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Independence - Integrity - Fairness - Quality Service

Bar Examination Sample Q&A-February 2012

                                            February 2012 Questions and Sample Answers

Civil Procedure
Real Property
Constitutional Law

                                                         Question 1 - Civil Procedure

   Carl’s Chicken, Inc. (“CC”) is a national chain of fast food restaurants known for delicious chicken. CC, a Delaware corporation with its principal place of business in New Jersey, sells CC franchises to independently owned and operated businesses. As part of the franchise agreement, franchisees must attend 2-week training once a year at CC’s test kitchen in Edison, New Jersey and allow random inspections. Franchisees also agree that for a period of 2 years after termination of the franchise agreement, they will not: (1) provide services of any kind in the restaurant industry using the CC marks or any names registered with the U.S. Patent and Trademark Office; or (2) use any confidential and/or proprietary information, such as secret recipes.

   CC sold a franchise to Newco, Inc. (“Newco”), a New York corporation with its principal place of business in New York, New York. Newco operated a CC restaurant within a specific territory in Brooklyn, New York. However, on September 30, 2011, CC terminated Newco for non-payment of $100,000 in royalties. Since its termination, Newco has continued to operate in the same location under the CC name and marks. Newco claims that CC breached the franchise agreement by allowing another franchisee to operate within Newco’s exclusive territory.

   The franchise agreement has no forum selection clause but includes a choice of law provision stating that the franchise agreement is governed by the laws of the State of New Jersey. CC sued Newco in Superior Court of New Jersey for violating the franchise agreement and CC’s intellectual property rights. On November 1, 2011, CC served a copy of the summons and complaint along with requests for admissions upon Newco by e-mailing copies to Newco’s CEO. Newco did not answer the complaint or the requests for admissions. After obtaining default from the court clerk, CC filed a motion and the court entered default judgment against Newco.

   On February 1, 2012, Newco hired your law firm. Prepare a memorandum to a senior partner addressing the following issues, including Newco’s likely arguments and, where applicable, the likelihood of success:

        1. Whether Newco should file a motion to vacate the default judgment;

        2. Assuming the court vacates the default judgment, whether Newco should file a motion to dismiss   

        3. Whether Newco should file a motion regarding the requests for admissions;

        4. Whether Newco should file a motion for removal to federal court; and

        5. Whether Newco should file a counterclaim against CC.

                                                   PREPARE THE MEMORANDUM 

                                                           Sample Answer 1A

To: Senior Partner
From: Applicant
Date: March 1, 2011
Re: Carl's Chicken, Inc. v. Newco, Inc.

1. The first issue in this case is whether Newco should file a motion to vacate the default judgment. In short, the answer is yes.

When a party to a law suit does not answer the complaint, the opposing party may file a motion for default. By filing a motion for default, the opposing party must give the non-answering party, here Newco, notice of the motion. Here, the facts do not indicate that Newco (the non-answering party in this case) ever received notice from CC (the moving party) that they were filing a motion for default. Thus, it was improper. Once the default is granted, the moving party must then file the default with the court to have a default judgment entered against the non-answering party. After the default judgment is granted, the moving party must again serve the non-answering party with notice of the default judgment. Here, again, there is no indication that CC ever provided Newco with notice of the default judgment. Accordingly, the default was procedurally improper.

In order to file a motion to vacate a default judgment, the party must move to vacate within one year of the default. In addition, the party must allege in the motion to vacate that (1) they have a meritorious defense, and (2) they have a reasonable excuse for the default. Here, Newco is moving to vacate the default judgment less than three months from when the judgment was entered against them (the facts show that Newco was "served" with a summons and complaint on November 1, 2011, and Newco hired our firm on February 1, 2012 - in between that time the default judgment was entered against Newco). In addition, Newco has a meritorious defense to the underlying claim. First, Newco claims that CC breached the franchise agreement, which is why they continued to operate. If CC did in fact breach the agreement before Newco stopped paying, Newco would be entitled to suspend payment until the breach was cured. Second, Newco has a meritorious defense, as the Superior Court of New Jersey does not have personal jurisdiction over them - this will be analyze more fully in section 2. Thus, the default should be vacated as a matter of right for this reason. However, even if the court does find that it has personal jurisdiction over Newco, they still have a meritorious defense. Then, in relation to the second prong, Newco has a reasonable good faith excuse for their default. This is because CC did not provide Newco with any sort of notice that they were seeking default. Accordingly, Newco has filed the motion within the prescribed time period, has a meritorious defense, and has a reasonable good faith reason for their default.

2. The second issue is whether Newco should file a motion to dismiss the complaint if the court vacates the default judgment. In short, the answer here is yes.

In order for a court to hear a case, the court must have both subject matter and personal jursidiciton. In order to have personal jurisdiciton over a party, the party must BOTH have been properly served and must be subject to the jurisdiction of the court. If the court does not have personal jurisdiciton, a party must either preserve the affirmative defense in their answer to the complaint (and then under NJ law file a motion to dismiss within 90 days) or file a pre-answer motion to dismiss. If the party fails to do so, then the defense is waived.

Under New Jersey law, in order for a court to exercise jurisdiction over a party, they must have been personally served within the state, consent, waive the defense, be domiciled or reside in the state, or be subject to New Jersey's long arm statute. In order to be subject to the long arm statute, a party must first purposely avail themselves toward the state where they are seeking the protections of the state law. Next, it must be determined whether the party's conduct within the state is related to the law suit at hand. If not, then to establish general jurisdiction, the party must be conducting substantial and continuous conduct within the state. If the law suit is related to the party's conduct within the state, then there must be a close nexus between the law suit and the party's conduct in order to establish specific jurisdiciton. Finally, if these two are met, the court must determine whether exercising jurisdiciton over the party would offend traditional notions of fair play and substantial justice.

In addition, in order for a court to exercise personal jurisdiction over a party, they must be served properly. Under NJ law, a party must be served either in person, or if after reasonable good faith attempts at personal service, by certified U.S. mail. A corporation's representative or agent may be served in these two ways also. If the service is done out of NJ, the court must be able to exercise personal jurisdiction over the party as discussed above, and then service can be done outside of the state as it would within the state by a person able to do so under the laws of that state.

Here, Newco should file a motion to dismiss the complaint because the Superior Court of New Jersey does not have personal jurisdiction over the company. The only one of the possible ways the court could exercise personal jurisdiction over Newco is through the NJ long arm statute. Accordingly, Newco had to purposefully avail themselves toward NJ. However, that has not occurred here. While it could be argued that they entered into a franchise agreement with a NJ corporation, they attend 2-week training twice a year in NJ, and they allow random inspections, this would most likely not be enough for purposeful availment (as it was not in Burger King). Also, a choice of law provision will not be deemed a waiver of personal jurisdiciton, as another court can apply the laws of NJ. Thus, the personal jurisdiciton over Newco fails here.

In addition, Newco has not properly been served. Since NJ does not have personal jurisdiciton over the company under the long arm statute, Newco would have to be served within NJ in order for the NJ court to have jurisdiciton. However, here, CC served the summons and complaint to the CEO by email. This is against NJ rules and Newco had to either be served personally or via certified U.S. mail if CC could not personally serve them. Thus, the Superior Court of NJ does not have jurisdiction over NEwco, and they should file a motion to dismiss the complaint so they do not waive this affirmative defense.

3. The third issue is whether Newco should file a motion regarding the requests for admissions. The short answer is yes.

New Jersey allows for liberal discovery of anything that could reasonably lead to the discoverability of admissible evidence. In addition, New Jersey allows a party to serve requests for admissions. If the requests are not answered within 30 days after they are served, they are deemed admitted. This has the effect in court of a conclusion that cannot be denied.

A party can file a motion to quash discovery if it is unduly burdensome, prejudicial, embarrassing, etc. The court will rule whether the form of discovery falls under one of those standards. Thus, here it is advisable for Newco to file such a motion because it would be extremely prejudicial against Newco since the contents of the requests would be deemed admitted. However, this should only be done if Newco's motion to dismiss is not granted because if Newco asks for relief from the Superior Court of New Jersey, they could waive their right for dismissal by consent.

4. The fourth issue is whether Newco should file a motion for removal to federal court.

A defendant can file a motion for removal when the plaintiff has filed a claim in state court. For a federal court to have subject matter jurisdiciton over the law suit, there must be diversity of citizenship along with the amount in controversy exceeding $75,000, or there must be a federal question. Citizenship of a company is where they are incorporated, along with the location of their principal place of business. There must be complete diversity in a claim to be removed to federal court.

The federal court is generally more favorable for a defendant because for law suits for legal damages (money), the parties are entitled to have a jury hear their case. In federal court, there must be a unanimous verdict for the plaintiff to recover. However, in NJ state court, there only has to be 5/6 in favor of the plaintiff (or 10/12 if 12 jurors are used for a good faith reason).

Here, if Newco's motion to dimiss is not granted, they should file in federal court, as it would be more favorable to them. In order to do so, they must have complete diversity of citizenship, which is present here. CC is considered a citizen of both Delaware and New Jersey, while Newco is considered a citizen of New York. Additionally, the amount in controversy here is for $100,000. There is the choice of law provision at issue, but the right to a jury in federal court arises under the 7th amendment, and thus cannot be waived. Thus, Newco should file for removal, as they meet the subject matter jurisdiction requirements and it would be more favorable for them to do so.

5. The fifth issue is whether Newco should file a counterclaim against CC.

A party may file a counterclaim against any party in the litigation. There are compulsory counterclaims which arise out of the same transaction or occurrence as the law suit at issue. There are also permissive counterclaims, which arise out of different circumstances against a party in the law suit. If a party fails to file a compulsory counterclaim against a party in the law suit, it will be deemed waived, and they will not be able to do so again later under the doctrine of res judicata.

Here, Newco's claim arises from a breach of the franchise agreement with CC. CC's claim against Newco also arises out of a breach of the franchise agreement. Thus, they arise from the same transaction or occurrence and have a common fact in question - which party breached the franchise agreement. Thus, if Newco does not file a counterclaim against CC in this suit, they will be barred from doing so at a later time.

                                                                Sample Answer 1B

To: Senior Partner
From: Applicant
Date: March 1, 2011
Re: Carl's Chicken, Inc. v. Newco, Inc.

1. Motion to vacate default judgment (NJ law of civil procedure controls) 

Newco should file a motion to vacate the default judgment. A default judgment in NJ state court may be vacated where the moving party can demonstrate a) a meritorious claim/defense and b) reasonable excuse for defaulting. Here, Newco has at least one potentially meritorious defense: that NJ state court does not have personal jurisdiction over Newco and/or that CC breached its contract with Newco, releasing Newco from its covenants. In addition, Newco has a reasonable excuse for its default because service of the summons & complaint on Newco’s CEO via e-mail was improper. In NJ, out of state service of a defendant must be accomplished by a means acceptable in NJ or the defendant’s jurisdiction (here, NY). E-mail is not acceptable service in any jurisdiction and Newco’s default will likely be vacated. Also, it should be noted that an administrative default in NJ is generally without prejudice (unlike in federal court).
2. Motion to Dismiss

Assuming Newco obtains an order vacating the default judgment, Newco should file a pre-answer motion to dismiss on the grounds that service was improper (as discussed above) and the NJ state court does not have personal jurisdiction (“PJ”) over Newco to obtain PJ over a defendant, the defendant must be a) physically present within the jurisdiction or b) at least purposefully avail itself of the jurisdiction and have sufficient minimum contacts within the jurisdiction so as not to offend the traditional notions of fair play and substantial
justice, or c) consent to jurisdiction. Newco is a corporation, so its domicile or residence is determined by the state(s) it is incorporated in, which is NY, and its principal place of business, also NY. Also, the facts indicate that Newco only operated in Brooklyn, NY, so it does not appear that Newco had sufficient minimum contacts for NJ to exercise PJ over Newco. Also, the lack of a forum selection clause indicates Newco has not consented to NJ’s jurisdiction (just the choice of law, which could be applied by NY courts). It should be noted that although appearance in a suit generally amounts to consent to jurisdiction, a motion challenging a court’s PJ will not be deemed consent. Newco’s motion to dismiss will likely succeed.

