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Independence - Integrity - Fairness - Quality Service

Bar Examination Sample Q&A - July 2005


Questions and Sample Answers

July 2005

Civil Procedure
Constitutional Law

Question #1


Cynthia and Phil are engaged to be married. One afternoon, Phil pays a surprise visit to Cynthia’s apartment. As he approaches the building, he sees a car, owned by his best friend, Barry, in the parking lot. Curious, Phil decides to use his key to Cynthia’s apartment instead of knocking. Upon entering, he hears Cynthia and Barry exchanging expressions of love from behind Cynthia’s closed bedroom door. Phil is devastated and leaves the apartment without his presence having been discovered.
Once outside, Phil develops a plan of revenge. He returns to the apartment one hour later and jams the key/bolt mechanism, thereby making it impossible for anyone to open the door to Cynthia’s apartment from the inside. Then, Phil sets off the building’s fire alarm.
Hearing the alarm, Cynthia tries to flee the apartment, only to find she is unable to open the door. She panics and begins hyperventilating. After a few seconds, Cynthia faints and falls to the floor. Meanwhile, the fire alarm stops ringing, as programmed, after five minutes.

Ten minutes later, Barry awakens in Cynthia’s bedroom from a drunken stupor. He had passed out, intoxicated, shortly after Phil’s visit, and thus never heard the alarm. Staggering from the bedroom, he sees Cynthia lying on the floor. Believing she may be seriously ill, he immediately calls 911 and requests an ambulance. He then lapses back into an alcohol-induced coma.

Tony, an ambulance driver, is dispatched to answer the call. Speeding with his siren blaring, Tony loses control of the ambulance, strikes a telephone pole, and is killed instantly. As a result of the impact, the pole falls and strikes Sue, a pedestrian, who suffers a broken arm.

Meanwhile, the 911 operator also dispatches a police officer, who forces open the door to Cynthia’s apartment. By then, Cynthia has regained consciousness. Barry, however, is hospitalized in his unconscious condition and does not awaken until the next day. He suffers no lasting effects, and in fact has no memory of the events in question.

You are an experienced attorney who is asked to arbitrate the claims, cross-claims, and defenses of Cynthia, Barry, Sue, Estate of Tony, and Phil. You agree to prepare a memorandum containing your analysis and conclusions.

Prepare the Memorandum


Re: Claims and defenses of Cynthia, Barry, Sue, Estate of Tony and Phil

I. Cynthia v. Phil

Cynthia may asset the claims of intentional infliction of emotional distress, false imprisonment, trespass to land and invasion of privacy (interfering with seclusion) against Phil. Phil has no valid defenses.

The tort of intentional infliction of emotional distress occurs when a defendant engages in extreme and outrageous conduct that causes severe emotional distress to the plaintiff. Here, Phil's conduct was intentional, since he "developed a plan of revenge" and returned to Cynthia's house one hour later to implement the plan. Phil's conduct was also arguably "extreme and outrageous" (generally defined by the Courts as exceeding all bounds of human decency) because jamming the lock in the door (thus preventing people from escape) and setting off a fire alarm would create in a mind of an average person locked inside the fear of impending death in fire. Such behavior is quite extreme and goes beyond mere practical joke. Furthermore, Cynthia sustained extreme emotional distress as a result of Phil's "revenge" because she panicked, began hyperventilating and then fainted and fell to the floor. Physical injuries or physical manifestations of distress are not required in the intentional infliction of emotional distress cases. Therefore, Cynthia has a valid claim against Phil for intentional infliction of emotional distress.

Furthermore, Phil does not appear to have any valid defenses on these facts. Phil might attack the elements of the claim (such as, that his conduct was not extreme enough, or that Cynthia did not sustain severe distress), but, as discussed above, the elements of claim are met here.

Cynthia may also assert a claim for false imprisonment against Phil. False imprisonment requires intentional act by defendant that confines plaintiff to a bounded area with no reasonable or known means of escape, and the plaintiff is either aware of confinement or is injured by it.

Here, Phil intentionally confined Cynthia by jamming the lock in her door, making it impossible to open from inside. There was probably no other means of escape, since Cynthia would have used then since she would have been aware of them, as this was her house. While the confinement did not appear to be too long (Cynthia was rescued by a police officer), the claim for false imprisonment still arose, because the confinement may be very short (a minute will do), as long as the plaintiff is aware of it or injured by it. Here, Cynthia was obviously aware of the confinement.

Furthermore, Phil has no valid defenses to the false imprisonment claim because privileges (such as a store-keeper's privilege to detain suspected shop-lifters or police authority to arrest) do not apply to him. The fact that Cynthia was in her own house does not relieve Phil of liability.

Therefore, Cynthia has a valid false imprisonment claim against Phil, and Phil has no valid defenses.

Cynthia may also assert a trespass to land claim (for secretly entering Cynthia's apartment at the start of the events) and invasion of privacy claim (for listening to Cynthia and Barry's private conversation). However, Phil might be able to assert that he had consent, at least implied, to enter Cynthia's apartment, since she provided him with a key.

II. Barry v. Phil

Barry probably does not have a valid claim against Phil for either false imprisonment (since Barry did not seem to be aware of the confinement or injured by it) or intentional infliction of emotional distress (because even after seeing Cynthia in unconscious condition, Barry lapsed back into drunken coma).

III. Sue v. Tony and Phil

Sue may sue Tony and Phil for negligence. The elements of a negligence claim are: duty to act as a reasonable person under the circumstances, breach, actual and proximate causation and damages.

Tony was arguably negligent by speeding. However, the standard here would be a reasonable ambulance driver responding to an emergency call - so, it was probably reasonable for Tony to speed. There was certainly causation and damages. Tony's speeding and losing control of the car was an actual cause, since but-for Tony's losing control of the car, he would not have broken the pole that hit Sue. It was also a proximate cause because it was foreseeable that a pedestrian would be injured because of a speeding car losing control (it would be so in a majority view jurisdiction as well, since Sue was in the "zone of danger"). 

Sue sustained damages because the accident resulted in Sue having a broken arm.

Tony may implead Phil or cross-claim against him if Phil is already a defendant, because Phil was the "actual cause" of the accident but for Phil's "revenge" on Cynthia Barry would not call the ambulance, and Tony would not have to be rushing to Cynthia's house. However, under majority view Phil is not a proximate cause of Sue's injuries, because the chain of events is too far removed, and it could not be foreseeable for Phil that a pedestrian would be hit by a pole because he set off Cynthia's fire alarm.

Tony's estate may also cross-claim against Phil for a wrongful death of Tony to recover future earnings, loss of services and funeral expenses (but not pain and suffering, since Tony was instantly killed). It is possible, since, as discussing above, Phil's behavior of unreasonable/imprudent person in setting off the fire alarm was the actual cause of Tony's accident and arguably a proximate cause as well (since it was foreseeable that emergency personnel would be responding).

However, Phil may assert the defense of contributory negligence (Tony was speeding and lost control of the car) and possibly assumption of the risk (Tony knew or should have know that driving emergency vehicles may be risky).

Therefore, Tony's estate is probably not going to have a valid claim against Phil.




Cynthia has a claim of false imprisonment against Phil. False imprisonment is the intentional confining of a person, with knowledge of the confinement and who has no other known reasonable way of escape. Here, because Phil jammed the key/bolt mechanism Cynthia was confined and was aware of her confinement. An issue that needs further inquiry is whether Cynthia was aware of any other reasonable means of escape, such as a back door, fire escape, side door or even a large window, assuming Cynthia is on the ground floor. If there was a reasonable means of escape, the claim of false imprisonment will fail. However, assuming there was none, Cynthia has an excellent claim of false imprisonment against Phil because she was (1) confined (2) against her will (3) with awareness of confinement and (4) with no other reasonable means of escape.

In addition, Cynthia has a claim of assault against Phil. Assault is the intention to put another in apprehension of immediate harm. Because Phil's entire plan was to cause such apprehension (it was his intent) and Cynthia was in fact apprehensive of immediate harm all the elements are met and Cynthia has a valid claim of assault against Phil.

Additionally, Cynthia has a claim of trespass against Phil. Trespass is the unauthorized presence of another on one's property. Here Phil paid a "surprise visit" to Cynthia and entered the apartment. Generally that would qualify as an intentional trespass no matter how slight. However, what needs further inquiry is whether Cynthia gave Phil permission to enter. Consent negates trespass. The facts state that Phil used "his key" which implies he had rightful possession and Cynthia's consent. However, I need to know if Phil used the key beyond the scope of his consent. Cynthia may only have given consent to use it when she was not home or in an emergency. Had Phil exceeded the scope of any consent, then there would still be a trespass. However, based on the facts given, Phil appears to have consent and the trespass claim will not be valid.

Additionally, Cynthia has a claim for intentional infliction of emotional distress. Intentional infliction of emotional distress is the extreme and outrageous conduct of one that causes severe emotional distress in the other party. Here, Phil's behavior was obvious extreme and outrageous. Additionally, Cynthia suffered severe emotional distress because she "panics" "begins hyperventilating" and "faints and falls to the floor." Because all the elements are met for a claim or intentional infliction of emotional distress, I conclude Cynthia has a valid claim against Phil.


Barry also has a claim for intentional infliction of emotional distress. By seeing Cynthia on the floor, he believed "she may be seriously ill." However, he then passed out and did not suffer any severe distress so the claim will not be valid.

Additionally, Barry may have a claim for both false imprisonment and assault. However in both cases, a plaintiff needs to be aware of the confinement or the immediate harm and here, Barry was too drunk to know what was happening around him so he could not rightfully bring an assault or false imprisonment claim.


