Torts1. Intentional torts - be ready to discuss the element of intent - look for related intentional torts - do not forget causation, damages and defenses2. Negligence - focus on duty and breach - if there is a statute, consider both negligence per se and common law - remember the elements of causation and damages - do not forget the defenses3. Defective products - discuss both strict liability and negligence4. Defamation - determine the status of the speaker - determine the status of the plaintiff - consider invitation of privacy5. Business torts - be ready for issues involving interference with a contractual relationship6. Third party torts - consider defamation, invasion of privacy, business torts - consider issues of joint and several liability - respondeat superiorSTURCTURE OF ANSWER

Intentional TortsIn this example, underlined words show the proper thought process and organization. Do not literally write these headings in your bluebook.

Battery example: Theory: P is suing D for a battery Prima facie Case: To establish the prima facie case for battery, P must prove Defenses: Defendant may be able to assert the privilege of self- defense. To do so, defendant must show … General Considerations: on these facts there is also a vicarious liability issue, in that the employer may also be liable. To establish this, P must show.

DefamationP is suing D for defamation

Prima Facie Case: To establish the prima facie cas for defamation, P must prove the following:

(1) Defamatory statement about P(2) Publication(3) Injury to reputation (presumed or money damages)(4) Fault (depending on fact pattern)(5) Falsity (depending on fact pattern)

Defenses:

NegligencePlaintiff is suing Defendant for negligence.Prima Facie Case: To establish the prima facie case for negligence P must prove the following: Duty: (1) Foreseeable P (2) Standard of Care Breach (i.e. negligent conduct): This is a fact discussion as to whether D complied with standard of care. Causation (1) Actual Causation (2) Proximate Causation DamagesDefenses: Comparative Negligence State: AZ Rule : AZ is a comparative negligence state General Considerations:

Products LiabilityP is suing D in a products liability action. Several theories may be available as follows: Negligence: Strict Liability: Warranty Liability: Discuss defenses for each theory in discussion of that theory.

I. Intentional TortsA. Prima Facie Cases – First sEntence : To establish the prima facie case, P

must prove…1. BATTERY: an intentional act causing a harmful or offensive

contact w/P’s person2. ASSAULT: an intentional act causing a reasonable

apprehension by plaintiff of an immediate harmful offensive contact with his/her person

3. FALSE IMPRISONMENT: an intentional act confining the plaintiff to a bounded area

4. INTENTIONAL INFLITION OF EMOTION DISTRESS: intentional and outrageous conduct causing severe emotional distress (AS : memorize precise language)

5. TRESSPASS TO LAND: AN INTENTIONAL ACT CAUSING A PHYSICAL INVASION OF p’S LAND

6. trespass to chattels/conversion: an intentional act causing damage to P’s personal property interest

B. Defenses1. Consent:

a. Was the privilege available on these facts? (1) Did plaintiff have capacity? (2) Was consent expressly given? (3) Implied by custom and usage or plaintiff’s conduct?b. If yes, did defendant stay within its boundaries?

2. DEFENSE PRIVILEGES ( self-defense, defense of others, defense of property):

a. Was privilege available on these facts?(1) Self-defense: reasonable belief that tort is being or

about to be committed on D(2) Defense of others: reasonable belief that tort is being or

about to be committed on third person(3) Defense of property: reasonable belief that tort is being

or about to be committed on property b. If yes, did defendant use a proper amount of foce?

(1) test: reasonable force. NOTE: What is reasonable depends on the tort against which you are defending e.g., if someone is trying to murder you, you may use deadly force to defend yourself.

3. NECESSITY (Applicable only to property torts):

II. DEFAMATION/PRIVACY A. Defamation 1. Prima Facie Case First Sentence: To establish the prima facie case, P must prove…

a. defamatory statement about Pb. publicationc. injury to reputation – presumed if libel per se or slander w/in

four slander per se categories; special damages ( i.e. money injury) require if a slander not w/in the four slander per se categories

d. fault if the matter is one of public concerne. falsity if the matter is one of public concern

2. Defenses a. truth (if the matter is not one of public concern) b. absolute or qualified privilege B. Privacy 1. elements: a. appropriation by D of P’s name or picture for D’s commercial advantage b. intrusion by D into P’s privacy or seclusion c. publication of facts placing p in a false light d. publication of private facts about P

2. NOTE; FOR LAST three privacy branches in the prima facie case discussion use this sentence in answer and then discuss facts: a. D’s conduct must be objectionable to the average person of ordinary sensibilities.” 3. NOTE: “Publication” in privacy law means broad disseminationIII. NEGLIGENCE A. Prima FACE Case 1. Duty of Care a. foreseeable P b. standare of care NOTE: A miscellaneous duty question deals with whether there is ever an affirmative duty to act. 2. Breach a. fact discussion as to whether defendant met statndard of care b. NOTE: res ipsa loquitur is discussed when facts are unclear as to whether defendant’s onduct was negligent 3. Causation a. actual (causation in fact) b. proximate (based on lack of foreseeability) (1) direct cause case (2) indirect cause case 4. Damages B. Defenses 1. Contributory negligence 2. Comparative negligence(AZ) IV. Strict liability A. Prima Facie Case 1. Absolute duty on the part of the defendant to make safe 2. Breach of that duty 3. Causation a. actual b. proximate 4. Damages B. Strict Liability for Dangerous Animals C. Strict Liability for Ultrahazardous or Abnormally Dangerous ActivitiesV. ProDUCTS LIABILITY

A. Five different theories are possible1. Strict products liability 2. Negligence3. Intentional tort4. Implied warranty5. Express warranty/misrepresentation6.

B. Strict products liability 1. Absolute duty owed by commercial supplier

a. commercial supplier includes manufacturer, wholesaler or retailer

b. duty is owed to users, consumers and bystanders; privity is no longer required

c. duty only applies to products; services are not included2. Breach of duty: three types od breach a. product is defectively designed

(1) product was not safe for its intended use, or (2) product could have been made safe without serious

impact on its price or utility b. product is defectively manufactured

(1) a mistake is made in the manufacturing of the product that causes the product to be unreasonably dangerous.

c. failure to warn (1) product is unsafe because the manufacturer has not given adequate warnings of the dangerousness of the productd. no breach where the product was substantially altered after it left the defendant’s control

3. Causation a. actual b. proximate4. Damages a. same as negligence b. many courts will deny recovery if only economic loss is involved

C. Negligence (same as any negligence action) 1. Duty a. standard of care b. foreseeable plaintiff 2. Breach (note; unlike strict products liability, D’s fault must be established) 3. Causation a. actual b. proximate 4. Damages.D. Intentional Torts 1. Rarely used for products liability because a P must prove that the D acted intentionally 2. If defendant intentionally put a dangerous product in the stream of commerce, use the prima facie case for batteryE. Implied Warranty 1. Implied warranty of merchantability or fitness for ordinary purpose 2. Implied warranty of fitness for a particular purposeF. Express Warranty/Misrepresentation

VI. General Considerations A. Are there two or more defendants? If so, think about: 1. vicarious liability (liability for someone else’s tortuous conduct) a. respondeat superior

(!) employer/employee relationship (2) tort committed w/in the scope of employment 2. joint tortfeasor problems a. releases b. contribution c. indemnification B. Did someone die? If so, think about: 1. survival acts/wrongful death acts C. Is D an immediate family member, government or charity? If so, think about: 1. tort immunitesVII. Tort Remedies A. Injunctive Relief B. Restitution C. Constructive Trust/ Equitable Lien

b. b.

Civ Pro Outline For EssayI. Jurisdiction

A. Personal1. Traditional ways of asserting jurisdiction

a. Domicileb. Presence in state when servedc. Consent

i. Appearing in the actionii. By contract

iii. Appointment of agent for serviceiv. Implied consent, e.g. non-resident motorist

statutes2. Assertion of jurisdiction over non-residents

a. State long-arm statute, and b. Minimum contacts

i. Purposeful availmentii. Foreseeability

c. Traditional notions of fair play and substantial justice

i. Relatedness between claim and contact (less important if contact is great)

ii. Convenienceiii. State’s interest

3. in rem jurisdiction4. Quasi-in rem jurisdiction5. Notice –service of process

B. Subject Matter JX

1. State courts are generally courts of unlimited jurisdiction. The only limits are statutory

2. Federal courts only have jurisdiction over two types of claims:a. Fed questionb. Diversity actions

i. Complete diversityii. Good faith allegation of damages over $75K

c. Removald. Supplemental jurisdiction

C. Venue1. In diversity cases:

a. Where all defendants reside, or b. Where a substantial part of the claim arosec. If not district meets a. or b., where all defendants

are subject to personal jurisdiction.2. In all other cases:

a. Where all defendants reside, or b. Where a substantial part of the claim arosec. If none of the above, where any defendant can be

found 3. Residence

a. For individuals, residence equals domicileb. A corporation “resides in all districts where it is

subject to personal jurisdiction4. Improper or inappropriate venue

a. Transfer b. Forum non conveniens

II. ERIE DOCTRINEA. Federal cts are required to apply state substantive law to non federal

causes of actionB. The Necessary and Proper Clause allows federal courts to apply

federal procedural rules. In addition, fed cts will apply some state “procedural” rules when those rules have no bearing on the mechanics of the fed court system.

III. PLEADINGSA. Requirements for all pleading s in fed cts

1. Fed. Cts use notice pleading – the pleading must put the opposing party on notice of the claim. By contrast, some states use code pleading.

B. Complaint1. statement of smj2. statement of the claim3. demand for relief

C. Defendant’s response1. Answer2. Rule 12 motions

D. Counterclaim1. Compulsory 2. Permissive3. Supplemental jurisdiction (if needed) for compulsory

E. Cross-Claims1. Supplemental jurisdiction (if needed)

F. Amendment of pleadingsIV. PARTIES

A. An action must be brought by the real party in interestB. Joinder of parties

1. Necessary parties should be joined2. If joinder of necessary party not feasible (e.g. would destroy

diversity jurisdiction), court must either proceed w/o absentee or dismiss the case, if dismiss, call the absentee “indispensable.”

C. Class Actions1. Initial requirements (Numerosity, commonality (law or fact),

typicality, adequacy (of representation). 2. Types

1. Prejudice2. Injunction/declaratory judgment3. common question predominate

D. Intervention1. Intervention as a right2. Permissive intervention3. Supplemental jurisdiction (if needed) for intervention of right or

defendantE. Impleader

1. Indemnity or contribution2. Other claims: TPD v. plaintiff and plaintiff v. TPD3. Supplemental jurisdiction (if needed) for impleader and TPD v.

