed to interfere = Strict Scrutiny

2. If neutral and generally applicable, but does not interfere = Rational Basis

Strict Scrutiny, Equal Protection Classes

Race

Aliens (documented)

National origin

R.A.N.

Strict Scrutiny, Substantive Due Process

The right to engage in some conduct/activity triggers this

Intermediate Scrutiny Classes

Gender

Illegitimate Children

Children of aliens

Ration Basis Classes

Age

Undocumented Aliens

Public education

Economic regulations

Rational Basis, Substantive Due Process

used for non-fundamental rights

Strict Scrutiny, Privacy Classes

Contraception

Abortion

Marriage

Procreation

Parents

Education (private)

Right to live together

Sexual relations (private)

C.A.M.P.P.E.R.S.

Strict Scrutiny, Fundamental Rights

Interstate Travel

1st Amendment

Right to vote/be elected

14th Amendment/Privileges & Immunities - move to another state

Conduct Regulated Speech

Regulation of private speech

Strict Scrutiny applies

Time, Place, and Manner regulations

Conduct Regulated Speech, Public Forum

Must be content neutral

Narrowly tailored to advance important government interest

leaves alternative channel for communication

Conduct Regulated Speech, Non-Public Forum

Viewpoint neutral

Reasonably related to a government interest

Commercial Speech

Must not be fraudulent or misleading.

the law is valid if:

1. serves substantial government interest

2. directly advances the interest

3. Narrowly tailored

Governmental Speech Regulation

A type of speech regulation that must pass rational basis test

Exceptions to 4th Amendment Warrant Requirement - ASCAPES

Automobile

Stop & Frisk

Consent

Administrative

Plain view

Exigent Circumstances

Search incident to Arrest

5th Amendment Miranda Rights

Protection against self-incrimination

must be:

1. Custody

2. Interrogation

5th Amendment Double Jeopardy

Does not apply where second crime requires proof of another element

6th Amendment Right to Counsel

Right to counsel after charge

Degrees of Murder

1st Degree = Intent to kill

2nd Degree = all other murders

Voluntary Manslaughter = provoked or self-defense

Involuntary Manslaughter = criminal negligence

Felony Murder Rule = death during inherently dangerous felony (no FM for co-felon’s death)

Accomplice Liability

Liable of crimes committed by D unless effective withdrawl before crimes are unstoppable

Specific Intent Crimes - SACLABEFFFR

Solicitation

Attempt = intent + overt act/substantial step (merges)

Conspiracy = Agreement + overt act

1. only withdrawal from further crimes

2. Common Law - complete upon agreement, no over act needed

Larceny

1. Larceny by trick - Possession rather than title

Assault

Burglary

Embezzlement

False Pretenses - obtaining title by fraud

Forgery

First Degree Murder

Robbery

Malice Crimes

Common law Murder

1. unlawful killing with malice aforethought

2. FIIR

   1. Felony, intent to kill, intent to cause bodily harm, reckless regard to life/depraved heart

Arson - must be more than charring

General Intent

Rape

Battery

C.A.R.B.

Statute of Frauds applies when - MYLEGS

Marriage

Year - cannot be performed within 1 year

Land

Executive

Goods over $500

Surety - pay debt of another

Option Contract

Holds contract open

needs consideration

Perfect Tender Rule

if nonconforming goods, buyer can accept or reject and sue for breach

Substantial Performance

Party who substantially complies with an implied or constructive condition can trigger the obligation of the other party to perform

Anticipatory repudiation

1. one party makes statement of intent not to perform

2. can be retracted unless other parties rely on retraction

3. buyer may demand assurances

Parol Evidence Exceptions

1. Partially integrates

2. UCC (pattern of performance, trade usage)

3. Conditional precedent

4. Ambiguity

Warranty of Merchantability

goods are fit for ordinary purpose

Warranty of Fitness for Particular Purpose

Buyer is relying on seller’s knowledge that goods are suitable for particular purpose

Consideration for Contract Modification

1. New consideration needed for common law contract modification

   1. can be different performance (A&S)

2. No new consideration needed for UCC contracts

Race Recording Statute

1st to record wins

Race-Notice Recording Statute

First Bona Fide Purchaser to record wins

Notice Recording Statute

Last Bona Fide Purchaser wins

Marketable Title - MERLEZ

Mortgages

Easements

Restrictive Covenant

Liens

Equitable Servitude

Zoning violations (not restrictions)

Restrictive Covenants

Writing

Intent

Touch and concern

Horizontal Privity

Vertical Privity

Notice

Easement Creation - GRIP

Grant

Reservation

Implication by necessity

Prescription - COHAN

1. Continuous

2. Open

3. Hostile

4. Actual

5. Notorious

Easement Termination - A RED CUP

Abandon (intent + act)