3. Request for Admissions

A request for admissions is a discovery device. If a party does not respond within the appropriate time, the admissions will be deemed conclusively adopted by the party they are sought against. However, a plaintiff cannot serve discovery on a defendant prior to defendant serving an answer. Accordingly, if the NJ court does have PJ over Newco (discussed above), Newco should move for a protective order and will likely succeed because the request for admissions was premature.

4. Motion for Removal

A party may seek removal to federal court where the federal court would have jurisdiction over the parties and subject matter of the action. There are two main ways for a federal court to have subject matter jurisdiction: 1) diversity jurisdiction and 2) federal question jurisdiction. Both appear to be present here. Diversity jurisdiction requires an amount in controversy over $75,000 (here, CC’s claim appears to be for $100,000) and complete diversity of parties. As discussed above, Newco is a citizen of NY. CC, also a corporation, is a citizen of NJ (its principal place of business) and DE (its state of incorporation). There is complete diversity. (There may be supplemental ancillary jurisdiction over a counterclaim.) There is also federal question jurisdiction over CC’s intellectual property (“IP”) claim. The federal court may, at its discretion, grant pendant jurisdiction (supplemental jurisdiction under US Code) to the claim for breach of contract because it arises out of the same transaction and occurrence as the IP claim. It should be noted that a federal court must have subject matter jurisdiction of all claims in the litigation, so if Newco files a counterclaim against CC (discussed below), Newco should establish the court’s subject matter jurisdiction over that claim as well.

5. Counterclaim Against CC

NJ has a more comprehensive approach that federal courts regarding counterclaims and under NJ law, all potential counterclaims arising out of the same transaction or occurrence are compulsory. Newco’s potential counterclaim against CC for breach of the franchise agreement (by allowing another franchise to operate in Newco’s exclusive territory) arises from the same transaction and occurrence at issue in CC’s claims for breach of the franchise agreement and IP infringement. (Even under federal rules/law, this would likely be a compulsory counterclaim.) If Newco fails to assert the compulsory counterclaim, the court’s rulings/verdict of CC’s suit will have a res judicata and/or collateral estoppel effect, barring Newco from asserting the claim later.

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                                                             Question 2 - Torts

    Dawn is operating her car when the vehicle suddenly lurches off the road and into a tree. Although Dawn is properly wearing her seat belt, she suffers facial injuries when her windshield shatters.

    Dawn had been heading home from an appointment with her dentist, who had treated Dawn for a cavity. At the end of the dental appointment, Dawn used mouthwash to freshen her breath.

    Tony, another motorist, sees the accident and stops to render assistance. He smells the mouthwash and mistakenly assumes Dawn had consumed alcohol. Tony then uses his cell phone to call for an ambulance, advising the dispatcher that he is at an accident scene involving a “drunk driver who got cut up pretty bad.”

    Dawn is taken by ambulance to a local hospital, where her facial injuries require numerous stitches, leaving her with permanent scars. However, a blood test shows no evidence of alcohol ingestion.

    Six months later, she retains your law firm to bring a claim for her damages. Your subsequent investigation reveals the following:

    A) Dawn’s car had been serviced at Barry’s Garage just two weeks before the accident and had undergone a wheel alignment. The accident occurred when a new steering cable installed by Barry slipped out of position;

    B)  The steering cable had been manufactured by the XO Company. Unbeknownst to Barry, XO’s instructions specified that Type A wire was needed for the installation, but Barry used Type B wire instead. Most other steering cables allow installers to use either Type A or Type B wire;

    C) At the time of the accident, Dawn had been speaking on her hands-free cell phone, a violation of a state statute prohibiting any cell phone use while operating a motor vehicle. Dawn pleaded guilty to violating that statute at a municipal court hearing two weeks after the accident; and

    D) Tony’s comment about a “drunk driver who got cut up pretty bad” was overheard at the scene of the accident by several bystanders, including a handful who were personally acquainted with Dawn. When Dawn learned of Barry’s comments, she was angry and humiliated. However, Dawn was unable to demonstrate any damages attributable to Tony’s comment.

    The senior partner has asked you to prepare a memorandum discussing the legal issues that could be raised in a suit by Dawn for damages, as well as defenses that may be applicable to each potential defendant.

                                                          PREPARE THE MEMORANDUM

                                                                  Sample Answer 2A

Dawn v. Barry's Garage
The issue is whether Barry's Garage is strictly liable to Dawn for her injuries under a theory of products liability. Each merchant in the stream of commerce owes a strict duty with regard to defective products. Barry's is in the stream of commerce with respect to the steering cable because it was a product provided by Barry's. If the steering cable was merely incidental to the service of the wheel alignment, then Barry's would not be liable. However, Barry's is a merchant because it is providing both the wheel alingment service and the steering cable product as part of the overall transaction.

Dawn must next prove that the product which caused her injuries was so defective as to be unreasonably dangerous. In this case, the steering cable is not a manufacturing defect or a design defect, but it is a defect of inadequate warning. The rule is that when there are residual risks in a product that cannot be physically designed out and are not obvious or apparent to users, an adequate warning must be provided. In this case, Type A wire was needed for the installation but the steering cable instructions did not specify that. Because most other steering cables allow installers to use either Type A or Type B wire, the risk of not using the appropriate wire is a risk that is not obvious or apparent and hence an adequate warning must be provided. No warning was provided.

Dawn must next prove that the defective product, the steering cable with inadequate instructions, has not been altered since leaving the manufacturer's possession. When a product moves through the stream of commerce in its normal channels, non-alteration is presumed, which is the case here because it appears that Dawn purchased the steering cables from Barry's & Barry's purchased it from XO.

Next Dawn must show that the product was used in a manner that is foreseeable, which is not necessarily the manner intended. In this case, the wire and steering cable were used for the steering mechanism and wheel alingment on Dawn's car, so the product was used in a foreseeable manner and in fact used for the purpose for which it was intended.

Next, Dawn must show that she suffered some damage beyond mere damage to the product itself. In this case, Dawn suffered facial injuries.

The next claim Dawn could assert is negligence against Barry's for failure to supply a safe product. To prove neglignece, Dawn must show that there was a duty, breach, causation, and damages.

Under the majority view, a duty of care is owed to foreseeable victims of actions. In this case, since Barry's was performing work on Dawns car, she is a foreseeable victim of negligence in that repair.

The next issue is whether Barry's breached its duty to Dawn by acting unreasonably in the circumstances. In this case, Dawn may claim that Barry's was negligent in not knowing whether to use Type A or Type B wire and/or negligent in failing to check that the type of wire Barry's was using was appropriate for that particular steering cable. Barry's will counter that it did not act unreasonably because most steering cables can use either type of wire.

The next issue is whether Barry's negligence is the actual and proximate cause of Dawn's facial injuries. In this case, but for Barry's using the wrong type of wire, the vehicle would not have lurched off the road and Dawn would not be injured, therefore BAryry's is an actual cause of the injuries. Proximate cause is determined by whether Barry's breach resulted in a foreseeable consequence to Dawn. In this case, the failure to use the proper type of cable foreseeably resulted in the cable failing and the car being forced off the road, therefore Barry's is a proximate cause of Dawn's injuries. As discussed above, Dawn suffered damages in that she suffered facial injuries.

Barry's v. XO
Both Barry's and XO were merchants in the stream of commerce with respect to the steering cable and both are strictly liable under a products liability theory as discussed above. XO owes a strict duty as manufacturer to not supply defective products. This duty was breached by supplying to Barry's a product that did not contain adequate instructions telling Barry's the proper type of wire to use. This is a breach because both types of wire are normally ok to use, but for XO's particular steering cable, Type A wire must be used. Because this was not obvious or apparent to Barry's the steering cable should have contained a warning. Therefore XO breached a duty.

As discussed above, the product moved through the ordinary channels of commerce so it is presumed not to have been altered. Furhtermore, it was used in a foreseeable manner at the time of the accident, as discussed above.

Dawn suffered personal injury as a result of the defective product, so she can prove damages. Therefore, XO is liable to Dawn under strict products liability.

Barry's v. XO
Both Barry's and XO are ointly and severably liable to Dawn but Dawn can collect her total damages only once. If she collects her damages from Barry's, then Barry's has a right of indemnity from XO unless XO can prove that Barry's was negligent and apportion fault accordingly.

The general rule is that the manufacturer must indemnify the seller in a products liability case, but in this case, XO will argue that Barry's was negligent in failing to use the right type of wire. Barry's will argue that it acted reasonably because most other steering cables allow installers to use either type of wire.

Defense of Negligence Per Se
Under comparative negligence, if Dawn is found to have been negligent then her recovery of damages is reduced according to her degree of fault. Under Neglingence Per Se, the violation of a statue (more specificaly, the statute prohibiting cell phone use while driving) is prima facie evidence of negligence if (1) the harm is of the type the statute is designed to prevent, (2) the victim is within the class of persons sought to be protected and (3) there is a clear statutory standard of care.

In this case, there is a clear statutory standard of care in that cell phone use is prohibited while driving. Dawn is also within the class of persons sought to be protected by and subject to the statute as she was operating a motor vehicle. However, the harm sought to be prevented by the statute is not the type of harm that occurred here. Dawn did not have an accident due to being inattentive, rather she had an accident because the streering cable failed in her vehicle. Since her conduct is not negligence per se, she would only be found comparativey negligent if she met the ordinary standard of negligence i.e. duty, breach, causation and damages. There are no facts indicating that the accident occured because of anything done negligently by Dawn, but rather the sole cause of the accident appears to be that the steering cable failed. Accordingly, Dawn is not comparatively negligent and entitled to recover the full of amount of damages.

Dawn v. Tony
Dawn can pursue a claim for defamation against Tony. The first issue is whether Tony made a defamatory statement. A statement is defamatory if it tends to reflect negatively on a character trait of the person about whom the statement is made. In this case, Tony stated out loud that Dawn was a drunk driver, which reflects negatively on Dawn. Therefore the statement is defamatory.

The next issue is whether the statement made by Tony was published, meaning that someone else heard or read what Tony said. In this case, several bystanders heard the comment, so this element is met i.e. the statement was published.

The next issue is whether Dawn suffered damages. Certain types of defamation, including libel, do not require proof of damages, as they are presumed. Dawn needs to prove this type of defamation, as she cannot show damage attributable to the comment. If Tony's slanderous speech is of the type where damage is presumed, then Dawn's claim can succeed. Statements that impeach Dawn's honesty or integrity, or state that she has a loathsome disease, or impeach her professional conduct or business skills or state that she committed a crime of moral turpitude are sufficient to presume damages. In this case, Tony simply stated that Dawn was a drunk driver, which is independent of Dawn's professional life, does not state that she's dishonest, nor does it state that she has a loathsome disease or that she committed a crime of moral turpitude. Therefore, Dawn must prove that she suffered actual harm as a result of Tony's comment. Because she was not able to demonstrate damages attributable to the comment, Dawn's claim for defamation will not succeed.