P.F. Interpleader

1. Rule 22 Interpleader2. Statutory Interpleader

V. DiscoveryA. A Types of discovery

1. Depositions, Interrogatories, Requests to Produce, Physical or Mental Examinations, Requests for Admission, Required disclosures

B. Scope of discovery1. Anything reasonably calculated to lead to admissible evidence2. Privileged matter not discoverable 3. Work product

C. Enforcement of discovery rules(sanctions)1. Partial failure; motion to compel plus costs

2. Violation of order compelling : Rambo plus costs and attorney’s fees and contempt (although no contempt for failure to submit to physical/mental exams)

3. Total failure : RAMBO plus costs and attorney’s fees4. RAMBO sanctions include:

a. Disallow evidence on an issueb. Establish the issue adverse to the party who violated

discovery rules c. Strike the pleadings d. Dismiss the cause of action or the entire action (bad

faith)e. Enter a default judgment (bad faith)

5. Must certify that tried to get information w/o court involvementVI. Pre-Trial Motions

A. 12(b)(6)- failure to state claimB. Dismissal

1. voluntary or involuntaryC. Summary Judgment

1. The moving party must show that there is not triable issue of fact and entitled to judgment as matter of law

2. Partial summary judgment can be granted.VII. JURY TRIAL

A. 7 th Amendment guarantees a right to jury trial for actions at common law, but not for equitable actions. State constitutional provisions and statutes also guarantee jury trials

B. Legal Actions are actions for money damages or to recover property. Equitable actions involve specific performance, reformation or injunctive relief for example. In deciding whether an action is legal or equitable, courts will focus on the nature of the remedy and the nature of the action

C. When an action contains legal and equitable claims, state courts will generally not permit a jury trial if the legal claims are incidental. Federal courts have rejected the “clean-up” doctrine and guarantee a jury trial even for incidental legal issues.

D. The verdict can be a general verdict, a special verdict or a general verdict with interrogatories

E. Disregarding jury verdicts1. Nonsuit2. Judgment as a matter of Law 3. Renewed Motion for Judgment as a Matter of Law

a. At the close of all evidence is a prerequisite to a renewed motion for judgment as a matter of law

b. Evidence is considered in the light most favorable to the party opposing the motion. Evidence must be such that reasonable persons could not differ as to which party ought to prevail

4. Motion for a New Trial

VIII. APPEALSA. The final Judgment Rule requires a final judgment of the entire case

before an appeal may be takenB. Exceptions to the Final Judgment Rule

1. Pretrial orders involving temporary remedies 2. Final judgment on collateral matters3. Interlocutory orders of great importance that may be

determinative of the ultimate decision.4. Rulings on motions for Renewed Judgment as a matter of Law.

IX. Binding in Future Cases?A. Res Judicata (Claim Prelusion)

1. When there is a final judgment on the merits, res judicata prevents re-litigation of the plaintiff’s cause of action.

2. On the merits is any judgment except one based on jurisdiction, venue, or indispensable parties

B. Collateral Estoppel (Issue Preclusion)1. Issues of fact actually litigated and essential to a judgment in a

first action are conclusive in a subsequent, although different, action between the plaintiff and defendant or their privies.

2. Default and consent judgments do not involve litigation of the merits and therefore do not give rise to collateral estoppel.

C. Who is bound by the judgment?1. Parties are bound2. Privies to parties are also bound including those who control the

litigation and will be affected by the outcome. 3. Strangers are generally not bound. 4. Other JX

a. The Constitution requires that full faith and credit be given to public acts, records and judicial proceeding of sister states. Federal statutes compel recognition of federal court judgments

b. Full faith and credit is only required when the court had personal jurisdiction over the parties and the court issued a final judgment on the merits

c. Full faith and credit is not required for foreign country judgments

i. es the Court Have the Authority to Decide the Dispute

D. Does the court have authority over the subject matter? (subject matter jurisdiction)

1. ID the court and define the type of case allowed.2. Fed Ct.

a. Fed Question – right founded substantially on Fed lawb. Diversity all plaintiffs and defendants + >75k in controversyc. Supplemental jurisdiction – pendent /ancillary w/discretion

d. To appeal, fine notice w/in 30 days in the Superior ct of any county

e. SMJ can’t be waived. Attack at any time.

E. Does the court have authority over the parties (Personal Jurisdiction)1. Courts have “PJ to the max” extend permitted by the

consitituion.2. 2 types of PJ in AZ:

a. Generali. Consentii. Presence(a) physical(b) domicile(c) Doing business

b. Specific (Long arm statute)3. Is grant of jurisdiction consititutional?a. Fairness – Does Defendant have minimal contacts with AZ so as

not to offend fair play and substantial justice?b. Purposeful availmentc. Reasonalbe expectation of being haled in AZ court

X. Did Def Receive Proper Service of Process?A. ID method used

1. Personal service2. Abode service3. Agent service4. Mail and acknowledgment5. Publication

B. Is method reasonably calculated to apprise D of the litigation?C. Is service upon an entity?

1. Corporation2. Partnership

D. Object to improper service within 20/30 rule by motion to dismissXI. Is the Court the proper place to resolve the dispute (venue)?

A. In AZ, the D ordinarily must be sued in the county where she resides, EXCEPT

1. Actions against non-residents and actions for divorce must be brought in the county where the plaintiff resides.

2. Actions involving real property must be brought in the county where the property is located.

3. Actions against a corporate defendant must be brought where the action arose or where the agent for service resides.

B. object to improper venue with motion to transfer at or befor the time the answer is due

C. Removal to Federal Ct1. w/in 30 days

2. If all defendant agree3. If case could have been brought in Fed Ct Originally

XII. Are the Pleadings Proper?A. Requirements for all pleadings

1. AZ courts use notice pleading – the pleading must put the opposing party on notice of the claim.

B. Complaint1. Statement of subject matter juris2. Statement of claim3. Demand for relief

C. Def’s response1. Answer (20/30)2. Rule 12 motion

D. Counter claim 1. Compulsory2. Permissive

E. Cross-claimsF. Amendment of pleadings

XIII. Are the Proper Parties Before the Court?A. An action must be brought by the real party in interest.B. Joinder of parties – same transaction(S) or occurrence(s)

1. Necessary parties must be joined if feasible2. Indispensable parties must be joined. A party is indispensable if

her absence would prevent the court from rendering an effective judgment or would prejudice any party before the court. Courts are reluctant to find a party indispensable. If an indispensable party cannot be joined, the action must be dismissed.

3. Approach to analyzing whether a party must be joined:a. Is there prejudice from the 3rd party whether a party must be

joined:b. Can the third party be joined? (analyze Pj)c. Conclude either necessary or indispensable

XIV. Can additional parties participate in the resolution of the Dispute?A. Class Actions

1. Commonality, Adequacy, Numerosity, Typicality2. Prejucide to class/D, Equitable relief sought, or Damages –

common question predominates3. Subject matter jurisdiction (CAFA)

B. Intervention (non-party wants to join)1. Intervention as of right2. Permissive intervention

C. Impleader (Third-Party Practice – indemnity/contribution)D. Interpleader

1. Arizona2. Federal

XV. Have Parties Properly propounded and Replied to Discovery?

A. Zlaket Rules analysis1. Was the method proper?2. Was the scope proper?

B. Methods of Discovery1. Automatic prompt disclosurea. In writing, under oath and signedb. File notice of disclosure with court2. presumptive limits – rebut with good causea. Production of documentsb. Interrogatoriesc. Depositionsd. Requests to admite. Experts3. Duty to supplement w/in 30 days

C. Scope of discovery = what is relevant and not privileged1. Presumptively relevant2. Must keep log of privileged material 3. Work product is not discoverable without special showing

D. pretrial Conference mandatory once requestedE. Enforcement of discovery rules (sanctions)

1. Award costs and attorney’s fees2. Disallow evidence on an issue3. Establish the issue adverse to the party who violated discovery

rules4. Strike the pleadings5. Dismiss the cause of action or the entire action6. Enter a default judgment7. Hold the party in contempt, but only if there has been a violation

of a prior court order to make discovery. XVI. Can the dispute be resolved without a Trial?

A. Offer of JudgmentB. Default

1. File written application2. Notify defendant3. Seek entry of default 4. 10 day grace period5. Default judgment entered6. Prove-up hearing for damages or exception

C. Relief from Judgment1. Merits exist2. Equity says unconscionable to let stand3. New facts arose4. Due diligence used

D. Dismissal1. Voluntary2. Involuntary

E. Summary Judgment1. Moving party shows no genuine issue of material fact2. Partial summary judgment can be granted

XVII. If there is a Trial, Who will decide the Matter?A. 7th Amendment guarantees a right to jury trial for actions at common law,

but not for equitable actions. State constitutional provisions and statutes also gurantee jury trials.

B. Legal Actions are actions for money damages or to recover property. Equitable actions involve specific performance, reformation or injunctive relief for example. In deciding whether an action is legal or equitable, courts will focus on the nature of the remedy and the nature of the action.

XVIII. If there is a Jury, Can the Jury be Disregarded?A. Judgment as a Matter of Law (formerely Directed Verdict)B. Renewed Motion for Judgment as a Matter of Law(15 days)

1. motion for JMOL is a prerequisite to a renewed JMOL motion.2. Evidence is considered in the light most favorable to the party

opposing the motion. Evidence must be such that reasonable persons could not differ as to which party ought to prevail.

C. Motion for a New Trial (15 days)XIX. Can the Decision Be Appealed?

A. The Final Judgment Rule requires a final judgment of the entire case before an appeal may be taken

B. Exceptions to the Final Judgment Rule1. Pretrial orders involvind temporary remedies 2. Final judgment on collateral matters3. Interlocutory orders of great importance that may be

determinative of the ultimate decision.4. Rulings on motions for Renewed Judgment as a matter of Law.

XX. Is the Decision Binding in Future Cases?A. Res Judicata (Claim Prelusion)

1. When there is a final judgment on the merits, res judicata prevents re-litigation of the plaintiff’s cause of action.

B. Colateral Estoppel (Issue Preclusion)1. Issues of fact actually litigated and essential to a judgment in a

first action are conclusive in a subsequent, although different, action between the plaintiff and defendant or their privies.

2. Default and consent judgments do not involve litigation of the merits and therefore do not give rise to collateral estoppel.

C. Who is bound by the judgment?1. Parties are bound2. Privies to parties are also bound including those who control the

litigation and will be affected by the outcome. 3. Strangers are generally not bound.