Sue may have a negligence claim against Phil and Tony. Negligence is the breach of a duty owed to a party that causes that party harm/damages (duty, breach, causation, damages). Here, however, although Phil is the factual cause of her injuries, Phil breached no duty to Sue, because Sue was not a foreseeable plaintiff. It is too remote to foresee that after you pull a fire alarm, a rescuer will hit a telephone pole and then a telephone pole will come down and hit a woman. Because such was not foreseeable Phil has no duty and was not negligent.

Tony however may have been negligent if he exercised the ordinary care of a similarly situated ambulance drive.

Additionally, Sue may have a negligent entrustment claim against the company that hired Tony if the company was aware that Tony was a negligent drive.


Tony has a claim of negligence against Phil because "peril invites rescue" and the creator of a harm is liable for injuries of rescuers. However, if Tony was acting in the scope of employment as a firefighter/medic he can not validly make that claim because it is a condition of the job.

Tony can get a worker's comp claim.


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Question #2



Owen owns a property. The two-story building on the property has a restaurant and a store on the first floor and one apartment on the second floor. Larry, Owen’s son, lives in the apartment with his wife and young daughter. Crescent College is located on adjoining land.

Three years ago, Owen spoke with Terry and agreed to rent the restaurant space to Terry for six years. Terry agreed to pay rent in the amount of $600.00 per month. Terry spent $5,000.00 to renovate the space for his needs. Terry always pays his rent on time.

One year ago Owen spoke with Randy and agreed Randy could use the store as long as Randy paid the utilities for the store. Randy occupied the space and commenced paying the utilities.

Several months ago, Crescent College decided to offer classes at night. These night classes have permitted people who work full-time to attend college. Crescent has hired more instructors to teach the night classes. Because students commute to the campus for these night classes, Crescent constructed a large parking lot next to Owen’s property.

One month ago, Owen passed away, and Larry inherited the property. Larry wants the restaurant and the store vacated so he can rent to friends. When Larry approached Terry, Terry said he would not leave stating, “I have three more years.” When Larry approached Randy he learned Randy vacated six months ago and allowed Andrew to occupy the store. Andrew has been paying the utilities for the last six months.

Larry is upset about Crescent’s parking lot. He, his wife, and his daughter are kept awake until after 11:00 p.m. by the high intensity lights located on the parking lot, which illuminate their apartment. As a result, all three suffer from sleep deprivation. Additionally, because students are boisterous and blast music from their cars as they arrive and depart the parking lot, his daughter has become jittery.

Larry comes to your law firm. He wants the restaurant and the store vacated. He wants to put an end to the lights and noise from Crescent’s parking lot. You are asked to prepare a memorandum outlining his rights with respect to Terry, Randy, Andrew, and Crescent College.

Prepare the Memorandum



To: Supervising Attorney
From: attorney
Re: Larry's rights with respect to Terry, Randy, Andrew and Crescent College.

Brief summary of the facts

Larry, a potential new client, has come to the firm to inquire as to his rights with respect to property he recently inherited from 'Owen.' The property inherited consists of a two-story building with a restaurant and store on the ground floor and an apartment on the 2nd floor. Larry, along with his wife and daughter are currently using the second floor apartment as their home. The restaurant is currently occupied by Terry who entered into an agreement with Owen, the prior owner, to lease the space for six years at $600.00 per month. There is no indication that this lease is in writing. The store is currently occupied by Andrew, who has not been paying rent but has been paying utilities for the last six months. Andrew had no permission from the prior owner to occupy the store but instead took the store after Randy vacated. Randy had had an agreement with Owen wherein he could use the store for so long as he paid the utilities. This building now owned by our client Larry is situated next to Crescent College. Several months before Larry inherited this property Crescent College began offering night classes and built a parking lot next to the property at issue (now owned by Larry.)
Larry seek to vacate Terry and Andrew from the restaurant and store, respectively. Larry also seeks an injunction or some other remedy against Crescent College to put an end to the lights and noise coming from the adjacent parking lot that has caused his family sleeplessness and has caused his daughter to have jitters. I have presented an analysis of Larry's right with respect to each of these individuals below.

Larry seeks to terminate Terry's current possession of the restaurant. The primary issue is whether Terry has an enforceable lease and if so what is the nature of the tenancy? As stated in the facts above Terry entered into an agreement with the prior owner Owen to rent the restaurant for a period of six years at $600 per month. Terry claims that he has three years left on the lease. If the lease between Terry and Owen is valid and enforceable then a tenancy-for-years was created and the lease cannot be terminated, and thus Terry cannot be removed, until the natural expiration of the lease period. The tenancy will terminate on the date specified in the lease, which is three years from now. However, a lease for a period greater that one year will violate the statute of frauds if not in writing. There is no indication that the lease between Terry and Owen ever reduced to a writing, let alone a writing to satisfy the Statute of Frauds. Where a seeming 'tenancy for years' is unenforceable due to violation of the statute of frauds, a court will define the tenancy based on the way rent is to be paid. Here, Terry and Owen agreed that rent would be payed monthly ($600 per month), therefore the court would construe this as a month-to-month periodic tenancy. For either the tenant or the landlord to terminate a periodic tenancy, notice at least equal to the period must be given (with an exception for year-to-year tenancies.) In addition the tenancy must terminate at the natural end of a period. Therefore, if Terry is a month-to-month periodic tenant Larry can remove him by providing at least one month's notice of the lease termination.

However, there may be one complication here regarding the $5,000 that Terry has invested in the restaurant in reasonable reliance on Owen's promise that he could rent the space for six years. This may lead a court to enforce the fully orally agreed upon term of six years due to equitable considerations. Equitable remedies, however, will only be available where there is no adequate remedy at law. Therefore, if Larry is willing to compensate Terry for the $5,000 invested, then Larry should still be able to remove him.

Randy and Andrew
As for Randy, he vacated the store six months ago and stopped paying utilities, therefore Larry could reasonable conclude 'abandonment' and terminate any tenancy Randy may have had. Randy's original agreement with Owen appears to have been a tenancy-at-will, as no rent was paid. Thus, if Andrew (who has taken over for Randy) has anything it is a tenancy-at-will. A tenancy-at-will allows either tenant or landlord to end the tenancy at any time. although disfavored by the courts, and usually only found from express language, one could be found here because it appears to be a gratuitous arrangement. Even if Randy did have more than a tenancy-at-will, Andrew likely will not. Andrew is at best a tenant-at-will and more likely a trespasser. Larry should be able to remove Andrew immediately.

Crescent College
Larry will have to bring a private nuisance claim against Crescent College and seek an injunction. A private nuisance action requires plaintiff to show that defendant has caused an intentional, and unreasonable interference with defendants use and enjoyment of his property. Plaintiff must also show damages. Larry is unlikely to succeed here. Crescent College's interference is not intentional and probably not unreasonable. A court will balance a number of factors including utility of the parking lot and having night classes available for full-time workers against the harm to Larry and his family (general sleeplessness and jitters) In addition a court will also consider the fact that Larry 'came to the nuisance.' For all of these reasons, plus the severity of the remedy (injunction), Larry is bound to lose against the College.



MEMO: To Larry
RE: Rights with Respect to Terry, Randy, Andrew, and Crescent College

I. Re Terry
Your father leased Terry the restaurant 3 years ago for a term of 6 years with rent payable monthly at $600. This lease agreement is a "term of years" lease meaning that absent other circumstances the lease cannot be terminated before the end of the 6 year term. This must be contrasted with a so called "periodic tenancy" in which rent is paid on a periodic basis & no fixed end time for the lease is stated. Unlike a term of years, a periodic tenancy can typically be ended by giving one full period of notice. Here, because your father agreed to lease the property for 6 years it would seem that you cannot terminate the lease until the 6 years are up.

You mentioned that Terry pays his rent on time. Keep an eye on that because if Terry does at some point fail to pay his rent on time he will have breached this responsibility and you could move to evict Terry through the courts.

One possible way out of the lease with Terry that we could pursue is based on the Statute of Frauds. Under the Statute of Frauds any contract for the lease of land for a period of more than 1 year must be in writing or it is unenforceable. Here it is not entirely clear from your statement of the facts but it sounds like Owen "spoke with Terry and agreed..." to the rental. If the lease agreement is not in writing we may be able to void the contract as violative of the Statute of frauds.

While our firm looks into this possibility (of getting out of the lease under the Statute of Frauds) I must caution you against engaging in "self help" against Terry. Self help (by which I mean physically ejecting Terry) is strictly prohibited and punishable by damages. Furthermore any interference with Terry's rights to use the restaurant peacably will be a breach of your "warranty of quiet enjoyment" and could be considered a constructive eviction entitling Terry to damages. It should be noted there may be 2 problems with our Statute of Frauds defense.

A) Because Owen performed on the lease for 3 years without complaint, you as his son may be estopped from now denying the validity of the lease. Futhermore, I seem to recall that under Art. 2A of the UCC partial performance of a lease agreement may be a defense to the Statute of Frauds.

B) Even if we were to win on Statute of Frauds grounds you might well be liable for the $5000 in improvements that Terry put in under a theory of promissory estopell. That is, because Terry reasonably relied to his detriment on your father's promise to lease the restaraunt to him for 6 years & actually invested $5000 in reliance on this promise you may be liable for the $5,000 under the Contractual Theory of Promissory Estopell.

