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NEW JERSEY BOARD of BAR EXAMINERS

Independence - Integrity - Fairness - Quality Service

Bar Examinaton Sample Q&A - February 2013

February 2013 Questions and Sample Answers

 

Constitutional Law

Torts

Civil Procedure

Criminal

Evidence

Property

Contracts

 

Question 1 - Constitutional Law

It is civil motion day, and you are the law clerk to a United States District Court Judge. On your judge’s docket are several summary judgment motions. In preparation, the judge has asked you to prepare memoranda of law assessing the constitutional claims presented. Assume that all litigants have proper standing to pursue their respective claims in federal court.

1. The state legislature enacted a statute limiting all future government jobs to residents of the State. Any non-residents currently holding government jobs will have to either establish residency within 6 months of the law’s effective date or resign his/her employment.

2. All future government contracts will only be awarded to businesses either with a principal place of business in the State or that use 90 percent of state residents to staff work on government contracts.

3. Manny is serving a life sentence without the possibility of parole. She has a rare medical condition that prison doctors indicate requires breast reduction surgery to remedy her affliction. Manny’s complaint also claims that serving saccharin, with its scientific link to certain cancers, should be permanently prohibited in the State’s prisons. Vicenta, the Commissioner of Corrections, has denied the requests, citing the prohibitive costs associated with the medical procedure and eliminating the sugar substitute. Manny seeks injunctive and monetary relief against Vicenta.

4. Fifty percent of all public college and university admissions must be set aside for the State’s residents. Legislative history reflects that the in-state set-aside was designed to promote greater enrollment of minority and female residents in higher education institutions. Alex, a non-resident, white male, has initiated an action seeking to strike down the set-aside provision.

5. Chela, State Senator Richie’s former lover, has initiated an action arising out of remarks Richie had made on the Senate floor about her as a woman of “ill repute” and “low moral character.” Richie made these statements in response to Chela’s recent press conference revealing their lengthy, torrid affair.

PREPARE THE MEMORANDA

 

Answer 1A

MEMORANDUM

 

To:   Judge

From:  Law Clerk

Re:  Summary Judgment Motions

Date:  February 28, 2013

1. 

The statute enacted by the state legislature limiting all future government jobs to residents of New Jersey is most likely unconstitutional.   The residents currently holding government positions will most likely bring due process claims as they are already entitled to those jobs and will seek to invalidate that portion of the law applying to current employees under the due process clause.  However, there are exceptions that may apply here to save the statute.  The issue here is whether the law has violated the priviliges and immunities clause of article IV of the US constitution and whether the part of the statute applying to current employees violates due process.

The privileges and immunities clause, article IV of the constitution states that states may not unduly burden or prevent travel of citizens of any one state from traveling into another state. 

Here, the state of New Jersey (NJ) has enacted a law that will prevent citizens of other states from traveling into NJ and work in NJ.  The law on it's face violates the privileges and immunities afforded to citizens of the United States.  The law will prohibit citizens of other states from taking up employment in state government and earn a living.  The state of NJ is not entitled to favor it's citizens in such a way and the statute most likely violates the consitution.

However, the law may be held to be constitutional under certain exceptions that apply to the privileges and immunities clause.  A state may favor it's own citizens in employment if the position is an important one that effects the function of the governmnet. Positions such as government officials, teachers and fire fighters have been previously required to live within the state in which they are employed.  Here, the law may be held to be constitutional under the above stated exceptions.  Nevertheless, the law enacted by the state of New Jersey is most likely too broad to be constitutional under the exception as it applies to every government employee regardless of the position the out of state resident may hold or is holding within state government.  A state government employee who is not holding a position essential to functioning of government will be required to move to NJ or resign from his/her job under this law and thus the law is most likely unconstitutional as it is too broad and covers many government jobs that are not essential to functioning of government. 

The existing state workers may also bring a due process clause as those workers are entitled to those positions and will most likely object to the method by which their employment will be terminated if they do not move to NJ within 6 months.  Due process may require that the workers be entitled to a hearing or a trial-like procedure where they are given a chance to be heard.

Therefore, the law is most likely unconstitutional as it violates the privileges and immunities clause of article IV as it will prevent the citizens of other states from traveling to NJ.  The law is too broad to be saved by any one of the exceptions that may apply in this case.

2. 

The law requiring that all government contracts only be awarded to buisnesses either with a principal place of business in State or that use 90% of state residents to staff work on government contracts violates the dormant commerce clause and is unconstitutional.  The dormant commerce clause requires that activities that have a substantial effect on commerce between the states and inhibit such commerce will be deemed to be unconstitutional.  The commerce clause grants the US Congress the right to regulate channels and instrumentalities of commerce. 

Here, the state law is unconstitutional as it will have a substnatial negative effect on  interstate commerce by requiring companies to either move to NJ or hire NJ residents.  The US Congress has the power to regulate commerce between the states any economic act that has a direct effect on commerce or acts that are non-economic but have a substantial effect on interstate commerce when aggregated will be regulated by the US Congress. 

Therefore, a state law may not require companies to hire 90% of it's staff from state residents or require them to move to the state to get government contracts as such an act will directly violate the commerce clause of the constitution.

3. 

Manny's request for injuctive and monetary relief may be granted if she can prove that serving saccharin and refusal of the medicla treatment is cruel and unusual punishment.  The US constitution under the 8th amendment prohibits cruel and usual punishment.  The punishment may be deemed to be cruel and unusual if it is disproportional to the crime committed.

Here, Manny's claim for injuctive relief regardin the serving of saccharin in state prison may be granted if the substance indeed causes cancer.  Subjecting inmates serving life sentences to a cancer causing substance will be deemed to be cruel and unsual punishment as people with cancer suffer under the disease and most cancer cases result in death.  Manny was sentenced to life in prision, not death by cancer so if the substance causes cancer then she may be issued the injuctive relief.

As per Manny's request for monetary relief may be granted if the state was negligent in refusing her requests and she suffered an injury as a result.  She will have to prove damages such as pain and suffering in order to be granted money damages.

Therefore, Manny's request for injuctive relief and money damages may be granted if the state's actions constituted cruel and unusual punishment. 

It must be noted that Manny is suign the  Commissioner in his personal capacity and not the State itself.  Individual states may not be sued in US federal courts.  If the court finds here the the state itself is being sued in a federal court then the case may be dismissed as the us constitution prohibits such suits.

4. 

A state may set aside university admissions for state residents at state colleges.  The issue here is whether a state may favor it's own citizens in placing them into a state university.  A state may not favor it's own citizens over citizens of others.  However, this benefit has been held to be constitutional as right to education is not a fundamental right.

Here, a state may reserve a portion of it's college admissions for it's own citizens as such benefits by states conferred on it's own citizens has been held to be constitutional as right to education is not a fundamental right and it is not protected by the constitution.  The underlying reasons for the law may be another ground for upholding the law as the states are allowed to remedy past discrimination by taking action such as this one in this case.  There has been discrimination against women and minorities in the past in college admissions and a state is allowed to remedy that discrimiation by taking such action

Therefore, the state's requirement that 50% of students be state residents is constitutional as it does not violate any fundamental rights of other state citizens and a state is allowed to remedy past discrimiantion

5. 

Senator Richi's remarks will be held to be constitutional because the statements made on the Senate Floor have immunity.  The issue here is whether the Senator's remarks are protected by the consitution. 

Here the remarks will be held to be constitutional as they were made on the senate floor.  The statements made by Senators on the senate floor are entitled to immunity and the senator may not be sued based on those remarks.  The senator has absolute immunity as the podium grants him such rights.

Therefore, the action constituted by Chela should be dismissed as the Senator had immunity regarding his statements on the Senate floor.

Please note that motions for summary jugments must be granted if there is no issue of genuine material fact that a reasonable jury can differ on.

 

Answer 1B

Memorandum of Law

To: United States District Judge

From: Law Clerk

Re: Analyses of Motions for Summary Judgment

 Case Number 1: Government jobs limited to only the residents of the State.

            In this case, plaintiffs have brought a constitutional challenge to the state's statute limiting all future government jobs to the residents of the State. Moreover, any non-residents currently holding governmnet jobs must either establish residency within the State within 6 months of hte law's effecitve date or resigh his or her employmnet.

            The first issue is whether the statute infringes upon the right of interstate travel (the "Privilege") as guranteed by the Privilege and Immunity clause of the Fourteenth Amendment and by Article IV of the Constitution. Under the Privilege, the freedom of interstate travel cannot be infringed by the state governments. Courts have interpreted the Privilege to protect the right of a citizen of a state wishes to travel to another state for employment or business. For exmple, a lawyer who is a resident of State V may not be denied the membership of the bar of State NH simply because she was not a resident of NH. Courts have also interpreted the Privilege as to not allowing a state to establish residency requirements before a recently-moved citizen from another state may begin to receive government benefit.

            Here, it can be argued that the statute require residency in the State for government jobs violates the Privilege as it prevents the resident of one state from traveling to this state for employment. Thusly interpreted, the statute may be unconstitutional. On the other hand, the argument could also be that the statute applies only to GOVERNMENT jobs. Because the state government is funding the jobs, it has more latitude concerning requirements, including residency requirements of the candidates. Moreover, courts have held that state and local governments have a right of self-governing, and therefore, it could be said that the residency requirement is constitutional as it relates to self-governing.

            The second issue is whether the statute violates the negative implication of the commerce clause, or the "dormat commerce clause" doctrine. Under this doctrine, state laws and regulations that facially discriminate against out-of-state business are unconstitutional in the absence of Congressional authorization. If the state laws and regulations are facially neutral, but their effect burdens interstate commerce, the court will apply a balancing test to weigh the benefit and burden on interstate commerce, and the state law is unconstitutional if it is more burdensome than beneficial on interstate commerce.

            Here, the state statute could be said to facially discriminate out of state residents, and therefore may violate the dormat commerce clause. On the other hand, however, it could be argued that because statute applies only to GOVERNMENT jobs, it does not implicate interstate COMMERCE, and therefore constitutional. In addition, it could be argued that the residency requirement is constitutional as it relates to self-governing of a state government.

            The third issue is wehther the statute violates the equal protection guaranteed by the Fourteenth Amendment. A state government must provide all persons within its jurisdiction the equal protection of the law.

            Here, the state statute discriminates against residents of other states. This classification, however, does not raise to the level requiring strict scrutiny (such as race and national orgin) or intermediate scrutiny (such as gender). Therefore, the court should apply a rational basis analysis. The state law would be constitutional if it is rationally related to a government function. Under this analysis, the law is likely to surivie a constitutional challnege. The State could argue that the law is rationally related to the state's function of protecting its own citizens' economic welfare.

 The fourth issue is wehther the statute violates the due process rights guaranteed by the Fourteenth Amendment. Under the due process clause, the state government cannot deprive a person of life, liberty, or property without due process of law. Courts have interpreted this clause to include a substantive element, requiring state to meet strict scrutiny standard before depriving a person of a fundamental right.

 Here, it can be argued that the current out of state govenment employees are not adequately protected by the State government before being deprived of their jobs. On the other hand, the state could argue that (1) these employees have no property interest in their jobs; and (2) no fundamental rights was infringed upon. Therefore there is no violation of the due process.

            The fifth issue is whehter the statute violates the inter-governmental immunity and the Supremecy Clause. As drafted, the statute seems to cover "governmnet jobs" without distinction between state/local government jobs and Federal government jobs. Under the inter-governmental immunity doctrine, state law cannot interfere with the operation of the federal government. Supremecy Clause also states that where there is a conflict between state and federal law, federal law controls.

            Here, if the statute applied to the federal government jobs in the state, it should be hold to violate the inter-governmental immunity and the Supremecy Clause. However, this is likely an issue of statutory construction, and the court may not read the law to cover fedreal government jobs. Under such a construction, if the law does not apply to the federal government, it should not violate inter-governmental immunity and the Supremecy Clause. Courts should construe a law whenever possible to avoid a conflict with the U.S. Constitution.

 Case Number 2: Government contracts limited to only the business of the State.

            In this case, plaintiffs have brought a constitutional challenge to the state's statute limiting all future government contracts to business within the state (as defined by the statute).

 The first issue is whether the statute infringes upon the right of interstate travel (the "Privilege") as guranteed by the Privilege and Immunity clause of the Fourteenth Amendment and by Article IV of the Constitution. Under the Privilege, the freedom of interstate travel cannot be infringed by the state governments. Courts have interpreted the Privilege to protect the right of a citizen of a state wishes to travel to another state for employment or business. For exmple, a lawyer who is a resident of State V may not be denied the membership of the bar of State NH simply because she was not a resident of NH. Courts have also interpreted the Privilege as to not allowing a state to establish residency requirements before a recently-moved citizen from another state may begin to receive government benefit.