EVIDENCEBegin each discussion with the issue of relevanceConsider whether legal relevance applies.Hearsay, documents, prior bad acts

I. Relevance ApproachA. Always analyze whether each item of evidence is logically relevant1. Start by defining logical relevance: Evidence is relevant if it tends to prove

or disprove a fact in consequence.II. Legal relevance

A. Extrinsic social policy exclusions1. Liability insurance2. Subsequent remedial conduct 3. Settlement offers4. Payment or offers to pay medical expenses5. Guilty pleasB. Prejudicial impact v. probative value1. Prejudice must substantially outweigh probative valuea. inflammatoryb. confusion of issuesc. misleading the juryd. undue consumption of time

III. If testimony, look for:A. CHARACTER EVIDENCE1. Ask yourself whether it is being offered for impeachment. (Look for key

words (e.g. “On cross examination … or “in rebuttal”)2. Common Impeachment Techniques

a. Prior inconsistent statementb. Biasc. Prior conviction of crimed. Bad acts e. Bad reputation for truth

3. Substantive Character Evidencea. Criminal

(1) Prosecution(a) 404b(b) Defendant opened door

(2) Defense – anytime b. Civil

(1) Habit(2) Character in issue by virtue of case.

B. OPINION1. Ask yourself whether it is lay opinion or expert opinion

If it is lay opinion, does it fall within those areas of common perception?These areas are ones that laypersons frequently observe:

a. Weatherb. Speedc. Intoxicationd. Sanitye. Handwritingf. Other

2. If expert opinion, does it satisfy the three part test:a. Is the subject matter one whre expert testimony would assist the trier of

fact?b. Is the testimony based on matters upon which an expert might reasonably

rely?c. Is the expert qualified on the subject?

IV. If documentary evidence, look for:A. Authentication

1. Handwriting verification2. Eyewitness testimony3. Admission by party4. Ancient Document5. Photographs6. Self- authentication

B. Best Evidence Rule1. When proving the terms of writing, the original must be

produced. 2. Exceptions

a. Fact exists independentlyb. Collateral writingc. Summaries of voluminous recordsd. Public records

V. Hearsay ApproachA. Is it an out of court statement? What is the witness testifying

about?B. Offered for the truth of the matter asserted? What is the out of

court statement?C. Is the out of Court Statement a Document?D. What exceptions are Raised by the facts?

VI. Hearsay ExceptionsA. Documentary Exceptions:

1. Past recollection recorded2. Business records3. Official records4. Ancient documents 5. Learned treatises

B. Exceptions Which Do not Require the Declarant to be Unavailable:

1. Excited utterance1. Present sense impression

2. State of mind3. Bodily conditions

C. Exceptions Which Require the Declarant to e Unavailable;1. Declaration against interest2. Dying declaration3. Former testimony

D. Cat-All Exception Under Federal Rules.VII. Privileges

A. Approach1. Identify the privilege and its scope2. Analyze whether the privilege applies here3. Who is the holder of the privilege?4. Is the communication within the scope of the privilege?5. Are there any exceptions or waivers?

VIII. Policy ExclusionsA. Subsequent remedial measuresB. Liability insuranceC. Settlement offers and withdrawn guilty pleasD. Offers to pay medical expenses

REAL PROPERTYa. look out for landlord – tenantb. be ready to discuss remediesc. know easements and analyze all 4 types of

easementsd. be ready to address adverse possession.

I. LandLord – TenantA. Nature of Leasehold

1. Tenancies for Years Periodic Tenancies2. Tenancies at Will

B. Tenant Duties and LandLord Remedies1. Tenant Duties

a. Express Provisions of the leaseb. Duty to pay rentc. Duty to Repaird. Duty Not to Use Premises for Illegal Purposese. Avoid Waste

2. Landlord Remedies’a.Eviction / Unlawful Detainerb. Rents and Damages

C. LL Duties and T Remedies1. LL Dutiesa. Express Provisions of Leaseb. Duty to Deliver Possession of Premisesc. Quiet Enjoymentd. Implied Warranty of Habitabilitye. Avoid Retaliatory Eviction

D. Assignments and Subleases1. Consequences of Assignment2. Consequences of Sublease3. Covenants Against Assignment or Sublease4. Assignment by LL

E. Tort Liability of LL and T1. LL Liability a. Latent Defectsb. Common Area Defectsc. Public Used. Repairs e. Duty of Reasonable Care

II. CONCURRENT OWNERSHIPA. Joint Tenancy

1. Creation2. Severance

B. Tenancy in CommonC. Rights and Duties of Co-Tenants

1. Possession2. Rents and Profits 3. Encumbrances 4. Partition5. Expenses for Preservation6. Duty of Fair Dealing

III. Rights in the Land of AnotherA. Easements

1. Types of Easementsa. Affirmativeb. Negativec. Easement Appurtenantd. Easement in Gross

2. Creation of Easementsa. Express Grantb. Necessityc. Implication (by operation of law)d. Prescription

3. Rights and Duties of Easement Holders4. Termination of Easement

1) Express Conditions2) Merger3) Release4) Abandonment5) Estoppel6) Prescription7) Necessity8) Condemnation and Destruction.

B. Licenses and Profits1. Creation2. Rights and duties3. Termination

C. Covenants Running with the Land1. Requirements for Burden to Run2. Requirements for Benefits to Run3. Remedy

D. Equitable Servitudes1. Creation2. Requirements for Burden to Run3. Requirements for Benefits to Run4. Equitable Defenses to Enforcement5. Termination.

IV. Adverse PossessionA. Requirements

1. Open and Notorious2. Actual and Exclusive

3. Continuous4. Hostile5. Statutory period

V. ConveyanceA. Land Sale Contracts

1. Statute of Fraud2. Doctrine of Equitable Converision3. Marketable Title4. Time for performance 5. Tender of Performance 6. Remedies7. Seller’s Liability for Defective Property

B. Deeds1. Formalities2. Description of aland3. Delivery and Acceptance4. Covenants in Deeds5. Recording

VI. Security Interests in Real EstateA. Types of Interest

1. Mortgages2. Deed of Trust3. Installment Land Contract4. Absolute Deed5. Sale- Leaseback

B. Redemption, Foreclosure, and PrioritiesC. Transfers by Mortgagor and Mortgagee

VII. Natural RightsA. Lateral and Subjacent SupportB. Water RightsC. Right in Airspace

Con Law- always begin by briefly discussing issues of standing, such as case or controversy.- 1st amendment issues attack law on its face, attack law as applied to the facts- For balancing tests, always consider both sided and preentth present the counter

arguments.Structure of the answer

1. Is there a justiciable case or controversy2. What kind of constitutional issue is involved?

a. Separation of powers?b. Scope of fed powers?c. State interference w/federal powers?d. Inividual rights?

3. If individual rights, is there state action4. ID the individual right involved.5. What is the law and analysis regarding the issue, including any

defenses that an adverse party may interpose?I. Justiciable case or controversy

A. RipenessB. AbstentionC. MootnessD. Political QuestionE. Standing

II. What kind of constitutional issue?A. Separation of Powers

1. Branches of Gova. Judicial b. Executivec. Congress

B. Scope of Fed Powers1. Source of power

a. Commerce Clauseb. Spendingc. Taxingd. Taking Propertye. Citizenshipf. Civil Rightsg. Foreign Affairsh. Wari. Elections

2. Limitations on power of 10th AmendmentC. State Interference with Fed System

1. Preemption2. Dormant Commerce Clause

a. Discrimination against out of state interestb. Undue burden on interstate commerce

3. Privileges & Immunities Clause

D. Individual Rights1. State Action – analyze first2. Speech

a. Prior Restraint?b. Vagueness or overbreadth?c. Content Regulation or Content neutral?

(1) Content Regulations – Advocacy of Unlawful Conduct, Defamation, Obscenity, Fighting Words, Commercial Speech. Know the tests for each.

(2) Content Neutral – Time, place & Manner, Public Forums, Symbolic Expression, Freedom of Association. Know tests for each; generally compelling state interest standard.

3. Taking (5th Amendment)a. Taking must be for public useb. Taking requiring just compensation v. a regulation under police power

not requiring just compensation.(1) Just compensation? Usually fair market value

4. Religiona. Establishment Clause

(1) Constitutional if:(a) Secular Purpose(b)Secular Effect© No undue entanglement

b. Free Exercise Clause5. Equal Protection

a. Classification of Fundamental Interest?(1) Fundamental Right (1st Amendment, Privacy,

Voting)(a) Requires Strict Scrutiny

(2) Classification(a) Suspect – race and alienage, requiring

strict scrutiny(b) Quasi suspect – gender and illegitimacy,

requiring middle tier analysis(c) Other classes – wealth, age, and others

requiring rational basis b. Scrutiny?

(1) Strict Scrutiny – compelling state interest and means necessary to achieve state interest

(2) Middle Tier – important state interest and means substantially related

Rational Basis – legitimate state interest and means rationally related(3) Rational Basis – legitimate state interest and means

rationally related6. Substantive Due Process

a.Marriage, Procreation, Privacyb. Strict Scrutiny

7. Procedural Due Processa. Life, Liberty or property interest?b. What process is due?

RemediesAlways look first to Legal Remedies then Look to Equitable Remediesi) 4

b)

Commercial PaperI. ISSUE SPOTTING

A. Look for an instrument in the fact pattern(note, draft, check or an “instrument”)

B. review the checklist of possible issues1. Holder v. Maker (Drwer) HDC rule2. Holder v. Indorser3. Holder v. Drawee4. Drawer v. Drawee5. Drawee (Payor) Bank v. Presenter6. Accord and Satisfaction

II. HDC Issue – Holder v. Maker (Drawer)A. Spot and set up the issue

1. Identify trigger instrument (note, draft, check, etc.2. Original payee indorses, transfers or gives instrument to a third

party3. The third party sues the maker (not the original payee)

B. Analyze the issue 1. Is the instrument a negotiable instrument?

a. Promise or orderb. Unconditionalc. To pay a fixed sumd. On demand or at a definite timee. To bearer or to orderf. W/O any other unauthorized promise

2. Has the instrument been negotiated?a. Original payee must negotiate the instrument to anotherb. Order or Bearer instrumentsc. Last indorsement rule (Special/Order; lBank/Bearer)

3. Is the holder a holder in due course (HDC)?a. Holder b. Value ‘c. Good Faithd. w/o noticee. Exception: Non-holders in due course

4. HDC takes free from personal defenses/ claims, but subject to real defenses

III. HOLDER v. INDORSERA. Identify theory of recovery: Contract of secondary liabilityB. Basic obligation: Indorser’s signatureC. Analyze required elements of the Indorser’s contract

1. Presentment2. Dishonor3. Notice of dishonor

D. Warranty liability – Indorser becomes a transferor by indorsing the instrument. There are five transfer warranties:

1. Entitled to enforce2. Signatures are genuine3. No material alteration4. No defenses5. No knowledge of insolvency proceedings

IV. Hoder v. DraweeA. CertificationB. Drawer liability releaseC. Remedies

V. Drawer v. Drawee (Customer v. Bank)A. Analyze possible claims

1. Wrongful dishonor (should have paid but did not)2. Forgery liability

a. Maker’s forgeryb. Forged indorsement

B. Analyze possible defense (comparative negligence applies)1. Ratificatoin2. Fictitious payee rule3. Employer responsibility rule4. Drawer negligence5. Failure to inspect/ notify (consider Statute of limitation)

VI. Payor (Drawee) BankA. Drawer forgery ruleB. Foprged indorsement rule – breach of presentment warrantyVI. Accord and Satisfaction

A. Elements to be shown by moving party1. Good faith disputed claim2. Paid in full3. Collection constitutes discharge

B. Defenses1. Designation of central address for receipt2. Reimbursement w/in 90 days

Community PropertyDivide the question by item of property.Analyze the character of the property.

a. When was the property acquiredb. What was the source of funds used to acquire the asset?c. What presumptions apply to the property?d. Have any actions been taken by the parties which would change the character of

the property?e. What is the resulting character of the property?