II. Randy & Andrew
When your father agreed that "Randy could use the store as long as Randy paid utilities" he created a Tenancy at Will terminable only at the will of the lessee - typically when a tenancy at will gives only the lessor the right to terminate an implied right of the lesee to terminate is also implied. Here, however the right to terminate was left only for Randy so no right to terminate is implied for Owen or Larry.

However, here the terms of the tenancy at will require Randy to pay the utilities and the lease was only to Randy. Although for some leasehold estates assignment or sublease are possible, in a tenancy at will where the explicit terms of the lease are that Randy only can occupy the store if he pays rent, Randy may not assign or sublease the store to Andrew.

Therefore Andrew must vacate, although you need to give him reasonable notice - usually 30 days is sufficient. Furthermore Randy may not re-occupy the store since the lease explicitly allows Randy to occupy the store only as long as he pays utilities. Since he leased paying the utilities 6 months ago he may no longer occupy the store.

III. Crescent College

We should institute a nuisance action against Crescent. An action for nuisance is appropriate when the defendant interferes with a neighbor's reasonable use & enjoyment of land in a non-trespassory manner in a nuisance action the court will consider many factors in deciding whether to enjoin (the usual remedy for nuisance is an equitable remedy of injunction though some court allow prospective damages as an alternative) a neighbor's property use. Among the factors the court will consider are the degree of interference with P's use of land, the beneficial aspects of the harmful use, whether the use is consistent with the community & surrounding neighborhood and whether the plaintiff in an especially sensitive person.

Here the high intensity lights that cause Larry's family to be up untill 11 p.m. every night because they illuminate the apartment is certainly an unreasonable use & interference with your apartment. Furthermore the loud raucous music played by the students may be considered to be a substantial interference with your use of land as a dwelling (though here if the noise is only during the day the court may not find a nuisance). Although you may show substantial interference with your use of land thereby enabling you to an injunction against Crescent's parking lot the court will also look at the beneficial nature of Crescent's use in that it allows adult education & those who work full time to receive an education. Finally the court will look to see the nature of the community. Although it seems like Larry lives in a mostly residential area, the fact that he lives right over a store & restaraunt might lead the court to allow Crescent's use since it is not having a detrimental impact upon a strictly residential area.

How the court will weigh these factors is unclear but a nuisance suit might likely be successful against Crescent.


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Question #3


Paul, a smuggler, has a cargo van filled to capacity with illegal aliens. While leaving the highway, he realizes he does not have enough change for the toll. Paul decides to go through the EZ-Pass lane even though he does not have an account.

Tollbooth Operator (“Operator”) notices Paul go through the EZ-Pass lane without paying, but does not see his license number. The very next driver, however, tells Operator, “I just wrote down the license number of that cargo van! He was driving like he had something illegal in there!” The driver then hands the note to Operator. Operator writes the license number down as well as the driver’s statement.

Operator notifies the State Police, who later stop Paul. As the officer approaches the van, he hears hushed voices saying, “Paul’s a great smuggler, but he drives way too fast.” The officer then arrests Paul and takes the illegal aliens into custody. The federal government charges Paul with smuggling.

At a hearing held at the Department of Homeland Security, the illegal aliens state they are unwitting victims of Paul. Homeland Security, however, determines the entire group consists of enemy-combatants to be held at the United States Naval Base in Guantanamo Bay.

Unable to post bail and awaiting trial in jail, Paul has an epiphany and calls Guru — a mysticist he saw on TV. During their telephone conversation, Paul tells Guru he wants to talk about his situation. Guru tells Paul, “The spirit always listens to calls for forgiveness.” Paul then confesses to smuggling the aliens. Unfortunately, the government was listening and recording the entire conversation.

At Paul’s trial, Operator testifies as to the contents of his note, explaining he is unable to remember the license number or the witness’ comments he wrote, but he would have written the information correctly at the time. The State Police officer testifies about the vehicle stop, including what statements he heard coming from the van. The prosecution seeks to read to the jury the transcripts of the aliens’ statements against Paul made at the Homeland Security hearing, claiming it is too dangerous to transport them to the trial. Finally, the prosecution plays Paul and Guru’s telephone conversation in which Paul confessed to the crime.

The defense objects to all the evidence proffered by the prosecution and admitted by the judge. The defense seeks to introduce the testimony of Paul’s former army commander, who would have stated Paul was a decorated soldier and would never commit any crime. The judge denies the request. The defense then calls a seasoned ex-FBI agent as an expert to testify that Paul’s actions did not fit the profile of a smuggler according to the “FBI’s Guide to Profiling Smugglers” and to enter the book in evidence. The judge also denies this request.

The jury convicts Paul, who timely files an appeal. You are the appellate judge’s law clerk assigned to write a memorandum analyzing all of the trial court’s evidentiary rulings, citing the factual bases and all applicable rules of law.

Prepare the MEMORANDUM



The court’s ruling admitting the operator’s testimony was correct. The operator’s note could be used to refresh the recollection of the operator on the witness stand, as long as it is shown to opposing counsel. The information the operator recounted came from a driver, and the driver’s statements are both admissible as hearsay exceptions. The license plate number is a present sense impression, and the statement about Paul’s driving is an excited utterance.


The court’s ruling admitting the police officer’s testimony was correct. He had probable cause to stop the van, after hearing the operator’s information. The statements he heard coming form the van is an exception to hearsay as a statement against penal interest by an unavailable witness. The aliens are legally unavailable because they are in military custody as “enemy combatants.” The statement is against penal interest because it identified them as either accomplices in smuggling or the objects of smuggling.


The court’s ruling admitting the transcripts of aliens’ hearing testimony was erroneous. As noted, the aliens were legally unavailable to testify at trial. However, their statements at the hearing were not against penal interest, nor do they fit within another hearsay exception. To admit the transcripts would also violate Paul’s 6th Amendment right to confront the witnesses against him, because Paul’s counsel had not opportunity to cross-examine them when their original testimony was given.


The court’s ruling admitting the recorded telephone conversation between Paul and Guru was correct, assuming the police obtained a warrant before tapping the line. Tapping a phone line and listening in or recording constitutes a search for 4th Amendment purposes, so a valid search warrant based on probable cause is required. Since Paul had already been arrested, the police most likely had not trouble presenting probable cause and obtaining a warrant. Paul’s statement in the recording, confessing to smuggling the aliens, is admissible as an admission of a party.


The court’s ruling excluding the testimony of Paul’s former commander was erroneous. A criminal defendant may present evidence of his good character in the form of witnesses who have personal knowledge of it. The offer of proof is sparse, but presumably defense counsel would have phrased questions to the commander in the proper way, asking him about his opinion of Paul’s character for honesty and respect for the law, and about Paul’s reputation in the community for these traits. Such testimony opens the door for the prosecution to offer evidence of the defendant’s bad character for the same traits, using the same form of question.


The court’s ruling excluding the testimony of the ex-FBI agent was erroneous. And expert may testify as to the expert’s opinion, as long as the expert is first declared an expert witness by the court. Any publication or other source relied on by the expert in forming this opinion must be one that is considered authoritative in the relevant field, i.e. it is commonly relied on by experts. The ex-agent’s testimony about the profile of a smuggler would have been relevant, since it would have some tendency to make the proposition that Paul smuggled the aliens somewhat less probable.


The court’s ruling excluding the FBI guide was correct. If an expert witness relied on a particular source in forming his or her opinion, relevant portions of that source may be read to the jury. However, the entire source may not be offered into evidence.


TO: Judge
FROM: Law Clerk
RE: State v. Paul- Appeal

This memorandum discusses the trial court’s evidentiary rulings in the above captioned case.


The operator’s note is hearsay. Hearsay is an out of court statement offered for the purpose of proving the truth of the matter asserted. This note that purportedly had Paul’s license plate number on it is hearsay, because it was made out of court, and is being offered to prove the truth of its contents (i.e. that Paul drove through the EZ Pass lane). Hearsay is inadvisable unless an exception applies. Technically, this situation presents a double-level hearsay problem because there are two statements involved: the motorist’s comments and note, plus the operator’s note derived from this hearsay. Accordingly, both statements must fall within the independent hearsay exceptions to be admissible.

First, the driver’s statement describing Paul’s license plate number qualifies as a present sense impression. As present sense impression is a statement made during or immediately after perceiving an event. The motorists’ notation of Paul’s plate was a present sense impression since she had just observed him run the EZ Pass lane. Thus it is admissible.

Second, the operator’s notation of the motorist’s note qualifies as a recorded recollection. A recorded recollection exception applies where the witness once made a writing that was truthful and accurate when made, and attempt to refresh the witness’s memory has failed, and it otherwise appears trustworthy.

Operator’s statement was made by him/her immediately after being told by an eyewitness what the license plate number was. Operator’s present memory has failed. There is nothing to suggest that this in untruthful (in real life, this will be confirmed by the picture of your license plate that they take when you don’t pay a toll)(operator said he would have recorded this info correctly). Accordingly, it was not error to permit the pros. to read this to the jury.


The statements of the aliens are hearsay. They were made out of court and are offered to prove the truth of the matter asserted (i.e. that Paul is a smuggler). Thus, an exception must apply or it is inadmissible. 

The statements by the aliens qualify as a co-conspirator exception to hearsay. A co-conspirator statement made during and in furtherance of the conspiracy is admissible.

Here, the aliens turned out to not be “unwitting victims”, but rather, enemy combatants. Thus, the trial judge could have determined that a conspiracy existed. The prosecution will likely successfully argue that, at the time it was made the conspiracy still existed, and that the statement “Paul drives to fast” is in furtherance of it; i.e. he shouldn’t drive so fast or he’ll risk us being caught. Thus, it is admissible.