            Here, it can be argued that the statute require business residency in the State for government contracts violates the Privilege as it prevents the business resident of one state from traveling to this state for purposes of making money through government contract. On the other hand, the argument could also be that the statute applies only to GOVERNMENT contracts. Because the state government is funding the contracts, it has wide latitude concerning requirements, including residency requirements of the contract participates. Moreover, courts have held that where a state is a "market participant" it can favor in-state business over that of out of state business. Therefore, the law could be constitutional.

            The second issue is whether the statute violates the negative implication of the commerce clause, or the "dormat commerce clause" doctrine. Under this doctrine, state laws and regulations that facially discriminate against out-of-state business are unconstitutional in the absence of Congressional authorization. If the state laws and regulations are facially neutral, but their effect burdens interstate commerce, the court will apply a balancing test to weigh the benefit and burden on interstate commerce, and the state law is unconstitutional if it is more burdensome than beneficial on interstate commerce.

            Here, the state statute could be said to facially discriminate out of state businesses, and therefore may violate the dormat commerce clause. On the other hand, however, courts have held that where a state is a "market participant" it can favor in-state business over that of out of state business. Therefore, the law could be constitutional.

            The third issue is wehther the statute violates the equal protection guaranteed by the Fourteenth Amendment. A state government must provide all persons within its jurisdiction the equal protection of the law. The Supreme Court has held that corporations and business entities are entitled to this protection.

            Here, the state statute discriminates against businesses of other states. This classification, however, does not raise to the level requiring strict scrutiny (such as race and national orgin) or intermediate scrutiny (such as gender). Therefore, the court should apply a rational basis analysis. The state law would be constitutional if it is rationally related to a government function. Under this analysis, the law is likely to surivie a constitutional challnege. The State could argue that the law is rationally related to the state's function of protecting its own resident businesses' economic welfare.

 Case 3: prisioner medical care.

            In this case, a prisoner is challenge the prison's denial of (1) medical treatment to her; and (2) change of policy to ban saccharin. She is seeking both monetary and injnctive relief.

            The first issue is whether the prison's denial of medical treatment violates the Eighth and the Fourteenth Amendment. Under the Eighth Amendment, governments are prohibited from imposing "cruel and unusual punishment." Courts have held that the 8th amendment extends to cases where the prisoner requires medical treatments and other prison conditions. Through the incorporation of the due process clause of the 14th Amendment, the 8th Amendment applies to state governments.

            Here, Manny is a life prisoner who requires medical treatment to remedy her rare medical condition. Under the 8th amendment, the state prison should provide her the necessary medical treatment. The state argued that such a procedure is costly and therefore Manny cannot receive it. Courts have rejected such an argument where the medical treatment is reasonably necessary to save lifes or to remedy illness. The court therefore should consider the importance of the medical treatment to Manny, and may balance that against the proposed cost of the medical issue.

            The second issue is, assuming the court holds in Manny's favor on issue 1, what remedy she is entitled to. The Eleventh Amendment and sovereign immunity prohibits a federal court from awarding monetary relief against a state, or instrumentalities of a state. Therefore, Manny is not entitled to monetary relief. The Supreme Court has also held that the federal courts may grant injunctive relief in favor of a plaintiff and against an official charged with carrying out a state policy. If the court finds in favor of Manny, therefore, it may issue an order requiring the prison to pay for the medical treatment.

            The third isue is whether the prison's refusal to remove saccharin violates the 8th and 14th amendment. Under the 8th amendment, a prisoner may challenge the prison condition. However, unlike medical treatment, the standard here is higher for a prisoner to establish that a prison condition is "cruel and unusual punishment." Courts have held that in such cases, more weight should be given to penological considerations, including burden of cost.

            Here, the prison aruges that removal of all saccharin is costly. Unlike medical treatment, courts should give more weight to this argument. However, as noted in the second issue above, courts may issue injunctions against a state prison. Injunctions can be strctured with flexibility. Therefore, if the courlt finds the state's argument on cost persausive, it could either deny the requested injunction or structure it such that it minimizes cost (e.g. provide Manny with special diet with no saccharin but allow other prisoners to continue consuming saccharin).

 Case 4: public university admission.

            In this case, plaintiffs have brought a constitutional challenge to the state's set-aside quota favor of state's residents in state public university--a policy to promite enrollment of minoirty and women.

 The first issue is wehther the statute violates the equal protection guaranteed by the Fourteenth Amendment. A state government must provide all persons within its jurisdiction the equal protection of the law. Where the government's classification is motivated by race, the court applies strict scruntiny, under which a law is constitutional only if it's in narrowly tailored to meet a compelling government interest. Where the government's classification is motivated by sex, the court applies intermeidate scruntiny, under which a law is constitutional only if it's in closely related to an important government interest. Courts have held that promoting racial diversity and remedy past discrimination can be a "compelling" government interest. However, coulrts have also reviewed closely the means employed to address this issue. For example, the Supreme Court has held that a straight forward racial quota is unconstitutional, but considering race as a "plus" factor among many other factors is constitutional. Other courts have found that a policy of automatically admitting the top 10% of the high school graduates in the state--a policy statedly to promote racial and gender diversity--is constitutional.

 Here, the legislative history could indicate that the law is motivated by the state's desire to promte greater enrollment of minority and women. It thus should satisify strict and intermediate scrutiny. On the other hand, the law on its face only favors in-state resident and not mentioning race or gender. Therefore, if the court finds the law motivated by racial/gender concerns, it should apply strict or intermediate scrutiny. But if the court finds that it is not, the the court should apply rational basis review (see above for standard).

 If the court were to apply strict and intermediate scrutiny, it should consider whether the quota in favor of in-state resident is like a racial quota. If it so finds, then it should find the law unconsittutional. If, on the other hand, the court finds the law more similarly to a policy where top 10% of the state's high school graduates are automatically admitted into the state's university, then should then may consider finding the law constitutional because other courts have held that the 10% policy is unconstitutional.

            The second issue is whether the statute infringes upon the right of interstate travel (the "Privilege") as guranteed by the Privilege and Immunity clause of the Fourteenth Amendment and by Article IV of the Constitution. Under the Privilege, the freedom of interstate travel cannot be infringed by the state governments. Courts have also interpreted the Privilege as to not allowing a state to establish residency requirements before a recently-moved citizen from another state may begin to receive government benefit.

            Here, it can be argued that the statute setting quotas for public university admission violates the Privilege because it requires establishment of residency before receiving a government benefit. ON the other hand, it can be argued that the Privilege does not apply to public university because (1) the state funded the institution; and (2) the other residents, through their tax dollars, also helped funded the institution. The state thus can give a beneift to its residents.

 Case 5: public remarks by a State Senator.

 In this case, plaintiff brought a civil case concering a state senator's remark on the senate floor.

 The first issue is whether such a civil suit implicates the First Amendment. Under the 1st amendment, applied to the states through the 14th amendment, a case for defamation against a "public figure" must show that the person making the statement had "actual malice." This means the maker of the statement, at least, recklessly disregarded the truth.

 Here, the court should first determine whether Chela is a "public figure." It shows that she announced in a "recent press conference" that she and the senator had a lengthy, torrid affiar. This could turn her into a public figure because she has voluntarily injected herself into a public debate (through a press conference) and she made statement of an issue of public concern (regarding a state senator). Even if she were otherwise a private person, these facts should make her--at least for this matter--a public figure.

 Next she must show that the senator made the statement with actual malice. If she cannot show that, her case should be dismissed. The facts are insufficient to see whether there was actual malice.

            The second issue is whether the statements made were subject to legislative privilege. This privilege protects the legislators from being liable for statements they made during the legislative session.

            Here, the senator made the statements on the senate floor. The legislative privilege should thus apply and shield him from liability. On the other hand, this was a statement about a person, and not a public affair, so Chela could argue that the privilege does not apply.

Question 2 – Torts

Barry manufactures tires that are sold at retail outlets around the nation. They carry a warning label, declaring that the tires “may be unsafe at speeds in excess of 100 miles per hour.”

Kim purchases a set of tires at Tony’s Tire-Rama, and has them installed at the facility. The installation is done by Tony himself, who does not inform Kim of the warning label.

Two weeks later, Kim asks her newly licensed neighbor, Peter, age 18, to run an errand for her. Enthralled with the idea of driving Kim’s car, Peter readily agrees.

Peter takes the car to a highway, where he drives at speeds in excess of 100 miles per hour. Suddenly the left front tire explodes, sending the speeding car careening into a ditch, where it overturns, badly injuring Peter.

A passerby, Vera, a store clerk with no medical training, stops to render assistance. Seeing that Peter is bleeding profusely from a deep gash to his right foot and believing his life to be in danger, Vera applies a tourniquet to stop the bleeding. Her strategy works in that Peter survives the crash. However, because of the prolonged loss of blood flow caused by the tourniquet, doctors eventually have to amputate the foot.

Peter wishes to bring suit against Barry, Tony, Kim and Vera and consults an attorney. You are an associate employed by that attorney, who asks you to evaluate, in memorandum form, Peter’s potential causes of action against each defendant, as well as all potential cross claims and defenses.

PREPARE THE MEMORANDUM

Answer  2A

Peter v. Barry

            A manufacturer of a product may be held strictly liable if the product injures another person. Plaintiff may have a cause of action against a manufacturer for manufacturing defect, design defect, or failure to warn. A manufacturing defect is where a product deviates from others in secure assembly line. A claim for design defect must show that there were other feasible alternatives available, and that it would be cost effective to use another design. A failure to warn claim must show that there was no adequate warning in place with regard to the use or foreseeable misuse of a product.

            Here, Peter has a strict product liability course of action against Barry the manufacturer. Based on the fact that the warning label stated that tires are unsafe at speeds in excess of 100 miles per hour, and that it is foreseeable that people may go over that speed limit. Simply, placing a warning label instead of making a safer design will not relief a manufacturer from liability. Thus, if Peter can establish that there were feasible safer alternatives that were cost effective to use, he may prevail on a design defect theory against Barry.

Peter v. Tony

            A merchant who deals in goods of a kind may be sued on a strict product liability theory if he sells a defective product. Also, such merchant may be sued on a negligence theory, provided he had a duty of care, he breached that duty, his breach was the factual and proximate cause of Plaintiff’s damages.

            Here, Tony sold and installed tires on Kim’s car but failed to warn Kim regarding the warning label on the tires. Tony had a duty to act as a reasonable prudent person in these circumstances, but by failing to warn Kim about the tires he breached that duty. His failure to warn Kim resulted in Peter not being aware of the problem, as such Tony is the factual (but for) cause of Peter’s damages. It was also foreseeable that the car may be driven by anyone else, besides Kim, as such Peter is a foreseeable plaintiff herein, who suffered damages due to Tony’s negligence.

            Moreover, if it is established that there was a design defect, Tony may also be sued on a strict product liability theory.

Peter v. Kim

            The issue here rests as to whether Kim was negligent in giving her car to Peter. Kim had a duty of care to act as a reasonably prudent person under similar circumstances. Kim had no knowledge of problems with tires, and as such she did not breach her duty to Peter.

            As such, Peter would have no cause of action against Kim.

Peter v. Vera

            Generally, there is no affirmative duty to help someone in peril. However, once you assume such duty you must not act not negligently or otherwise be held liable for damages.

            In this case, Vera (a passerby) had no duty to help Peter. However, she decided to help him anyway. Vera is not a medical professional nor does she have medical training, and thus her actions resulted in Peter losing his foot. This, if it is found that Vera acted negligently when she applied a tourniquet to stop the bleeding, she will be held liable.

            As such, Peter has a cause of action against Vera.

Answer 2B

Memorandum

To: Attorney

From: Associate

Date: February 28, 2013

Re: Peter’s Claim.

            I recommend that peter initiate claims against Barry, and Tony, but not Kim or Vera. Peter has colorable claims against all three.

  1. Claims and Defenses
  1. Barry

            Peter has a colorable claim against Barry. In New Jersey, a products manufacturer or seller is strictly liable for all damages caused by a defective product. A product is defective because of a manufacturing defect or, as is the case here, a design flaw.

            Standing: Peter can bring a claim against Peter. A manufacturer or seller of a defective product is liable to all foreseeable plaintiffs – privity of contract is not required. Peter- who borrowed Kim, the buyers car- is a foreseeable plaintiff

            Defective: a product has a design flaw if a design attribute make the product unsafe and it could reasonably be made safer. As many tires can go 100 MPH and not explode, this tire had a design defect- Barry should have made the tire safer.

            Use: a product is defective if not reasonably safe for all foreseeable uses and misuses. While it is a misuse to drive over 100 MPH, that is a foreseeable misuse.

