California Bar Exam cards

Relevance Standard (FRE)

Evidence is relevant if it has any tendency to prove or disprove a material fact.

Relevance Standard (CEC)

Evidence is relevant if it tends to be material to a disputed fact.

Legal Relevance Exclusion

Otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or wasting time. (Both FRE and CEC)

California Prop 8

In criminal trials, all relevant evidence is admissible, even if objectionable under CEC, subject to a few special exemptions.

Prop 8 Exemptions (Mnemonic and Items)

DR Mammal Counts SHEEP - Defendant must open the door, Rape shield laws, Member of media can't be held in contempt for not revealing source, Court still has power to exclude if excludable, Secondary evidence rule still applies, Hearsay may not be admitted,

Exclusionary rules (Miranda, Confrontation) still apply, Privileges that already existed in 1982 still apply.

Duty of Competence

A lawyer shall represent the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary. Includes mental and physical. May associate with another attorney or study to become competent.

Conflict of Interest (Concurrent, General Rule)

The general rule is that the lawyer may not represent a client where there is a conflict of interest.

Conflict of Interest (Between Current Clients)

A concurrent conflict of interest exists if the representation of one client is directly adverse to another client.

Conflict of Interest (Between Current Client and Another)

A concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

ABA Exceptions to Concurrent Conflicts

Lawyer reasonably believes he will be able to provide competent and diligent representation to each client, the representation is not limited by law, the clients are not asserting a claim against each other and each client gives informed written consent.

CA Exceptions to Concurrent Conflicts

May still represent where there is informed written consent.

Written Disclosure

Lawyer may still represent client with only written disclosure where the conflict results from the lawyer's relationship with a party or witness in the same matter. ABA requires written consent.

Aggregate Settlements

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims or an aggregate plea unless each client gives informed written consent.

Insurance (California Rule)

Lawyers are permitted to represent both insurers and clients whereby the insurer has the contractual right to select counsel for the insured, resulting in no conflict of interest.

Community Property Definition

All property, real or personal, wherever situated, acquired by a married person during marriage while domiciled in California, which is not classified as separate property.

Separate Property

Property owned by either spouse before marriage, and/or property acquired by gift, bequest, devise, or descent, and the rents, issues, and profits obtained from any separate property.

Quasi-Community Property

Property, real or personal, wherever situated, acquired by either spouse while domiciled elsewhere, which would have been CP if acquired while domiciled in California.

Quasi-Marital Property

Property obtained during void or voidable marriage which would have been CP if the marriage was valid.

Hearsay Definition

An out of court statement offered for the truth of the matter asserted.

General Hearsay Rule

Hearsay is inadmissible unless an exception applies

Common Law vs. UCC

UCC covers all contracts for the sale of goods. Common law governs all other contracts.

UCC Trigger

Sale of goods, which are movable, tangible property.

UCC Merchant

A UCC merchant is someone who deals in goods of the kind or holding oneself out to have special knowledge or skills. Special rules apply for merchants.

Non-Hearsay - Admission by Party Opponent

A party admission is any statement made by a party, and it may be offered against him. Need not be against interest. This is an exception, not exclusion, under CEC.

Duty of Confidentiality (General Rule)

A lawyer shall not reveal information relating to the representation of a client, unless the client gives informed consent.

Duty of Confidentiality (ABA Only Exceptions)

Implied authorization, reasonably necessary to prevent death or substantial bodily harm, to prevent, mitigate or rectify crime or fraud resulting in substantial financial injury if client has used lawyer's services to do so, to secure legal advice about lawyer's compliance with rules, to establish claim or defense between lawyer and client and to comply with another law or court order.

Duty of Confidentiality (CA - Death or Bodily Injury)

Optional and only after making good faith effort to dissuade and informing client of lawyer's ability to report.

Transmutation Rules (Names of Three Stages and Dates)

Lucas (at death and prior to 1984), Anti-Lucas I (from 1984 to 1986), Anti-Lucas II (from 1987 to present)

Lucas

At death and at divorce prior to 1984 - All jointly held title presumed to be CP with no right to reimbursement without agreement to the contrary. Gift from SP to CP presumed.