This would violate Paul’s 6th Amendment Confrontation clause. The Supreme Court recently held in Cranford v. Washington, that in order for testimonial hearsay to be admissible, in a criminal case, the declarant must be unavailable and there must have been a prior opportunity to cross. In that case, Justice Scalia defined testimonial to include, at minimum, statements in response to police interrogatories, and prior hearings under oath.

In this case, the statements by the aliens to the Homeland Security Dept. at the hearing would very likely qualify as “testimonial” for purposes of the 6th Amendment, because they were made (likely) under oath at a prior proceeding. Accordingly, they must be both unavailable and Paul must have had a prior opportunity to cross-examine them or it is inadmissible under Crawford. Since the facts clearly indicate that the aliens are presently unavailable, and Paul never had the opportunity to cross, it should not have been admitted. Note that this will not constitute reversible error if it was a harmless error beyond a reasonable doubt.


The 4th Amendment applies when (1) there is a Gov’t actor and (2) there is a reasonable expectation of privacy. (see US v. Kate). The 4th Amendment requires either a warrant issued upon probable cause or exception if it applies.

Paul’s telephone conversation to Guru from the jail cell in not entitled to 4th Amendment protection because one does not have a reasonable expectation of privacy in phone calls placed from a jail. Thus, this recording is admissible on 4th Amendment grounds. Note also that it is not hearsay because Paul is the defendant and thus it is a party-opponent admission.


This testimony should have been admissible. In a criminal trial, the defendant has the opportunity to “open the door” to presenting character evidence for a pertinent trait. He need not wait for the prosecution to attack it first.

Here, the testimony of the Army Commander the Paul would never commit any crimes should have been admitted because it is pertinent to rebut the inference that he was guilty of smuggling. Thus, provided the defense made an offer of proof, (to preserve this objection) this should have been admitted.


The judge erred by not admitting this book into evidence. Although it is hearsay, it qualifies under FRE 803 (18) as a learned treatise, assuming that on of the experts (or the judge by judicial notice) has recognized it as “authoritative.” Assuming that it is indeed authoritative, it should have been admitted (by being read to the jury only) undo this hearsay exception.


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Question #4



Power Contractors, Inc. (“Power”), a Louisiana corporation with its principal place of business in Louisiana, recently completed work on construction of a large power plant in Oklahoma (the “Project”). Power was the general contractor and used the services of multiple subcontractors in completion of the Project. The Owner has disputed the adequacy of parts of the work, including specifically the sewage and waste disposal systems, and the timeliness of completion of the Project, and has withheld payment. Power filed suit against the Owner in federal court in Oklahoma seeking payment in full, averring that it as well as its subcontractors had properly completed all work and that any delays in completion were the sole fault of the Owner.

Power recently received by certified mail, at its main office in Louisiana, a summons and complaint filed in the state court in New Jersey by its sewage and waste contractor, Sure Removal (“Sure”). Sure is a New Jersey corporation with its principal place of business in New Jersey. Sure’s complaint names as defendants Power, several of the subcontractors from the Project and the piping supplier with whom it had contracted. Sure alleges that Power and the other subcontractors delayed and interfered with Sure’s work by not making areas of the power plant available for its work in accordance with the Project schedule and that Power breached its contract by failing to pay the contract balance of $450,000. The count against the supplier alleges the supplier’s delivery of defective pipe caused Sure to incur additional cost to repair and to replace the pipe. None of the subcontractors is based or incorporated in New Jersey. The supplier was incorporated in New Jersey thirty years ago, but its principal place of business has been in Ohio for the duration of its existence.

You are an associate in a New Jersey law firm representing Power. Power does not want the suit to proceed in New Jersey. You are directed to prepare a memorandum identifying all possible arguments that can be made on Power’s behalf and assessing the likelihood of success. Assume there is no forum selection clause and no arbitration clause in the contract between Power and Sure.

Prepare the Memorandum


TO: Partner
FROM: Associate
RE: Suit against Power in NJ

The first issue is whether the NJ state court has proper personal jurisdiction over Power. Personal jurisdiction can be obtained by domicile in the state, personal service of process in the state, consent, and minimum contacts, the only method that applies here. In order to satisfy minimum contacts, it must be shown that the defendant has made certain minimum contacts in the State of New Jersey and purposefully availed itself of the benefits of NJ state law. When the contacts are continuous and systematic, the defendant is subject to general jurisdiction – personal jurisdiction for any type of claim. Where the contacts are less, but the cause of action arises out of or relates to those contacts, personal jurisdiction exists under the concept of specific jurisdiction.

Here, there is no possible argument for general jurisdiction because there is no evidence that Power has engaged in continuous and systematic activity in the state. However, because the claim arises out of or relates to Power’s contacts, specific jurisdiction is a close question. However, although Power formed a contract with Sure, a corp. with principal place of business, that alone does not suggest that Power reached out to NJ and purposefully availed itself of the benefits of NJ. The performance of the contract occurred outside of NJ. Moreover, the mere fact that Sure has chosen NJ for its principal place of business is not enough to show that Power reached out to NJ. Therefore, because Power did not avail itself of the benefits of NJ and because the performance and breach of the K happened outside of NJ, Power has a strong arg. that no PJ exists.

The next issue is whether, assuming PJ exists and Power is subject to suit in NJ, Power could have the suit dismissed for forum non conveniens. FNC is available when the forum state has little interest in the case and due to convenience factors for the parties and for witnesses, the case belongs in another more convenient forum. Here, NJ does have some interest in the case because the plaintiff is a company with its principal place of business in NJ. However, the facts indicate that the performance and breach of K occurred across the country in Oklahoma. Many witnesses and much of the evidence would be located there and most of witnesses are likely to be beyond the subpoena power of NJ courts making a suit in NJ even more impractical. Furthermore, NJ’s interest is lessened somewhat by the fact that Sure is not a NJ corporation. It’s a close question, but the convenience of the parties and witnesses, and the location of the witnesses and evidence probably outweigh NJ’s interest in having the case litigated in its courts. Thus, Power as a strong case for FNC.

The next issue is whether assuming Parole is subject to PJ and loses its motion for FNC, Power could remove the case from state court to NJ federal district court. A defendant may remove to federal court whenever the case could have been brought there in the first instance. Here, the question is whether diversity exists as a basis for removal. Fed courts have diversity jurisdiction whenever there is complete diversity of citizenship between all Ps and Ds, and the amount in controversy exceeds $75,000. Here complete diversity is lacking because Sure is a citizen of NJ (principal place of business; and State of Ohio incorporation) and one of the defendants, the supplier is a citizen of NJ (place of incorporation). It does not matter that the incorporation took place 30 years ago, the supplier is deemed to be a citizen of NJ for diversity purposes. On the other hand, the amount in controversy requirement appears to be met even though there is a joinder of claims. 

Power could argue that the suppler was improperly joined because the claim against it does not arise out of the same transaction or occurrence as the claims against Power. Although a broad view of the claims suggest that they are related, that is not necessarily so. The claim against Power is for breach of contract for not paying and for interfering with Sure’s ability to perform. The claim against Supplier is unrelated in that it arises from a delivery of defective pipe from Supplier to Sure. Thus, the claims are actually not related to the same transaction. Although courts typically take a liberal view towards joinder, Power has a viable arg.

Additionally, Power could argue that Sure fraudulently joined Suppler solely to defeat diversity. However, there are not enough facts to conclude whether such a claim is likely to prevail. Although, Power might not see the advantage of removal because it wants out of NJ and the district court to which removal is made will be in NJ, the advantage of removal is that it gives Power an opportunity to request transfer to the OK federal district court so that the two cases can be consolidated. The NJ state court cannot transfer a case to federal district court, but one district court can transfer to another. If Power is successful in removing, it can argue to the NJ federal district court that all of the claims and disputes relate to a contract and a project being performed in OK, that all of the witnesses and evidence are in OK, and that the existence of another, related case ongoing in OK federal district court make this case an excellent candidate for transfer to the OK federal district court so that it can consolidate the case. Even w/o consolidation, in fact a transfer would make sense. Thus, through removal and transfer, Power can avoid suit in NJ.



The federal Constitution requires all courts, both state and federal, to have subject matter jurisdiction over all cases that they decide. Subject matter jurisdiction is the authority of a court to hear and decide a particular controversy. Because subject matter jurisdiction is a federal constitutional requirement, it is unwaiveable by the parties, either by their express words or impliedly through conduct (e.g., by not raising the issue in a timely manner).

While the federal courts are courts of limited jurisdiction, however, the NJ Constitution has vested general jurisdiction (i.e., jurisdiction over all civil and criminal matters not within a small category of excepted cases) in the NJ Superior Court’s Law and Chancery Divisions. The Sure v. Power matter does not fall within the few types of cases that are directed to specialized courts (family matters, tax controversies), so the Superior Court appears to have subject matter jurisdiction to hear the case. The federal Constitution carves out a few areas in which the federal courts have exclusive jurisdiction (e.g., patents, bankruptcy, admiralty), but the subject matter of this case, a basic action for breach of contract, does not fall within one of those exceptions. Therefore, the NJ courts have subject matter jurisdiction to hear the case and Power cannot prevent the NJ litigation from moving forward on that basis.


The due process clause of the 14th Amendment to the federal Constitution requires courts to have personal jurisdiction over a defendant before it may bindingly adjudicate his or her property rights or liberty interests. Personal jurisdiction is a determination that it would be fair to hale the defendant into the particular court at the particular time to answer to the particular claim raised by the plaintiff. The International Shoe standard measures this fairness by the minimum contacts doctrine. To satisfy minimum contacts, the plaintiff must show that the defendant has purposely availed himself or herself to the benefits of the law of the jurisdiction in which the court sits.