            Warning: While a warning label is a potential defense- it can help prove the plaintiff’s comparative negligence- it will not insulate a manufacturer from a suit for a defective product

            Harm: Barry is potentially liable for all of Peter’s personal injuries. While he may have a claim for contribution from Tony and Vera, he is liable for all foreseeable harm caused as a result of the defective product. This includes injuries caused by poor rescue attempts, medical malpractice, and subsequent diseases caused during treatment. Barry is, therefore, liable for Peter’s crash injuries and amputated foot.

            Warranty: Peter does not have a warranty claim against Barry because there is no privity of contract.

            Negligence: Peter does not have a negligence claim against Barry because it appears that Barry acted with due care when making the tire.

            Comparative Fault: New Jersey is a modified comparative negligence state. Therefore, a plaintiff’s recovery is lessened by the percentage of fault attributable to the plaintiff. If the plaintiff was 50% or more at fault, he or she cannot recover.

            Because traditional common-law tort defenses are available to strict products liability defendants, if Peter is 50% or more at fault, he cannot recover against Barry. This is a jury question, however, for Peter can bring a claim.

            Assumption of Risk: This applies to strict liability claims. But because this was a latent (hidden, and not patent (obvious) defect, the defense does not apply.

            Statute of Limitations: Peter has two years from the date of injury to sue.

  1. Tony

Peter has claims against tony for strict liability and negligence.

Strict Liability: Peter has the same claim as anyone against Barry. Any manufacturer or seller who puts a defective product into the stream of commerce is liable for injuries caused. Tony owns a tire store, so he is a regular seller of tires who may be liable.

Negligence: Peter has a claim against Tony for Negligent Failure to warn.

The elements of negligence are duty, breach, causation, and harm.

Duty: As a seller of tires, as part of his duty of care, Tony was obliged to warn Kim about the tire’s speed limitation.

Breach: By not telling Kim, Tony breached.

Cause: Tony’s breach was the but-for, or cause in fact, of Peter’s injuries. If he had warned Kim, she could have warned Peter, and he could have driven slower. Tony cannot point to Kim’s failure to warn Peter because, as discussed below, that was not a subsequent intervening event because Kim did not act tortuously.

Tony’s failure to warn is also a proximate cause because a crash is the type of foreseeable danger created by his negligence.

Harm: Tony is liable for all of Peter’s injuries for the reasons discussed with Barry.

Comparative Fault: This is the same analysis as for Barry. Peter, by driving in excess of the speed limit, was negligent per se.  But, as long as Peter was not 50% or more at fault, he can recover from Tony whatever portion of the fault is attributable to Tony.

Warranty: As with Barry, Peter has no warranty claim.

Learned Intermediary: Because Tony installed the tires, Barry may point to Tony as a learned intermediary, meaning that Peter should recover against Tony.

Assumption of Risk: Not applicable because of reasons discussed with Barry.

  1. Kim

Peter should not sue Kim. Kim was likely not negligent. Because Peter did not warn her about the tire, she had no knowledge of the defect. And she likely had no reason to inquire with Peter about latent defects.

He also does not have a negligent entrustment claim. While he was a new drive, he was licensed and of majority. It was not, therefore, negligent for Kim to let Peter drive.

Kim also has a potential cross claim against Peter. He was driving negligently, for the reasons discussed above, and damaged her car. She has six years to bring this tort claim for damage to property.

  1. Vera

Peter has no claim against Vera.

First, while he did lose his foot as a result of her tourniquet, he did live. There IS, therefore, that she acted negligently in applying the tourniquet or deciding to apply it.    

Further, she may be protected from liability under a good samaratin law. Under the common law, when one acted to rescue, one had a duty not to act negligently. If a good samaratin law IS in effect, Vera is not liable for acting negligently in her rescue.

Finally, Peter does not have a battery claim. Battery is the non-consensual touching of another. While Peter may not have actually consented, in a rescue situation a rescuer is privileged to ask- unless the injured tells her not to- because the law will presume that the injured would consent to be touched.   

Question 3 - Civil Procedure

Decedent suffered from a rare blood disorder and was being treated at Hospital where she was under the care of various physicians employed by Hospital. The treatment was unsuccessful and Decedent died on June 25, 2005. Plaintiff, executor of the estate of Decedent, filed a complaint in New Jersey state court against Physicians A, B, and C and Hospital alleging wrongful death and medical malpractice by all defendants.

Plaintiff served all defendants with process on June 25, 2007, the last day of the statute of limitations. Process upon Physician A was served by Decedent’s husband on the apartment building doorman where Physician A resided. Hospital, a corporation, was served by plaintiff’s attorney’s 18-year-old son, who left the summons and complaint with a staff member at Hospital’s information desk. All defendants filed answers and 75 days later Physician A and Hospital each filed a motion to dismiss the complaint based on insufficient service of process.

Subsequently, Physician B moved to dismiss the complaint based on his certification that he did not provide any medical care to Decedent. All of Decedent’s medical records prominently displayed Physicians C and D as Decedent’s treating physicians and only mentioned Physician B’s name once. Five months later, plaintiff’s attorney resumed his practice after an extended medical leave, and filed a motion for leave to amend the complaint to add Physician D as a defendant. The motion was granted and Physician D filed an answer.

Discovery proceeded and plaintiff served a request upon Physicians C and D for their malpractice insurance policies. Plaintiff also served interrogatories upon them requesting the names and addresses of each person they intended to call as an expert, the expert’s final report and all draft reports and notes prepared by the expert in rendering the final report. Physicians C and D provided the names and addresses of the experts they intended to call at trial but refused to provide the other documents. Plaintiff filed a motion to compel discovery against Physicians C and D.

After discovery was completed, Physician D filed a motion for summary judgment for the dismissal of the amended complaint on the ground the statute of limitations had expired. In support of her motion, Physician D certified “I only learned about plaintiff’s claims on behalf of Decedent when I was served with the amended complaint in February 2008.” Plaintiff did not submit any opposition.

You are the law clerk to the judge handling this case. You are asked to prepare a memorandum addressing:

1. 
How should the court rule on Physician A’s and Hospital’s motions to dismiss the complaint?

2. 
Should the court have granted plaintiff’s motion for leave to amend the complaint?

3. 
How should the court rule on plaintiff’s motion to compel discovery?

4. 
How should the court rule on Physician D’s motion for summary judgment?

Thereafter, the case proceeded to trial against Physician C. The jury rendered a verdict of 70 million dollars against Physician C, the largest medical malpractice verdict ever in the state of New Jersey. The judge entered a judgment for that amount.

5. 
What options are available to Physician C to challenge the jury’s verdict?

PREPARE THE MEMORANDUM

 

Answer 3A

Memorandum

 To: Judge

From: Clerk

Re: Decedent's Wrongful Death and Medical Malpractice Case

 Physician A and Hosptial's motions to dismiss

Under New Jersey practice, service of process must be performed by an non-party without an interest in the underlying litigation, who is at least 18 year's old. Service of process must be made personally on the defendent or through an acceptable alternate means. As to Physician A, the service was ineffective, but Physician A failed to assert the defect in time to defeat the case and it therefore should not be dismissed. As to Hospital, the service was ineffective, but Hospital failed to assert the defect in time to defeat the case and it thereofre should not be dismissed.

 Physician A was served by Decedent's husband, who has an interest in the litigation through his prosective recovery for wrongful death and for the medical malpractice award that he may inherit from her estate. Therefore, he was an ineligible party to serve process because of his underlying interest.

 Even if the husband had been eligible to serve process, he failed to properly serve it when he left it with Physician A's doorman. Service of process must be made personally upon the defendant or through an acceptable alternative. When a third-party guard prevents a person from reaching the defendant, that is an acceptable limit under which an alternative may be used. However, it appears that the husband only attempted to serve Physician A once. He should have tried multiple times, including when Physician A was at work. Also, even if he had decided to pursue an acceptable alternative, such as to leave with the doorman, he failed to mail a certified copy and hence failed to serve in conformance with one of the acceptable alternatives.

 A defendant must alleged a defect in service of process in a pre-answer motion or in the answer. A defendant is deemed to have waived objection to the defect if they do not allege the defect in their answer, at the latest. Physician A did not alleged the defect in service of process until 75 days after filing his answer. Even under the liberal standards for amending a pleading, he is beyond the window and therefore cannot assert insufficient service to defeat the case.

 Hospital A was served by plaintiff's attorney's 18 year old son. The son does not have a disqualifying interest in the underlying case, is not a party, and is of appropriate age, so he was an eligible person to serve process.

 A corporation may be served by personal service on a the president, CEO or another person of like responsibility. A president's secretary however is not an eligible person, even if she gives the process to the president. Therefore, service on an arbitrary staff member of a hospital would not be valid as to service against the hospital. Alternative service on a corporation could be obtained by leaving with a person of reasonable responsibility at the hospital and mailing a certified copy to the executive, but this was not attempted in this case, so the defect in service reamins. However, for the same reason Physician A failed to assert the defect in time to defeat the case, Hospital will be unable to prevail on its motion to dismiss.

 Plaintiff's motion to amend the complaint

A party is permitted one amendment to a pleading without need to seek leave of the court, is such amendment is made prior to 75 days after the service of a pleading or prior to the return date of a responsive pleading. A party may seek leave of the court to amend a pleading outside of the above limits and courts should liberally grant such leave. A court should not grant leave it will act to unfairly disadvantage another party to the litigation. The court should grant plaintiff's motion for leave to amend the complaint.

 The rules of civil procedure favor liberal amending of complaints because claims shoudl not turn on arbitrary errors that a party may not have reasonably foreseen. However, a party must seek leave of the court to amend a pleading if another party has responded to it or if more than 75 days have passed from the pleading. In this case, the plaintiff's attorney was on extended medical leave and may not have appreciated Physician D's role in the malpractice until after the answer had been filed. These are good reasons for the court to grant leave to amend the complaint and the other parties will not be disadvantaged as adding Physician D to the complaint is unlikely to affect their liability.

 Plaintiff's motion to compel discovery

A party may discover relevant facts that could serve to assist in the development of evidence relevant to the case. Discovery materials need not be admissable in court or constitute direct evidence if their disclosure could possibly lead to the development of evidence relevant to the case. While New Jersey does not follow the disclosure rules of the FRCP that require disclosure of expert witness names, it still follows the general idea that expert witness factors may be discoverable. For a testifying expert, his report is discoverable. His draft reports and notes are probably discoverable as they form the his report is the basis for his opinion and will serve as the basis for his testimony in court. However, his notes may be privileged as to the self-critical analysis or deliberative process privilege. They may also contain elements of material that is work-product privileged by the attorney. The court therefore should grant the motion to compel as to the reports and the drafts, but should consider limiting the order to prevent disclosure of privileged material.

 Physician D's motion for summary judgment

The statute of limitations is the outer time limit of when a cause of action may be asserted against a defendant. It may be tolled at the defendant's consent or when an incapacity, such as minority, prevented assertion of the claim during the regular window to assert the claim. If a cause of action has already been filed an a plaintiff seeks to join an additional defendant who would otherwise be immune from suit because of a statute of limitations, the court will look to the reasonable expectations of the defendant in deciding whether to relate the filing of the amendment back to the date of the original complaint. If the court determines that the defendant was on notice as to the possibility of suit, it may relate the amendment back to the date of the original complaint and the defendant will be unable to assert the statute of limitations as a defense. As the defendant has made an unrebutted assertion that he had no notice of the claim prior to the expiration of the statute of limitations, the court should grant the motion to dismiss.

 A court must look at the knowledge a prosective defendant had at the time the statute of limitations expired to determine if it is reasonable to add him as a defendant when the statute of limitations would otherwise prevent his addition. If the defendant took steps to conceal his involvement or the facts are such that the plaintiff would have been unable to know he was a prosective defendant and the defendant knew of his potential liability, the court should add him notwithstanding the statute of limitations. In this case, it could be plausible that Physician D knew of the claim as he worked with Physician C and at the Hospital, both of which were sued within the statute of limitations. However, he has asserted in a certified filing that he did not know of the claim prior to the expiration of the statute of limitations. Further, plaintiff has not attempted to rebut this assertion. Therefore, the court must decide based on a review of all materials of the case, taking any ambiguities in favor of the non-movant. However, the non-movant plaintiff has not submitted any rebuttal to the dismissal, he cannot rest simply rest on his complaint as a basis to avoid summary judgment. Therefore, the claims against Physician D should be dismissed for lack of opposition by plaintiff and because it would be unfair to relate the date of the amendment back to the date of the original complaint if Physician D had no notice of the underlying claim.