                                                                 Sample Answer 2B

To: Senior Partner
From: Attorney
Re: Dawn

1. Dawn v. Barry

Dawn has a claim of negligence against Barry. The issue is whether Barry breached a duty of care to Dawn when he improperly installed the steering cable but did not realize that he did. To make out a prima facie case for negligence, Dawn must show that Barry had a duty to her, he breached that duty, the breach of duty caused damage, and she was injured as a result. There’s no question that Barry had a duty to Dawn, his customer, to act reasonably in repairing her car. With respect to the breach, Barry would argue that because industry practice was to use Type B wire, he acted reasonably in using Type B wire. However, since XO specified Type
A Wire, Dawn will be able to argue that it was unreasonable for a mechanic in Barry’s position to not follow the directions of a manufacturer of car parts. It is unclear from the facts whether the instructions to use Type A or Type B were provided with the part — we need to do follow up research to determine whether Barry had reason to know of the instructions, because this impacts on whether he acted reasonably under the circumstances.

In his defense, Barry could make the argument that the steering cable was not the cause of Dawn’s accidence; rather it was her use of the cell phone while driving. Under the facts as we have them, it is not clear whether the cable problem actually caused the care to go off the road, or whether Dawn was distracted by her phone
conversation, and went off the road on her own accord. In New Jersey, there is the comparative negligence doctrine that reduces a plaintiff’s recovery based on the percentage of her fault. A jury will have to determine, based on this evidence and any other evidence we present at trial, whether Dawn herself was negligent, and if so, how much.

On that note, the question of whether Dawn was negligent herself is answered by
the fact that she violated the cell phone statute. Under the doctrine of negligence per se, we can “import” the standard of care from a statute if the person is within the class of persons that the statute is meant to protect, and the accident is within the class of risks that the statute was meant to protect.

Although we can argue that the cell phone statute was not meant to protect negligent mechanics from responsibility for exercising due care in car repair, I think that Barry will successfully be able to argue that negligence per se should apply here. First, the statute was meant to protect against accidents caused by being distracted, which is exactly what happened here. Second, although Barry is not another motorist or pedestrian, his own liability and pecuniary interest is directly affected, and the statute will be imputed.

Thus, since Dawn pled guilty to the charge of violating the statute, she will likely be stopped from asserting that she was not negligent in her operation of the car.

2. Liability of XO

Dawn may also bring an action against XO in strict products liability. The issue here is whether XO’s instructions, or lack thereof, constituted a failure to warn, rendering the cable unreasonably dangerous.
To make out a prima facie case of strict products liability, Dawn would have to show that the steering cable, as designed, was unreasonably dangerous, and there was a reasonable alternative design (RAD) that would ameliorate this condition that was practical and economical for the manufacturer to implement. Lack of instruction or poorly place/explained instructions are considered a design flaw that can form the basis for a strict liability action.

She also would have to show that the design defect was the cause of her injuries.

With the facts given, we do not know whether the instructions to use Type A wire were conspicuously provided with the steering cable, and Barry ignored them, or whether XO failed to provide adequate instructions. Given that most other manufacturers allow installers to use either Type A or Type B wire, it was incumbent upon XO to provide extra-clear, extra-conspicuous instructions or warnings. Although it is technically a “misuse” of the product to use Type B wire, since it was commonplace in the industry, it was a foreseeable misuse and XO should have conformed its instructions accordingly.

In NJ, comparative negligence is a defense to strict products liability, so, as stated earlier, to the extent that XO could convince the jury that Dawn was the actual cause of the accident, or a partial cause, its liability would be decreased accordingly.
s − February 2012
3. Dawn v. Tony

Dawn does not have a defamation claim against Tony. The issue here is whether Tony’s comments constituted
slander per se, where damages are presumed, and whether Tony’s mistake of fact would insulate him from liability.

To prove defamation, Dawn must show a defamatory statement, publication of that statement, and in certain situations, that the defendant acted with malice, and in certain situations, that she suffered damages.

The malice requirement only applies to speech of public concern, and a onetime comment about a non-political, nonfamous person is not speech of public concern. So Dawn does not have to prove that Tony acted with malice. Dawn does, however, have to prove that she suffered actual damages, because damages are not presumed unless there is slander per se. Slander per se occurs when the statement concerns the plaintiff’s business or profession, implies that she is unchaste, or implies that he has an STD or leprosy. Being called a drunk driver does not fit into any of these categories, so Dawn’s lack of damages dooms her defamation

Even if she could make out a prima facie defamation claim against Tony, she would still probably lose because Tony would have a viable affirmative mistakeof-fact defense.

Reasonable mistake of fact is a defense to defamation. It was reasonable for Tony to believe that Dawn was drunk given the smell of alcohol on her breath and the fact that she was in a one-car accident, so he would probably prevail in front of a jury on this.

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                                                         Question 3 - Real Property

  Seller subdivides a parcel into Lots 1 through 20. Seller conveys Lots 1 through 15 by deeds containing a provision restricting the use of the lot to residential purposes. Seller tells the grantees of Lots 1 through 15 that Lots 16 through 20 will be used for residential purposes only. Later, Seller conveys Lots 16 through 20 by deeds that do not contain any restrictions on the use of the lots. By the time Lots 16 through 20 are conveyed, industrial and commercial centers surround Lots 1 through 20. John purchases Lot 20 without seeing it or the surrounding area. Bindi, owner of Lot 1, learns that John wants to construct a commercial building on Lot 20. Bindi wants to stop John.

    Darryl and Bindi are romantically involved. Darryl tells Bindi that he is giving Suzette a deed naming Bindi as grantee and giving Suzette written instructions to give the deed to Bindi if she pays $20,000 by October 1st. On September 30thDarryl learns that Bindi has been seeing someone else, and Darryl tells Suzette under no circumstances is she to give Bindi the deed. On October 1stBindi pays $20,000. Suzette is not sure what to do.

    Five years ago Bindi purchased a lot from Peter when Peter subdivided his property. Bindi built a vacation home on the lot with a detached garage in the rear of the property. Part of the driveway Bindi installed encroaches on Peter’s property. Upon learning of the encroachment, Peter tells Bindi that Peter has no problem with it. Thereafter Bindi installs expensive brick pavers on the driveway. Last year Peter sells his property, and Liz, the new owner, installs a fence on the boundary line between her and Bindi’s properties with a portion of the fence on Bindi’s driveway. The fence makes it impossible to drive a car on Bindi’s driveway to access the rear of her property.

    Bindi comes to your law firm. Bindi wants to: (1) prevent John from constructing a commercial building on Lot 20; (2) require Suzette to give her the deed from Darryl; and (3) have Liz remove the part of the fence that is on her driveway.

    You are asked to prepare a memorandum setting forth all of Bindi’s rights, obligations, and liabilities with respect to these issues.

                                                     PREPARE THE MEMORANDUM


                                                              Sample Answer 3A

 To: Senior Partner

From: Associate Attorney

Re: Bindi's rights, obligations, and liabilities

1. Bindi will probably be able to prevent John from constructing a commercial building under reciprocal negative servitude under the common scheme doctrine.

The common scheme doctrine creates a reciprocal negative servitude when a Seller subdivides a lot and fails to include a provision restricting some of the lots when the other lots are on notice about this restriction. A future purchaser of a deed without this restriction is generally held to restriction even though it is not contained in his or her deed if subdivder had the intent to include the restriction in the deed and the purchaser had notice of the provision in the prior deeds. Notice can be in the form of actual notice (such as in the deed), record notice (from publicliy recorded documents), or inquiry notice (what a reasonable inspection of blackacre would show). In terms of the common scheme doctrine, courts differ on whether record notice is applicable although it is preferred record notice is not applicable since it would be less burdensome on a defendant's title searcher.

Here, it appears the Seller had the intent to establish a reciprocal negative servitude with a commom scheme since he included a provision regarding residential development in the deeds for lots 1 through 15 and also told the grantees for lots 1 through 15 that lots 16 through 20 would also be used for residential purposes. In terms of notice, John does not have actual notice since his deed did not contain the restriction. However, John probably has record notice since he is requried to make a reasonable inspection and would have noticed none of the other lots contain commercial structures. However, in response, John could argue commercial centers already surround lots 1 through 20 and therefore the restriction should not be enforced. Finally, it is not clear whehter John had record notice. However, he would be deemed to have record notice if the deeds for lots 1 through 20 were properly recorded. Since the facts are not clear on this issue, this would ultimately need to be established at trial.

2. Bindi may be able to require Suzette to giver her the deed.

A deed transfers ownership from the buyer to the seller when it is lawfully executed and delivered. Execution generally requires the deed be in writing signed by the grantor, contain an adequate description of the land (enough to identify the tract of land belonging to the grantee), and need not recite consideration. Although delivery of the deed can occur from the grantor actually giving the deed to the grantee or delivering it through a messenger, it can also occur legally when the grantor meant to be bound even if the physical deed is not delivered. Further, it has been held that placing a deed with a restriction and instructions with a third party also satisfies the delivery requirement.

Here, it appears the deed has been executed since Daryl physically delivered the deed to Suzzette with specific instructions to be given to Bindi. In terms of delivery, it seems this was completed when Daryl gave the deed to Suzette with the instructions regarding Bindi. As held by many courts, placement of the deed in third party counts as delivery. Further, it appears Darryl intended to be immediately bound upon delivering the deed to Suzette. This would therefore satisfy the delivery requirement and Suzette would therefore be required to deliver the deed to Bindi. Once a deed is lawfully executed and delivered, the grantor no longer has control over the deed unless it is deeded back to him by the grantee and therefore Daryl probably no longer has any right to the deed which is now owned by Bindi.

3. Bindi probably will be successful in having Liz remove the part of fence that is on her driveway.

It appears Bindi had a freely revocable license to have a driveway pass through Peter's property. Being able to use another's land for another's use and enjoyment is generally considered an easement when in writing. An easement appurtenant involves two parcels of land, a servient tenant receiving the burden of the easement and the dominant parcel receiving the benefit. However, when an easement fails to be in writing, it is generally considered a freely revocable license. A license is generally freely revocable by the grantor, unless estoppel applies. Estoppel usually only applies when the owner of the dominant parcel invests substantial money, labor, or both as a result of the license.

Here, since the agreement between Bindi and Peter was not in writing, it most likely would not qualify as an easement appurtenant with the dominant parcel owned by Bindi and the servient parcel owned by Peter. However, it would likely qualify as a license, which woudl generally would be freely revocable by Peter and Liz. However, estoppel would probably apply since Bindi invested substantial money in expensive brick pavers on reliance of Peter's assurances that it woudl be ok to use his property. Since Liz has now made it impossibile for Bindi to access the full extent of this driveway, this essentially destroys the license and Bindi may be able to require Liz to remove the part of the fence that is on her driveway based on the estoppel exception to Bindi's freely revocable license.

                                                                Sample Answer 3B

To: Partner
From: Associate
Re: Bindi's Cause of Action

You have asked me to address Bindi's rights, obligations and liabilities with repect to three different issues. I will address each issue in turn below.

First, Bindi should bring an injunction against John to prevent John from constructing a commerical building on Lot 20. An owner of a lot within a subdivision can bring an action against another owner for an injunction to enforce a covenant on the property. A covenant can be negative, promising not to something on the land, or affirmative, promising to do something on the land. Even if a covenant is not explicitly included in a particular deed, a negative reciprocal covenant can be enforced on subsequent purchasers in a subdivision if the owner's of the lots subject to the covenant can show that the developer had a common plan or scheme and that the later purchaser was on notice of the restriction. A common plan or scheme is shown by proving that the developer divided the land intending the uses within the subdivision to be uniform. Notice can be shown by actual notice (purchaser actually knew of the restriction), inquiry notice (what purchaser could have discovered by looking around the neighborhood) or record notice (restriction contained in a recorded instrument). In this case, Seller made a subdivision constiting of twenty lots. Lots 1 through 15 have a provision in their deeds restricting the use of the lot to residential purposes. The deeds containing the restriction were recorded. The developer also told the owners of Lots 1 through 15 that he intended to have the remaining lots also be subject to the restriction. Bindi, therefore, could argue that John is subject to the covenant because the Seller had a common plan or scheme and that John was on notice of the restriction both because it would have been obvious to John if he drove through the development that it was used for residential purposes only and because the deed was recorded, putting John on record notice of the restriction. John can defend the application of the negative reciprocal covenant by arguing changed conditions. Changed conditions is available as a reason not to enforce a restriction based on the fact that the community has drastically changed since the making of the restriction. John will argue that because commerical centers surround Lots 1 through 20 that the area has changed from a residential area to a commerical area. John may not be successful, however, since there are at least 15 lots that remain resident within the neighborhood.