Among other bases that are not relevant under these facts, NJ law allows the Superior Court’s Law and Chancery Divisions to assert personal jurisdiction over defendants who are NJ domiciliaries (for people, meaning NJ residents, for corporations, meaning they were incorporated in NJ or have a principal place of business in NJ; jurisdiction is general, meaning it covers all matters) and over any other defendant over whom exercising personal jurisdiction would not offend the federal Constitution’s due process standard as embodied in the minimum contacts test (special jurisdiction only, meaning it covers only those matters that arise from the conduct creating the minimum contacts). Unlike many states, NJ does not have a long-arm statute.

Under these facts, Power is clearly not a NJ domiciliary, as it was incorporated in Louisiana and also has its principal place of business there. It has also done significant business in Oklahoma, but that business by itself does not create a minimum contact with NJ. Because Power is not a NJ domiciliary, it would not be subject to personal jurisdiction in the NJ Superior Court on that basis.

Power almost certainly has not conducted itself so as to create minimum contacts with the State of NJ on the issue of the contract at issue in the Sure v. Power case. The only contact whatsoever that it has had with the state of NJ is in hiring a NJ corporation to assist it with constructing a power plant in Oklahoma. Sure’s cause of action against Power alleges that Power did not make areas of the plant work site available to it and that it failed to make a required payment. The plant work site is in Oklahoma, not NJ, so there is no purposeful availment of NJ based on that alleged conduct. Furthermore, the failure to pay a party located in NJ is not conduct in NJ that would evidence Power’s intent to avail itself of the laws of NJ because it is a mere failure to act not based on any protection by NJ law that Power allegedly invoked. In summary, because Power has not purposely availed itself of the laws of NJ, it has not met the minimum contacts test with respect to this contract and is not subject to jurisdiction in NJ on that basis.

Personal jurisdiction has two elements: (1) a proper basis for jurisdiction satisfying the minimum contacts test and (2) assertion of that basis and giving the defendant notice through the service of process (a summons and a copy of the complaint). NJ law allows the plaintiff to serve out-of-state defendants by first class mail to the defendant’s regular place of business or abode or by any other method allowed by the law of the state in which the process is made. Here, Sure served process by certified mail to Power’s main office, which is clearly a regular place of business for Power. Therefore, service of process was proper under these facts.

For the reasons discussed above, Power could assert a defense of lack of personal jurisdiction in the NJ matter. It must be careful to do so soon and in the proper manner, however, or it will risk waiving the defense. (Unlike subject matter jurisdiction, personal jurisdiction is waiveable.) NJ law will deem the defense waived if the defendant enters a general, instead of a special appearance (meaning that it consents to jurisdiction of NJ); if the defendant argues on the merits of the case without reserving the defense of personal jurisdiction; or if the defendant fails to raise the issue in a timely manner. NJ rules of civil procedure will deem the defense timely raised if the defendant raises it either (1) in a pre-answer motion or (2) in the answer and in a required follow-up motion filed no more than 90 days after service of process.


Power can also ask the NJ Superior Court to make a finding of forum non conveniens. Forum non conveniens is a common law doctrine that allows courts to dismiss actions without prejudice when, under the total circumstances and even though personal jurisdiction would otherwise be proper, to hale the defendant into this particular would be unfair. NJ courts are reluctant to apply the doctrine, however, so Power would have to make an extraordinary showing of hardship in order to win such a motion. Here, Power is litigating a similar matter in a geographically far-flung state and is headquartered and doing business in yet another state. Perhaps if Power is a small company incapable of remaining solvent if it must defend an action in a far-away state while it simultaneously prosecutes another action in Oklahoma and conducts its business in Louisiana, it could make such a showing. Power certainly is having money problems, as it has not yet been paid on a major project and is forced to pay attorney’s fees and costs to sue Owner for breach of contract. For those reasons, and assuming Power would not be able to remain solvent if it were required to defend the Sure suit in NJ, the NJ Superior Court would certainly seriously consider and may grant a motion for dismissal for forum non conveniens.


Removal to federal court would be a good outcome for Power because, once the case is removed, Power could petition for a change of venue to a more convenient location or could petition the federal court to join the claim to the Power v. Owner suit in federal court in OK. Federal courts will join related claims and the necessary parties to adjudicate them by invoking supplemental jurisdiction, provided that the joined claim arose out of the same transaction or otherwise shares a common nexus of facts. Here, the federal case in OK is litigating the issue of delay in completing the contract, which is one of the issues that is being litigated in the NJ action. Therefore, it is likely that the federal court, once it receives the case through proper removal, would join the part of Sure’s claim that relates to the issue of delay. Because this is the only issue that involves Power, it is irrelevant to it whether the other portion of Sure’s claim can be joined. Finally, joinder in the other direction (i.e., OK claim added to the NJ claim once it is in federal court) is unlikely because the OK action has already been prosecuted, so it would cause delay and a waste of judicial resources to move the case to a new court and a new judge at this late date. The NJ action, on the other hand, has only just been filed. Therefore, the NJ claim is likely to be transferred to the OK federal district court if the case can be removed to federal court.

However, because the federal courts are courts of limited jurisdiction rather than general jurisdiction, Power must have a specific basis for subject matter jurisdiction based on the type of claim that the case presents. Here, the Sure v. Power case is a breach of contract action, which is a state law cause of action: The only way for a federal court to hear a state cause of action is when it can assert diversity jurisdiction. The type of diversity jurisdiction that is relevant here is diversity of citizenship in which no plaintiff is a citizen of the same state as any defendant. Unfortunately for Power, that is not the case here. The supplier was incorporated in NJ, so it is a citizen of NJ; it is irrelevant that the supplier has never done business in NJ or that the incorporation was a long time ago. For the purposes of diversity jurisdiction, the supplier is a citizen of NJ (and also of OH, where it has its principal place of business). Furthermore, Power cannot “cherry pick” the citizenship that it would like for the supplier to have by choosing OH rather than NJ as the supplier’s citizenship for the purposes of this cause of action. Because Sure, a NJ citizen because it was incorporated in NJ and does business there, shares citizenship with supplier, who is also a NJ citizen, the case cannot be removed to federal court on the basis of diversity jurisdiction.

To remedy the problem of lack of diversity, Power should petition the NJ Superior Court to sever Sure’s action into two claims—one claim about the contract delay and failure to pay and another about the defective pipe. The NJ courts will sever and try claims separately when to do so would make the issues clearer for trial, increase efficiency, decrease complexity, reduce hardship on the parties, or otherwise positively benefit the efficient and fair disposition of claims. Here, the contract delay does, however, share a common nexus of fact from the perspective of Sure, the plaintiff. The delivery of defective pipe likely impacted the issue of delay on the contract, but only to the extent that plaintiff is defending or explaining any delay that is attributed to it. However, in this action Sure alleges not that it or its supplier is liable for delay, but, on the contrary, that Power and the other subcontractors are responsible. Under such a theory of the case, the two claims arise from separate transactions of fact linked together only by the fact that all of the conduct had some tenuous connection to the contract with Power. Such a weak link between the claims makes this action well-suited for severance into two separate actions, one for breach of contract by Power and the subcontractors and one for breach of contract by the supplier. Therefore, the NJ courts are likely to grant Power’s motion for severance.

Once the claims are severed, Power will have shed the one problematic defendant who prevented complete diversity in the combined case. With the supplier, a NJ citizen, out of the picture, the case will now be eligible for removal because now no plaintiff is a citizen of the same state as any defendant. One final rule for removal will also not prevent removal of the case to federal court—Removal is not allowed when the defendant is a citizen of the state in which the case is brought because removal is a remedy for defendants who fear prejudice from state courts and juries to which they have few or no ties. But here Power is not a citizen of NJ, the state where the case was brought, so this rule will not apply. With diversity jurisdiction now possible, Power can petition for removal to federal court. Transfer or joinder could then proceed as outlined at the beginning of this section.


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Question #5


At 5:00 p.m. Dillon’s New Year’s Eve party begins on the top floor of his condominium. Dillon and his guests each drink at least one beer per hour. At 11:30 p.m. the guests go out onto his balcony that overlooks an area with many trees. Just beyond the trees is a park where people walk their dogs. Dillon supplies his friends with sparklers and ignites fireworks that light up the night sky.

One of the fireworks misfires and hits Lucy while she walks her dog. Lucy is pregnant, and she collapses. Although Lucy is rushed to the hospital by ambulance, the paramedics cannot save her or the baby.

At the park, the police learn about Dillon’s fireworks. The police obtain a telephonic search warrant and search Dillon’s condominium for “contraband, fruits, and instrumentalities of crime.” Although the search warrant allows the police to enter without knocking, the search warrant itself does not justify the “no knock” provision.

The police enter and observe Dillon staggering out of a bathroom. When the police speak to Dillon, he becomes belligerent but then quiets down. The police smell alcohol on Dillon. One police officer tells another officer that Dillon’s behavior is erratic, but they leave Dillon alone and conduct their search.

The search reveals evidence of sparklers but no additional fireworks. One officer starts Dillon’s computer and after a few key strokes finds evidence stored on Dillon’s hard drive that Dillon had purchased fireworks from a supplier in New Jersey. The police arrest Dillon and ask him to consent to a blood test. Dillon refuses and tells his friends to call his attorney.

At the police station Dillon tells his attorney what happened at the apartment. He also tells his attorney he was diagnosed as manic depressive, his prescribed medication ran out two months earlier, and he has not renewed it because he has been feeling fine.