 Physician C's motion for RJNOV

A defendant must make a motion for a judgment in his favor as a matter of law prior to the return of the jury verdict to be able to collaterally attack the jury verdict with a motion for a renewed judgment notwithstanding the verdict. A defendant may howerver make a motion for a new trial even if he cannot make a motion for RJNOV because he never made a motion for JNOV. A judge will generally defer a decision on a motion for JNOV until the entry of a jury verdict to permit a decision on a motion for RJNOV. A judge will be more likely to grant a motion for a new trial than a motion for RJNOV because a motion for a new trial does not determine the final rights of the parties in contravention of the jury verdict. A party may assert that no reasonable person could find the evidence in favor of the opposing party and that therefore the jury's verdict is wrong as a matter of law. A party making a motion for a new trial may assert that while a verdict itself was reasonable, the damages awarded are so large as to indicate the jury failed to act reasonably in its deliberations and that a new trial is warranted to permit a reasonable jury to act.

 In this case, it appears that Physician C did not make a motion for JNOV and therefore he cannot make a motion for RJNOV after the verdict. However, he can make a motion for a new trial. Given that the jury award in this case is the largest of its type in state history and the facts of the case itself do not present as being unusual, a judge could find that the jury was swayed by emotion and that a new trial is warranted to permit reasoned consideration by an unbiased jury.

 A defendant has an appeal to the appelate division of the Superior Court as a matter of right. A defendant can appeal based on objections not waived during the pendancy of the trial and on interlocutory decisions of the trial court that could not be appealed prior to entry of the verdict, if its objections to those interlocutory decisions were properly preserved. A defendant can also appeal based on the grounds that the evidence of the case is such that no reasonable jury could have found for the plaintiff. A defendant may appeal on those grounds if it made a motion for JNOV and then a motion for RJNOV that were denied by the trial court or if a motion for a new trial was denied by the trial court.

 In this case, the judge may have ruled against Physician C on the discovery of the experts' reports and presumably ruled against them on the motion for a new trial. An appelate court will review a trial court's discovery orders under an abuse of discretion standard and therefore it is unlikely Physician C's appeal on those grounds will succeed, assuming he properly preserved his objection to the discovery order. Phsyician C's best option would be an appeal of the motion to deny the new trial on the grounds that the award is so large compared to similar cases that the jury was swayed by the emotion and that a new trial would permit proper consideration of the issues without harming the plaintiff's right to eventual recovery.

Answer 3B

MEMORANDUM

 

TO:      Judge

FROM:  Law Clerk

Re:  Decedent vs. Physicians and Hospital

1.         How should the court rule on Physician A's and Hospital's motions to dismiss the complaint?

            A lawsuit is commenced upon the filing of process (summons and complaint), not upon the service of process on the parties.  Here, we are told that all defendants were served with process on the last day of the statute of limitiations and therefore we can infer from this that the Plaintiff filed the summons and complaint with the court prior to the statute of limitations running. 

            Process of a defendant concerns personal jurisdiction.  In New Jersey, the prefered method of process is personal service.  In regard to an individual, they can be served personally at their primary residence.  In regard to a corporation, it can be served at its principle place of business or designated agent.  If personal service cannot be had after due dilligence other methods may be had.  Such other methods include substituted service.  For an individual, a copy of the summons and complaint can be left with a person of suitable discretion but over the age of 14 who resides at the individual's residence.  For a corporation, it can be left with an officer, agent, manager, etc.  The person serving process can be either the attorney, an agent of the attorney, sheriff, or a non-party over the age of 18.  A person who is a party to the suit may not be the process server. 

            Here, we are told that Physician A was served by Decedent's Husband.  The husband is a proper party as he is over 18 years of age and not a party to the suit, as the executor of the state is bringing the suit.  We are also told that process was left with the doorman where Physician A resided.  Such is not proper service, as the doorman does not reside with Physician A.  Instead, if personal service could not be had, substituted service by registered or certified mail should have been had on Physician A. 

            In regard to the hospital which is a corporation, we are told that they were served by attorney's 18 year old son.  The attorney's son is a proper person, as he is an agent of the attorney.  We are also told that service was had by leaving a copy of the summons and complaint with a staff member.  Such is not proper service.  Instead, service should have been had on the designated agent for the corporation. 

            Service on both Physician A and Hospital was insufficient and therefore a grounds to dismiss. 

            Insufficient service of process is an affirmative defense and must be raised in either the answer or a pre-answer motion.  If such is not raised in either, such is deemed waived.  Here, we are told that all defendants filed answers and 75 days later, Physician A and Hospital moved to dismiss based on insufficient service of process.  As such, the motion is not proper, as the affirmative defense of insufficinet service of process has been waived, since both defendants answered and failed to assert such in their answers. 

            Therefore, the court should deny the motions to dismiss the complaint.

2.         Should the court have granted plaintiff's motion for leave to amend the complaint?

            A party can amend the complaint as of right once - anytime before an answer is served by defendant or within 90 days after an answer has been served.  After such time, a party has to seek leave to amend from the court and the court has the discretion to allow such or deny, however, leave to amend is liberally granted. 

            Here, we are told that plaintiff's attorney moved to amend five months after an answer had been filed and therefore he properly sought leave to amend from the court.  Here, attorney had a sound reason for his delay - first he was out due to an medical issue and secondly, a new party was discovered.  However, plaintiff should have included Doe defendants when he intially filed the complaint and then he could have included them at a later time. 

            Since leave to amend is liberally given and here it concerns a necessary party being added and a reasonable excuse regarding the timing issue, the court's ruling was proper.

3.         Should the court have granted Plaintiff's motion to compel discovery?

            Discovery is a way for a party to suit to obtain necessary documents in order to establish a claim or a defense in a matter or to depose witnesses and parties.  Here, we are told that plaintiff served a discovery request on Physicians C and D for their malpractice insurance policies, experts, and expert reports.  Discovery should be exchanged between parties unless a privilege exits or a party seeks a protective order and such is granted by the court.  However, even if a privilege applies, a party can still be entitled to the discovery of the privileged material if a hardship would be suffered by the party and there was no other means of obtaining the information.

            Here, the physicians would likely raise a privilege issue and if such would be a proper privilege to be waived, plaintiff would need to then show a hardship and that plaintiff is not able to obtain the information that is being sought in another other way.  Therefore, the court would have to weight everything. 

            Therefore, if the court decides that a privilege exits protecting the discovery and therefore the non-production, the court should deny the motion.  However, if plaintiff is able to show a hardship and that the information can not be sought in any other way, then the court would be justified in granting the motion.

4.         How should the court rule of Physician D's motion for summary judgment?

            A motion for summary judgment is proper when there exists no material fact such that a party is entitled to judgment as a matter of law.  The record is reviewed as a whole and the parties are to submit affidavits as evidence.  The parties' pleadings are not considered evidence. 

            Here we are told that Plaintiff did not submit an opposition to the motion, however, that alone is not a ground for granting the motion for summary judgment.  The court instead will review the record and any documents submitted by Physician D. 

            In regard to the statute of limitations, such has not expired, as the relation back doctrine applied when Physician D was added as a defendant.  The claim as to physician D was part of the same transaction or occurance as the claim regaring the suit againt the other defendants and therefore relates back to when the complaint and summons was filed, which was prior to the statute of limiations running.  This is because physician D is a necessary party. 

            Therefore, the court should deny physician D's motion for summary judgment and allow for the claims against the defendant to proceed. 

5.         What options are available to Physician C to challenge the jury verdict?

            Physician C could bring a motion for new trial.  Such a motion would need to be brought within 28 days after notice of the order.  In bringing such, the court would need to see if there was any error (review would depend on the type of error - de novo, abuse of discretion) and if such is found, a new trial would be had and the parties would have to start all over. 

            Physician C could also appeal the order.  An appeal must be brought within 30 days after the entry of the order.  In doing so, a hearing would be held in the appellate court to review the lower court's decision to see if it should be overturn or not. 

            Remititurr would also be another option (the judge would decrease the amount of plaintiff's award in exchange for not granting a new trial).   

Question 4 - Criminal

Fred and Barney were recently laid off from work after 20 years of service at the Bedrock construction yard. With mounting bills to pay, and pressure at home, Fred and Barney met to discuss a way to make some “quick cash.” Remembering that Barney had once mentioned that he had an old unregistered handgun, Fred told Barney to meet him the following day outside the local bank at 2:00 p.m. sharp. Fred also told Barney to bring the handgun with him. Somewhat confused, but always the loyal friend, Barney agreed.

Alone at his house the following day, Fred prepared a handwritten note that read: “I have a gun, put all the money in the bag and no one will get hurt.” Fred placed the note in his pocket and then left to meet Barney, outside the bank, as planned.

In preparation for their meeting, Barney placed his handgun in his coat pocket and left to meet Fred. On his way to the bank, Barney got a flat tire and was late to meet Fred at 2:00 p.m.

Growing nervous and impatient after Barney failed to arrive on time, Fred went inside the Bank and handed the note to the bank teller. Fred placed one of his hands in his coat pocket to make it appear he was holding a gun. The teller immediately handed a bag of money to Fred, who then fled on foot to his home.

When Fred arrived home, his wife Wilma saw that he was anxious and upset. After being confronted by Wilma, Fred explained what he had done and asked that she hide the money somewhere safe in the house. Wilma agreed. Fred promptly left the house telling Wilma that he was going to stay at Barney’s house until things settled down.

Moments later, the police arrived at Fred’s and Wilma’s house looking for Fred, whom they had identified from the bank security cameras and tracked to the house. After some initial questioning as to Fred’s whereabouts, the police grew suspicious that Wilma was withholding information and searched the house, whereupon they found the bag of money in the freezer where Wilma had hidden it. They placed Wilma under arrest and read her Miranda rights. Wilma immediately told the police officers that she wanted an attorney.

On the way to the police station, one of the police officers said to Wilma: “Listen, this will go a lot better for you if you just fess up as to what Fred did and where he has gone.” With that, Wilma told the police officers: “Fred robbed the bank this afternoon and told me to hide the money. He told me he was going to Barney’s house.”

Subsequently, the police went to Barney’s house and appre-hended Fred. While at Barney’s house, the police noticed the unregistered gun sticking out of Barney’s jacket pocket. Thereafter, they immediately placed Fred and Barney under arrest and took them into custody.

You are a clerk in the County Prosecutor’s Office and have been asked to prepare a memorandum that details all possible charges against Fred, Barney, and Wilma as well as any anticipated defenses.

PREPARE THE MEMORANDUM

Answer 4A

 

To: Country Prosecutor

From: Line Assistant

Re: Trouble in Bedrock

 Fred, Barney and Wilma have been arrested in connection the robbery at a bank in Bedrock. I have been asked to outline the possible chages against Fred, Barney and Wilma as well as their expected defenses. I will address these charges by individual rather than by possible crimes.

 1. Fred

Fred may be charged with soliciation, conspiracy, and robbery. Conspiracy occurs when two individual agree to commit a crime and take an overt step in advance of that crime. Soliciation is an attempted conspiracy and occurs when a defendant intentionally attempts to join with another for the purpsoe of committing a crime. A person can be charged with both crimes, but he cannot be found guilty on both crimes as soliciation is a lesser included offense of conspiracy. Therefore, if a defendant is found guilty of conspiracy, he cannot also be found guilty of soliciation.

There is a good faith basis for charging Fred with both conspiracy and soliciation. After being laid off, Fred and Barney met to discuss ways to make "quick cash." Fred told Barney to bring his unregistered hand gun to a bank the next day. Barney, although confused, agreed to do so. Fred certainly took an overt act by writing a note that he would use to commit the robbery, going to the bank and in fact robbing the bank. It is not clear, however, that there was an agreement between Fred and Barney to support a claim for conspiracy. Fred spoke to Barney about committing a crime together. Fred committed soliciation. However, if Barney did not agree to the crime, there could be no conspiracy. Both Fred and Barney are likely to raise this defense. A reasonable jury however could find Fred guilty of either offense.

Robbery requires a defendant to use violence or a present threat of violence to commit larcency, which is the taking and carrying of property of another with the intent to permantly deprive the victim of such property. Fred used an imaginary gun to threaten the bank teller as his finger was in his jacket purporting to be a gun. Although Fred could not have actually carried out his threat, the crime is complete with the threat regardless of its possibility. Having threatened the teller and then taking the bag of money, Fred committed robbery.

Fred may assert a defense related to the police's search of his house. Fred has a reasonable expectation of privacy in his house which cannot be violated unless (1) the police have a warrant, (2) there are exigent circumstances that relax the warrant requirement and the police have probable cause, or (3) there is consent to the search. If the police are in hot pursuit the warrant requirement is relaxed as there is a concern that the evidence may be destroyed. Fred may argue that the police were not in hot pursuit given the time lapse between the robbery and the search. In fact, Fred had time to go home, talk to Wilma and leave again before the police showed up. Therefore, exigent circumstances may be lacking. In addition, there is no indication Wilma consented to the search. If the police improperly searched Fred's house, the bag of money found in the freezer must be excluded from trial as the fruit of the poisonous tree.