Second, Bindi should sue Suzette to get possession of the deed. A deed to property is effectively transferred when it has been delievered. Delivery does not require actually putting the buyer/recipient in possesion of the deed. Instead, the test looks to the grantor's intent and asks whether the grantor intended to presently pass ownership. Delivery can be made by the use of a third party, which is usually referred to as delivery by escrow. The grantor can give possession of the deed to a third party and attach a condition to the passing of possession. The condition must be writting because any oral conditions are void. Upon the occurrence of the written condition, the deed passes automatically to the intended recipient. Here, Darryl intended to pass the deed to Suzette. He took the deed to a third party and told them to hold the deed until Bindi paid the required amount by a certain date. Bindi complied with the condition. Therefore, because the written condition was satisfied and Darryl had the intent to presently give up the property, Suzette was under an obligation to pass the deed to Bindi regardless of Darryl's further instructions. Bindi should bring a cause of action against Bindi for specific performance, i.e., giving Bindi possession of the deed.

Finally, Bindi should bring an action against Liz to remove the part of the fence that is on Bindi's driveway. Bindi will claim that she has an easement on use Liz's land for driveway. An easement is a property interest that entitles the holder to the use and enjoyment of another person's land. An easement can be appurtenent or in gross. An easemenet appurtenent involves two parcels of land, one of which is the servient estate and one of with is the dominant estate. The owner of the dominant estate is entittled to enter the servient estate to gain a benefit in the use and enjoyment of his dominant parcel. An easement appurtent can be created by grant, prescription, implication and necessity. The burden of the easement passes automatically with the servient parcel unless the buyer is a bona fide purchaser for value without notice. Here, Bindi installed a driveway on a parcel of land she obtained from Peter. The driveway encroaches onto Peter's land but Peter agreed that he did not have a problem with the driveway remaining in place and Bindi using the driveway. Bindi, therefore, will argue that Peter expressly granted her the easement and that the burden of the easement passed to Liz because she was on inquiry notice of the easement because she could have seen that the driveway was over the property line upon inspecting the land. Liz will argue that Bindi does not have an easement, but instead as a freely revocable license. The issue here is that the easement was created expressly, however, it was not reduced to writing. A easement created by a grant must be in writing to satisfy the Statute of Frauds. If an oral easement is made in violation of the Statute of Frauds, the resulting interest is characterized as a license. A license is a privilege to enter another's property for a specific purpose. A license is freely revocable unless the holder of the license can show that they invested substantial resources in reliance on the license continuing. Here, the easement was made orally so Bindi only has a license to enter Liz's property. Liz has attempted to revoke the license, however, Bindi installed expensive brick pavers on the driveway in relianec on Peter's assertion that the license would continue. Therefore, Bindi will be able to argue that the license was not revocable and that Liz must remove the fence because the fence deprives Bindi of the ability to use her driveway.

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                                                    Question 4 - Evidence

  Wilma, an African American, sued her former employer, Kant Corporation (“Kant”), alleging that Kant and her supervisor, Peter, terminated her employment because of her race. Kant contended Wilma’s prolonged and unexcused absences were the basis of her termination. At trial, the parties seek to introduce the following evidence:

        1. Kant seeks to introduce summary charts prepared by a paralegal employed by the law firm representing Kant. The summary charts, condensed versions of Kant’s extensive records of Wilma’s work attendance over 10 years, showed Wilma was absent at least 25% of the time during each of the last 4 years of her employment.

        2. Kant seeks to introduce certified court records of 3 prior race discrimination lawsuits Wilma filed against former employers. Wilma voluntarily dismissed 1 lawsuit and 2 lawsuits went to trial resulting in judgments in the employers’ favor.

        3. Wilma seeks to have Jody, Peter’s wife, testify that Peter sent her a private e-mail in which Peter admitted to discriminating against Wilma. In addition, Jody will testify that one day, when she and Peter were having dinner with their 6-year-old daughter, Peter told Jody that he frequently gave Wilma a hard time because she was black. Jody and Peter are in the midst of divorce proceedings.

        4. Wilma seeks to impeach Peter through a tape recording of a conversation she had with Sally, Kant’s Director of Human Resources. In the tape recording, Sally told Wilma that Peter told Sally, “Wilma will never make it in my department as long as she is black.”

        5. Wilma seeks to introduce evidence of Kant’s 1998 guilty plea to tax evasion charges based on a fraudulent appraisal of land it owned in Florida. Peter will testify he was the author of the fraudulent appraisal.

        6. Wilma seeks to introduce the pretrial deposition testimony of Linda, a former co-worker, that during Linda’s tenure at Kant, Linda heard Peter shouting racial slurs at Wilma on several occasions. Linda will testify she could not remember anything about her days working at Kant because it was so long ago.

  You are the law clerk to the trial judge who has asked you to draft a memorandum discussing the admissibility of the proffered evidence.


                                                                  Sample Answer 4A

To: Trial Judge
From: Law Clerk
Re: Admissibility of Proffered Evidence: Wilma v. Kant

This memoranum is in regards to the above stated issue. I will overview 6 pieces of evidence and testimony which may be admissible. The following issues will arise with each piece of evidence, and it will ultimately be based on your discretion, whether to admit each.

1. Admissibility of Demonstrative Aides/Hearsay- Kant seeks to introduct summary charts prepared by a paralegal regarding Kant's extensive records of Wilma's work attendance over 10 years. Demonstrative Aides are admissible to help aide the jury in understanding the testimony of a witness regarding volumous and admissible testimony. Any testimony which is demonstrated on these demonstratives must be admissible before they are shown to the jury. Here, these records regarding the employment history of Wilma would be hearsary. Hearsay is an out of court statement made by a declarant offered for the truth of the matter asserted. This means that Kant is alleging that Wilma was actually gone during this time and these documents support that finding. While it is hearsay, there are exceptions to hearsay. One which would allow this to be admissible is the business records exception. This stands for the proposition that if a record is made in the common course of business, and a person with knowledge of how these records are kept and created can authenticate the procedures which create these documents, then the information contained in the hearsay is inherently reliable and should be admissible. Here, if these records are authenticated to be accurate by an employee who has knowledge of how the records are produced and kept at Kant, then that witness may be able to use the demonstrative aide to discuss the absences. Conclusion, because this information fits within a hearsay exception, and because this information would aide the jury in better understanding the volumous information contained in the records, this chart shold be admissible.

2. Admissibility of Prior Records- 404(b)- Kant seens to introduce certified court records of 3 prior race discrimination lawsuits Wilma filed against former employers. Wilma voluntarily dismissed 1 lawsuit and 2 lawsuits went to trial resulting in the employer's favor. In civil cases, character evidence, pursuant to Federal Rules of Evidence 404, is inadmissible to prove the party acted in conformity with a character trait. If ion a civil action a party's character is in issue, such as in a custody dispute, character evidence is admissible. Here, If Kant seeks to offer these records to show that Wilma is litigious and often makes bad claims, then this is inadmissible character evidence because this is trying to imply to the jury that since she has filed bad claims before she must be filing a bad discrimination case now that has no merit. However, if this evidence is offered for another reason it may be admissible. If it is offered, pursuant to federal Rules of Evidence 404(b) to show motive, intent, common scheme or plan, etc. then it may be admissible, per a 403 balancing test. A 403 balancing test is for the judge to determine whether the probative value of the testimony is substantial outweighed by the unfair prejudice it creates. Reasons to exclude testimony under this test include likelihood of confusing the jury, unfair prejudice, cumulative information, of a waste of time. Here, if this testimony is offered to show that Wilma has a common scheme or plan to sue her employers for discrimination then it may be admissible. While your honor has the ultimate say in whether this is admissible because of the 403 balancing test, in my opinion the probative value of this testimony is substantially outweighed by the likelihood of confusing the jury because of the likely chance that this will be construed as indicating that Wilma is merely litigious and this is improper cause of action. Conclusion, these certified court records should not be admissible.

3. Marital Communications- Under the Federal Rules of Evidence there are no privileges regarding testimony which have been codified in the rules, but certain common law exceptions have been accepted in federal court which bars testimony of a witness. One such privilege is the Marital Communications Privilege. This privilege allows for a spouse to not have to tesify to statements made during the marriage between one spouse to another in private. If there is intentional statements made in the presence of a third party the privilege does not apply. Further, this privilege survives marriage (unlike the spousal testimony privilege). Here, Wilma seeks to Have Jody, Peter's Wife, testofy that one day she and Peter were having donner with their 6 year old daughter and Peter told Jody that he frequently gave Wilma a hard time because she was black. Jody and Peter are in the midst of divorce proceedings. Here, this privilege would not apply because the statements were made in the presence of their 6 year old daughter. Further, even though they are in the midst of divorce proceedings this is irrelevant, because if this statement was privileged it would still have survived the divorce. Conclusion, this statement is admissible, and the marital communications privilege does not apply.

4. Hearsay within Hearsay/Inconsistent Statements/Admission by Party Opponent- Hearsay within Hearsay is inadmissible unless each layer of hearsay falls within an exception to the hearsay rules. Regarding the first layer of hearsay, Pursuant to Federal Rules of Evidence 801, Inconsistent statements are non-hearsay and are admissible to impeach a witness who has made an inconsistent statement. If a witness in a sworn deposition makes a statement, which is later shown to be inconsistent with a statement made at trial, that sworn statement may be offered to impeach the witness and be offered as substantive evidence regarding the fact stated inconsistently. A witness may be impeached with non-sworn statments, i.e. extrinsic evidence of a rebuttal witness or non-sworn documents, this inconsistent statement is admissible as non-hearsay, but is not offered as substantive evidence. Here, Wilma seeks to impeach Peter through a tape recording of a conversation she had with Sally, in which Peter told Sally, "Wilma will never make it in my department as long as she is black." This statement was not made underoath, but if Peter takes the stand and testifies and states he did not make such a statement, this tape recording may be entered into evidence to demonstrate that he has made an inconsistent statement and this is non-hearsay.

In terms of the second layer of possible hearsay, Sally is testifying to what Peter told her. This statement is non-hearsay because it is an Admission by a Party opponent. Under Fed. R. Evid. 801 these statements, of offered by an adverse party in litigation, made by the opposing party, are admissible against that party in trial. Here, Peter is the defendant and he made this statement to Sally. If Wilma offers this statment, and the tape recording is authenticated by Sally, then this statement may be entered against Peter as an admission by a party opponent. Conclusion, this recording is admissible as non-hearsay.

Also, there may be other issues here regarding local laws or ordinances in terms of whether this recording was authorized to be taken if it was done withoyt Sally's knowledge. Further research is required.

5. Prior Conviction Impeachment- Pursuant to the Federal Rules of Evidence 609, A witness can be impeached, after a 403 balancing test (supra), for prior convictions or guilty pleas for crimes punishable by more than 1 year in prison (felonies), or crimes of dishonesty (i.e. fraud). Here, Wilma seeks to introduct evidence of Kant's 1998 guilty please to tax evasion charges based on a fradulent appraisal of land it owned in Florida. Peter will testify he was the author of the fradulent appraisal. This is admissible because under this rule this guilty plea of tax evasion is consistent with a crime of dishonesty, and therefore may be admissible to impeach Peter since he will admit he was the author of the document he was the corporation's agent. Conclusion, this plea is admissible against the defendant.