For each item of property, analyze what will be done with it for purposes of the question (e.g., if the question involves divorce, a substantially equal division of the community assets will be ordered).Repeat steps 1-3 of each item of property.Are there any issues that affect all items of property?Conclude with who gets what corresponding to the call of the question.Community Property

I. Wring an EssayA. Start your essay by explaining the basic presumptions which govern the

law of community property: “Arizona California is a community property state. All property acquired during the course of the marriage is presumed to be community (CP). All property acquired before marriage or after service of a petition, if the petition results in a decree, is presumed to be separate property (SP). In addition, any property acquired by gift, devise or bequest is presumed to be separate property.

If time allows, add: In order to determine the character of any asset courts will trace back to the source of funds used to acquire the asset. A mere change in form of an asset does not change its characterization.”

B. Analyze whether there are any issues that affect all of the assets.1. Transmutation: Transmutation may affect all of the assets, therefore you may want to

discuss an issue like this at the outset.2. Termination of the community (decree of dissolution, legal separation or annulment,

or service of a petition that results in such)“At dissolution, the community assets will be equitably divided unless some special situation requires deviation from the substantially equal division requirement.”

Or Death: At death, the decedent may leave all of his separate property and one half of the community property. If the decedent dies intestate, the surviving spouse is entitled to the decedent’s share of the CP and 1/3 of all of the decedent’s separate property depending on whether the decedent’s separate property depending whether the decedent left issue or parents surviving.”

C. Separate each item of property1. Isolate each asset acquired by the spouses and use a heading to

break up your discussion by asset.

2. Isolate any liabilities incurred by the spouses and use a heading to break up your discussion by liability.

D. For each asset or liability determine whether any special classification exists and set forth the special classification rule.

1. Personal Injury awards are divided between CP and SP. Personal injury awards are CP to the extent they compensate for loss of wages and medical expenses. The remainder is SP.

2. Retirement benefits are CP if earned during the course of the marriage. Fore retirement benefits earned before and during the marriage, courts use the “present cash value” rule to determine how much of the pension is attributable to CP labor and how much is attributable to SP labor. If it can’t be determined, courts use reserve jurisdiction method.

3. Disability pay and worker’s compensation benefits are treated like tort recoveries. To the extent disability benefits re taken in lieu of retirement benefits, the disability benefits are treated as retirement benefits.

4. Business and professional goodwill is CP if earned during marriage.

5. Education and training are not CP. A spouse who supported the other spouse in obtaining a degree may be entitled to a maintenance award as a result of the contributions to the education.

6. Stock options are a form of employee compensation and they are treated as CP or SP depending when they were earned. Courts use the time rule to determine the respective CP or SP shares.

7. Severance pay – If it arises on the bar exam, raise arguments on both sides. Courts which treat severance as SP do so because they believe the severance pay replaces future wages which would have been received.

E. all of the decedent’s SP unless the decedent left issue who are not also issue of the surviving spouse.

1. Creditors2. Invalid Marriage

a. Look at age, capacity, license and ceremonyb. Analyze under contract and equity principles

3. Premarital agreement: May be used to “opt out” of community property rules, If:

a. In writing, signed by both parties, andb. Non-drafting spouse has adequate property or adequate earning

capacity or independent counsel, and c. Voluntary, not unconscionable and full and fair disclosure.

F. Separate each item of property.

1. Isolate each asset acquired by the spouses and use a heading to break up your discussion by asset.

2. Isolate any liabilities incurred by the spouses and use a heading to break up your discussion by liability.

G. For each asset or liability determine whether any special classification exists and set forth the special classification rule.

1. Personal Injury awards are divided between CP and SP. Personal injury awards are CP to the extent they compensate for loss of wages and medical expenses. The remainder is SP.

2. Retirement benefits are CP if earned during the course of the marriage. Fore retirement benefits earned before and during the marriage, courts use the “present cash value” rule to determine how much of the pension is attributable to CP labor and how much is attributable to SP labor. If it can’t be determined, courts use reserve jurisdiction method.

3. Disability pay and worker’s compensation benefits are treated like tort recoveries. To the extent disability benefits re taken in lieu of retirement benefits, the disability benefits are treated as retirement benefits.

4. Business and professional goodwill is CP if earned during marriage.

5. Education and training are not CP. A spouse who supported the other spouse in obtaining a degree may be entitled to a maintenance award as a result of the contributions to the education.

H. Property acquired with community and separate funds.1. Pay offWhen property is acquired with community and separate funds the community and separate property interests are determined by apportioning their respective contributions.

1. When community and separate funds are used to purchase an asset, the CP and SP acquire a pro rata ownership interest in the asset. To determine the respective shares of ownership, you start by figuring the percentage that each contributed to the purchase. Then subtract the amount the CP contributed to pay off the MTG. At divorce the SP is entitled to its actual contribution to the purchase plus its pro rata share of the appreciation; the CP is entitled to the rest.

2. When spouse uses CP to improve the SP of a spouse, the CP does not obtain a pro rata ownership interest in the asset but may be entitled to reimbursement.

(a) When a spouse uses CP to benefit the SP of the other spouse, a gift is presumed.

(b) When a spouse uses CP to benefit the spouse’s own SP, the CP is entitled to reimbursement. The CP is

entitled to the cost of the improvement or the increase in value of the SP whichever is greater.

a. When community funds are used to pay off a mortgage on a piece of separate property, the community is entitled to the amount applied to principal plu a pro-rata share in the appreciation. To determine the respective shares, you start by figuring out the percentage that each contributed to the purchase price.”

2. Improvements: When CP is used to improve the SP of a spouse, the CP is entitled to the appreciation in value due to the improvement.

3. Separate Property funds used to pay-off or improve CP is presumed to be a gift.

I. Actions by the spouses altering the character of property. 1. Premarital agreements (agreements before marriage) are

enforceable, but must be in writing and signed by bothe parties to satisfy the statute of frauds.)

2. Transmutations (agreements during marriage)a. Define what it is: “A transmutation is an agreement between

spouses to change the character of an asset or series of assets.”b. Apply to the facts: “Here, there (was/was not) a valid

transmutation because…”3. Married Woman’s Special Presumption - a special

presumption which applies to property taken in the woman’s name alone prior to 1975. According to the MWSP, property taken in the name of the married woman prior to 1975 is presumed to be her separate property. The MWSP is based on the face that prior to 1975 the husband was given sole management and control of he community assets and thus, any property in the woman’s name was presumed to have been a gift to her.”

a. Does not apply to assets where some intent other than a gift is shown or where the woman controlled how title to the asset was taken.

4. Property held in joint tenancya. First ID whether the characterization is taking place at divorce

or at death. b. Set for the applicable rule comopeletely: “At death, Lucas applies. Under Lucas when a married couple takes title in joint and equal form, it is inconsistent with the preservation of a SP interest in the asset. Any SP used to acquire the asset is presumed to be a gift of the SP unless there is an oral or written agreement to the contrary. Or

“At divorce, the rules vary depending on when the asset was acquired. Under California Family Lw, when a married couple takes title to an asset in JT after 1984, the asset is presumed to be community property for purposes of divorce. The legislation was later revised so that property taken by a married couple in any joint form after 1987 is now presumed to be community property for purposes of divorce. Thus any SP used to acquire the jointly titled asset does not give the SP a pro rata ownership interest in the asset. However, the SP is entitled to reimbursement for its contributions to the purchase price of a jointly titled asset. Jointly titled assets acquired before 1984 are governed by Lucas.”JT is not CP, but rather the SP of both spouses, At divorce JO are divided equitably along with the CP.c. Marriage of Toth: When SP is used to buy property titled as

JTWROS, a give of one-half to the other spouse is presumed.J. Community labor enhancing the value of SP business. “Here , although H’s business is SP, the CP is entitled to a share of the appreciation of that business because H’s labor during the course of the marriage was used to increase the value of the business.”

1. Explain the different formulas for calculating the CP’s interest and explain how they apply to the facts of the case:

a. Rate of Return (Pereira) This method is used when the increase in value of a separate property is primarily the result of community labor. Determine the value of the SP at the beginning of the business and give it a fair rate of return over the course of the marriage. Normally this is the legal interest rate (10% simple interest) calculated annually. The SP is given the initial value plus the fair rate of return. The remainder is CP.”

b. Value of Community Services (Van Camp)This method is used when the increase in value of a business is primarily the result of the inherent nature of the SP asset. Determine what a fair salary would be for the community labor and multiply that by the years of the marriage. Subtract any salary already received and any amounts paid for community expenses. The result is your CP share. The rest is SP.”

K. Distribution at Divorce1. State the basic rule: The basic rule at divorce is to divide each of the community assets in a substantially equal manner.”2. Explain whether there are any reasons to deviate from the equal division rule.

b. misappropriation by one spousec. liabilities exceed assetsd. educationalEducational debts will be assigned to the spouse who

received the education.

e. Tort liabilities will be assigned to the spouse who incurred the liability if the liability was not for the benefit of the community.

f. Family home may be awarded to the person who is given custody of the minor children.