After Wilma invoked her Miranda rights, the police arguably still interrogated her. At that point, Wilma named Fred as the robber. This statement is admissible against Fred because Fred does not have the standing to challenge any violation of Wilma's Miranda rights. As discussed below, this statement is inadmissible against Wilma.

Finally, Fred may argue that he was impermissibly arrested while at Barney's house. If Fred was a social guest at Barney's, even for the short term, he has a reasonable expectation of privacy there and has standing to challenge the search at Barney's house. Therefore, if the police entered the house without a warrant or consent, Fred can challenge his arrest.

 2. Barney

As noted above, Barney may be found guilty of conspiracy if he indeed agreed with Fred to rob the bank. As a specific intent crime, Barney must have intended to agree with Fred to commit a crime. There are questions as to whether Barney had the requisite intent. In his defense, Barney will argue he did not know what he was agreeing to. In addition, he could aruge that he did not make an overt act in furtherance of the conspiracy beyond the initial agreement, if there was one. Nonetheless, if Fred took an overt act in furtherance of a valid conspiracy, it is imputed to Barney as well. Barney's best defenses to the charge of conspiracy rests on his failure to agree to commit a crime with Fred.

Barney could not be found guilty of soliciation because he did not attempt to agree with Fred to commit a crime. It was the other way around.

If Barney indeed comitted conspiracy, he may be charged also with the bank robbery unless he properly withdrew from the conspiracy before the crime occurred. To withdraw from a conspiracy, a defendant must infrom his co-conspirators of his withdrawal and take steps to hinder the execution of the crime. Here, it does not appear that Barney told Fred that he was withdrawing from the conspiracy or that Barney took steps to hinder the robbery. Having not withdrawn from the conspiracy, Barney is imputed to have committed the robbery as well.

Barney can also be charged with possession of an unregistered gun. Barney may argue that the police illegaly searched his house without a warrant. Whether this is a valid argument turns on the police's actions while at Barney's house. It does not apear they entered in Barney's house. Therefore, if the police saw the gun sticking out from Barney's jacket when Barney answered the door, the gun was in plain view from the front door, where the police of a right to be as Barney has no reasonable expectation of privacy there.

If on the other hand, the gun was seen while the police were in the house, Barney may argue that the police lacked probable cause or a warrant to search his house. If that is the case, the gun may be excluded as the fruit of the poisonous tree. On the other hand, if the search which turned up the gun was based on a proper arrest of Fred, then the search was valid as a search incident to an arrest.

If the police enter his house without a warrant or consent, Barney can challenge the gun crime.

 3. Wilma

Finally, Wilma may be charged receiving stolen property insofar as she received the bag of money knowing it was stolen and she had the intent to permanently deprive the owner of the property. Before accepting the money, Wilma was told that it was stolen. Thus she had the requisite intent.

Wilma can also be charged with accessory after the fact to the robery. She agreed to hide the proceeds of the crime from the police. It does not matter that she did not know of the crime beforehand or that she was not present at the scene of the crime. Having enabled or encouraged the completion of the crime, such charge may be lodge against her.

Her defense to the accessory charge is that the crime was committed and completed before her involvement. Fred had committed the robbery and left the scene with the bag of money. She did not enable his escape or aid it in anyway. Her defense is likely valid on this charge and charging her with accessory would not stand.

Wilma shares Fred's defense concerning the search of the house. As the marital house of Fred and Wilma, they both share a reasonable expectation of privacy in it and they both can consent to a search. They are also both bound by the other's consent. Neither having giving consent, they both can challenge the search of hte house.

Wilma can also argue that her Miranda rights were violated. After she was arrested for the crime of receiving stolen property, she was read her Miranda rights and demanded an attorney. She was then placed in the back of a car. Having invoked her rights, all questioning of Wilma should have stopped. While the police may continue to talk to Wilma, they should not have interrogated her, asked her questions about the crimes or made statements to her that would elicit responses that would violate her Miranda rights. The statements by the police in the car ran afoul of the Miranda rule. the statement to Wilma was interrogatory in nature and designed to elicit a response that violated her rights. This statement was not akin to the Christian burial case. Here, the statement to Wilma was meant to be inculpatory and meant to violate her rights.

 

Answer 4B

To: Country Prosecution

From: Clerk

Charges against Fred: In this case, fred can be charged w/ several crimes. 1) solicitation, 2) conspiracy 3) armed robbery. Solicitation and conspiracy are inchoate crimes. Solicitation requires a (triangle symbol drawn) ask another person to commit a crime and the (triangle symbol drawn) have the intent to commit the crime. However, the facts in this case are difficult to establish that Fred solicitated Barney to commit to crime of robbery.

2)Conspiracy. Conspiracy is an agreement b/w 2 or more people to commit a crime. The people must have the intent to enter into an agreement, intent to carry out the crime, and perform an act in furtherance of the conspiracy. Any pty can perform the act in furtherance of the conspiracy. In addition, the conspiracy ptys are responsible for all acts committed by co-conspirators in furtherance of the conspiracy. In this case, Fred told Barney to meet him outside the local bank at 2:00 pm and to bring his old gun. This conversation occurred during a conversation when Barney & fred discussed how to make some “quick cash.” Although Barney was confused, he agreed and it can be inferred that Barney had the requisite intent to enter into the agreement. Next, Fred committed an overt act in furtherance of the conspiracy b/c he wrote the note & placed it in his pocket. The Conspiracy would be complete here.

            There are several defenses that Fred may raise to the conspiracy charge. Fred may content that a conspiracy requires 2 guilty minds. He will assert that Barney never agreed to commit the crime and thus there was never an agreement btw the two.

            Barney may also be charged w/ conspiracy. Barney may content that he did not have the intent required to be charged w/ this crime. He will assert that he was just meeting Fred b/c he was a loyal friend. That is, Barney will content he did know (symbol) the plan to rob the park. As noted above, this is a question of the jury and it may infer from the circumstantial evidence the he knew what was going on and intended to agree and intended for the crime to be committed.

            Barney may also argue that he withdrew from the conspiracy b/c he failed to arrive on time. Withdrawal is not a valid defense to conspiracy b/c once the required elements are met the crime has been committed. Withdrawal, though, is a valid defense to any crimes committed in furtherance of the conspiracy, i.e. robbery, if the withdrawal is communicated to the other co-conspirators and the withdrawing pty notifies the authorities.

            Here, Barney never communicated his withdrawal. He simply did not get to the bank b/c he had a flat tire. There are no facts that suggest Barry changed his mind.

            Should the ct or jury find that Barney was a conspirator he would be guilty of Fred’s robbery. (see above)

Fred’s robbery: Fred may be charged w/ armed robbery. Robbery is the taking of someone’s property w/ force or threat w/ the intent to permanently deprive them of possession. Here, Fred may be charged w/ armed robbery b/c he used his hands to make it appear as he had a gun. He Fred used threat to permanently deprive the bank teller and the bank of the $.        

            Fred may contend that he should not be charged w/ ARMED Robbery b/c he did not use a gun. He may assent factual impossibility; however this is not a defense to a specific intent crime.

Wilma: Wilma can be charged w/ the following crimes i.) accessory after the fact and ii) receiving stolen property. Wilma can be charge w/ being a accessory fact the fact if she w/ the intent to aid Fred escape liability helped Fred. The facts indicate that she had the intent to help him escape criminal liability for the armed Robbery when she had the money. Another possible charge is Receiving Stolen Property. A person is guilty of this crime if the person w/ the intent and knowledge that the items were stolen, took the items, w/ the intent to permanently deprive the owner of the items. Here, Wilma may argue she did not have the intent to permanently deprive the bank of the $ she was only keeping them for a short while to help Fred escape liability.

            Wilma may argue that the Police violated her 4th Amendment Rt when the unlawfully entered her home w/ a search warrant. The 4th Amendment prohibits police for conducting unreasonable searches + stops. In this case, the $ found in the freezer was the result of an unlaw search b/c the police did not have a warrant. Accordingly Wilma may have the $ suppressed from her trial.

            In addition, she may assent that her confession was gathered in Violation of Miranda. A person has a rt to Miranda when the person is in custodial interrogation. Miranda requires police officers to give a person in custodial (not free to leave) and where the police are going to ask questions (interrogation) 5 Miranda warning. If the (triangle symbol drawn) invokes, any of the rt, the police must seize any further questions. Here Wilma invoked her 5th Amendment Rt to counsel and the police must stop questioning. They did not and thus the confession was gathered in violation of her 5th Amendment Rt. The police may argue that the confession was none the less voluntary. That is, she made the confession, voluntary, and thus it is not in violation. Wilma’s confession, if found to be in violation of the 5th Amendment, can not be used in the prosecutor’s case-in-Chief. It can only come in for impeachment purpose.  

            The arrest of Fred and Barney may also raise concerns if they were arrested inside Barney’s home w/o a valid warrant.

            the seizure of the unregistered gun sticking out of Barney’s pocket is valid under the plain view doctrine. For items seized under this doctrine, the police office must have been properly in the location, the contraband must have been apparent on sight. Here, the police officer were lawfully present and it was apparent that it was a gun. In addition, a search after a valid arrest is valid if the arrest is valid.

            Moreover, the police had reason.

Question 5 – Evidence

William sued his former employer, Hotel Inc. (“Hotel”), alleging that Hotel retaliated against him for complaining about the sexual harassment of a co-worker. Specifically, William claimed that his employment was terminated 3 days after he filed an internal complaint with Hotel’s Human Resources Department (“HR”) stating that he witnessed his supervisor making sexually inappropriate comments to a female co-worker. Hotel contends that William was terminated for stealing because he regularly accepted large tips from customers in exchange for unauthorized hotel room upgrades. Hotel further alleges that the HR Director completed and documented an internal investigation of William’s financial improprieties before William reported the alleged sexual harassment to HR.

At trial, in the Superior Court of New Jersey, Hotel seeks to introduce the following:

1. Through the testimony of HR Director, the internal investigative report regarding William’s financial improprieties. The report includes summaries of interviews and draws conclusions regarding William’s conduct.

2. The emails William sent from his assigned Hotel computer before he instituted this lawsuit. Hotel has a longstanding computer usage policy warning employees that all communications and activities performed on company-owned computers are subject to review by Hotel.

a. William used his personal email account to send emails to various attorneys soliciting their services. In the emails, William provided inconsistent factual allegations against Hotel to support various legal claims against his employer.

    b. William used his company-issued email account to send an email to his wife stating that he planned to sue Hotel and "get rid of our debts."

At trial, in the Superior Court of New Jersey, William seeks to introduce the following:

3. Hotel adopted a comprehensive anti-retaliation policy and mandatory anti-retaliation training for all employees after William instituted this lawsuit.

4. William is a deeply religious person who values the importance of telling the truth.

5. Hotel has 5 million dollars in insurance liability coverage that may be applicable to William’s claims against Hotel.

6. Hotel offered to settle William’s retaliation case for $500,000 at an unsuccessful mediation session.

You are the trial judge’s law clerk and are assigned to write a memorandum advising the judge how the evidentiary issues raised by the parties should be resolved and why.

PREPARE THE MEMORANDUM

Answer 5A

1. The issue is whether an internal investigative report is excluded hearsay, or admissible under an exception.

 Evidence is admissible if it is relevant and is not subject to exclusion under a rule of evidence or the common law. Relevant evidence is evidence that tends to prove or disprove a fact at issue. William claims he was terminated for his complaint, and Hotel claims that he was terminated for unrelated misconduct. The investigation report from the HR department as to its reasons for terminating William's employment is relevant to the fact question of why William was termiated, and so is relevant evidence.

 However, hearsay evidence is excluded unless an exception applies. Hearsay is an out-of-court statement, including a writing, that is offered for the truth of the matter therein. In this case, Hotel seeks to introduce its investigation report in order to demonstrate that the facts stated therein -- that William took bribes, and that the Hotel should terminate his employment as a consequence -- are being offered to prove that William took bribes, and that this was the reason the Hotel terminated him. Accordingly, it is hearsay evidence. Moreover, the report contains hearsay evidence, a hearsay within hearsay issue, because it contains summaries of interviews with employees, and therefore their statements. In order for the interview summaries to be admissible, both levels of hearsay must fall within an exception.

 One exception to the hearsay rule is the business records exception, for documents and/or records prepared by a business in its normal operation, such as accounting records and attendance records. Business records will not fall within the exception if they are prepared in anticipation of litigation. Here, the Human Resources report was prepared in the normal conduct of the Human Resources department, even though the Hotel is in the business of providing hotel services. An HR department is charged with investigating misconduct allegations in the normal course of staffing the business, and so such investigations fall within the scope of the "normal operation" of the business. While investigation reports and other documentation may be completed with an eye toward possible litigation, in this case the report was completed before William was terminated, and before he had filed his lawsuit. Thought the facts indicate that William had been communicating with private attorneys, there is nothing to indicate that the HR department was aware of this when they completed their report, nor that this threat was the impetus for the report. As a result, the report was not prepared in anticipation of litigation.