6. Refreshing Recollection/Recorded Recollection- When a witness cannot remember testimony the witness may be shown a document to refresh their recollection. If the witness cannot remember the information based on their own independent recollection based what is shown to the witness (i.e. a deposition), if the witness can state at one point they had the required knowledge, and during that time they made a statement which would have been at the time they had that knowledge which has been forgotten, then a recorded recollection of that time may be read into evidence to the jury. Here, Wilma Seeks to intoduce the pretrial deposition testimony of Linda that during Linda's tenure at Kant, linda heard Peter shouting racial sluras at Wilma on several occassions. Linda will testify she cold not remember anything about her days working at Kant because it was so long ago. Here, if she does testify to this, and is shown her deposition, but cannot remember the information based on independent recollection, then with the court's permission, and further if she can authenticate the previous stated requirements that at one time she had knowledge, etc, then the deposition statement may be read into evidence to the jury. Conclusion, this statement is admissible if the previous actions occur.

Conclusion, your Honor, the statements and testimony detailed above explain my position on whether each is admissible and why. If further clarification or research is required please do not hestitate to ask.

                                                                 Sample Answer 4B

The general rule is that all relevant evidence is admissible unless there is a specific reason to exclude it. Evidence is logically relevant if it has a tendence to make the existence of a fact that is of consequence to the determination of an action more or less than probable than it would be without the evidence. Evidence is legally relevant if its probative value is not substantially outweighed by the risk of unfair prejudice.

(1) Summary Charts
The attendance records summarized in the charts are relevant in that they tend to show that Wilma was fired for absenteeism rather than racial discrimination. In order to be admissible, these business records must qualify for the business record hearsay exception and be properly authenticated.

Hearsay is an out of court statement that is offered for the truth of the matter being asserted. In this case, the records contain unsworn information and are being offered to prove that Wilma was absent as is indicated by the records. Therefore, the records are hearsay, but they may qualify for the business records exception.

Business records are admissible if they are made in the ordinary course of business, in the normal way, by one within the business, at or near the time of the event recorded. Summaries of business records, whether prepared by one within the business or by the paralegal at Kant's law firm, are admissible as long as the supporting records that are being summarized are admissible in and of themselves as business records and are available for inspection.

In this case, the attendance records for the past 10 years must have been regularly made at the time of the absence of shortly thereafter i.e. they were not prepared as a result of the lawsuit, but instead were regular attendance records that Kant was making over the course of that 10 years. There are no facts given that these records were not kept in the ordinary course of business and in fact it's logical to assume that attendance records are kept regularly in the ordinary course of business.

Likewise, there are no facts suggesting that these particular attendance records were made and kept in any way other than the regular and normal way, nor that they were not kept by an employee of Kant. If these records were in fact made and kept in any way other than the regular and normal way or prepared by someone outside of the business, then they would not be admissible.

As stated above, as long as the underlying attendance records qualify for the "business records exception" and are available and admissible, the summarized version of those records is admissible.

In order to admit this evidence, Kant needs the testimony of an employee within Kant who knows how business records such as these attendance records are made and can attest that these records were made in the ordinary way at or near the time of the event (i.e. the absence) recorded. The paralegal from Kant's law firm will not be able to give this testimony and "authenticate" the records. This authentication must come from one within the business in order to admit this evidence.

(2) Prior Lawsuits
Kant is seeking to introduce character evidence. The evidence of prior discrimination lawsuits is relevant in that it tends to show that Wilma is litigious and therefore arguably discredits her claim. Character evidence is generally inadmissible to prove conduct in conformity with the asserted character trait. There is no hearsay problem as here, as the records are certified and certified court records are a documentary exception to the hearsay rule.

In this case, Kant will argue that this character evidence is admissible as either habit or a similar occurrence. However, evidence of habit is admissible depending on the frequency and particularity of the act, such as always speeding or always driving slowly. Three prior lawsuits is not likely frequent and particular enough to qualify as admissible habit evidence.

Kant may also argue that this character evidence is admissible as a similar occurrence, but this exception is typically applied to accidents where the party seeking to introduce the evidence can demonstrate sufficiently similar conditions and circumstances. This excpetion is not likely applicable.
(3) Jody's Testimony
The issue here is whether Jody's testimony is privileged as confidential communications between spouses. The testimony is relevant in that it tends to prove that Peter was discriminating against Jody and, in particular, doing so because of her race.

Confidential communications between married spouses are privileged as to both spouses, meaning that Peter can assert the privilege in order to prevent Jody from testifying. As they are only in the midst of divorce proceedings, the facts tend to indicate that Peter's email and verbal statement to Jody were made during the course of the marriage. As such, they are privileged now and will continue to be privilege even upon divorce, as this particular privilege survives the marriage. Both the email and statement qualify as communication because it conveys a fact or opinion from Peter to Jody.

The next issue is whether the email is hearsay in that it is an out of court statement being offered to prove its contents i.e. that Peter was discriminating against Jody. Wilma will argue that boht the email and the statement are non-hearsay as it is a party admission. An admission is act or statement that amounts to an acknowledgement of a relevant fact.

However, Peter is an employee of Kant and Kant is the defendant, so in order for Peter's email and verbal "admissions" to be admissible against Kant, it must have been made (a) while he was employed by Kant, (b) within the scope of his employment, and (c) pursuant to authorization from Kant to make such statements.

In this case, it appears that the email was sent while Peter was employed by Kant, the subject of the email was one of Kant's employees, Wilma, and as her supervisor, Peter is authorized to make statements regarding his subordinates. Therefore this email is non-hearsay as it a party admission. However, it is still inadmissible because it is privileged, as discussed above.

As for the statement made at the dinner table, it is a non-hearsay party admission and therefore not excluded by the hearsay rule for the same reasons that the email is a non-hearsay party admission. The issue here is whether the presence of the 6 year old daughter prevents the marital communications privilege from being applicable. In this case, as their daughter is part of the family, the conversatoin was made at an intimate family gathering, and as a 6 year old she likely did not understand or pay attention to what was said, the statement from Peter to Jody was intended as confidential and is therefore inadmissible as a privilege communication between validly married spouses.

(4) Tape Recording of Sally
This evidence is relevant to prove that Peter harbors racial bias and likely discriminated in this case. The first issue is whether a tape recording in general is admissible. In order to admit a voice recording, it must be authenticated to ensure that the person claimed to be on the recording is in fact the person on the recording. This authentication requirement can be met by: (1) the testimony of an expert who has compared voice samples, (2) the jury through comparison of voice samples, (3) the testimony of an individual with personal knowledge or (4) the individual speaking identifying himself on the recording. In this case, any individual who is familiar with Sally's voice, including Wilma or Sally, can authenticate the recording.

The next issue is whether Peter's statement to Sally is inadmissible hearsay. As discussed above and for the same reasons, Peter's statements regarding Wilma are non-hearsay as they are party admissions. Additionally, the statement would qualify for the "statement against interest" exception to the hearsay rule (i.e. the statement was against Peter's interest at the time it was made and he knew it was against his interest at that time) if Peter were unavailable.

The next issue is whether Sally's statement to Wilma is inadmissible hearsay. Sally's statement was made out of court and is being offered to prove that Peter harbors racial bias and likely discriminated in this case i.e. it is being offered for its truth that "wilma will never make it in [peter's] department as long as she is black." Therefore the statement is hearsay and is inadmissible unless an exception applies. In spite of the fact that the statement made was against Peter's interest, it was not against Sally's interest and Sally's statement to Wilma, even though merely repeating what she heard, is hearsay and is inadmissible unless an exception applies.

Because Sally is the director of human resources for Kant, her statements can be non-hearsay as party admissions if Wilma can demonstrate that Sally made the statement to Wilma while (a) employed by Kant, (b) within the scope of her employment, and (c) pursuant to authorization from Kant to make such statements. As the Director of Human Resources, with no facts indicating she was terminated, Sally was employed by Kant when she made the recorded statement to Wilma and since the statement concerns employer-employee relations, it is will within the scope of Sally's employment in a human resources position. Lastly, as the statement relates to Wilma's employment and position in Peter's department, the statement is authorized by Kant by virtue of Sally's position as human resources director.

Therefore, the recording is admissible as non-hearsay as it is a party admission, if and only if the recording itself is properly authenticated as discussed above.

(5) Guilty Plea to Tax Evasion
This evidence is relevant to impeach the character of Peter as a truthful and honest person and as such as it is character evidence which is generally inadmissible to prove conduct in conformity with the asserted character trait. However, evdence of a former felonies or misdemeanors involving dishonesty are admissible if the later of the conviction or the release from prison is within the last 10 years and the evidence is "legally relevant" as that term is defined above. In this case, the guilty plea was in 1998 (more than 10 years ago) and there is no evidence that there was any prison time served. Therefore this evidence is inadmissible as it is too far removed from the present.

Guilty pleas can also be admissible in a pending or subsequent civil case based on the same facts, but that exception is inapplicable here as the instant case is a racial discrimination case and the guilty plea was based on tax evasion and a fraudulent appraisal of land. This evidence is inadmissible.

(6) Pretrial Deposition Testimony of Linda
This tesimony is relevant to prove that Peter harbors racial bias and likely discriminated in this case. The issue is whether the deposition testimony is admissible because it is hearsay, as it is an out of court statement being offered for its truth.

Under the former testimony exception, this deposition is admissible if (1) the witness is unavailable, (2) the testimony is sworn and (3) the testimony is offered against a party who on prior occasion had the opportunity and motive to cross-examine or otherwise develop the testimony.

In this case, Linda does not presently recall anything about her time working at Kant, so she is therefore "unavailable" as that term is understood for hearsay purposes. Furthermore, there are no facts indicating that the deposition was unsworn, so Linda was most likley under oath when she gave this deposition testimony. Lastly, the testimony is beign offered against Kant, who is the party that took the pretrial deposition and had the same motive at that point to develop the testimony as they have to cross-examine Linda now. Therefore, the pretrial deposition testimony is admissible as it qualifies for the "former testimony" exception to the hearsay rule.

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                                                 Question 5 - Constitutional Law

  Governor Brenddie signed into law, DR 6-28-80 (the “Law”). The Law’s purpose is to mitigate the State of Mirabal’s unauthorized immigration problems. In pertinent part, the Law permits a public safety officer, upon the arrest of any individual, to make a reasonable attempt to determine the immigration status of said individual if there is reasonable suspicion the person is an unauthorized immigrant. A federal statute, however, requires the U.S. Attorney General to approve the conditions under which a state official may act in matters involving immigration enforcement. Mirabal did not receive such approval.

    After the Law’s enactment, the only individuals police detained and checked for their immigration status were darker-skinned people referred to derogatorily as “Morenos.” Meanwhile, an activist group called “Alexa” launched a series of protest rallies at Brenddie’s children’s youth league baseball games. The rallies were held on public lands, adjacent to the baseball complex. The protesters used a large inflatable rodent with signs painted on its side, stating “Brenddie is a murdering racist!” and “Brenddie’s kids have communicable diseases!” Mirabal’s statutes prohibit the use of inflatables within the state, except for retail store openings.

    Outraged at the protesters’ conduct, Brenddie wants to file a civil lawsuit against Alexa seeking millions of dollars in damages and an injunction prohibiting further use of the inflatable rodent. Brenddie is also concerned the U.S. government may seek to challenge the Law’s constitutionality facially and, as applied, to those individuals who were detained pursuant to its provisions.

    You are counsel to the Governor. Brenddie asks you to write a memorandum discussing the constitutional challenges to the Law, the likelihood of the injunction’s success, and the constitutional defenses to any civil action she and her children may pursue against Alexa.