L. Distribution at Death.1. If the spouse dies with a will, the spouse is entitled to dispose of

all of his or her separate property and one-half of the community property.

2. If the spouse dies w/o a will, the community property and the decedent’s separate property are awarded entirely to the surving spouse, unless he decedent leaves surviving issue wha are not also issue of the deceden’t spouse.

J. Quasi-Community Property1. Explain what it is: “Quasi-Community property is property acquired by the couple while living in another jurisdiction which would have been classified as community property had the parties been domiciled in AZCA.”2. Explain what happens at divorce: ‘At divorce, quasi-community Property is treated exactly like community property.”3. Explain what happens at death: “At death, the decedent can dispose of all of the quasi-cP by will.” QCP does not apply at death.

K. Management and Control During Marriage1. Explain the basic rule : The general rule is that during the

marriage the spouses have equal management and control of all the community assets.”

2. Explain whether is a n applicable exception to the equal management rule;

a. Real property transfers; both spouses must join.b. Guaranty, indemnity or surety ship: both spouses must join to

bind the community. L. Preemption

1. Explain the basic concept: Under the Supremacy Clause, federal law preempts inconsistent state laws. In some instances, federal law preempts Arizona from applying community property concepts to certain assets.”

2. Explain whether preemption applies or not:a. Preempted

(1) federal homestead claims(2) military life insurance benefits(3) U.S. Savings Bonds(4) Social Security benefits

b. Not preempted(1) railroad retirement benefits(2) military retirement benefits(3) copyrights

TrustsA. Express private trust

1. Settlor – Retention of too much control over Turst assetsException: Totten Trust2. Trustee

a. failure to name a valid Trustee will not defeat a trust(1) incompetent Trustee named(2) no Trustee names

b. Court will appoint trustee3. Res (Corpus) – must be a presently eisting property interest and not a mere expectancy4. Beneficiary

a. must be definite and ascertainableb. unspecified members of a class(1) acceptable

(a) children of a living person(b) employees of Settlor at his death© heirs

(2) unacceptable under traditional view(a) relatives

i) some modern courts will save the Turst by interpreting “relaies” to mean “heirs”

(b) “friends”5 Legitimate Trust purpose6. Manifestation of present intent to create a trust

a. use of magic words is not necessary(1) Trust (2) Trustee

B. Trusts created by operation of law1. Resulting Trust a. Failed Express Trustb. Express Trust has outlived its purposec. Trust duties are specified

(1) exceptions:(a) close relatives(b) illegitimate purpose

2. Constructive Trusta. to avoid unjust enrichment caused by fraud, duress, undue influence or

misrepresentationb. duties of constructive trustee

(1) convey property to rightful beneficiary(2) five up any profits earned

C. Pour-Over Trusta. Incorporation by Reference – the document must be in existence at the time incorporatedb. Independent Legal Significance

(1) Properly funded – Trust has independent Significance(2) If not funded – then no Independent Significance

c. Uniform Testamentary Additions to Trust Act

D. Charitable Trusts1. Charitable Purpose

a. to benefit the poorb. to promote educationc. to promote religiond. to promote healthe. to promote a civic or governmental enterprise

2. Charitable purpose but settler will personally benefit – not Charitable Trust3. Rule against perpetuities Not applicable4. Cy Pres

a. a. General Charitable Intent Neededb. Modern View – Intent Presumed

5. Honorary Trusta. Uphold so long as the Trustee is willing to carry out the intended purpose but the

courts will not force Trustee to do soII. RESTRAINT ON TRANSFER OF TRUST PORPERTYA. Spendthrift Trust1. Voluntary alienation restrained – Exception: Life endanger situation2. Involuntary alienation restrained –

a. Exceptions:(1) Child support(2) Alimony(3) Claims for necessities such as food

3. Protection of Income v Protection of Corpus4. A settler cannot set up a Spendthrift Trust for his own benefitB. Discretionary TrustC. Support Trust1. Support in the manner the beneficiary is accustomed to 2. A spendthrift clause will be implied3. Trustee to consider beneficiary’s other incomeIII. MISCONDUCT BY THE TRUSTEEa. Breaches1. failure to follow instructions2. failure to avoid self-dealing

a. beneficiary may ratifyb. beneficiary may recover all profits made by trustee even if transaction was fair

3. failure to earmark and segregate4. failure to act with proper care skill or prudence

a. failure to supervise and administer(1) Duty not to delegate Discretionary Trust powers such as choosing investments(2) Duty to properly select and supervise agents

b. Prudent Investor Rule (via Unform Act)c. Failure to diversify

B. Liability of successor Trustee for breaches of predecessor – Not liable for prior Trustee’s breaches unless fails to take appropriate action

C. Trustee contrat and tort liability to third parties1. Traditional View – liable, but if no personal breach, then can be reimbursed2. Modern View – Third party must proceed directly against the Trust unless Trustee

responsible for breach

IV. ALLOCATION OF INCOME AND EXPENSESA. Specific Types of Receipts

1. ordinary income to income beneficiarya. interestb. rentc. cash dividends

2. capital gains to principala. profits from sale of assets

Exception: Sale of unproductive assetsb. stock dividends not payable in cash

B. Expenses1. ordinary expenditures from Income

a. taxesb. insurancec. maintenance costs

2. extraordinary expenditures from Corpusa. improvementsb. capital gains taxes (if any)

V. MODIFICATIONS AND TERMINATINA. ModificationB. Termination

1. all beneficiaries in agreement2. no material purpose remaining

WillsWills and Trusts have always been test togetherTake time to understand the facts before writing in the bluebookBe aggressive with the facts when issue spottingIssues in Wills:*creation and revocation of a will are highly testable.Issues in Trusts*creation of a trust and the duties of the trustee are highly testable.

I. Testator Issues (Intent)A. General capacity at time of execution1. Lowest capacity recognized in law

a. must be 18 yearsb. able to understand the extent of his propertyc. must know nature objects of his bountyd. must understand the nature of the testamentary act

2. Consequence of lack of capacity : entire Will is invalid

B. Insane Delusion1. Elements:

a. false beliefb. product of a sick Mondayc. not even a scintilla of evidence to support the beliefd. affected the disposition in the Will

2. Consequence of an Insane Delusiona. Code – Will invalidb. Cases – Invalid only affected portion

C. Fraud Representation of a material fact for purposes of inducing action or inaction, known to be false by the wrongdoer, which induces the action or inaction.1. Fraud in the execution

a. Forgeryb. Testator signs testamentary document believing it to be non-testamentary

(1) consequences – entire Will invalid.

2. Fraud in the inducementa. Wrongdoer’s misrepresentation affects dispositionb. Consequences – only affected part is invalid

(1) remedies can included constructive Trust if necessaryD. Undue Influence – Testator’s free agency is subjugated or dominated.

1. Presumptiona. confidential relationshipb. wrongdoer’s acive participationc. unnatural resultd. wrongdoer benefits directly or indirectly

2. Prima facie case

a. Elements(1) Susceptible Testator(2) Wrongdoer’s active participation(3) Unnatural result(4) Wrongdoer benefits, directly or indirectly

b. Consequence – Invalidates only affected portionE. Mistake

1. Mistake in contenta. accidental omission – no reliefb. accidental addition – strike out accidental term

2. Mistake in execution – wrong document so not probated3. Mistake in inducement – erroneous belief – no relief unless mistake and true intent

appears on face of Will4. Mistake in description (Ambiguity) – Admit extrinsic evidence5. DRR – mistake in validity of a subsequent testamentary disposition. We presume

that the revocation of a bequest was dependent on the validity of the new disposition.6. Petermission – Child born or adopted after Will written

II. Document IssuesA. Formalities of Execution ( witnessed Wills)

1. Elementsa. there must be a writingb. signed by T anywherec. T signs or acknowledges signature of Will before two witnesses.d. witnesses knew it was T’s will

2. Interested Witness – A witness may be a beneficiary under the will.B. Incorporation by reference

1. writing 2. in existence 3. clearly identified4. T intended to incorporate

C. Acts of independent significance

III. HOLOGRAPHSA. Elements

1. signed anywhere2. name of beneficiaries and their gifts in T’s hand3. testamentary intent T’s hand or preprinted or proven by extrinsic evidence

B. DATES- not necessary but can come up if1. inconsistent Wills2. capacity problems

IV. CHOICES OF LAW – WILL VALID IF IT COMPLIES WITHA. Arizon AZ Law or B. Laws of state where executed or C. Laws of state where domiciled

V. CODICILS

A. Must comply with statute of WillsVI. DISTRIBUTION OF THE ESTATE

A. Classification of gifts1. specific 2. general3. demonstrative 4. residuary

B. After acquired property passesC. Who can take

1. Lapse and Anti-Lapse2. Devisee must survive testate by120 hours3. Simultaneous Death Act

D. Abatement1. omitted spouse or child2. to pay debts

E. Exoneration – (extinguishment of encumbrances) No exoneration of liens or mortgages unless testator directs that the specific lien or mortgage be paid out of the estate.VII. INTESTATE SUCCESSION

A. If the decedent is survived by his spouse but no issue, all of the decedent’s separate property, and the decedent’s one-half of the community property passes to the surviving spouse.

B. If the decedent is survived by spouse and issue, all property passes to the surviving spouse.

C. If the decedent is survived by spouse and surviving issue who are not issue of the surviving spouse, ½ the decedent’s separate property passes to the surviving spouse. The other one-half and the decedent’s one-half of the community property is divided equally among the surviving issue.

D. If no surviving spouse, all property passes to the issue.E. If not surviving spouse or issue, all property passes to the parent F. If no surviving spouse, issue or parents , all property to issue of deceases parentsG.If no surviving spouse, issue, parents, or issue of deceased parents, to grandparents

or therir issue split, if possible in equal shares between maternal paternal sidesH. If none of the above, the estate escheats to the stateI. Remember: heirs of the same degree inherit per capita; if the heirs are of a different

degree, they inherit per stripes. VIII. RESTRICTIONS ON DISTRIBUTION

A. Spousal Protection – T can Will away only one half of the community property1. will which attempts to dispose of morethan the decedent’s half of the community

property forces the survivor to elect2. Marriage after execution of the will entitles spouse to intestate shareB. Unworthy heir (devisee)1. one who feloniously and intentionally killed testator/intestate2. conviction conclusive, otherwise proven by preponderance of evidence in probate

court3. Anti-Lapse statute doesn’t apply

C. No limitation on gifts to charitiesIX. REVOCATION

A. Revocation by physical act1. revocation by physical acta. elements

(1) burned, torn, canceled, destroyed(2) simultaneous intent to revoke

2. cancellation by interlineationsB. Revocation by written instrument1. revocation can be express or by implication2. revival is not automatic; revival only when testator intended the revival of the first

Will.C. Revocation by operation of law1. pretermitted child takes unless

a. intent to disinherit in Willb. provided for outside Willc. leaves property to surviving parent of child

2. living child believed to be dead takes intestate share3. omitted spouse takes statutory share unless

a. intent to disinherit in Willb. provided for outside Will

4. dissolution of marriageD. Change in holdings1. ademption by extinction2. ademption by satisfaction or advancement (inter vivos doen payment made by T)

a. must be contemporaneous writing by T or anytime by deviseeb. value is fair market unless set by T in a contemporaneous writing or by the beneficiary in a contemporaneous “acknowledgment” (can be oral).