Release

Estoppel

Destruction

Condemnation

Unity

Prescription

Present Covenants of Title

Only breached at closing

1. Seisin - seller is owner

2. Right to convey

3. Against encumbrances

Future Covenants of Title

Run with the land

1. Quiet Enjoyment

2. General Warranty

3. Further Assurances

Rule Against Perpetuities applies to - CCREEPOR

Class gifts

Contingent Remainder

Executory Estate

Power of Appointment

Options

Right of first refusal

Rule Against Perpetuities Analysis

1. Write down future interest resulting from conveyance + determine condition precedent

2. circle the measuring man

3. Ask: is this within 21 years of the death of Measuring Man, will we know who takes?

Equitable Servitudes - NWITN

No privity with third party

Writing

Intent

Touch and Concern

Notice

Mortgages, Lien Theory

Bank has lien

Mortgages, Title Theory

Bank holds title

Mortgages, Assumed

Buyer primarily liable

Mortgages, Subject to

Seller primarily liable

Mortgages, Equitable Redemption

pay off before foreclosure

Mortgages, Statutory redemption

buy at foreclosure

Answer elements

1. 21 days or 60 days if waived service

2. Defenses waived if not raised on response:

   1. lack of PJ, improper venue, process, service

3. Defenses not waived:

   1. SMJ, failure to state a claim, failure to join necessary party

Interpleader Elements

Defendant doesn’t know who he owes money to

1. Rule 22: need complete diversity and great than $75k or Federal question

2. Statutory: greater than $500 and only 2 claimants need to be diverse

Venue is proper where

1. Defendant resides, where claim arose, or subject to PJ

2. Defendant transfers case to place where it could have been brought originally

Removal Elements

1. Removal to federal court within 30 days of service of last defendant (all must agree)

2. For diversity or Federal Question

   1. IF diversity only → No defendant can be a citizen of forum state

3. Can’t remove more than 1 year after filing

Discovery Disclosures

14 days of Deposition or 30 days before trial

Discovery Depositions

10 max per person and not longer than 7 hours

Discovery Interrogatories

30 days from service and max of 25 questions

Supplemental Jurisdiction

1. If court has original jurisdiction, the court has supplemental jurisdiction over all other claims that are part of same case or controversy

   1. Both claims arise out of common nucleus of operative fact; and

   2. its sensible to expect them to be tried in a single judicial proceeding (often common question of fact or law)

Permissive Joinder Rule

1. the court can join a party if the claims arose out of the same transaction or occurrence; AND

2. common questions of fact or law

Claim Preclusion (Res Judicata)

Can only sue on one claim once; must seek all relief on claim in that first case

1. Same Plaintiff and Defendant, Same claim and Same T/O

2. Case 1 ended with final judgement on the merits (NOT JD, venue, indispensable parties)

3. Default judgment is a judgment on the merits

Issue Preclusion (Collateral Estoppel)

Can’t re-litigate issue that’s already been determined; it is deemed established in 2nd case

1. Same parties as first case, Same issue already litigated

2. Default is not deemed litigated

Third-Party Impleader

1. Defendant brings in a new party for liability to Plaintiff

2. Diversity not needed for Third-Party except where Plaintiff brings in the Third-Party defendant

3. Within 14 days of your answer AND THEN court’s discretion

Third-Party Intervention

Permissive: Court may allow third-party into suit where there is a commonality in law or fact

Third-Party Joinder

Should the court join the absent party?:

1. Mandatory when complete relief can’t be granted unless third-party is joined

   1. not mandatory if diversity will be destroyed

2. Permissive when Third-party is joined because of a commonality in law or fact + same occurrence

3. MUST have diversity

Common Law Contract Modification

Need consideration because of pre-existing duty rule

UCC Contract Modification

Good faith is needed to modify a goods contract

Mirror Image Rule

Common Law: terms of offer and acceptance must match

UCC: does not apply unless a conditional acceptance is made that requires assent to the additional or different terms under §2-207

Intentional Tort Damages NEEDED for

Intentional Infliction of Emotional Distress

Trespass to Chattels

Conversion

Intentional Tort Damages NOT NEEDED for

False imprisonment

Assault

Battery

Trespass to land

Authority of Agent to Bind Principal

A principal is bound to a contract entered into by its agent if the agent has actual authority or apparent authority

Actual Express Authority

Principal’s explicit directions to agent (oral or writing)

Actual Implied Authority

either:

1. Action is necessary to carry out agent’s expressly authorized duties;

2. agent acted similarly in prior dealings between principal and agent; OR

3. customary for agent in that position (silence/acquiescence can give rise to a reasonable belief of authority in the future.

Apparent Authority occurs when

1. 3rd party reasonably believes the agent has authority to act on behalf of principal; AND

2. that belief is traceable from principal’s manifestations.

A principal holds the agent out as having authority when he:

1. gives a position or title indicating authority

2. previously held out and did not publish a revocation; OR

3. cloaked the agent with the appearance of authority

4. BUT does not apply if 3rd party knew agent did not have actual authority

Unidentified/Partially Disclosed Principal

Apparent Authority CAN exist

Undisclosed Principal

Apparent Authority CANNOT exist

Agent has NO liability for contracts if they

1. fully disclose the principal to a 3rd party; AND

2. act within scope of authority

Agent HAS liability for contract if

1. conduct was unauthorized; OR

2. Principal was undisclosed or partially disclosed to the 3rd party

Independent Contractor vs. Employee

Primary focus is whether the principal had the right to control the manner and method in which the job was performed.

some factors included: type of work, pay rate, who supplied tools, degree of supervision, degree of skill required, was work for benefit of employer’s business, extent of control principal has over work, whether agent/contractor is engaged in distinct business

Doctrine of Respondeat Superior, Vicarious Liability for Agent’s torts

Employee is liable for an employee’s negligent acts if the employee was acting within the scope of the employment.

Agent acts within scope of employment when

1. performing work assigned by employer; OR

2. Engaging in course of conduct subject to employer’s control

3. USE Time, Place, Purpose test:

   1. Occurs during authorized time and space limits

   2. conduct is of the kind employee is employed to perform

   3. it is motivated to serve employer

Employer liability EVEN if OUTSIDE scope of employment

1. Employer intended the conduct

2. Employer was negligent or reckless in selection, training, supervising, or controlling employee

3. it is non-delegable duty; OR

4. Agent had apparent authority and 3rd party reasonably relied