Since Dillon refuses to consent to the blood test, the police transport him to the hospital where blood is forcibly extracted. The results indicate he is highly intoxicated.

Your assignment is to write a memorandum for Dillon’s attorney anticipating all charges that can be brought against Dillon and all defenses he may use. In addition, you are asked to analyze the potential strength of each charge and each defense.

Prepare the Memorandum



To: Attorney
From: Associate
Re: Dillon’s case
Date: July 28, 2005

Dillon can be charges with depraved heart murder and also involuntary manslaughter for the death of Lucy and her baby. Possible defenses are insanity & voluntary intoxication.

Depraved heart murder is a killing that results from a reckless indifference to human life. Depraved heart murder is a malice crime. 

Here, Dillon acted recklessly in supplying fireworks and allowing his guests who were probably were intoxicated, since they had been drinking for 6 1/3 hours, to shoot off fireworks. Fireworks are extremely dangerous because of their explosive nature. It is reckless to shoot explosives off towards a park where people often walk their dogs. Dillon lived in the area and was probably aware that the park was frequented by dog walkers. Therefore, his behavior was reckless and he may be charged without depraved hear murder. However, Dillon may argue that he was not acting with malice because he was merely entertaining his guests and did not know that people would be in the area. 

Dillon may also be charged with involuntary negligence which results from either (1) criminal negligence or (2) misdemeanor manslaughter.

Dillon was or involuntary negligent because a unreasonable prodent person would not ask his intoxicated guests to shoot off fireworks towards a park.

Also if shooting fireworks is a misdemeanor, Dillon can be charged with manslaughter because the death of Lucy & her baby resulted from his violation of the statute.

Potential Defenses
Dillons first defense may be voluntary intoxication. Voluntary intoxication is self induced & is a defense to specific intent crimes.

Here, voluntary intoxication would not be a valid defense because D is not charged with specific intent crimes. Reckless murder is a malice crime & involuntary manslaughter is general intent. Therefore voluntary intoxication is not a defense.

The second defense is insanity. Insanity serves as a defense to all crimes regardless if the irequisite owns rea.

Dillon may have a valid defense because he was a diagnosed manic depressive & he had ceased taking his medication. However, there is a potential weakness in this alone because Dillon said he was feeling fine & it is possible that he was not insane on New Years Eve.

Issue # 2 Dillon can attempt to challenge the search warrant but will probably be unsuccessful. Under the 4th Amendment, which protects against unlawful searches & seizures, the house is the most protective area & a search warrant must be obtained. For a warrant there must be probable cause described with particular the place to be searched & things to be seized and issued by a revised & declared magistrate. Telephone warrants are permissible & there is not enough time to obtain a written warrant. Even if the warrant is defective, a search will be valid if the officers relied upon it in good faith.

Here, Dillon can first argue that a telephone warrant was not appropriate because there were no urgent circumstances. However, there a telephone warrant may have been permissible because the police may have been concerned that more fireworks would be set off & wanted to catch the suspect & source before more people were injured.

Also, Dillon can argue that the warrant did not specify with particularity the items to be seized because it only stated “contraband, fruits & instrumentalities” rather than fireworks.

Dillon may argue that the warrant was improper because the warrant did not justify the “no knock” provision.

In order for “no knock” entrance to be permitted there must be exigent circumstances such as the suspect is armed & dangerous or that the suspect knows it is the police. Here there is no evidence that any exigent circumstances existed, therefore the “no knock” provision was not justified & the police should have announced & knocked.

Despite these problems with the search warrant, the search was probably valid under the good faith exception which provides that a search will be upheld & the officers relied in good faith on a warrant issued by a neutral and detached magistrate. 

Here this exception makes the search valid because there is nothing to suggest the officers acted in bad faith or that the warrant was not issued by a neutral and detached magistrate.

Therefore the search of the house was valid under the good faith exception.

The evidence found on Dillon’s computer must be suppressed because it exceeded the scope of the warrant.

A search warrant must state with particularity the things to be seized. The police are only permitted to search the home in places in which the evidence could be found.

In this case, the evidence will be suppressed because the officers were searching for fireworks & sparklers and those items cannot be found on the hard drive of a computer, exceeded the scope of the warrant.

Therefore, the evidence showing Dillon purchased fireworks will be suppressed. 

Dillon will not be able to suppress his blood test that showed he was intoxicated. 
The 4th Amend protects against unlawful searches & seizures where the person has a reasonable expectation of privacy. A person has a reasonable expectation of privacy in his own body & the Supreme Court has prohibited the forcible extraction of evidence from the body unless an exception applies such as the evidence will be lost.

In this case, Dillon refused to consent to the blood test & he was brought to the hospital against his will for the test. Although Dillon does not have a reasonable expectation of privacy in his own body, the test was permissible because the Supreme Court has held that evidence of intoxication is quickly extinguished as thru passes on. Therefore, this exigent circumstance allows officers to force defendants to undergo a blood test.

Therefore, Dillon’s blood test results would be admissible. 



To: Attorney
From: Applicant
Re: Dillon’s charges

Below please find my analysis of what charges can be brought against Dillon.

Depraved heart murder

Dillon can likely be found guilty of depraved heart murder for his part in the death of Lucy.

Depraved heart murder is an unintentional killing of another as a result of the defendants reckless act.

Here, Dillon was reckless when he gave small explosives and sparklers to his friends especially after they have been drinking for hours and while they were located on the top floor of the condo building. Since it was Dillon’s house he was well aware of the park being close by, where people where likely to be.

Additionally, Dillon’s reckless behavior resulted in another person’s death. These 2 factors together make it likely Dillon will be found guilty of depraved heart murder of Lucy.

Also, I will have to do additional research to discover the law pertaining to the killing of a fetus. I believe that a defendant won’t be liable for the unintentional crimes against a fetus, but I will double check. Dillon may also be criminally liable for the death of Lucy’s unborn baby (ie Scott Peterson).

criminal negligence 

Alternatively, Dillon may be charged with involuntary manslaughter. Involuntary manslaughter is an unintentional killing that results from the defendant’s criminal negligence.

Here, Dillon was criminally negligent when he gave his drunk friends, who were on the top floor of a building, near a populated park, fireworks to shoot off. If he is not found guilty of depraved heart murder he likely will be guilty of involuntary manslaughter.

possession of illegal contraband 

I believe that possession of fireworks by private citizen is illegal in NJ. If it is illegal, Dillon can be charged with possession, however, since the police never found any fireworks (only sparklers) that charge would likely be unsuccessful.


Dillon could try to raise the defense of voluntary intoxication to the charges of murder. However, voluntary intoxication is only a defense to specific intent crimes and both depraved heart and involuntary murder are general intent crimes, to which intoxication is not a defense.

unlawful entry by the police
Dillon can also claim that the police violated his rights by not knocking before entering as required by the search warrant, therefore all evidence found should be excluded as fruit of the poisonous tree. 

When conducting a search warrant the police should generally knock and announce themselves before allowing themselves into a location for which they have a valid search warrant. 

Here, the police entered the premises without knocking or announcing themselves to Dillon. Dillon can say that since they entered without the formalities all evidence seized during the search is fruit of the poisonous tree and should be excluded. 

However, since the officers did have a valid search warrant and could enter upon knocking this argument would likely not work because the prosecutor will argue there would have been inevitable discovery of all of the evidence they did find anyway.

An unlawful entry is probably not a winning defense for Dillon to assert.

warrant too broad
Dillon can argue that there was no limit on the scope of the warrant.

A search warrant when issued must clearly lay out the place to be searched, people involved, and the scope of what can be searched by the police. If it doesn’t the warrant is invalid.

Here, it seems the warrant merely says search for “contraband and fruits & instrumentalities of crime”. This does not adequately limit what the police where allowed to search for or in while in Dillon’s house. This is evidenced by the police searching on Dillon’s computer while there were really there looking for fireworks.

It appears that the information found should be excluded as beyond the scope of a valid warrant.

Dillon can claim that is manic depression qualifies as insanity and is a defense to the murder charges. However, regardless of the insanity test that applies it does not appear that manic depression, a disease that afflicts so many people, would qualify as insanity. Even if it does, there is no evidence here @ all that Dillon’s actions were the result of his manic depression

Blood test
Dillon can also claim that the police took his blood in violation of his 4th Amendment rights. However, the results of the blood test (showing that he was intoxicated) appear to be of minimal importance here since there are other factors that play into why Dillon was reckless or negligent and therefore responsible for Lucy’s death. (ie shooting off the balcony into the park where people are known to walk their dogs).

Nonetheless he can argue that he has an expectation of privacy in his body and that the blood test was an unconstitutional search of his body, and requires a warrant.

Unfortunately, I believe the court will find that it is not an unreasonable search because alcohol in the body is an evanescent evidence that if the police waited could disappear from the blood stream.

The court will likely rule that blood test will be admissible against Dillon.

It appears that unless there is some witness or other proof (beside the excluded computer evidence) that Dillon had fireworks, it may be difficult to prove that the fireworks that killed Lucy and her baby came from Dillon’s house especially since it was New Year’s Eve and others may have been shooting off fireworks as well.

It is a calculated risk, but Dillon may be able to beat these charges.


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Question #6


Jacky Associates (JA) sells its products directly to consumers through telemarketing. JA has developed a lucrative market, particularly among teenagers, for its smokeless tobacco products. In addition, JA operates a profitable telemarketing division for political organizations.