X. CONTRACTS TO NOT REVOKE OR TO MAKE A WILLA. Two ways to establish

1. contract mentioned in Will2. extrinsic writing evidencing the contract

B. Remedies (no cause of action until T’s death unless irreparable injury)1. specific performance2. breach of contract3. constructive Trust

Contracts and UCC Spend a little more time outlining contracts essays

- understand the facts- pay attention to the sequence of the issues

Contract formation issues- pre-write the issues of offer and acceptance.- if the UCC applies, be ready for an acceptance issue

Performance issues- identify the conditions and covenants to be performed- consider any discharge issues

Remedies - conclude by briefly discussing remedies- consider quasi-contract remedies

I. What Law Applies?A. UCC

1. Sale of goods (be able to define goods)Writing tip: Do not confuse the general UCC requirements with the special rules

for merchants. Set for the the basic UCC rule and then explain why the UCC applies. In a separate sentence, explain whether the special rules for merchants apply. Example: “The UCC governs contracts for the sale of goods. This contract involves the sale of tables. Because tables are goods, the UCC will govern this contract. In addition, the UCCC has special rules that apply when merchants are involved. Here, both Paul and David are merchants because they regularly buy and sell tables. Thus, the special rules for merchants will apply to this contract.”

B. Common Law1. Any contracts not governed by the UCC are governed by common law

II. Is THERE A VALID K?A. Is there a valid offer?1. Manifestation of a present intent to contract demonstrated by a promise,

undertaking or commitment.2. Definite and certain terms3. Communicated to an identified offeree

B. Has the offer been terminated?1. Lapse of time2. Revocation: words or conduct of the offeror terminating the offer

a. effective when received by offereeb. unless the offer is irrevocable

(1) option contract(2) Merchant’s Firm offer under UCC(3) detrimental reliance

3. Rejection: words or conduct of the offeree rejecting the offera. effective when received

b. counter offer acts as rejection4. Termination by operation of law

a. death or insanity of either partyb. destruction of subject matter of the contractc. supervening illegality

C. Has the offer been accepted?1. Under common law, acceptance must mirror the offer2. Under the UCC, an acceptance which adds terms to the offer is valid. Between

merchants, the additional terms become part of the contract unless they materially alter the contract, unless the offeror objects or unless the offer is limited to tits terms. (UCC ss 2-207)

3. Method of acceptancea. promise to performb. starting to performc. complete performance

4. Mode of acceptancea. manner authorized by offerb. any reasonable manner

5. Effective upon dispatcha. mailbox rule

D. Consideration1. Bargained for exchange2. Legal detriment or legal benefit

a. past considerationb. “pre-existing’ duty rulec. part payment existing debtd. payment to settle legal claime. payment of debt barred by SOL

3. Substitute: Promissory estoppel or detrimental relianceE. Defenses to formation

1. Statute of frauds2. Mistake 3. Incapacity4. Unconsciouability5. Duress, fraud

III. What are the terms of the contract?A. Interpretation of terms1. Custom and usage in the industry2. Course of dealing between the partiesB. Mistake and ambiguous termsC. Parol Evidence RuleD. Modification

1. Additional consideration needed under the common law2. Under UCC, no consideration needed so long as in good faith3. Modification may need to satisfy Statute of Frauds

IV. DO ANY THIRD PARTIES HAVE RIGHTS OR RESPONSIBILITIES UNDER THE CONTRACT?

A. Third party beneficiaries1. When does a third party beneficiary contract arise?

a. direct undertaking by the promisor to the third party b. an intent on the part of the promise to benefit the third party

2. Have rights vested?3. Who can sue whom?

a. third party beneficiary v. promisorb. promise v. promisorc. third party beneficiary v. promise

B. Assignment of rights1. Assignments are generally valid unless they materially alter the obligor’s

duty or risk or unless they are prohibited by law2. Does obligor have defenses against assignee:3. What happens when there is more than on e assignment of the same right?

C. Delegation of duties1. Delegation of tduties is permitted except where prohibited by the contract,

where duties involve personal judgment and skill or where the delegation would change the obligee’s expectations.

2. Obligee may sue delegator and delegate.V. HAVE THERTERMS OF THE CONTRACT BEEN PERFORMED?

A. Conditions1. Types of conditions

a. precedentb. concurrentc. subsequent

B. Satisfaction and Excuse of ConditionsC. Discharge

1. Impossibilitya.Impossibilityb. Illegalityc.Destruction of subject matter

2. Impracticabilitya. extreme and unreasonable difficulty that was unanticipated

3. Frustration of purpose 4. Rescission5. Novation

a. an agreement by all parties to extinguish contractual duties between the original parties and replace them with a new contract

b. accord and satisfactionD. Breach

VI. WHAT REMEDIES ARE AVAILABLE IF THE CONTRACT HAS BEEN BREACHED?

A. Duty to mitigateB. Damages

1. Compensatorya. expectation damages (“benefit of the bargain”)b. consequential damages available only if foreseeable

2. Liquidated damagesa. actual damages difficult to calculate at the time the contract was formedb. amount is a reasonable forecast of the damages that are likely to occurc. punitive damages

C. Specific performanceD. Quasi-contractual relief

CorporationsI. ORGANIZATION AND FORMATION OF CORPORATION

A. Fact Pattern:Creditor sues insolvent corporation

B. General Rule:Shareholders of a corporation are not subject to personal liability for its debts

C. Exceptions:1. Corporation not properly formed. (Discussion of de jure, de facto, and

corporation by estoppel concepts.)2. Pierce “Corporate veil” (Fraud, undercapitalization and alter ego theories. )3. Unpaid stock4. Promoter liability on preincorporation contracts

II. CAPITAL STOCK STRUCTURENote: Learn terms – authorized, issued, outstanding and treasure stockA. Subscription Agreements

1. Revocation of preincorporation subscriptions2. Look for board acceptance

B. Consideration for stock. Every but:1. unsecured promissory notes2. future services

C. Preemptive Rights1. Must be in Articles2. Not ok if issuance within 6 months of incorporating, or if shares issued as part

of a transaction requiring shareholder approvalD. Dividends

1. No general right to distribution2. Irrevocable once declaired

a. Insolvency exception3. Payable unless:

a. Corporation is insolventb. Payment would render Corporation insolventc. Former limitation to surplus eliminated

E. Redemptions and Repurchases of StockNote: Make sure majority shareholders with control are not doing this in way to

harm minority shareholders.III. OPERATION AND MANAGEMENT OF CORPORATION

A. Promoters1. Fact Pattern: Promoter and/or newly formed corporation are sued on a

contract made on behalf of a corporation to be formed.a. Rule 1: Promoter always liable until there is a novation.b. Rule 2: Corporation never liable untile there is adoption

B. Shareholders1. Voting Rights – record shareholder as of record datea. Voting at a Meeting

(1) Unanimous written consent (no meeting required)(2) Annual meeting

(3) Special meeting(4) Notice required in writing between 10-60 days prior

b. Proxies = authorizing another to vote the shares(1) requirements

(a) Written(b) Signed(c) Directed to secretary

(2) Expiration – when it says but always after 12 months(3) Revocation – easily revocable unless consideration paid for it – “proxy

coupled w/an interest”c. Effective Shareholder Action

(1) Quorum necessary – majority of shares entitled to vote(2) Majority of quorum wins – majority of actual votes cast(3) Cumulative voting only allowed if voting for directors

d. Shareholder Agreements to Control Voting(1) Pooling Agreements(2) Voting Trusts(3) Stock Transfer Restriction Agreements (must be reasonable

restriction)2. Inspection Rights

a. Standingb. May only inspect records, books, shareholder lists, etc., i.e., what’s on

paper (as compared to inspecting factory)c. Need proper purpose

3. Derivative Suitsa. Requirements

(1) Shareholder at time when claim arose(2) Prior written demand on board of directors (might be excused if

it would be futile)(3) Bond

b. Note: If suit is successful the recovery goes to corporation and individual is reimbursed for litigation costs

4. Controlling Shareholdera. Is fiduciary to other shareholders and coporation.

C. Directors1. Meeting required unless unanimous written consent

a. Need quorumb. Majority of quorum winsc. No proxies or voting agreements allowed

2. Board Vacancy a. May be filled by other directors or shareholders

3. Director Dutiesa. Duty of Careb. Duty of Loyalty

(1) Insider trading(2) Self-dealing (“Interested director”) transaction) O.K. if either:

(a) Fair(b) Or, if approved, after full disclosure of material facts,

by a vote of the disinterestedi) Directors or ii) Shareholders. NOTE: Remedy may be

injunction, rescission or damages.(3) Corporate Opportunity Doctrine

(A) Note: Remedies arei) damagesii) constructive trust or iii) corporation gets opportunity at cost

(4) Compete w/corporation(a) Note: Remedies are

i) constructive trust on profitsii) injunctive relief

D. Officers1. Agents of Corporation (see agency issues below)2. Bar exam issues essentially same as for directors, e.g., duties of care and

loyalty.IV. STOCK TRANSACTIONS (SALES AND PURCHASES)

A. Common law Duty (owed existing shareholder and generally required “privity” as compared to transactions carried out on stock exchanges).

B. Rule 10b-5 (Federal securities law misrepresentation action) 1. Three requirements

a. Interstate commerceb. Act of Misrepresentation

i. May be overt act or omission to actii. Must be intentional (negligence insufficient)

iii. Defendant must be in trust position, e.g. officer as compared to outside printer.

c. May be in connection nwith either purchase or sale (no privity required)

2. Tipper/Tippee LiabilityC. Section 16(b) (swing trading)

1. This requires:a. Large corporation

i. Traded on national exchange, or ii. 500 + shareholders and $5 million in assets

b. Defendant is i. Officer,

ii. Director, or iii. 10% shareholder

c. Purchase and sale of stock w/in six month period.(Highest sales are matched w/lowest purchases to maximize recovery)2. There are no defenses, e.g. good faith of defendant.