 The business records exception encompasses statements contained within if those statements are the result of the declarant's duty to report to the person compiling the report. In the vast majority of companies, employees are required to cooperate with internal investigations, including participating in interviews. The Hotel employees therefore had a duty to report their observations and knowledge to the HR department, and the summaries of those interviews are also covered by the business records exception.

 Because the internal report is relevant and qualifies for the business records exception to the hearsay exclusion rule, we should allow the report to be admitted into evidence.

 2. a. The issues presented is whether emails used to seek legal advice are protected by the attorney-client priviledge.

 The emails sent by Williams are relevant evidence because the inconsistent factual assertions tend to show that his claim is not based on actual facts. Generally, writings made out of court are hearsay if being offered to prove the contents therein. Here, it appears that the Hotel seeks to introduce the writings not to prove that the facts within them are the truth, but to show that the facts within them do not agree. Accordingly, the hearsay exception would not apply.

 The emails sent to attorneys sought legal advice, and so implicate the attorney-client privilege. The attorney-client privilege is a testimonial privilege, which prevents attorneys from testifying about communications between a client and the attorney when made in confidence for the purpose of seeking legal advice. While the privilege is testimonial in nature, it likely would extend to protect communications through email, on the same policy grounds as form the basis of the privilege itself. However, the privilege only applies when the advice is being sought in confidence. An eavesdropper will not necessarily abrogate the privilege, but only when the attorney and client did not reasonably know that the eavesdropper was there. In this case, Hotel was akin to an eavesdropper, in that they had access to the communications between William and the attorneys. Since Hotel had notified William through its computer usage policy that all company-owned computers were subject to Hotel review, William could not reasoably expected that his email communication would be confidential. Accordingly, the attorney-client privilege did not attach, and the emails are admissible into evidence.

 2. b. The issue is whether a statement in an email by the plaintiff is excludable hearsay.

 As noted above, an out-of-court statement, including a writing, that is offered for the proof of the matter within generally is hearsay. However, under the Federal common law, a statement of a party-opponent is non-hearsay, and therefore is not excludable. Here, William wrote an email to his wife stating that he intended to sue the hotel to get rid of their debts. This evidence is relevant, as it tends to show that William's claim is not based in fact, but is based in a motive for pecuniary gain. It also is not hearsay, and so is admissible.

 3. The issue is whether the Hotel's subsequent remedial measures are admissible to demonstrate fault.

 In order to be admissible, evidence must be relevant. Relevant evidence is evidences that tends to prove or disprove a fact at issue in the case. Here, William alleges that he was terminated from his employment in retaliation for filing a sexual harassment complaint with HR. The Hotel's subsequent measures in training employees on its newly-developed anti-retaliation policy tends to demonstrate that the Hotel may not have sufficiently protected employees from retaliation in the past, when William was terminated.

 However, relevant evidence will be excluded for public policy reasons. Under the federal rules of evidence, subsequent remedial measures are such an exclusion. Subsequent remedial measures are when a defendant, after it has become aware of a potential problem related to the basis of the plaintiff's claim, takes steps to prevent a similar problem in the future. This evidence is excluded because we want people to voluntarily undertake such improvements, and do not want to penalize defendants for having done so. Since Hotel created its policy and training after William was terminated, in order to protect against retaliatory terminations, it is a subsequent remedial measure that the Court should exclude from evidence on public policy grounds.

 4. The issue is whether a party's religious beliefs regarding the importance of truthfulness is inadmissible character evidence.

 As a general rule, character evidence is not admissible to prove conformity with that character trait, unless the character trait is at issue in the case. Character for truthfulness is always relevant with respect to a testifying witness, in order to assess the witness' credibility. In a criminal case, a defendant can introduce evidence about his character traits. In a civil case, parties may only introduce character for truthfulness for impeachment purposes, or in order to re-habilitate a witness who has been impeached on his character for truthfulness.

 Here, William seeks to introduce evidence of his religious beliefs in order to demonstrate he is a truthful person. This is improper character evicence, which does not address a character trait at issue, and which is not being offered for impeachment purposes. Moreover, character for truthfulness can be proven by reputation evidence, by a witness who has knowledge of a person's reputation in their community, by a witness's own opinion on the party's truthfulness, by asking the witness about prior conduct relevant to the character instance, or by introducing evidence of prior convictions for truthfulness-related crimes or felonies. Williams' religious beliefs do not fall within these limited methods of impeachment by character for truthfulness, and so in addition to being inadmissible, it is in an improper form. We should not permit this evidence to be admitted.

 5. The issue is whether the Hotel's insurance liability coverage can be introduced into evidence to demonstrate fault.

 The relevance of the insurance policy is likely limited, as it does not tend to prove or disprove any fact at issue in the claim, which has to do with why William was terminated from his employment, not the amount that the Hotel would be able to pay him if he did succeed in his claim. Moreover, public policy generally excludes the introduction of an insurance policy except to demonstrate that a party had control and/or ownership of an item. Therefore, we should exclude the evidence on public policy grounds.

 6. The issue is whether Hotel's offer to settle the dispute is admissible to demonstrate fault.

 The Hotel's offer to settle is obviously relevant because it tends to show that they have admitted at least some degree of fault in the matter. However, on public policy grounds, offers to settle claims, and statements made during the negotiation of such settlements are generally excluded from evidence. This is because we want parties to settle their disagreements whenever possible, and to conduct those negotiations honestly. Further, communications during mediation sessions are almost always fully protected from introduction into evidence, and parties are generally notified specifically of this protection. As a consequence, we should exclude the Hotel's offer to settle the lawsuit with William.

Answer 5B

TO: Judge

FROM: Clerk

RE: William v. Hotel Inc. - evidentiary issues

Your honor has requested that I evaluate certain evidentiary issues that have arisen in William v. Hotel, Inc. and advise as to how they should be resolved.   Please see my analysis of each issue below.

As a starting point, evidence is admissible if it is relevant, that is, if it tends to prove that a material fact is more or less likely to be true. 

1.  HR Director's report

This report should be admitted. 

Hotel seeks to introduce its report with regard to its investigation of William.  This report contains statements with regard to William's alleged misconduct and is arguably hearsay.  Hearsay is an out of court statement that is offered at trial for the truth of the matter asserted in the statement.  Hearsay as a general rule is considered unreliable because the party agasint whom it is offered did not have an opporutnity for cross examination.  However, it can be admitted if it falls within a recognized exception. 

One such exception to the hearsay rule is for business records.  This report is likely a business record of Hotel, a record of a business that is made at or near the time of the event recorded and is regularly made and kept within the scope of business.  The report was made by the HR DIrector at, and likely during, his investigation.  Further, as the head of HR, the Director likely conducts this type of investigation within the regular course of his duties for Hotel whenever an employee is accused of wrongdoing, or any other personnel matter comes up.  As such, it may be admitted.

However, this report also involves the issue of "hearsay within hearsay," which arises when hearsay statements are recorded within a document or other statement which is itself hearsay.  Thus, if the statements in the report are offered to prove that William took bribes, they are inadmissible hearsay.  However, William is not the defendant in this matter.  Thus, the statements would not be offered for the truth of the matter asserted, that William engaged in the misconduct, but rather that there was a valid reason for his termination unrelated to retaliation.

The report should be admitted.

2.  William's e-mails

William's emails sent from his personal account while using company computers should not be taken into evidence because they are privileged. 

Hotel seeks to admit evidence sent from his personal email account to various attorneys soliciting advice and to his wife.  Communications between an attorney and his client within the scope of the representation are protected by the attorney client privilege.  This privilege extends to initial consultations with an attorney when a party is first seeking representation, even if no subsequent attorney-client relationship is formed.  The privilege is held by the client and survives even death.  Similarly, private communications made between spouses in the context of a valid marriage are privileged.  This privilege is held by bth spouses; neither can be compelled to disclose privileged communications, and either can be prevented from doing so.  However, both privileges are waived if made in the presence of a third party (aside form an agent of an attorney or client).

Here, the issue is whether William has waived his privilege given that he was aware that the Hotel had the right and ability to monitor his activity on work computers.  Although this is a close issue, courts have held, at least with regard to the attorney-client privilege, that it is not waived simply because communications is sent from an employer-monitored work station.  If William had sent the email from his work account, he would not have as reasonable an expectation of privacy in the email.  However, the fact that he specifically used his private account when sending these confidential emails means that he made a conscious distinction.  Further, the nature of the emails, including questions to attorneys regarding his options against his employer and the statements he made to his wife about getting rid of their debts, are of the type that a person would normally expect and intend to be private. 

Thus, William did not waive privilege with regard to these emails and they are not admissible.

3.  Hotel's anti-retaliation policy

Evidence of the new comprehensive anti-retaliation policy and training implemented for all Hotel employees after William's suit was filed should not be admitted. 

The issue is whether evidence of subsequent remedial measures may be admitted to prove liability. 

Although relevant evidence is generally admissibel, there are some occasions on which it may be excluded on public policy grounds.  As a general rule, evidence with regard to a remedial measure or repair that was implemented after an incident which is the subject of litigation is inadmissible to prove that the party that instituted the measure was liable in the first instance.  The justification for this rule is that parties should be encouraged to take any remedial measures necessary to avoid future similar problems without fearing that they will incur liability for doing so. 

Here, Hotel adopted the new policy and training requirements regarding anti-retaliation after William brought his retaliation claim.  As such, it is inadmissible to prove that Hotel retaliated against William.    Such evidence would be admissible for a purpose other than prooving retaliation, such as proving owenrship or control or feasability of remedial measures if such were in dispute.  Neither of these factors are involved here. 

Therefore, the evidence should not be admitted.

4.  William's religious beliefs

This evidence should be excluded as irrelevant and impermissible character evidence if offered as part of William's case in chief. 

As noted, the starting point for determining admissibility is relevance.  Here, William seeks to admit evidence that he is deeply religious and believes in the importance of telling the truth.  As William's religious beliefs are not material to the case, this is irrelevant and should be excluded. 

Further, even if deemed relevant in your discretion, this is a proffer of character evidence for improper purpose.  The evidence is being offered by William as part of his case in chief.  His testimony has not been impeached.  If and when a witness testifies, the opponent may impeach the witness with evidence of specific acts, reputation or opinion for untruthfulness, and this statement is arguably one of opinion.  This has not happened here.  As such, William cannot bolster his own reputation with evidence about his good character for honesty. 

However, Hotel is claiming that William was fired for essentially for taking bribes.  This is a dishonest act.  If the Hotel offers evidence that William was dishonest and accepted cash for hotel upgrades, William may seek to offer this evidence in order to rehabilitate his character for honesty.  However, it would have to come from a witness familiar with William's reputation and not simply from William himself.

5.  Hotel's insurance

This evidence should not be admitted. 

William seeks to admit evidence that Hotel carries a substantial insurance policy that could cover his claim.  Although arguably relevant, evidence of insurance coverage is not admissible to prove liability or ability to pay a judgment, on public policy grounds.  It generally can be offered for other purposes, such as to show bias on the part of a witness or to prove ownership of the insured premises or instrumentality.  Neither of these exceptions is at issue here.  It appears simply that William seeks to offer the evidence exactly for the purpose for which it is excluded.  There is no indication that Hotel denies control of the premises or that a potentially biased witness will take the stand.  Thus, the evidence should be excluded.

6.  Hotel's settlement offer

This evidence should be excluded. 

William seeks to introduce evidence regarding a settlement offer made by Hotel.  Evidence of settlement offers and any statements of fact or admissions of liability made in the context of settlement discussions are inadmissible on public policy grounds.  The judicial system has an interest in fostering the amicable settlement of disputes whenever possible and permitting litigants to speak freely in the context of settlement negotiations.  Permitting an opponent to use settlement discussions against a party in subsequent litigation would impede that goal and make parties reluctant to negotiate.  Thus, William may not introduce Hotel's settlement offer at trail.

Please let me know if you would like me to look into any additional matters.

Question 6 – Property

Many years ago the owner of Lot 2 (“Lot 2 Owner”) granted to the owner of the adjoining Lot 1 (“Lot 1 Owner”) and his heirs, assigns, servants, agents, invitees, and licensees a pathway over a portion of Lot 2 that provides access to Main Street (the “Pathway”). Five years ago Lot 1 Owner sold Lot 1 to Alice and Lot 2 Owner sold Lot 2 to Brian.