                                                     PREPARE THE MEMORANDUM

                                                             Sample Answer 5A

To: Gov. Brenddie
From: Counsel
Date: 3/1/12
Re: Analysis of constitutional and other issues

You have asked me to analyze 1) the constitutional challenge to the Law, 2) the likelihood of a successful injunction, and 3) Constitutional defenses to a civil action brought by you and your family. My analysis is below. Please do not hesitate to contact me should you have any futher questions.

1. The "Law"
Where the government has passed legislation that conflicts with a state law, the supremacy clause of the constitution will be determined to operate such that the federal law superscedes any state law. Where the government has made evident its intent to occupy the administration of the law within a certain sphere, a state may not pass legislation that infringes on that sphere, whether or not it conflicts with the federal legislation. Where the federal government has not evidenced an intent to occupy the sphere, however, any existing federal law creates a floor for the legal requirements in that area, and the state is free to pass legislation that supplements or adds requirements within that sphere, so long as they do not contradict existing federal law. Finally, the federal government may also grant explicit permission to states to pass laws with certain areas.

Here, one initial constituional challenge of the Law will be that the federal government, by requiring prior approval of all state officials' actions in the sphere of immigration enforcement, has fully occupied that sphere of the law and has made it evident that states may only act to supplement the law with the express permission of the executive branch. The requirement of approval from the USAG for any matters involving immigration enforcement makes this argument particularly strong, and it will be difficult to show that the federal government has left any room for competing supplemental legislation in that sphere.

In addition, The Law appears to have a discriminatory racial effect on minorities. Although arguably facially neutral, any law that discriminates on the basis of race or is shown to have a discriminatory impact based on race will be subjected to strict scrutiny by the courts. Under strict scrutiny, the state must demonstrate that the law is necessary to serve a compelling state interest. Strict scrutiny is very difficult to survive, and here it will be difficult to demonstrate that the law is necessary for its stated purpose and there is no other reasonable way to acheive it. We will have to attempt to show that the discriminatory application is accidental and attempt to have the Law reviewed under a rational basis scrutiny. It is unlikely that this will be successful, and I predict the law will be found to be unconstitutional for either or both of the above reasons.

2. The Injunction
An injunction will only be issued upon a showing of a likelihood of success of an action on the merits, imminent harm to the seeker of the injunction should the injunction not issue, that the harm is one not reconciliable through standard damamges, a balance of the equities weighing in favor of the issuing of the injunction, and a showing of lack of harm to the general public. There is a general strong public policy against a prior restraint of free speech. The government may properly restrict certain speech in the public sphere if the government can show that the limitation is neutrally applied, sufficient alternate and acceptable avenues for free speech exist, and there is a compelling state interest in the limitation.

Here, you are seeking to seeking an injunction preventing protesters from gathering on public lands using an inflatable in contradiction of state statute. The protesters will argue that the injuction operates a prior restraint on free speech, and the statute is an unconstutional restriction of free speech. At the outset, it is likely that the use of the inflatable will be considered to be a form of speech, as it is an expression of opinion, in this case a negative comparison to yourself. The statute therefore serves as a limitation in this case, although not all inflatables are necessarily in the same category. Regardless, the state will need to demonstrate that the limitation here is necessary to acheive a compelling state interest, and is narrowly tailored to be the least restrictive means of acheiving that end. I believe the state will have a difficult time meeting their very high burden in this case. A relevant consideration is that the statute permits the use of inflatables at retail openings. This exception makes the demonstration of a compelling interest difficult to show, as there are few public safety exceptions that would prevent an inflatable in one situation yet permit it at a store opening. Furthermore, the unusual exception for such openings could demonstrate that there are other uses of inflatables that to not interfere with a compelling interest, making the statute overly broad and not narrowly tailored. Because the statute here will not survive scrutiny, it is likely that an injunction based on that statute will not be issued. This is consistent with the general disapproval of prior restraints against free speech in US jurisprudence.

3. The Civil Claims

A) Defamation
A defamation action will lie where an individual publishes false statements about an individual to a third party that a third party can reasonably interpret as reflecting on that individual. Where statements are made regarding public figures, the statements must be made with knowingl or reckless knowledge of their falsity, or with malicious intent. Where they are made against non-public figures, negligence as to their falsity will suffice to support a defamation claim. Here, the protesters have accused both a public figure (you) and private figures (your children). Although the statements against you are likely to be considered malicious in nature, it is unlikely that they rise to the level of defamation, as they relate to a government figure and cannot be reasonably interpreted by a third party to be truthful.Furthermore, courts have held that such comments relating to the actions of a government official are more properly judged as free speech by protesters as opposed to conduct sounding in tort. The statements against your children, however, are potentially defamation, as they are arguably not public figures, thereby requiring a lesser showing of intent (negligence). The statements are libelous in nature, as they are recorded in printed form, but if the statement on the signs is not sufficient to constitute a recorded statement, they will then constitute slander,and because they claim your children have a loathsome disease, they will constitute slander per se and there need be no demonstration of special damages to recover. Therefore, a claimof defamation may be brought either by your children as individuals or by you on their behalf.

                                                             Sample Answer 5B

To: Law Firm
From: Law Clerk
Re: Defense and Defenses

Immigration: Is the state law valid?
Mirabal has a law to permit a public safety officer to arrest individuals to determine their immigration status. The law on its face is invalid because it violates 14th Amend. Equal Protection — they are targeting a group of individuals based on their alienage. They are arresting them based on reasonable suspicion. This must meet strict scrutiny. The state must show that the law is necessary to achieve a compelling gov’t purpose.

When a law is based on suspect classification, race, national origin and alienage, speech, fundamental rights and travel, it must meet scrutiny. The state bears the burden.

Under intermediate scrutiny, quasisuspect classification is gender and legitimacy. The law must be substantially related to an important gov’t purpose. The government bears the burden.

Rational basis review — the challenger has the burden. The challenger must show that the law is not rationally related to a legitimate government purpose.

In this case, the law is targeting alienage, which means the government has to prove that the law is necessary to achieve a compelling government purpose. The law’s purpose is to mitigate the State of Mirabal’s unauthorized-immigration problems. This is not narrowly tailored nor does it leave alternative channels. The
individuals are arrested, based on reasonable suspicion. This law is invalid. Mirabal does not even receive approval as to how the state should act in immigration matters. This violates procedural due process because there is no hearing; they are just arrested.

Discriminatory impact/intent
The individuals that are being detained and checked for their immigration status were dark-skinned people. This law is not only invalid on its face; it is also having a discriminatory impact, which may be possible that this is a discriminatory intent. Either way, this law should be held invalid due to the violation of the Equal Protection Clause under the 14th Amend.

Also, Congress has the authority in dealing with alienage. The U.S. Attorney General approved conditions. This is preemption because there is a conflict in how the state is handling immigration and how the U.S. Attorney General’s office handles immigration matters.

Public Forum
The activist group held protest rallies on a public land. This is a public forum the state cannot close to speech. The protesters held a large, inflatable rodent with signs painted on its side, stating, “Brenddie is a murdering racist!” and “Brenddie’s kids have communicable diseases!” The protesters have a First Amend. right to free
speech in a public forum.

First Amendment
Mirabal has a statute that prohibits the use of inflatables within the state, except for retail openings. This violates First Amend. free speech. This is not a time, place or manner restriction. Because it is a First Amendment speech issue, they must meet strict scrutiny. The state must prove that prohibiting the use of inflatables is necessary to achieving a compelling government purpose. This is a very difficult standard to meet. The state statute is invalid; it is not narrowly tailored and there is no alternative channel. Also, this is
not a time, place or manner restriction.


Were the statements made by Alexa defamation? Alexa had signs that said, Brenddie is a murdering racist!” and his kids have a communicable disease.
To prove defamation you must prove:
— defamatory language of and concerning
— damage to reputation
— that was published.

Because Brenddie is a public figure, he must prove falsity and actual malice. In this case there is defamatory language – Brenddie is a murdering racist and Brenddie’s kids have communicable diseases
— of and concerning Brenddie. For Brenddie, there must be some type of damage to his reputation. He must prove falsity and actual malice. The statement that he is a racist is of opinion. Therefore, Brenddie will not be able to prove defamation. Governor Brenddie may say that it is malice and it was published because they held
them on signs in a public park across the street from Governor Brenddie’s son’s ball game. However, the issue is that the statement, “Brenddie is a murdering racist!” is an opinion.

Defamation of the kids:
— defamatory language of and concerning P
— damage to reputation
— publication

Alexa used defamatory language of and concerning the kids. The sign stated the kids have “communicable diseases!” Because it is written it is libel and if a sign is not considered a writing it is slander per se because the statement deals with loathsome diseases. The statement was published; it was on a sign across the street from the kid’s baseball game. Damage to their reputation. The kids are private persons so damages are presumed unless the fact the father is a public figure is an issue. If the fact that the father is a public figure makes them public, they will have to prove falsity and actual malice. The fact that Alexa held up a sign that said that the kids had a communicable disease is falsity and malice. Truth is a defense to defamation. Nothing in the facts told us the kids had a communicable disease. Therefore, they will be found liable for defamation of the kids.

Brenddie as a public figure will not have a cause of action. The kids will have a cause of action for defamation. He also will not succeed with the injunction because the prohibition of the signs or rodent violate Alexa’s 1st Amend. Freedom of speech. The government will challenge the law’s constitutionality facially and as applied to the individuals and will succeed under the 14th Amend. Equal Protection Clause. Standing

Does Governor Brenddie have standing to bring the claims?

In order to have standing, there must be an injury that is personal, causation and redressibility.

The defendant must have caused the injury and the court must be able to resolve the issue. Governor Brenddie does not have a personal injury. The elements of defamation do not apply in his case.

Third-Party Standing
Can Governor Brenddie have standing for the defamation of his children? The claim must be personal. The children will have standing to bring their own cause of action for defamation. The issue here is causation and injury. The facts do not state if they had any injuries — in the case of defamation, damage to reputation.
However, if this is slander per se, due to communicable disease/loathsome disease, the damage is presumed.

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                                                      Question 6 - Contracts

    Personnel Agency (“Personnel”) and Audio Visual Installer and Developer (“Audio”) had telephone discussions and e-mail exchanges concerning Personnel’s providing Audio a “Permanent Employee, Audio Visual Technician Specialist” to develop and install multimillion dollar audio visual equipment for theaters. Over the course of 2 weeks, Personnel sent over 100 résumes to Audio. Audio also received 1,000 résumes from individuals and other agencies. Audio chose to interview Liz, an individual whose résume came from Personnel. Liz had also independently submitted a résume to Audio. Liz had 10 interviews over the course of 2 weeks with over 40 Audio employees. During one of the interviews, an Audio employee asked Liz whether any agency sent her. Liz replied “No,” and the Audio employee noted that on an interview form.

    Audio’s hiring coordinator offered Liz a job for $400,000 a year based upon Liz’s interviews and her statement no agency submitted her résume. The copy of Liz’s résume the coordinator saw came from the independent résume files. The hiring coordinator was unaware Liz had been sent by Personnel. Liz accepted the offer and signed a confidentiality agreement and a non-compete clause, barring her from working for a company like Audio for 2 years.

    Liz worked for Audio for 7 months. During this time, Liz’s supervisors praised her work and, in fact, Liz landed Audio a $3 million contract with Loews Theaters. Liz also during this time learned some of Audio’s trade secrets. During Liz’s 7th month, Personnel learned Audio had hired Liz and promptly sent Audio a $150,000 invoice “for services rendered in placing Liz.” Audio immediately fired Liz on the grounds (1) she was unable to perform “Permanent Employee, Audio Visual Technician Specialist” services and (2) she lied about Personnel sending her to Audio.