Anti-Lucas I

At divorce from 1984 to 1986 - Property titled as joint tenants by husband and wife presumed to be CP, unless clear statement in deed or written agreement that is SP, with reimbursement.

Anti-Lucas II

At divorce after 1986 - Any jointly held title by husband and wife is presumed to be CP, unless clear statement in the deed or a written agreement that is SP, with reimbursement.

SP Reimbursements

SP reimbursements are only allowed for expenditures made for DIP (down payment, improvements, principal).

Elements of a Valid Contract

Mutual assent, which consists of an offer, acceptance and consideration.

Essential Terms of a Valid Contract

QTIPS - Quantity, Time of performance, Identity of the parties, Price and Subject matter

Statute of Frauds

Contracts that are unenforceable unless in writing - Marriage, Interest in real property over a year, Promise to pay debt of another, Contract incapable of being performed within one year of making, Sale of goods $500 or more.

Statute of Frauds Mnemonic

Mr. Dog - Marriage, Real Property, Debt of Another, One Year, Goods

Negligence Elements

Duty of Care, Breach of Duty, Cause-in-fact, Proximate Cause, Actual Damages

Types of Standing

Individual, third-party, organizational, taxpayer

Individual Standing

Must prove actual or imminent injury, caused by the conduct complained of, which would likely be redressed by favorable decision.

Third-Party Standing

Must prove individual standing, a special relationship between plaintiff and third party and that it is difficult for the third party to assert his own rights.

Organizational Standing

Must prove members have standing in their own right, interests are related to organizational purpose and the case does not require participation of individual members.

Taxpayer Standing

Federal taxpayer has standing to sue over federal tax or spending program which violates the Establishment Clause.

Contract Remedies (General types)

Legal damages, legal restitution, equitable remedies, injunction

Types of Legal Damages (Contract)

Expectation, consequential, incidental, reliance, liquidated, nominal, punitive (not in contract).

Potential Limitations on Contract Damages

Causation, forseeability, certainty, unavoidability, liquidated damages only remedy.

Types of Legal Restitution

Quasi contract (money restitution), replevin (chattel), ejectment (real property)

Equitable Remedies

Only available when the remedy at law is inadequate - rescission (undo bargain) and reformation (rewrite bargain)

Injunctions

TROs and Preliminary Injunctions same as in tort, Specific Performance sometimes available.

Specific Performance (Mnemonic and elements)

Chocolate Cheesecake is My Favorite Dessert - Contract, Conditions satisfied, Inadequate legal remedy, Mutuality of performance, Feasibility of enforcement, and no Defenses

Defenses to Specific Performance

Laches, Unclean Hands, Defenses to Underlying Contract

Omitted Child or Spouse

An omitted child or spouse will receive intestate share if born or married after the will was made, unless intentionally omitted, otherwise provided for outside of will or decedent had one or more children and devised substantially all of estate to the other parent of the omitted child.

Business Judgment Rule

Officers and directors must act in good faith and in the best interests of the corporation and its shareholders. Violated when conduct is unreasonable.

Duty of Care (Business)

Officers and directors owe the corporation a duty of care to act as a reasonably prudent person would act under similar circumstances.

Diversity Amount in Controversy

Exceeding $75,000

Diversity Citizenship of Natural Person

Determined by domicile

Diversity Citizenship of Corporation

Where incorporated and where principle place of business located (nerve center)

Diversity Citizenship of Unincorporated Association

Determined by citizenship of members

Diversity Citizenship of Minors, Decedents, Incompetents

By own citizenship, not that of representative.

When is Amount in Controversy Calculated

At time of filing

Aggregated Claims Allowed to Get to $75,000?

Yes, however, if plaintiff recovers less than $75,000, may have to pay defendant's litigation costs.

Fourth Amendment

Protects individuals against unreasonable searches and seizures of property and against unlawful arrests.

Arrest Warrant, When Needed?

When arresting someone in their home.

Automobile Stop Standard

Police may randomly stop automobiles if there is a reasonable suspicion.

When is a Search Warrant Required?

Required for government search and seizure of property that is located where one has a reasonable expectation of privacy because a person has a right to be free from unreasonable search or seizure.

Where Does a Person Have a Reasonable Right to Expectation of Privacy?