Alice leases the house on Lot 1 to Tenant who maintains the Pathway. Occasionally Brian walks on the Pathway. Recently, Tenant starts riding his motorcycle on the Pathway. Tenant demands that Brian pay him for maintaining the Pathway. Brian is angered by this demand and he wants to install a fence across the Pathway that would cut off Lot 1’s access to Main Street.

Lot 3 adjoins Lot 2 and is owned by Chuck. Chuck sets up a skateboard ramp on Lot 3 and he also installs 15-foot-high lights to illuminate the ramp at night. Chuck’s children and friends use the ramp after school and occasionally at night. The 15-foot-high lights have not been used. No ordinance or regulation was violated by the installation of the ramp or lights.

Brian dislikes the ramp as the noise made by the skateboarders disturbs his afternoon naps. Moreover, he fears that when the lights are used they will shine into his house disrupting his family’s sleep patterns.

Brian also owns a commercial property with 2 buildings. Recently, the adjoining property owner starts excavating on the adjoining lot. Once the excavation starts, Brian notices that one of his buildings begins to subside. Brian wants the excavation to cease.

Brian comes to your law firm. Brian wants to: (1) install a fence across the Pathway; (2) know whether he is responsible to pay for maintenance of the Pathway; (3) have Chuck remove the ramp and the 15-foot-high lights; and (4) stop the excavation on the property adjoining his commercial property.

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

PREPARE THE MEMORANDUM

Answer 6A

To: Brian

From: Applicant

Date: February 28, 2013

Re: Property issues on Lot 2 and commercial property

 (1) The issue is whether a fence may be installed over an easement.

 An easement grants a right of way over a property to another person. Easements are considered perpetual and run with the land. Easement may be appurtenant or in gross. An easement appurtenant is an easement with a dominant property (the property using the easement) and a servient property (the property on which there is an easement). An easement in gross is an easement with only a servient property and no dominant property. The benefit of an easment may be transferred along with the land. The burden of an easement is transferred if the new landowner had notice of the easement.

 Here, the easement in question is an easement appurtenant. Lot 1 is the dominant property and Lot 2 is the servient property. It also appears that both the benefit and the burden of the easement run with the land. The original owner of Lot 2 granted to the owner of Lot 1 and his heirs, assigns, servants, agents, invitees and licensees a pathway over Lot 2. Although the facts do not state, based on the level of detail it seems that this easment must have been in writing and recorded. If in writing and recorded, the benefit of the easement would pass to Alice, the owner of Lot 1. If not previously aware by statements made by the original owner of Lot 2, the recording of the easement that referenced Lot 2 would have put you on record notice. Therefore the burden of the easement also runs. Although the easement is not used by Alice, it is used by her Tenant. Tenants are entitled to use easements. Therefore, the easement runs with the land and is enforceable against you by either Alice or Tenant.

 However, you may have an argument that Tenant's use of the easement goes beyond the scope of the easement and therefore the easement is termianted. Generally, easements are only available when the owner of the easement uses the easement in accordance with the scope of the initial easement. For example, if an easement was created as an entrance of the owner onto his property and the owner subsequently opens a business on the property causing an influx in the flow of cars over the easement, this would be beyond the scope of the initial easement and would terminate the easement. The facts do not indicate the initial use of the easement, however it seems that it was created as a driveway. The use of a motorcycle over the easement would not be out of the scope of the initial easement. Perhaps if the initial easement was for walking and subsequently Tenant rode his motorcycle over the easement this may form a cause of action to cancel the easement. More facts will be needed to determine this.

 However, this does not eliminate your ability to put up a fence. Easements can be terminated. One way to terminate an easement is to block the easement. Blocking an easement by something like a fence puts the owner of the easement on notice that the owner of the servient property no longer wants the easement to be used. If you put up a fence and neither Alice nor Tenant objects to the fence, a court could find that the easement has been terminated. The fact that the easement was recorded will not matter. This would sufficiently end the easement. However, if Alice or Tenant did object and brought an action in a court, based on the reasons above they would likely win this suit.

 (2) The issue is whether the owner of the servient lot of an easement is responsible for payment of maintenance of the easement.

 The owner of an easement is responsible for its maintenance. The owner of the servient tenant is not responsible for its upkeep.

 Here, Alice is the owner of the dominant parcel. Alice is the owner of the easement and is responsible for its maintenance. She subsequently leased the property to Tenant. A tenant is responsible for paying rent to the landlord and, if specified in the lease agreement, for maintenance of the property. Based on the facts, it appears that the lease agreement specifies that Tenant will be responsible for the maintenance of the property. Therefore, Tenant, not Alice, will be responsible for the maintenance of the easement. Regardless of whether Tenant or Alice is responsible for the maintenance, the liability certainly does not fall on you. It does not matter that you occasionally walk on the easement. This would not be enough to show that you have caused damage to the easement and are responsible for some of the maintenance payments. It also appears that the cause for the damage to the easement is from Tenants use of his motorcycle over the easement and not your walking on the easement. Therefore, you are not liable to Tenant for maintenance payments for the easement.

 (3) The issue is whether a skateboarding ramp and 15 foot high lights that have not been used are enough for a cause of action for private nuisance.

 Private nuisance is available to landowners for substantial and unjustifiable interference with their use and enjoyment of their land. Substantial and unjustifiable is determined using an objective standard. The mere possibility of an interference is not enough to create a cause of action for private nuisance. The party that first uses the land will not win a claim simply because they were the first to come to the land, however this information will be considered when determining whether a use was substantial and unjustifiable.

 Here, the facts do not indicate whether you or Chuck owned the land first. However, Chuck added the lights and ramp after you had both already lived on the land. This factor will be considered but will not be determinative. You have two complaints for private nuisance - one for the skateboarding ramp and one for the 15 foot high lights. These will be considered in turn. The skateboarding ramp is used by Chuck's children and friends after school and at night. The noise disturbs your afternoon naps. Because a claim for private nuisance is viewed from an objective standard, the interference with your afternoon naps alone will not be enough for the claim to succeed. However, the noise alone may be enough to show that the skateboarding was a substantial and unjustifiable intereference with the use and enjoyment of your land. Excessive noise can be enough to make this claim. Your claim for private nuisance based on the existence of the skateboarding ramp will depend on how much noise there was from the ramp. This will require additional facts.

 Unfortunately, your claim for fear that the 15 foot lights may disrupt your family's sleeping patterns will likely fail. You state that the lights have not yet been used. Although they are supposed to enable users to skateboard at night, it appears that the ramp has already been used at night without the use of the lights. A court would likely dismiss this complaint as not ripe. Additionally, the fear caused by the lights existence is not enough to show substantial and unreasonable interference with the use and enjoyment of your land. Therefore, this second claim will likely fail.

 (4) The issue is whether you may stop excavation on property that is causing one of your commercial buildings to subside.

 Property owners owe their neighbors a duty of subjacent support. This means that they cannot take action on their property that causes damage to their neighbors property resulting from the sinking of their land. In order to adequately make a claim against a neighbor based on subjacent support, the property owner must show that it was the neighbor's actions that caused the sinking and that the sinking would have been caused regardless of the weight of the buildings on the property. Alternatively, a property owner can show that the neighbor was negligent.

 Here, you own a commercial property with 2 buildings next to a property owner that has recently started excavating the adjoining lot. After the excavation began, you noticed that one of your buildings began to subside. It appears that the sinking of the building was a result of your neighbor's excavation. You will need to prove that the sinking would have occurred absent the weight of the building on your property. Alteratively, you may show that your neighbor was negligent. More information will be needed in order to determine whether you have a valid claim against your neighbor based on subjacent support.

Answer 6B

1. Brian cannot install a fence across the pathway, assuming that the original grant was completed in a signed writing that satisfied the Statute of Frauds. Additionally, if the original grant was long enough ago that it satisfies the jursidction's adverse possession statute, it cannot be revoked.

            The issue is whether an easement by express grant or adverse possession can be revoked by a current owner of the servient estate who purchased from a prior owner.

            Under the common law, the pathway described is an easement. An easement is an interest in land under which one parcel of land is burdened, and one is benefited. The benefiting side ("dominant") in this case is Lot 1. The burdened ("servient") side is Lot 2. As there are two lots in evidence, this is an easement appurtenant, and not an easement in gross, under which a single lot is burdened by a benefiting individual who does not have land in issue.

            Further under the common law, an easement passes with ownership of land on the dominant side. An easement on the servient side passes as well, unless it is to a bona fide purchaser (BFP) who does not receive notice. A BFP must take in good faith and for value, with no notice of encumbrances on the land. Notice can be actual (expressly made known), inspection notice (apparent from a reasonable inspection of the land), or record notice (documented in public documents, such as the chain of title).

            Further in question here is is whether the easement was validly conveyed originally. An easement may be made by express grant in a Statute of Frauds writing. A Statute of Frauds writing is required for interests conveyed in real property. The writing must describe the land in question with adequate particularity and be signed by the party against whom the right is going to be asserted. An easement It can also arise by prescription, under which the benefiting side gainst the easement by using the land openly, notoriously, in a hostile manner, and for the statutory period. It need not be exclusive, as in adverse possesion.

            An easement may also be created by strict necessity, where the dominant parcel gains the right to use the easement because it has no other access to public roads.

            Here, the facts state that the easement was "granted." Assuming the easement was granted in a Statute of Frauds document, or that the requirements of an easement by prescription have been satisfied, or that the easement is one of necessity the easement is currently valid. It will have passed down to Alice as the dominant side of the easement. It will further have passed down to Brian on the servient side, as he should have had notice of it. The Statute of Frauds document may well be on record. The easement should also be apparent from a reasonable inspection of the land. Therefore, the easement is likely valid, and unless Brian can demonstrate that the statutory prescription period has not been satisfied and that there is no Statute of Frauds writing in existence, or that any strict necessity has since ceased, Brian cannot install a fence to block the Pathway.

 2. Brian is not responsible for the maintenance of the pathway.

            The issue is whether the burdened side of an easement is responsible for its maintenance.

            Under the common law, the burdened side of an easement is not responsible for the upkeep of the easement land. Rather, the benefiting side is. The servient side is not PROSCRIBED from this upkeep -- it is, after all, on his land -- but he is not responsible for its upkeep.

            A claim Brian could make is that Tenant is overusing the easement beyond the bounds of the agreement in place. Under the common law, this is known as a surcharge. Brian could make out a claim for a surcharge, as Tenant is now riding his motorcycle on the land. If this is unreasonable in light of prior activity on the land, Brian could make an equitable claim for an injunction to stop Tenant from using the easement in this manner. The easement itself, however, will not automatically terminate.

            Therefore, Brian is not responsible for the Pathway's maintenance.

 3. Brian cannot have Chuck remove the ramp and lights.

            The issue is whether the owner of land can make nuisance claim against a neighbor for activity that has not yet occurred. Also in issue is whether activity that would not generally be regarded as a nuisance may serve as the basis for a nuisance claim because it annoys a particular neighbor.

            Under the common law, a nuisance claim is based on activity which substantially interferes with the reasonable enjoyment of a person's land. It need not be a physical invasion that distrubs the plaintiff. However, a uniquely sensitive plaintiff cannot make out a cause of action against a neighbor based on activity that would generally not be regarded as a nuisance by reasonable members of society. Further, there is no right to a "preventative" injunction for POTENTIAL disturbance to one's enjoyment of their land.

            Here, Brian fears that the 15 foot high lamps will disturb his family's sleep patterns. While this could be the basis of a nuisance claim were it happening, it has yet to occur. The reasonable enjoyment of Brian's land has yet to be impacted by the lights. As such, Brian does not have standing to bring this claim.

            Further, Brian's assertion that the skateboarding disturbs his afternoon naps will not support a nuisance claim. The afternoon is a time generally accepted as one of activity, and skateboarding is not so outside the norm of "activity" that doing it midday would rise to the level of nuisance. Brian, essentially, does not have the right to shut down all neighboring activity so that he can enjoy his afternoon naps; this qualifies him as a hypersensitive plaintiff, and that will not, under the rule, support a nuisance action. Neither will the occasional use of the ramp at night. There is not indication that the noise created is so onerous that it would constitute a nuisance. Nor is there mention of what time of night.

            Therefore, under these facts, Brian cannot force Chuck to remove the ramp or the lights.

 4. Brian can get an injunction as to the excavation under a theory of negligence. He may be able to get it under a theory of strict liability, depending upon a showing of facts. He will likely get money damages as well, for repair of his building.

            The issue is whether a person excavating on his own land, who causes subsidence in a neighbor's land, is liable to that neighbor.

            Under the common law, a defendant is liable in negligence for such a subsidence. Negligence is where a party owes a duty to another party, has breached that duty, and has actually and proximately caused damage to the non-breaching party.