    Personnel and Audio never had any past experience or a written agreement regarding the placement of permanent employees, but when Personnel placed temporary employees with Audio, Personnel charged “15% of the salary of a temporary employee for as long as the employee works for a company.” The industry practice is that, if an employee placed by a personnel agency stays for more than 4 months, an agency is entitled to an upfront, lump-sum payment equal to 25% of the first year’s salary of the placed employee.

    Within 2 days of being fired, Liz took a job at Serpentine Visual, for $200,000 a year. She brought to Serpentine the $3 million Loews contract.

    Personnel sues Audio, and Audio sues Personnel on the grounds, among others, Liz lied and was unable to perform the job. Audio sues Liz, and Liz sues Audio. The cases have been consolidated. You are the law clerk to the trial judge who has asked you to prepare a memorandum setting forth and discussing all contract causes of action each party may have, all defenses and all claims for damages each may party raise.


                                                                 Sample Answer 6A

To: Trial Judge
From: Law Clerk
Re: Contract Claims Among Personnel, Audio, and Liz

To:       Trial Judge

From:   Law Clerk

Re:       Contract Claims Among Personnel, Audio, and Liz

 (1) Claims Between Personnel and Audio

            The contract claims by and against Personnel and Audio stem from the events involving the hiring of Liz as an employee of Audio.  Personnel claims that is owed compensation for locating Liz and providing her as a candidate to Audio who was ultimately hired.  Audio disputes that a valid contract existed between Audio and Personnel under which Personnel is entitled to compensation.

            The general statement of the law on contracts is that the forming of a valid contract requires an offer, an acceptance, and consideration.  Bilateral contracts are contracts whereby two parties each promise to take action for the benefit of the other party.  A unilateral contract is where one party agrees to take some sort of action for the payment of money. 

            The facts of the question do not indicate what was provided in the telephone discussions and email exchanges between Audio and Personnel, so there is nothing to indicate that those discussions involved anything that amounted to an offer and an acceptance.  It also appears that what Audio was seeking was a new, high-level employee, and Personnel was willing to try to help them locate such an employee.  Personnel was in the business of locating such candidates for employment in return for compensation, which it is fair to assume that Audio had knowledge of by their communications.  The question also notes that other agencies in addition to Personnel sent resumes to Audio in hopes of being the agency who provided the candidate who audio ultimately employed.  The circumstances indicate that Audio was seeking what amounted to a contract whereby it would accept only by hiring a candidate.  The effect was that all the resumes sent to it by agencies amounted to offers to accept the candidate they had sent in.  If and when Audio hired a candidate that had been sent in, that offer would be deemed accepted and it therefore would owe compensation to the submitting agency.

            The next question is whether by hiring Liz, Audio did in fact accept Personnel's offer.  The general rule on acceptance by performance is that the accepting party can only accept offers that it knows to exist.  This rule often applies in the context of rewards - if you return something and there happens to be a reward for it that you did not know about, you cannot be deemed to have accepted the offer to return the item by performance.  In this situation, the facts indicate that nothing in the hiring process provided indication to Audio that Liz had been provided by personnel.  Audio received her resume independently, Liz herself said that Audio had not sent her, and Audio did not ever know that it had also received Liz's resume via Personnel.  Under these facts, it would appear that Audio cannot be deemed to have accepted Personnel's offer of Liz as employee by hiring Liz, and therefore would not be liable under any contract law theory.

            Assuming that an offer and acceptance occurred between Audio and Personnel, the next question would be under what terms did that contract exist.  It is apparent that Audio and Personnel had discussions regarding the placement of an employee, but nothing was discussed as to price.  At common law, which governs the sale of services, a contract can exist where a price was not specified.  All that was required was information on the parties and what was being contracted for.  The contract here is a contract for services, because it was a contract to place an employee.  And it can be inferred that the contract would be for placing an employee, between the parties Personnel to Audio.  So that is sufficient certain terms for the contract. 

            Next, the court would have to determine the price for the provision of services from Personnel to Audio.  Where there is no price stated, courts are able to determine a reasonable price for the contract, based on the fair market value of what was provided.  The courts will generally look to extrinsic evidence to supplement the contract.  The first thing courts will look for is the course of performance between the two parties - had the parties performed under the current contract, and, if so, what were the terms?  Here the parties had not performed on this contract or in a contract between these two parties, so this inquiry would not be helpful to determining price.  Next, the court would look to what these parties have done under similar contracts to infer a price term.  The question indicates that Personnel charges 15% of the salary of a temporary employee placement.  The court could read this as the fair market value of the services provided, and conclude this was part of the price term in the contract.  The court can also look to the custom and dealings of other similar parties in the industry to determine price terms.  The question also indicates that industry practice is to provide a bonus in the form of a lump sum if the employee stays longer than 4 months.  The court could also read this term as a price term in the contract.

            Finally, one must determine that there was valid consideration for the contract, based on the benefit-detriment theory.  The benefit-detriment theory asks whether one party gains a benefit to the detriment of the other party.  In this situation, Audio's benefit was that it hired a new employee.  Personnel's detriment was that it spent time and effort locating and sending Liz's resume to Audio.  These benefit and detriment are sufficient grounds for consideration for a valid contract. 

            Therefore, the court can conclude that a valid contract existed between Audio and Personnel for Personnel to provide an employee that could only be accepted by Audio's hiring the employee.  The price terms are the 15% from Personnel's other contracts and the 25% lump sum bonus that is industry custom because Liz worked for over 4 months.  Therefore, Personnel could recover these amounts based on Liz's salary. 

            Audio may try to claim some additional defenses to paying the salary.  It could claim that Personnel did not claim compensation from Personnel for 7 months.  The waiting of 7 months would be no consequence to the enforcement of the deal.  First, Personnel did not know that Audio had hired Liz prior to 7 months.  Second, waiting this amount of time does not preclude Personnel from collecting damages.  Audio may also try to claim that the contract cannot be enforced because the statute of frauds applies and is violated because the contract was not in writing.  This argument will lose because the contract between Audio and Personnel was a contract for services, not goods.  And it was a contract for services that was capable of being completed in less than 1 year.  So the situations where the statute of frauds applies are not applicable to this situation.


(2) Claims Between Liz and Audio

            Liz will claim that Audio wrongfully terminated her, but she will lose on these grounds.  Audio will claim that Liz breached her non-compete agreement when she took a job at Serpentine Visual, a claim it may win.

            Liz's claim stems from the fact that Audio terminated her because Audio claimed she lied to it and she was unable to perform the job.  The problem with Liz's claim is that the general rule for employment is that employees are at-will employees in the absence of a formal contract stating otherwise.  Although Liz signed a contract to work with Audio, there was nothing in the contract about time of employment.  Therefore, Liz could be fired at any time for any reason or no reason at all.  Therefore, she has no grounds for a wrongful termination or claim for damages owed under her contract.

            Audio's claim stems from the fact that Liz signed a non-compete agreement and then immediately after being fired 2 days went to work for Serpentine.  Assuming Serpentine is a company like Audio, the court will have to engage in an analysis of the non-compete clause to determine whether it is enforceable.  Courts are generally skeptical to enforce non-compete agreements because they restrict a person's ability to earn a living.  Courts usually require a reasonableness surrounding the non-compete agreement - that the restriction on non-competing is reasonably related to the geography of the prior company, and that the restriction on non-competing is reasonably related to a length of time that does not overburden the employee.  Here, the non-compete agreement barred Liz from working for any company like Audio.  There is no limitation on the geography or region in which Liz can work.  This is an unreasonable limitation on Liz's ability to earn a living.  Also, the non-compete agreement restricts Liz's ability to work for two year.  This would also seem to be a rather unreasonable time restriction, especially considering Liz worked for Audio for only 7 months.  Because the non-compete is unreasonable in both geography and time, the court would invalidate the non-compete clause.  Therefore, Liz would not owe damages to Audio based on her new job.

            Audio may also try to bring a claim against Liz for taking the Loews contract to her new employer.  It would have to premise the claim on grounds that Liz used confidential information to land Loews with her new company.  This argument seems untenable and would fail because Liz had a relationship with Loews that did not require the use of confidential information to land them with her new company. 

                                                       Sample Answer 6B

To:  Judge

From:  Law Clerk

Re:  Causes of action arising from the relationship between Personnel, Audio, and Liz.


 I.  Personnel may sue Audio for money it believes it is entitled to for bringing Liz to Audio.

             The issue is whether Personnel may obtain money, $150,000, from Audio for Liz's placement there, when Audio claims that she came to them independent of Personnel. 

            Under relevant contract law, a contract is an enforceable agreement for breach of which the law provides a remedy.  A bargained for exchange takes place when there is an offer, acceptance, consideration, and definite terms in the writing.  An offer is a manifestation of intent to be bound.  Acceptance is given when it is unconditionally given and done so in accordance with the offer.  The acceptance must mirror the offer, meaning it must be given in teh same way the offer was made.  Consideration is a legal detriment or benefit.  In order for there to be consideration, the party must perform, promise to perform, or forbear from performing some task.  Further, in the absence of consideration, there must be a writing evidencing the intent of the parties. 

            Here, Personnel and Audio only had phone and email exchanges concerning their agreement that Personnel would send resumes to Audio to fill the position they were looking for.  However, this agreement was never reduced to writing.  Personnel may assert that there was an offer and acceptance, because through their conversations, Personnel began to send over 100 resumes to Audio, which was their performance or acceptance, of Audio's offer.  However, there was never a valid offer made to Personnel to do so.  Audio and Personnel merely had conversations, none of which evidence a manifestation of intent to be bound to a contract.  Personnel may assert that they performed under the contract because they sent Audio 100 resumes.  However, Audio may assert that it was not because of them they were able to fulfill the open position by hiring Liz, because she independently sent over her resume, not through Personnel.  Therefore, no contract was ever formed between the parties and thus Personnel is not entitled to the $150,000 "for services rendered in placing Liz."

 II.  Personnel may not bring a suit against Audio for the "15% of the slary of a temporary employee for as long as the employee works for a company" against Audio, in compensation for Liz's placement there.     

            The issue is whether Personnel is entitled to the 15% of Liz's salary from Audio. Since it is likely that no contract was formed between the parties, Personnel may try to assert that because of Course of performance or the role of what is cusomary in the practice, Personnel is entitled to the money.  Court of performance would enable Personnel to the money if they could show that because of the performance with Audio on this contract, and they way they have acted with regard to this particular contract, they should be entitled to the money.  However, there was no contract formed, and therefore, they would not be able to succeed on this theory.

            Personnel may also try to assert that it is the role of custom in the field to provide the money to them if the employee stays at the company for more than 4 months.  This argument, while valid, must also fail.  Although the custom in the field is to provide such compensation, and although Liz did stay with audio for more than 4 months, they are nonetheless barred from recovering because Personnel is not hte one who actually procured the employment.  Liz used other means and sent her resume independently in order to gain employment with Audio.  While Personnel did send Liz's resume over to Audio, Audio did not obtain it in that particular way.  Liz gained employment at Audio regardless of Personnel's actions.  Therefore, Personnel is not entitled to recover based on role of custom or course of performance any money from Audio.  (Personnel would have also been able to assert "course of dealing" had they had previous interactions with Audio.  However, they never interacted with each other before so this cause of action would not stand either).

III.  Audio may bring an action against Liz to enforce the non-compete clause, barring her from working for a company like Audio for two eyars after her termination.

             The issue is whether Audio may enforce the non-compete agreemetn after firing Liz after only 7 months.  Under relevan contract law, non-compete clauses in contracts may be valid.  In order for them to be valid, the specialized skill ofthe person, and the geography of the limitation must be looked at.  The more specialized the skill, then the less likely the non-compete clause may be enforced.  Also, the larger the geogrpahic limitation as to where the person can work, the less likely the non-compete clause will be enforced. 