V. FUNDAMENTAL CORPORATE CHANGESA. Mergers

1. Directors and shareholders of both corporations must approve.2. Appraisal Rights of Dissenting Shareholder

a. Requirements:(1) Written objection before meeting(2) Vote against merger(3) File written claim

B. Sale of Assets1. Majority of directors and shareholders must approve sale (no quorum concept)2. Appraisal rights for seller corporation only

a. Note: May be treated as “de facto merger.” If so, merger rules apply.C. Amendment of Articles

1. Majority of directors and shareholders must approve (no quorum concept).D. Dissolution and Liquidation

1. Majority of directors and shareholders must approve (no quorum concept).2. If liquidation, pay outside creditors first.

Partnership and AgencyI. HAS AN AGENCY RELATIONSHIP BEEN CREATED?

A. Capacity B. ConsentC. Method of formation

1. By action2. By operation of law

II. WHAT DUTY IS OWED BY THE AGENT?A. Duty of LoyaltyB. Duty of ObedienceC. Duty or Reasonable Care

III. WHAT DUTY IS OWED BY THE PRINCIPAL?A. Duty to Compensate/RemimburseB. Duty to CooperateC. Duty under a contract

IV. WHAT REMEDIES ARE AVAILABLE?A. TO AGENT

1. Breach of contract2. Agent’s Lien

B. TO PRINCIPAL1. Breach of contract

2. Tort damages3. Action for secret profits4. Accounting 5. Withholding of compensation

V. HAS A VALID CONTRACT BEEN FORMED – DOES THE AGENT HAVE AUTHORITY?

A. Actual authority1. Express2. Implied

B. Apparent authority1. No actual authority

a. Impostorsb. Lingering apparent authority

2. Some present actual authoritya. Prior actsb. Position

3. Inherent authorityC. Ratification

1. Prerequisites satisfied2. Express or Implied3. Within permitted scope4. No agent ratification

D. Termination1. By its terms 2. Unilateral act

3. Breach of loyalty4. Material change in circumstances5. Death or incapacity6. Exception: agency coupled with an interest

VI. WHAT IS THE CONTRACT LIABILITY TO THIRD PARTIES?A. Third party v. Principal (if agent had authority)B. Third party v. Agent depends on principal’s disclosure

1. Disclosed Principal2. Partially disclosed Principal3. Undisclosed Principal4. Agent cannot sue Third Party

C. Principal v. Third party1. Disclosed or partially disclosed Principal2. Undisclosed Principal

a. Agent must have actual or apparent authority3. Exceptions

VII. IS THERE TORT LIABILITY – RESPONDEAT SUPERIOR?A. Employer – Employee Relationship

1. No liability for independent contractors a. Degree of control b. Method of compensation c. Exceptions i. Inherently dangerous acts ii. Nondelegable duties iii. Knowingly hired an incompetent 2. Liability for subservants 3. Employee by estoppel B. Conduct within scope of employment 1. Conduct of general nature or incident to employment 2. Not a frolic or detour 3. Motivation to serve employer 4. Intentional tort if a natural incident to employmentVIII. HAS PARTNERSHIP BEEN FORMED? A. Contract rules apply 1. Capacity and consent 2. Express or Implied 3. Statute of Frauds 4. Not illegal B. How to prove 1. Intent of the parties 2. Factors to imply a partnership a. Title to property b. Sharing of profits/ losses c. Amount of activity d. Exceptions C. Partnership by Estoppel

IX. WHAT PROPERTY IS WITHIN THE PARTNERSHIP? A. Determine by the partner’s intent B. Apply factors 1. How purchased 2. How used 3. Title 4. Who maintains, improves C. Partner’s rights in partnership property 1. Partner’s rights in specific property 2. Partner’s interest in the partnership 3. Partner’s right to participate in managementX. WHAT LIABILITIES ARE OWED THIRD PARTIES? A. Agency theories apply B. Imputing knowledge to the partnership 1. Notice 2. When knowledge acquired 3. Fraud excepted unless within scope C. Civil Liability 1. Contract 2. Tort D. Criminal LiabilityXI. DISSOLUTION OF THE PARTNERSHIP A. Methods of Dissolution 1. Acts of the parties 2. By operation of law B. Terminating apparent authority C. Continued authority to wind up D. Distributing assetsXII. LIMITED PARTNERSHIP A. Created by statute 1. Certificate filed 2. Records maintained B. Liability limited to capital contribution 1. Form of capital – cash, property or services 2. Written promise signed by limited partner C. Liability of limited partner D. Right of limited partner E. Dissolution and distribution of assets

Criminal Law

Divide question by issue Begin – can the d be properly convicted of ______ or the defendant can/cannot be

properly convicted of ___________. Elements of the crime or essentials for liability. Application of elements to facts in question. If all the elements are met for conviction of the crime or all essentials for liability are

present, discuss the defense(s) available to defendant. Lay out the requisite elements of the defendant(s) defendant might put forward.

Application of the defenses to the fact in question.TIPS:

- discuss all crimes that apply to the set of facts- if the crime was not completed, do not forget “attempt’- do not forget defenses

Homicides- unless directed other wise, discuss all homicide crimes and as to their application

explain why or why not it applies - do not forget felony murder- do not forget to discuss all the defenses that apply

I. Accomplice Liability

A. Elements of accomplice liability. 1. Intent to promote or facilitate the commission of an offense by the other. 2. Performing some act in furtherance of the offense. a. soliciting or commanding b. assisting or attempting to assist. c. agreeing to aid. d. providing the opportunity. 3. The fact that the principal is not convicted or cannot be convicted is no defense. 4. Liability – The crime itself and all other foreseeable crimes. B. Defenses Withdrawal – 1. If the person merely encouraged the ocmmission of the crime he must repudiate his encouragement. 2. If person provided some material must do all possible to retrieve it. 3. Alternative – notify authorities or take some action to provent the commission of the crime. 4. Must be before the chain of events leading to the commission of the crime become unstoppable. C. Accessory After the Fact: Helping someone escape – Helping someone escape – Not liable for the crime itself – separate lesser charge.

II. Inchoate Offenses – Solicitation , Conspiracy and Attempt

A. Solicitation ELEMENTS 1. Intent to promote or facilitate and, 2. Commanding, encouraging, requesting another to commit an offense. DEFENSES Limited renunciation (AZ) B. Conspiracy ELEMENTS 1. D agreed with another (AZ follows unilateral approach) 2. An overt act, except if object is felony upon the person of another armed burglary, or arson of an occupied structure 3. Intent to promote or aid the commission of the offense LIABILITY 1. No statutory liability for crimes committed by conspirators 2. Accomplice liability imposed for foreseeable cromes of co-conspirators (AZ : only if you are an actual party to the crime) DEFENSE 1. No impossibility defense. 2. Can only withdraw from liability for future crimes – no withdrawal from liability for the conspiracy itself. 3. It is no defense that the other party did not have the requisite intent or is immune from prosecution. C. Attempt ELEMENTS 1. Intent to commit the underlying target offense 2. a substantial step in furtherance (aZ: any step) of the commission of the crime ( mere preparation not enough) , OR intentionally engages in conduct that would be a crime were circumstances as believed to be DEFENSES 1. Impossibility no defense 2. Renunciation, if voluntary and complete, may be a defense

III. Homicide A. Causation 1. cause in fact 2. proximate cause 3. if not causation, try attempted murder B. Intentional killing 1. First Degree (3kinds)

a. Intent or knowledge that death would be cause plus premeditation; or b. Felony murder = death of a person which occurs during

commission of an enumerated felony, or during immediate flight thereform;

(1) Sexual conduct with a minor(2) Sexual assault

(3) Sale or importation or narcotics(4) Kidnapping (5) Burglary (even 3rd degree)(6) Robbery (7) Arson of a structure(8) Escape(9) Chil abuse

(10) Child molestation(11) Unlawful flight from a pursuing law enforcement vehicle

c. Police Officer – causing death of a law enforcement officer acting in the line of duty; must have knowledge that victim is law enforcement officer 2. Second degree ELEMENTS a. Intent or knowledge that death or serious bodily harm would be caused, with b. Extreme indifference to human life (extreme recklenessness) 3. Manslaughter a. Reckless killing; or b. Intent to cause death upon sudden heat of passion caused by adequate provocation by the victim C. Unitentional killing 1. Felony murder (See above) 2. Second degree murder (see above) 3. Negligent homicide a. Defendant unaware of substantial and grame risk b. causes death D. Analytical considerations 1. Was defendant aware of risk (negligent homicide) 2. What was the probability death would occur? (extreme indifference) 3. What was the social utility of the Defendant’s conduct? (justifiable risk?)IV. All other Crimes First sentence: The D can/cannot properly be convicted of ________________. ELEMENTS (define the crime completely before analyzing the elements) A. property offenses

1. Theft2. Robbery3. Burglary4. Extortion5. Trespass6. Arson of an occupied structure7. Arson of unoccupied property or structure8. Criminal damage 9. Computer fraud10. Forgery

B. Other crimes against the person1. Assault

2. Aggravated assault3. Reckless endangerment4. Threatening or intimidating5. Harassment6. Stalking 7. Sexual assault8. Sexual misconduct9. Sexual conduct w/ a minor10. Sexual abuse of a minor11. Unlawful imprisonment12. kidnapping

V. Defenses A. Self-Defense ELEMENTS of defense 1. Non-deadly Force – if victim reasonably believed he was in imminent danger of harm and the amount of force used was necessary to prevent the threatened harm a. Can’t be used in response to verbal provocation alone. b. Can be used by original aggressor in appropriate circumstances. 2. Deadly Force a. Victim may use dF in self-defense if he reasonably believes DF is about to be use on him. b. No strict duty to retreat, however the availability of a safe retreat may demonstrate that deadly force was not immediately necessary 3. Initial aggressor may assert self-defense a. If she withdraws and communicates that withdrawal to the original victim; or b. Original victim escalates the fight by using deadly force and no cnance to withdrawal was available c. No retreat required in AZ 4. If self-defense fails a. No “imperfect” self-defense for an unreasonable belief in needing to use deadly force b. AZ broadens self-defense for a battered spouse. B. Mistake of Fact (must negate mental state) C. Insanity (guilty except insane) 1. AZ follows M’Naghten 2. Burden on D D. Intoxication 1. Voluntary not a defense 2. Involuntary- apply insanity test E. Entrapment (subjective tet) F. Duress G. Crime prevention (AZ Statute) H. Homicide Defenses:

1. Justification (self-defense)2. Provocation (reduces the crime to voluntary manslaughter

3. Defenses to felony murdera. If defendant has a defense to underlying felony, he has a defense to

felony murderb. The killing need not be foreseeablec. Deaths cause while fleeing from a felony are felony murder but deaths

that arise after defendant has found some point of temporary safety are not

d. The co-felons are liable for the felony murder even if the killing was directly caused by someone other that the felons

DEFENSED – lack causation 1. General Rule – D is liable for all natural and probable consequences of his conduct unless the chain of causation is broken by the intervention of some superseding factor Superseding factors: 1. acts of nature 2. coincidence 3. non-negligent medial care unless gross negligence or intentional malpractice 2. Two commonly encountered rules a. hastening an inevitable result b. simultaneous acts by two or more parties Add causation analysis to any homicide question that presents the issue. For example, here D is not proximate cause of victim’s death because __________________ or D was proximate cause of victim’s death because _______________.