            Here, the excavating neighbor has clearly breached the duty not to distrurb Brian's land. Under the facts, there is no question that the excavator has caused the subsidence. The question of damages remains. At the least, an injunction to cease further excavation, and money damages to repair Brian's sagging building, are likely. As New Jersey Superior Court has the ability to join legal and equity claims in a related action, these claims can be adjudicated together.

            Brian may also be able to recover in strict liability. The rule is that, if a party is able to demonstrate that, ABSENT the buildig on his own land, the land would have subsided from the excavation, the excavating party is liable in strict liability. This is a fact-based claim that would need to be addressed by Brian. The burden would be on him to demonstrate that his own two buildings did not affect the land to the extent that they made the land more susceptible to subsidence. If he can do so, he can hold the excavating party liable in strict liability.

            Therefore, Brian is likely to achieve relief on this claim.

Question 7 – Contracts

Brooke Porter, entrepreneur and sole proprietor of the Porter baby food chain, will appear on a TV program. The program hopes to pair Brooke romantically with a prospective spouse from numerous contestants. Brooke falls for Grant, a businessman in the windows field, but the competition was close with Todd, a sportsman.

Ratings are so high the network wants to keep the pair in the public eye. They secretly approach Grant with 2 million dollars, if he can commit Brooke to marry him and to do so in public. When approached by Grant, Brooke agrees to both.

Brooke’s friends insist she get a prenuptial agreement. She is worth over 40 million dollars. She is also advised not to mention to Grant the Porter baby food company’s plan to go public in 6 months, which will triple the company’s value. After a long debate over several glasses of whisky, Grant and Brooke consent to terms in the presence of Attorney representing them both. Grant and Brooke agree to shield 35 million dollars of Brooke’s wealth from any equitable property distribution, leaving 5 million dollars exposed. He tells her this 5-million-dollar requirement is a deal breaker.

Brooke later convinces Grant to accept other changes. Although provisions regulating a marriage are increasingly common, they frequently fail. Attorney recommends they use the “Martinez pre-nup,” a form known to be impenetrable. Attorney nonetheless insists certain provisions are extremely vulnerable and are subject to the usual technical requirements and defenses of contract law. She believes, however, such provisions are individually severable, which will not jeopardize the entire agreement should they fail.

They commit to the following reciprocal promises in amending their prenuptial agreement:

• Husband and Wife shall be faithful.

• Husband and Wife shall each maintain active, gainful employment.

Within a month of their TV marriage, major problems develop. Grant said he was in the “windows field.” In fact, he has been on the “squeegee patrol” doing car windows downtown and cannot find a better job. After hearing about the 2-million-dollar payoff during an argument with Grant, Brooke, realizing it is all over, admits to continuing intimacy with Todd after the marriage.

After a TV appearance, Brooke stops at your law office. One associate is assigned to investigate grounds for dissolution under divorce law. You are told to focus exclusively upon the prenuptial agreement, as amended, its merits under standard contract law and any defenses.

PREPARE THE MEMORANDUM

Answer 7A

To: Senior Partner

From: Associate

Re: Analysis of Brooke's Prenuptial Agreement under Contract Law and Any Possible Defenses

 There are some major contractual issues with the prenuptial agreement between Grant and Brooke, and unfortunately it is likely to be deemed invalid, either by a defense to its enforcement or by an excuse to its enforcement. We want the agreement to be enforceable in order to protect Brooke's assets, as under the agreement, but this seems unlikely.

 Contract Formation

The first issue is whether a valid contract was formed between Brooke and Grant. This agreement would fall within the common law of contracts, as it would be a contract for services, of sorts - it is a contract relating to marriage and provides terms for staying in that marriage or terminating it. Contract formations requires an offer, acceptance, and consideration. An offer is a manifestation of willingness to enter into a contract that creates a power of acceptance in the offeree, and under the common law mirror image rule the acceptance must be in the same form as the offer. Consideration is a legally-bargained for detriment. Here, Brooke made an offer to enter into the prenuptial agreement, which was accepted by Grant. Consideration is found because each side gave something up in order to enter into the agreement - Brooke left some money exposed, and Grant gave up his rights under marital laws to claim marital assets upon possible dissolution of their marriage. Thus, it appears that a valid contract was formed subject to common law.

 Statute of Frauds

The Statute of Frauds requires certain contracts to be in writing and signed by the party to be charged. These include contracts for marriage, suretyship, contracts that cannot be performed within one year of making, contracts under the Uniform Commercial Code for an amount $500 or more, and transfers of real property. Here, the prenuptial agreement could be considered a marriage contract that needs to be in writing and signed by the party to be charged. The facts indicate that the parties used the "Martinez pre-nup" form to solidify their agreement. Thus, assuming they both signed it, this would constitute a writing expressing the agreement sufficient to satisfy the Statute of Frauds.

 Defenses to Contract Formation

The next issue is whether there might be any defenses to contract formation that can be asserted by Grant to attempt to invalidate the contract against Brooke. Possible contract defenses include misrepresentation, mutual mistake, misrepresentation, nondisclosure, fraud, undue influence, duress, unconscionability, illegality, or incapacity.

 Incapacity -

Of these defenses, Grant may be able to assert incapacity, since the facts indicate that both he and Brooke had consumed several glasses of whiskey when entering into the agreement. If this rendered either party incapable of having a meeting of the minds regarding the agreement, then the contract may be deemed invalid

 Misrepresentation, Nondisclosure, or Fraud-

Further, Grant may be able to assert misrepresentation by Brooke. Misrepresentation occurs when a party misstates a material fact to induce the other party to enter into the contract, and that misrepresentation does in fact cause the other party to enter into the contract. Here, Grant may be able to claim that Brooke misrepresented her assets by failing to disclose that the Porter baby food company would soon triple in value. The full disclosure of her assets was a material fact which Brooke misrepresented, and which caused Grant to enter into the contract.

 Nondisclosure occurs when someone has a fiduciary relationship, and fails to inform the other party of a material fact. There was no fiduciary relationship here.

 Fraud occurs when someone induces another person to enter into a contract by fraudulent means. Grant may successfully be able to assert this as a defense to contract formation, again claiming that Brooke fraudently misrepresented the full extent of her assets.

 Modification of the Contract

The next issue is whether the changes Brooke convinced Grant to accept after contract formation are a valid modification. Under the common law, consideration must be given in order for a modification to be valid. Since each party made further agreements to be faithful and to maintain active, gainful employment, consideration will be found and the modification was valid.

 Breach of Contract

The next major issue is whether there was a breach of contract here. The facts indicate that Brooke was unfaithful, breaching the provision for faithfulness of both parties, and that Grant was not, in fact, gainfully employed, breaching that provision. These were express provisions in the contract as amended, and their breach is likely material. A material breach leads to damages. Grant will have a claim against Brooke for her unfaithfulness, and Brooke can bring a claim against Grant for breach of the provision requiring active, gainful employment.

 Excuses

Excuses relevant to contract law consist of impossibility or impracticability, unconscionability (substantive and procedural), frustration of purpose, rescission, or release. The only relevant excuse here might be unconscionability, which would require a showing of procedural unconscionability (in the bargaining process) and substantive (in the contract itself). If Grant can show that the contract suffered from these fatal flaws, it may be excused. He will want to argue that the bargaining process was procedurally unconscionable because Brooke lied to him about the extent of her assets when entering into the contract and that he entered into it based upon that lie, and that substantive unconscionability exists in the terms, such as requiring each party to be faithful which might be an intrusion into or burden on private life. If this is found, the contract may be excused.

 Damages

The final issue relates to damages for breach of contract. The typical measure of contract damages is expectancy damages, which seek to put a party in the same position as he or she would have been had the contract been performed. Here, had the contract been performed, Brooke would have $35 million shielded from any equitable property distribution and $5 million would be

exposed, as well as a faithfully, gainfully employed husband.

It does not appear here that either party has suffered monetary damages. Rather, our tactic should be to protect Brooke as much as possible, by trying to enforce this prenuptial agreement, because it is invalidated all of her assets will be subject to an equitable property distribution during marriage dissolution. However, there are some good defenses to contract formation and excuses for enforcement of the contract that exist here for Grant to assert, and it is likely that this prenuptial agreement will be invalidated.

 Quasi-Contract/Restitution

As a final note, each party suffers from unclean hands in this situation, since each lied about certain facts in entering into the contract (Brooke about the extent of her assets and Grant about his reasons for entering into the marriage), and so no equitable claims, such as restitution, will be available to either.

Answer 7B

Memorandum

To:   Attorney

From:  Associate

Re:  Merits of, and defenses to, Brooke/Grant prenuptial agreement

The following memorandum reviews the legal merits of, and potential defenses to, the prenuptial agreement between Brooke and Grant based on standard contract law.  Grounds for dissolution of the couple's marriage under divorce law is not addressed by this memorandum.

Formation

The formation of this contract raises several issues and defenses, most of which can theoretically be raised by either party.  However, as discussed below, these arguments generally are to Grant's benefit, and Brooke should prepare to defend against them.

First, Brooke and Grant can both argue that as a result of consuming several glasses of whiskey, they were both sufficiently intoxicated at the time they agreed to the terms of the prenuptial agreement that they could not form valid consent needed to form a binding agreement.  If this argument prevails, the contract will be voidable by the party successfully asserting it.

Second, Brooke and Grant can both argue that because they were represented by the same attorney, a conflict of interest existed as a result of the dual representation that rendered the prenuptial agreement voidable.  Further inquiry is needed to determine whether any waiver of such conflicts was signed by the parties.

Third, Brooke can argue that she was fraudulently induced into entering into the contract by Grant's misrepresentation about his employment status.  In a related claim, Brooke could also argue that she was fraudulently induced into signing the contract by Grant's failure to disclose the $2 million payment from the network.  In order to succeed with this defense, and to make the contract voidable by her, Brooke would have to show that Grant's misrepresentation or omission was material, that Grant intended for her to rely on the misrepresentation or omission, and that she reasonably relied on it in entering into the contract.

Here, Grant's misrepresentation of his employment status does appear to be material, as the very purpose of the agreement was to protect the parties' respective financial rights, based on their disclosures of their finances to each other.  Grant may also have intended for Brooke to rely on that misrepresentation.  However, a jury could find that any reliance by Brooke, a sophisticated businesswoman, on Grant's representations about his employment were not reasonable, because she could have investigated them herself.  On the other hand, the materiality of the secret $2 million payment to Grant for marrying Brooke appears to be material, and Brooke would not have had any way of learning of the undisclosed material fact.  If Brooke could prove that she would not have entered into the agreement with Gary had she known about the $2 million payment, she can succeed in raising this defense to the contract.

Grant may have similar arguments regarding Brooke's disclosures, because she failed to disclose the baby food company's plan to go public.  He could argue that, had he known of that plan, the amount of equitable distribution that he wantd to leave exposed would have been different.  Grant's reliance on Brooke's statements about her assets and the baby food company appears to be reasonable, because he would not have any independent source of knowledge of the private company's plans.  On the basis of this omission of material fact, Grant may be able to succeed in voiding the contract.

Amendment

The first question that must be addressed relating to the amendments to the prenuptial agreement is whether they are enforceable.  Either of the parties could argue that the amendments were not supported by consideration, and are therefore unenforceable.  However, because the promises in the amendment were reciprocal, a court would likely find them to be sufficient consideration to support the amendment.

The attorney representing the parties believed that if any provision of the agreement was found to be unenforceable, that it could be severed and the balance of the agreement would remain in force.  However, in the absence of a clause in the agreement explicitly severing any provision found to be unenforceable, the agreement remains vulnerable to being found unenforceable in whole.  Here, if a major provision such as the reciprocal promise to remain faithful--which goes to the heart of the purpose of a prenuptial agreement--is found to be unenforceable, the entire agreement may fail.

Breach

Brooke has admitted that she breached the promise (contained in the amendment) to be faithful to Gary by continuing intimacy with Todd after she and Gary were married.  Likewise, Gary may have breached the agreement by working "squeegee patrol," because such work is unlikely to be sufficient to comply with the amendment's requirement that he maintain active, gainful employment.  Each of these breaches can be viewed as material breaches that relieved the other party of further performance of the contract.  The facts do not, however, state which of these two breaches occurred first.

Ultimately, because Brooke is the party with significant assets that are shielded by the prenuptial agreement, it is in Brooke's interest to hold Gary to its terms, so that any equitable distribution of her assets in a divorce is limited to the agreed-to $5 million.  Therefore, it is not in Brooke's interest to assert the arguments above regarding defective formation or breach of the agreement.  Her best defense in case of a lawsuit by Gary either to set aside the prenuptial agreement, or for breach of the agreement, will be to defend against any claim of fraudulent inducement by Gary by arguing that omission of the baby food company's plan to go public was not material, and to defend against any claims of breach to avoid termination of the parties' further obligations under the contract.