Home and curtilege

A Warrant Must

Based on probable cause, issued by a neutral magistrate, describe the premises to be searched and items to be seized.

Must Police Knock on Warrant

Yes, must knock and announce. If they don't get a response, may enter.

Extent of Search Incident to Lawful Arrest

May search within the arrestee's immediate control/wingspan, protective sweep of area if reasonable belief of other dangerous individuals, and vehicle if driver can access at time of search or might contain evidence of arrested offense.

Plain View Doctrine

Items in plain view don't require a warrant to search, as long as view is from place where gov't has a right to be.

Driver Arrested, Can Search Car?

Yes, may impound and search back at station house.

Auto Search for Contraband

If probable cause, may search vehicle and any containers.

Exigent Circumstances

Police may conduct search without warrant if they have probable cause and is necessary to prevent destruction of evidence, imminent injury or in hot pursuit.

Lay Witness Opinion Testimony

Admissible if based on witness's perceptions and helpful to trier of fact. Under FRE, not based on scientific or specialized knowledge.

Present Sense Impression (FRE)

Admissible as exception if describing or explaining an event or condition and made while declarant was perceiving the event of condition or immediately thereafter.

Present Sense Impression (CEC)

Applies to a statement explaining the conduct of the declarant and made while the declarant engaged in that conduct. Narrower than FRE.

State of Mind Exception

Statement of then-existing mental, emotional or physical condition - does not apply to statement of memory or belief

Duty of Candor to the Court

A lawyer shall not knowingly make a false statement of fact or law, fail to disclose adverse legal authority, offer evidence known to be false, allow client to engage in fraudulent or criminal activity.

Assumption of Risk

Plaintiff may be denied recovery if knew of the risk and voluntarily consented despite the risk. May be implied, reasonable person standard. Not for intentional torts.

Will Execution Requirements

In writing, signed and witnessed by two disinterested people who know it is a will and are present at the same time as signature.

Effect of Interested Witness

Presumption of duress, fraud, undue influence or menace unless two other disinterested witnesses.

Holographic Will or Codicil

A holographic will can qualify as a valid will if the signature and material provisions are all in the testator's handwriting.

Holographic Will vs. Inconsistent Will

Provisions of an inconsistent will govern unless evidence shows holographic will was executed later.

Duty of Loyalty (Generally)

Fiduciary duty, must put the interest of the corporation above his own.

Duty of Loyalty to Corporation (Conflict of Interests, Two Types)

Self dealing and usurpation of corporate opportunity

Duty of Loyalty (Self Dealing)

Presumed unfair and voidable, unless authorized by disinterested board members or shareholders after full disclosure and the transaction is fair.

Duty of Loyalty (Corporate Opportunity)

Make take opportunity only after good faith rejection and full disclosure. Remedy is turning over opportunity or disgorging profits.

Three Traditional Bases for PJ

Consent, domicile, present when served

Anticipatory Repudiation Definition

Unequivocal expression by a party, occurring before the time of performance, that she will not perform under the contract.

Options of Non-Repudiating Party

Sue immediately, suspend, urge performance

Authentication of Evidence

All evidence, other than testimony, must be authenticated to prove it is what the proponent claims it is.

Authentication of Real Evidence

By distinctive characteristics or chain of custody.

Demonstrative Evidence Standard

Must be a fair representation

Writings and Recordings Authentication

By admissions, eye witness testimony, handwriting verification (expert or non-expert with personal knowledge), circumstantial evidence.

Ancient Documents (FRE and CEC)

20 years FRE, 30 years CEC

What are Self Authenticating Documents?

Certified copies of public records, official publications, newspapers and periodicals. FRE business records and trade inscriptions, CEC signature of notary or domestic public employee.

Best Evidence Rule

To prove the contents of a writing, must produce original. Machine duplicates allowed unless authenticity in question. Called Secondary Evidence Rule under CEC.

Voluminous Writings

Summaries do not offend Best/Secondary Evidence Rule

Excited Utterance

Admissible if relating to a startling event or condition and made while the declarant was still under the stress of excitement based by the event or condition.

Expectation Damages (Contract)

Compensate for value of the benefit plaintiff expected to receive from the contract

Comparative Negligence

Plaintiff contributed to injuries, but not complete bar, just reduces recovery.