Concerned with an epidemic of diseases in teenagers attributed to the use of smokeless tobacco products and public discontent with unrestrained telemarketing, Congress passed legislation (the Act) banning telemarketing to individuals who have registered on a national “do not call” list (the List). The Act, which has a severability clause, also prohibits charitable and political organizations from telemarketing to individuals on the List.

Senator Buddy, the Act’s principal sponsor, conducted public hearings and stated, “Companies like JA are intentionally targeting our youth with their false and deceptive telemarketing schemes.” Buddy knew his statements were false but regarded them as necessary to garner public support for the Act’s passage.

To discredit Buddy, JA provided Reporter with information about Buddy’s solicitation of bribes from registered lobbyists. The United States Attorney launched a criminal investigation, and the grand jury issued a subpoena to Reporter seeking to compel her to disclose the identity of her source.

JA challenged the Act and pursued an action against Buddy for damages in the United States District Court. Reporter moved to squash the subpoena in the same court. JA and Reporter lost and filed separate appeals, which have been consolidated in the Circuit Court of Appeals.

As the law clerk to the Circuit Court of Appeals panel, you are assigned to prepare a memorandum discussing the Act’s legality, the merits of Buddy’s constitutional defenses to JA’s claim against him, the Reporter’s action, and any other relevant issues raised in the District Court.

Prepare the Memorandum




To: Circuit Court of Appeals Panel
From: Law Clerk
Re: Constitutionality of the Act
Date: 7/28/2005

Constitutionality of the Act:

The part of the Act banning telemarketing to individuals registered on the do not call list is Constitutional because it was validly passed under the Commerce Clause and is a permissible restriction on Commercial Speech under the First Amendment. The part of the act which prohibits charitable and political organizations from contacting people on the list is unconstitutional because it violates the Free Speech clause of the First Amendment.

The U.S. Constitution allows Congress to pass any law concerning or affecting interstate commerce. The First Amendment to the US Constitution prohibits Congress from passing laws which restrict freedom of speech. Congress may not regulate the content of speech unless the speech falls into an unprotected category, such as commercial speech or unless the regulation is necessary to achieve a compelling government interest. Congress may validly regulate commercial speech if the regulation is viewpoint neutral and there is a reasonable fit between the regulation and a significant government interest. Congress may also place content-neutral restrictions on the time, place and manner of speech, provided that the restrictions are narrowly tailored to achieve an important government interest and leave open alternative channels of communication.

Here, telemarketers clearly market products in interstate commerce, so the law was validly passed under the Commerce Clause power. The banning of telemarketing to individuals on the list is a form of commercial speech, which is unprotected. The Act thus regulates the content of the speech by banning only commercial speech. The government interest in protecting young people from tobacco is clearly significant. There is a reasonable fit between direct marketing of tobacco products and the government interest. Thus, the Act meets the test for permissible regulation of commercial speech. 

However, political and charitable organizations, while they may affect interstate commerce, do not engage in per se commercial speech. This is also a content-based restriction, but political and charitable speech is protected. The government has not demonstrated that the Act is necessary to achieve a compelling government interest in restricting political or charitable speech. This part of the Act is thus unconstitutional.

By banning all telemarketing to the list, Congress could argue that the restriction is merely a time, place and manner restriction that is content-neutral. Then the government would have to argue that the restriction is narrowly tailored to achieve an important government interest, such as preserving individuals (sic) privacy and right to be free from unwanted telephone calls. The regulation also leaves open alternative methods of speech such as door-to-door or direct mail solicitation. If the government can come up with an important government interest that applies to all forms of the speech it is restricting (not just direct marketing of tobacco to teenagers), the Act may Constitutional.

Thus, the first part of the Act banning Commercial Speech is constitutional, but the part banning political or charitable speech is not without a further demonstration by the government of an important interest.

Senator Buddy’s defenses under the US Constitution

Senator Buddy should argue that his speech is privileged under the Speech and Debate Clause of the US Constitution. This argument will likely succeed. If he is sued for defamation, he may argue that he has a right to Free Speech under the First Amendment. This argument will likely fail because he made his statements with malice.

The Speech and Debate Clause of the US Constitution protects speech made by Federal Legislators while engaged in legislative activities. Speech made while engaged in such activities is privileged and the speaker may not be sued for defamation. 

Furthermore, under the First Amendment to the US Constitution, when speech is made regarding a public figure the plaintiff in a defamation action must show that the speech was made with malice. Speech made regarding a matter of public concern must be made with at least negligence to prove defamation. Malice is defined as reckless disregard to the truth or falsity of a statement. Negligence refers to careless disregard for the truth or falsity of a statement. 

Here, Senator Buddy made his statements regarding JA while conducting public hearings for the Senate. They would thus be privileged under the speech and debate clause because he made them for a legislative purpose – to garner public support for the Act.

Senator Buddy made his statements knowing that they were false. This is sufficient to prove malice. However, JA is not a public figure, and is not even human, so only negligence need be shown. Clearly, Senator Buddy was careless in his statements, so if his speech is not privileged, a defamation action may proceed against him without a First Amendment defense. 

Reporter’s Disclosure of Her Source:

Reporter may be forced to reveal the source of her information or face a contempt charge. The issue is whether the First Amendment Freedom of the Press makes her source privileged. 

The First Amendment to the US Constitution protects both freedom of speech and of the press. This also protects the right not to speak (i.e. compelled speech). Generally, however, the press has no more privileges than ordinary citizens. The US Supreme Court has held that reporters may be compelled to disclose their sources, and such sources are not privileged under the First Amendment. 

Here, Reporter refused to disclose the identity of her source. She may be charged with contempt of court for refusing to disclose her source, and the Constitution will not protect her. 

Thus, Reporter may constitutionally be compelled to reveal JA’s identity.

Other issues:

If Reporter is compelled to disclose JA’s identity, Buddy may have a defamation action against JA. Because he is a public figure, he will have to show that JA made the statements with malice. We do not know the truth or falsity of the statements regarding his alleged solicitation of bribes from lobbyists.


To: Judge
From: Clerk

The Act should be struck down in part, and upheld, in part. The provisions in the Act pertaining to charities and political organizations (“POs”) and banning them from contacting individuals by phone is a violation of the First Amendment. 

Under the First Amendment, with a few exceptions, speech is a fundamental right and thus any government infringement on one’s freedom of speech is subject to strict scrutiny. Political speech and speech aimed at charitable fundraising are two forms of speech that have been accorded fundamental status. Accordingly, the provisions in the Act aimed at charities and Pos are subject to strict scrutiny. Under this test, Congress must prove that the Act furthers a compelling government interest and, significantly, that no less restrictive alternatives exist to achieve that interest. In other words, the government must affirmatively demonstrate that it has no other means of curbing or stopping the invasion of privacy that occurs when telemarketers call people’s homes. It can probably be shown that the government has a compelling interest in placing some limits on the ability of charities and POs to contact people by phone; however, given the esteemed place that political speech and, to a lesser extent, charitable speech have under First Amendment jurisprudence it cannot be said the government has a compelling interest in seeing that all non-commercial phone solicitation cease. Thus, the government has a less restrictive means of ensuring that telemarketers not engaged in commercial solicitation do not unduly interfere with the privacy of individuals in their homes.

As for the provision directed at commercial telemarketers, a different standard applies. Commercial speech, while protected under the First Amendment, is subject to greater government regulation. Legislation infringing on one’s right to commercial speech is subject to intermediate scrutiny, which requires only a significant government interest, and does not require the least restrictive means. Under this test, while the government still has the burden of proof, it can satisfy that burden by demonstrating that ample alternatives exist to bring out the goal of the legislation. Here, the government can show that commercial messages can reach potential consumers nowadays through a variety of channels including billboards, TV ads, magazine and newspaper ads, and the internet. The government can prove, especially since it held hearings on the matter, that the restriction on commercial speech is substantially related to the important interest of protecting the privacy of individuals.

Buddy can defend JA’s claim against him by asserting the defenses of absolute immunity and qualified immunity. The defense of absolute immunity, also known in this context as legislative immunity, applies whenever a government official is acting in his official capacity. The Supreme Court has held that remarks made by a Congressman on the floor of the Senate are a classic instance where the defense is applicable. The rationale for the doctrine of absolute immunity is that officials should not be hamstrung by the fear of civil liability when engaged in their official duties. While Buddy’s false statements are reprehensible, the court has decided that it is best left to the public to decide the repercussions of such conduct.

Buddy is lucky to have the above –mentioned defense because the doctrine of qualified immunity would not protect him. That defense only operates to shield government actors from liability so long as they do not knowingly violate a person’s “clearly established” rights. Given that the Due Process clause protects a person’s reputation from governmental degradation under the “liberty” component of the Due Process Clause, Buddy cannot be heard to argue that he did not knowingly violate JA’s rights.

The reporter will be unable to quash the subpoena. While certain states afford journalists a privilege of maintaining confidentiality of sources, the federal rules of evidence do not afford such a privilege in all instances. The Supreme Court has held that requiring a journalist to divulge a source of information relating to the commission of an alleged crime does not violate the First Amendment right against compelled speech. Given that the U.S. Attorney is investigating a potential bribery, reporter must either divulge his source, or else face potential criminal contempt charges.

A final issue is whether the District Court has subject matter jurisdiction (“SMJ”0 over the claims brought by JA. 