            Here, Liz has a highly specialized skill that other company's may require in their offices as well.  There is no geographic limitation in the clause.  The clause simply states that Liz is not to work for any company like Audio for a total of two years.  This clause will likely be held to be invalid.  If it provided a shorter time frame, or limited Liz geographically to local companies that would adversely effect Audio, then perhaps the clause would be valid.  However, that is not the case here.  Therefore, the clause will likely be deemed invalid.  

IV.  Audio may bring an action against Liz to enforce the confidentiality agreement Liz made in her employment contract. 

            The issue is whether Liz must keep the information she learned at Audio confidential in accordance with teh confidentiality agreement she signed in her employment contract with Audio.  A confidentiality agreement need only be in the contract.  This is to prevent unfair business practices and disclosure of company's trade secrets.  Liz had learned Audio's trade secrets while working for Audio.  It would have a hugely negative effect on Audio if she were to disclose said secrets to her new company.  Therefore, the confidentiality agreement must be upheld.

IV.  Liz may assert a claim for wrongful termination because she was fired for being unable to perform and for liying about Personnel sending her to Audio.

            The issue is whether Liz may assert a claim for wrongful termination when she was fired on the grounds that she was unable to perform and lied about Personnel sending her to Audio.

            An at-will employee is one who can be fired at any time and without cause.  A person is an at-will employee if they have a clause in their contract saying so, or if there is no clause in their contract saying otherwise. 

            Here, there was no clause in Liz's contract that said she was an at-will employee, and no clause saying she was not an at-will employee.  Even though Liz was able to acquire a significant new account while she was with Audio, her at-will status made termination at any time possible.  Therefore, Liz's termination pursuant to at-will status, meaning at any time and without cause, was valid.

            Further, there is no evidence that Liz had lied about Personnel sending her to Audio.  Personnel's word is the only thing saying so, but that is liekly because they are pursing the money they feel they are entitled to for procuring her to Audio.    Therefore, regardless of Audio's reasoning, it can be inferred that Liz was an at-will employee, and as such, could be fired without cause at any time. 

V.  Liz may sue Audio for loss income because she was fired from her job with Audio where she was making $400,000 and acquired a new job working with Serpentine where she is now making $200,000.

            The issue is whether Liz may assert a claim against Audio for loss wages when she was fired from her job and now has a job making half of what she was making with Audio.  Liz would assert that she was unlawfully terminated from her employement, and as such, is entitled to just compensation for her lost earnings.  Liz would assert that she was unlafully terminated because she did not lie about Personnel sending her resume to Audio, and because she was not unable to perform.  In fact, she would assert that she sent her resume to Audio herself, and that she performed extremely well because she was able to procure such a large new account for Audio. If the court determines that Liz was in fact an at will employee, then her termination would be valid, and she would not be able to sue Audio for lost earnings.  Therefore, since it is likely that she was an at-will employee, Liz would not be able to sue Audio for lost earnings because she was validly let go.   

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                                                         Question 7 - Criminal

  Alan, an individual with several previous convictions for robbery, was driving through the parking lot of the local supermarket. He saw Betty, an older woman, struggling with her packages. Alan stopped his car and asked Betty if she needed a ride home. Betty accepted and entered Alan’s car. Instead of taking Betty home, Alan drove Betty to his house and forced her inside. Once inside, Alan demanded money from Betty. Betty claimed not to have any. Alan brandished his 9 millimeter pistol and told Betty she “better find some money.” Betty attempted to run out the front door of the home, surprising Alan. Alan’s gun discharged, killing Betty.

  That evening, Alan took Betty’s body in his car and dumped it in the local reservoir without her wallet which Alan had previously searched and discarded. Several days later the body of Betty was found by a fisherman. Her wallet was never found. An autopsy found Betty had been killed by a 9 millimeter bullet.

  The crime generated intense publicity as the police sought the public’s help. Alan’s neighbor, Cathy, called the police station and told Officer that Cathy had seen a woman who resembled Betty go into Alan’s house around the time of the murder. Based on this information and Alan’s criminal record, Officer sought and obtained a search warrant for Alan’s house, for Betty’s wallet, and any evidence relating to Betty’s shooting.

  Officer executed the warrant on Alan’s house in his presence. Alan denied ever meeting Betty. Officer did not find Betty’s wallet or any evidence of a shooting in the home. However, Officer did find a box of 9 millimeter ammunition in Alan’s bedroom. Officer arrested Alan, informed him of his Miranda rights, and transported Alan to the station.

  Alan was held at the station for 24 hours and questioned repeatedly. He continued to deny any involvement in Betty’s killing. Overnight, he was locked in a cell with Doug, another criminal defendant, who had learned that Alan had been arrested for killing Betty. Doug was angered by the crime and threatened Alan with physical harm if Alan continued not to talk. The next morning when Alan was being taken for questioning, Doug whispered to him, “If you come back here, I will kill you.” Alan confessed during the morning’s interrogation.

  You are an associate at the Public Defender’s Office. Your superior has been assigned the defense of Alan and has asked you for a memorandum setting out all anticipated charges and potential defenses.


                                                               Sample Answer 7A

To: Superior

Date: March 1, 2012

Re: Potential charges against and defense for Alan

 Alan will most likely be charged with kidnapping, robbery, attempted robbery and felony murder.

 Likely Crimes

 Kidnapping requires the intentional confinement and moving of a person against their will.  Here the facts show that Alan forced Betty to go inside his home against her will.  The movement against her will statisfy the elements of kidnapping. 

 Robbery requires the trespatory taking of anothers personal property by using violence or threatening violence.  In this case, Alan demanded money from Betty and used the threat a violence and brandished a gun in making that threat.  Alan did eventually get Betty's wallet so that would constitute the trespatory taking from Betty.  There is a possibly that Alan would be charged with attempted robbery.  Alan had the specific intent to rob Betty but he did not seemingly take any personal property during the atttempted commission of the robbery. That fact would seemingly nullify the robbery charge. 

 Felony murder requires the death of a person while an inherently dangerous crime is being committed.  In this case there are two inherently dangerous crimes being committed in kidnapping and robbery.  The fact that Alan did not intend to kill Betty is immaterial.  The killing during the commish of these inherently dangerous crimes would be enough to constitute felony murder. 


 A defense to the kidnapping charge would be that Betty voluntarily entered into Alan's car.  She accepted the ride and was not kidnapped when she entered the car. However, the forcing of Betty into the house would be a kidnapping. 

 The robbery charge could be diminished to an attempted robbery since Alan did not get any personal property from Betty during the robbery.  

 The police lacked probable cause for the warrant to search Alan's home.  The basis of the warrant was lacking the requisite basis of probable cause.  Furthermore the warrant is fatally flawed because it does not provide specifics of what was to be searched for other than the wallet and where.  The warrant was more like a general search warrant then the required specific warrant that is required.

 There is also a lack of probable cause to arrest Alan in his home.  Just based on finding a box of 9mm ammunition and the statement by the neighbor that a women that looked like Betty entered the home does not create the required probable cause.  There would be suspicion about Alan based on that but that would not rise to the level of probable cause to arrest Alan. 

 Alan's confession was given under duress and was coersive.  Alan was repeatedly questioned for hours on end. Even after hours of question and with no more information Alan was locked in a cell.  The officers had lacked probable cause to arrest Alan to begin with and now they were keeping him locked in a cell overnight on the same suspicion but no real probable cause. 

 The prolonged detention without an attorney or arraignment is another issue for the confession.  Alan was read his Miranda rights but a public defender was not appointed to represent Alan.  Alan was repeatedly questioned and held overnight without an attorney being appointed.  While a defendant like Alan needs to invoke their right to remain silent and counsel clearly, the continued detention and questioning of Alan raises questions. The facts are unclear but Alan had been held for more than 24 hours without being arraigned or having charges filed against him.  In many ways Alan was left to think that no one would help him and he would not be allowed to go anywhere until he confessed. 

 The threats by Alan's cellmate Doug placed Alan under more duress but the actions of a third party like Doug cannot be put on the state in this case.  Doug was not a state actor and had not been co-opted by the police department as an informant. 

 The best defense for Alan is that there is little to physical evidence to connect him to these crimes.  If the confession can be suppressed then the prosecution has a tough case.  The only evidence would be some 9mm ammunition and a witness that says that Betty entered Alan's home.  No physical evidence of any real crime can be shown.   There is no evidence of Alan forcing Betty to enter his home to prove the kidnapping.  There is no evidence that Alan threatened Betty or took anything from Betty to prove robbery.  There is no evidence that Alan shot Betty other than the 9mm ammunition which by itself is weak circumstantial proof. Without the confession the prosecutor's case collapses.  

                                                                Sample Answer 7B

To:       Public Defender's Office

From:   Associate

Re:       Alan

 Alan can be brought up on charged of Kidnapping, Attempted Robbery, and Felony Murder. Kidnapping is the unlawful confinement of a person without conent (false imprisonment) and the movmenet of the person. Here Betty consented to the ride home; however, once forced inside his home her movement was agaisnt her consent. Robbery is the trespassory takign of the property of another by force or fear of threat of force. Here the offense is incohate because he did not procure any poperty from Betty, however the necesary of elements of threat of force is satisfied, evidence by betty's fearful run towards the door. Felony Murder is defined as the taking of another's life durign the commission of a felony. Intent to kill si not required, the commission of the crime is an inherently dangerous activity and defendant will be liable for those events that occurduring its commission. Here, the use of a deadly weapon during the attmepted robbery satisfies this element, the fact that the gun disghared accidently or Alan's unwareness of it beign loaded are irrelevant to felony murder.

 The 5th Amendment, gives those arrested the right to remain silent and the right to counsel. Among other things the 5th prevents against compelled confessions. In order for the right agaisnt incrimination to apply, there must have been a custodial interrrogation of defendant that was compulsory. A vvalid waiver of the 5th right to silence or counsel must be clear, knowing and volutnaryily, there was no waiver or attempot at a waiver. After mirandizing, the cops can question defendant however a defendant remainign silent is an act construed as invoking his right to remain silent. WIthout a waive, cops must wait a reasonable wait periof before reinitiating interrogation once the right to silence has been inititaed. It is unclear whetehr Alan remained silent durign questioning, however the cops repeadted questioning is likley to have be found compulsory but such questionuing did not ellicit a confession. Again, the 5th Amendment bars compulsory interrogation by police. Here, after an overnight period Alan confessed to the crime. For a Miranda violation the confession must be the product of police coercion. Here, a threat by a fellow inmante does not fall within the scope of Miranda protection. The rationale for Miranda is to protect against police misconduct by compulsory confessions, here the police could not be deterred.

Aside from Miranda, the more fruitful challeneg would be to challenge the lack of probable cause for the arrest warrant and arrest. Search warrants require a basis of probable cause. Here the tip from the fellow neighbor is not  indeopendently likely to make it mroe likely than not than Alan commited a crime. Warrants based on infromant tips generally require sufficient corroboration by police. Without such corroboratin the warrant was in violation of the 4th Amenemdnent.

 Wrongfully issued or executed warrant can however be cured by good faith police work. However, the polic work here was also deficient in that it is likley that the police lacked probable cause to arrest Alan.  PC is found by a preponderance of the evidence, even by that standard it is unlikely to show that it was more likley than not that he was involved in illegal activity.

The exclusionary rule will, exlclude direct and derivative evidence of a consittutional violation. The exclusionary rule puts teeth on the 4th and 5th Amendments. Based upon the lack of probable cause to Arrest Alan, the derivative evidence caushed by the vioaltion will be supressed. On the other hand, the exclusionary rule will not exclude physcial evidence and the ammuniton, for a useful purpose, will not supressed.