General Rule: Defendant is liable for all natural and probable consequences of his conduct unless chain of proximate causation is broken by a superseding factor.

Criminal Procedure1. For questions containing both substantive and procedural issues, follow the call fo

the question for the sequence, otherwise analyze substantive issues first2. Identify the pocket area might be 4h Amendment for example.3. Define and address the constitutional foundation before discussing specific rules.4. Critique each physical action of the government and the D one step at a time.5. Expect to use every fact in your analysis.6. Avoid bias and one-sided analysis by anticipating conclusions that favor both

sides.

(b) I. SEARCH AND SEIZURE MODEL Overview: State the source of the constitutional right and a brief statement of the

right. A. Does the D have any 4th Amendment right at all? 1. Governmental conduct? 2. Reasonable expectation of privacy? 3. Standing? B. Did the police have a search warrant? 1. Probable cause? 2. Neutral and detached magistrate? 3. Properly executed? C. If the warrant is invalid, does the good faith defense apply? D. Is there an exception to the warrant requirement? 1. Search incident to a lawful arrest? a. arrest must be lawful b. contemporaneous c. geographic scope – person and wingspan 2. Automobile? a. full probable cause b. exigency of the car’s mobility c. lesser expectation of privacy d: scope: whole car including packages or containers that could

reasonable contain item 3. Plain view? a. legitimately on the premises b. discovery of fruits of instrumentalities of crime or contraband in

plain view 4. Consent? a. voluntary and intelligent b. third party consent 5. Stop and frisk?

a. reasonable suspicion b. frisk or pat down 6. Hot pursuit

II. CONFESSIONS Overview: State the source of the constitutional right and a brief statement of

the right. A. Confession must be voluntary B. Miranda 1. Custody 2. Interrogation 3. If (1) and (2) are present, police must give Miranda warnings and get

waiver 4. Waiver a. voluntary b. intelligent c. no waiver from silence C. Defensed 1. Waiver 2. Spontaneous statement (no interrogation) 3. Not custodial a. traffic stops b. probation interviews 4. ImpeachmentIII. PRETRIAL IDENTIFICATION A. Denial of 6th Amendment right to counsel claim? 1. Post-charge line-ups and show-ups give rise to right 2. Showing photos does not give rise to right B. Denial of due process 1. Unnecessarily suggestive 2. Substantial likelihood of misidentification C. Defenses 1. Independent source for in-court identification 2. Opportunity to observe at time of crime

IV. RIGHT TO JURY TRIALOverview: State the source of the constitutional right. A. WLEMENTS 1. 6 month rule 2. Cross-sectional rule 3. Right to impartial jury a. if juror opposed to death penalty, can exclude fro cause b. if juor views about death penalty “substantially impair.” Duties, an exclude for cause c. if juror expresses scrupple about death penalty, cannot exclude for cause B. Defenses

1. No Federally-protected constitutional right to a unanimous jury 2. Must be at least 6 jurors 3. If 6 jurors used, then verdict must be unanimousV. GUILTY PLEAS A. Plea must be voluntary B. Judge must address defendant personally on record and inform:

1. Nature of charge2. Maximum authorized and any mandatory minimum sentence3. Right to plead not guilty4. By pleading guilty, waiving right to trial

C. Attacking plea after sentence 1. Plea involuntary – errors in plea-taking ceremony 2. Court lacked jurisdiction to take plea 3. Ineffective assistance of counsel 4. Failure of prosecutor to keep plea bargain

D. Defenses 1. Defendant not permitted to withdraw plea if; a. intelligent choice b. from among alternatives c. on advice of competent attorney d. plea arrangement may be changed before defendant enters pleaVI. EXCLUSION

A. Constitutionally required remedy for illegal search and seizure or coerced confessionB. Exceptions

1. Does not apply to grand juries2. Does not apply in civil cases 3. Search must violate Federal constitution or statute4. No exclusion for violating Federal regulation5. No exclusion for violating searching agency guidelines6. No exclusion for good faith reliance on:

a. case law later challenged by court decisionb. statute or ordinance later declared unconstitutional c. defective search warrant

C. Exceptions to Good Faith Reliance on Defective Search Warrant 1. Affidavit so lacking in probable cause that not reasonable officer could rely on it 2. Warrant defective on its face 3. Affiant lied to or mislead magistrate 4. Magistrate has wholly abandoned her judicial roleD. Fruit of the Poisonous Tree 1. Elements : excludes all evidence obtained or derived from the illegal police act as tainted “fruit” 2. Defenses a. inevitable discovery b. independent acts by defendant that breaks chain

Professional Responsibility Use the checklist Determine who you represent Be aggressive w/the fact pattern and take the high road Discuss all duties that apply. Look for multiple duties w/each action. Anticipate common dilemmas.

I. Basic Essay Approach A. The lawyer has a duty of _______to ________.B. Mnemonic for duties to client(S): “Clients Love Fierce Counsel”

1. Confidentiality2. Loyalty3. Fiduciary responsibilities4. Competence + other common sense duties

C. Mnemonic for duties to others: “Courts Feel Differently” 1. Candor/Truthfulness 2. Fairness 3. Dignity + Other reasonable things

II. Has the Attorney violated a duty owed the client? A. Duty of Confidentiality

1. No disclosure of any information about representation acquired at any time – includes name of client and how much they owe

2. Mandatory exception – future crime involving death/SBI3. Permissive exceptions4. Knowledge of client confidences imputed to lawyer’s firm unless

within limited scope (personal/political conflict) and can be screenedB. Duty of Loyalty: Conflicts of interest 1. Define what a conflict is and explain how one exists on the facts 2. Must anticipate relationships where potential conflict exists 3. Common conflicts

a. Simultaneous representation of 2 or more clientsb. Representation on matter related to former clientc. Lawyer obtains business interest/relationshipd. Exception

i. Lawyer reasonably believes no adverse affectii. Client consents in signed writing after full disclosure

4. When client is an organization5. Imputed disqualification

a. If substantially related matter b. Material confidential informationc. Can screen off lawyer if conflict is personal/non-litigation based

and representation will not be materially limitedC. Fiduciary Duties 1. Attorney Fees – must be reasonable

a. Lawyers must advise clients in writing about fees and scope of representation

b. Contingent feesi. Never in criminal or domestic relations

ii. Must be in writing and include method of calculationiii. At conclusion provide written accounting

c. Fee splittingi. Never with non-lawyers

ii. Permitted but restricted with other lawyers d. “nonrefundable” fees

9) Must include statement that client can fire the lawyer;ii. if the lawyer is fired, the fee “might” be refundable

2. Handling client funds and propertya. Must keep separate, safe and in the stateb. Must keep and maintain recordsc. Must keep any disputed portion separate until resolvedd. Must provide notice of receipt and deliver if requested

D. Duty of competence – must be competent or become competent E. Accepting and rejecting representation 1. Remember: “An attorney is not a bus” – must not accept everyone 2. Look for issue whether attorney – client relationship exists at all

F. Terminating representation 1. Mandatory a. Whenever duty to reject was present in the first instance b. Client fires attorney c. Continued representation will result in a rule violation 2. Permissive (mnemonic FAIR) a. Convince court it is reasonable or client: b. Financially burdens attorney unreasonably or client c. Acts against your judgment, or d. Illegally acts or uses services to commit a past crime, or e. Refuses to cooperate in representation f. Must follow procedures for terminationG. Scope of representation (must advise in writing) 1. Client decisions 2. Attorney decisions

III. Has the Attorney violated the duty to maintain integrity of the profession? A. Duty to avoid false or misleading statements – Advertising 1. Advertising content not false or misleading 2. Time, place and manner restrictions apply to advertising a. Must be labeled as “advertisement” b. Must maintain a copy after the last dissemination c. Must name attorney responsible for content d. Cannot predict success or make unverifiable claim 3. Fee information restrictions a. Contingent – disclose client’s obligation for expenses

b. Fee range/hourly rate – Written estimate c. Fixed – Written quote for particular services d. Advertised fees must be honored 90 days or time specified B. Duty not to improperly solicit clients 1. No personal or telephone solicitation primarily for pecuniary gain a. Exception for current or former client b. Exception for close personal friend or relative 2. Written solicitations allowed if labeled and with disclaimers per rules 3. No written communication

a. If it was made known services were not wanted, or b. If involving coercion, intimidation, harassment, etc., or c. If lawyer should know that person solicited is unlikely to

exercise reasonable judgment in employing lawyerIV. Has the Attorney breached the duty owed the court? A. Duty of Candor 1. Look for conflict with duty of confidentiality 2. Attorney may not assert frivolous positions – good faith exception B. Prohibited trial conduct C. Attorney as witness 1. Generally not allowed 2. Exceptions D. Relations with others 1. No ex parte communications with juror or judge 2. No materially prejudicial out of court statementsV. Has Attorney violated a duty to third parties? A. Duty of candor to opposing counsel B. Duty of candor to others 1. Not represented by counsel 2. No false statements of material fact or law C. Special duties of prosecutors 1. Cases must be supported by probable cause 2. Exculpatory evidence must be timely disclosedVI. Has the Attorney violated the duty to maintain integrity of profession? A. Duty to avoid unauthorized practice of law – pro hac vice exception B. Duty to adhere to rules and supervise associates and non-lawyer assistants C. Duty to report known violations D. Duty not to make reckless statements about a judge’s integrity