Clearly, the court has SMJ over JA’s challenge to the federal legislation under the “federal question” (“FQ”) statute. The challenge presents a FQ because the law at issue is an act of Congress. Whether the court has SMJ over JA’s claim against Buddy is a tougher question. While Buddy may raise a constitutional defense to JA’s action, the action itself is not a federal question. It is unclear whether diversity of citizenship exists given that there is no indication of whether any party is domiciled. As for supplemental jurisdiction, JA would need to argue that the Court has pendent jurisdiction (“PJ”) to hear the claim. PJ exists where a plaintiff, in a FQ action, brings another claim arising out of the same transaction or occurrence. Here, it is arguable that while the FQ claim and the state law claim are different, and indeed are brought against different parties, each claim is derived from Congress’ activity in debating on and passing the Act in question. Thus, PJ would probably lie here.


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Question #7



Company develops, manufactures, and sells computer software, Home I.Q., for “smart home” computers. The software manages the home’s nerve center and performs a variety of tasks including, but not limited to, controlling the temperature and humidity, the stereo, home entertainment, and security systems.

John, a Company subcontractor, installs Home I.Q. and attends trade and home shows (“Shows”) to solicit Company business. Pursuant to a written contract, Company pays John $3,000.00 for each Show appearance for “pursuing Company business opportunities.” The contract also provides (1) Company will pay John $2,000.00 for each lead developed at a Show that results in the sale of Company applications and (2) John will inform Company of all leads.

At a Show, John, who wore a shirt and hat with Company logos, spoke with Liz, an electrical contractor who works only on upscale homes. After that Show, John met Liz and Home Owner at Home Owner’s house, an upscale home where Liz was poised to begin work. John and Liz entered into a contract for the purchase and installation of Smart Home, a software application John had developed on the side and independently from Company. Liz paid John $12,000.00, and John installed Smart Home in Home Owner’s house. Installation of Home I.Q., on the other hand, would have cost Liz $24,000.00. Home Owner had already agreed to pay Liz $70,000.00 for electrical work, including the installation of home computer management software with the following terms: “50%, $35,000.00, paid up front and 50%, $35,000.00, upon completion.”

Unfortunately, Smart Home did not work. Even worse, according to irate Home Owner, Smart Home damaged Home Owner’s $220,000.00 computer system. Home Owner has refused to pay Liz the final $35,000.00 and has filed suit against Liz, John, and Company. Liz has filed suit against John and Company, and Company has filed suit against John. All of the cases have been consolidated. You are the attorney assisting the court-appointed mediator, who has requested a memorandum discussing all of the contractual legal issues among the parties, including damages.

Prepare the Memorandum



To: Mediator
From: John D. Rue
Re: Claims, Defenses, and Damages in Company/John/Liz/Home Owner Dispute 


You have asked me to enumerate and evaluate all claims, defenses and damage issues in the dispute between Company, John, Liz, and Home Owner. Since you have expressly asked me to address only the contractual claims and related issues, I will not discuss any possible actions which would sound in tort or other bodies of statutory or common law.

Home Owner

Home Owner (“HO”) entered into a bilateral contract with Liz. Under the terms of that contract, HO has the right to receive certain electrical work, including the installation of computer management software, and has the obligation to pay Liz $70,000, half up front and half on completion. Under the contract, Liz has the right to receive the payment discussed above, and the obligation to do the electrical work discussed above. The contract has no clause precluding delegation of duties, nor does it contain an express satisfaction clause.

This contract is covered by the common law of contract, rather than by Article 2 of the U.C.C. While an argument could be made that John’s “Smart Home” software is a “good,” and therefore covered by Article 2, a court looking at the overall transaction would almost certainly determine that the promises to give and receive services, rather than any putative goods, predominated the purpose of the agreement.

Generally, where a contract does not expressly prohibit delegation, and where the duties are not of a unique or personal nature, contractual duties may be delegated. Nonetheless, the original promissor remains liable for the satisfactory completion of the duties. Here, Liz properly delegated a portion of her duties to John, who performed them. It is not clear from the stated facts that John performed the portion of Liz’s duties delegated to him with anything less than complete proficiency. What is clear is that the software which he installed was deficient. The facts do not state whether the particular software program to be installed was named in the contract.

Where a contract is missing a term, and a court can fill in that term with a reasonable one, the court will generally do so. Therefore, here, a court (and the mediator) should presume that the parties to the contract intended that the software provided by Liz (or her delegate) would, at a minimum, observe the Hippocratic Oath and “first, do no harm.” This, the software did not do. Therefore, Liz is liable for any reasonably foreseeable damages. Since it is reasonably foreseeable that installing faulty software might do damage to the computer system, Liz is liable for the damages to HO’s computer system in the amount of $220,000. However, since nothing in the facts suggest that there was anything else faulty about the electrical installation, HO is liable to Liz for the full contract price of $70,000. (half of which has already been paid), provided that Liz installs an adequate replacement for the faulty software. This leaves Liz liable to HO, after a setoff, for $185,000.

HO is not in privity with John nor with Company, and so has no contractual cause of action against them.


Liz entered into a bilateral contract with John. Under the terms of that agreement, Liz has the right to receive certain software rights and the installation of that software, and the obligation to pay John $12,000. Under the contract, John has the right to receive $12,000 from Liz, and the obligation to grant her certain software rights and to install the software. The contract contains no satisfaction clause.

It is not clear whether this contract is governed by Article 2 of the U.C.C. or the common law of contract. An argument could be made that software is a “good,” contracts for sale of which are governed by the U.C.C. But the installation of that “good” is clearly a service, and agreements for the provision of services are governed by contract common law. A court examining the specific facts of this case would likely conclude that the predominant purpose of the contract was the sale and purchase of the software, since that alone of the subject matter of the contract was something possessed by John and not by Liz. In other words, it seems (but is not crystal clear) from the facts that Liz had the capability of installing software herself, and that the reason she entered into this contract with John was that she wanted the software that John had to offer, and that the installation of the software was merely incidental to its purchase.

If the contract was for the sale of goods, then, under the U.C.C., the agreement contained an implied warranty of fitness for a particular purpose. In short, John knew what Liz needed the software for, and implicitly warranted that the software was fit for that purpose. Clearly, it was not. Accordingly, John is in breach of his contract with Liz, and liable to Liz for the reasonably foreseeable damages incurred by his breach. As noted above, the damages to the computer system were probably reasonably foreseeable, so – assuming that Liz is found liable to HO as discussed above – John is liable to Liz for the $220,000 she owes to HO. The setoff, being a contractual right owned by Liz, does not apply to this calculation. There is no analogous setoff here, because Liz has already paid John for his services.

On the other hand, if a court were to determine that the contract were an agreement governing the performance of services, the common law contract rules would control. In that case, especially considering the lack of satisfaction clause in the contract between Liz and John, Liz may have a much more difficult case. John actually did carry out the services that he promised to carry out. The facts specifically state that the contract between Liz and John contemplated the installation of Smart Home (John’s product, not Company’s), and so Liz will have a difficult time arguing that she did not agree to bear the risk of the product’s failure. This will probably be a close call, and the content of the four corners of the document will likely control the outcome.

However, if a court were to determine that the contract should be governed by common law, Liz might pursue a strategy whereby she would demand rescission based on fraud in the execution – i.e., that John’s presenting himself as an agent of the Company implied a level of proficiency and reliability not actually present in the product he installed. In other words, Liz had the right to assume that Company was behind John’s endeavors, and only entered into the contract because of that justifiable reliance on John’s tacit misrepresentation. However, if she is granted this relief, then the contract is rescinded and she no longer has any contractual cause of action. [I will pause here long enough to note that, overall, this still might be a successful litigation strategy for Liz, if she has already lost the fight over which body of law is controlling. If the contract is rescinded, then she can sue on the tort (fraud), seeking indemnification for her liability to HO, and she may also be free under tort law to seek punitive damages (since his conduct was arguably willful and wanton), which are unavailable in contract actions.]

Liz is not in privity with Company, and so she has no contractual cause of action against it.


Company entered into a bilateral contract with John. Under the terms of that contract, Company has the right to benefit from John’s appearance at Shows, and the obligation to pay John $3,000 per show appearance, and $2,000 for each lead developed at a Show which leads to a sale. John has the right to the payment described above, and the obligation to attend Shows and inform Company of all leads. This contract for services is governed by the common law of contracts.

John breached his contractual obligation to inform the Company of the lead provided by Liz. Aside from any tort action for fraud, tortious interference with business relations, and so on (which are beyond the scope of this analysis), Company has a cause of action against John for its actual losses as a result of John’s breach. The facts state that Company’s software would have cost $24,000 installed, but do not state how much Company would have paid John to install it. Accordingly, assuming that John has been paid his $3,000 for appearing at the show where he met Liz in the ordinary course of business, John is probably liable to Company for $22,000 ($24,000 minus the $2,000 he would have received for the lead) minus the ordinary cost to Company of installation. In short, Company is entitled to expectation damages in this situation, which, because the cost of the “goods” (a license for its software) is nominal, will be the amount remaining from the usual purchase price less the usual expenses of sale, delivery, and installation.


Because this is a mediation, it is in the interest of the parties to compromise and therefore avoid the time, stress, and expense of litigation. Toward that end, perhaps you will be able to convince the parties to accept something along the lines of the following solution: John should pay Company the retail cost of installing Home I.Q. into HO’s house, in exchange for Company’s waiving all causes of action (in contract and tort) against John. Additionally, John and Liz should pay HO $105,000 to largely compensate for the damage to HO’s computer system, John paying $70,000 and Liz paying her share by waiving her remaining $35,000 in fees from HO. HO would then absorb a $70,000 loss in recognition of the difficulty it would have in proving that the failure of its computer system was the fault of a single software application. All parties would waive all causes of action arising out of this transaction.

Depending on just how rancorous the dispute has become at this point, this may not be a realistic compromise. But perhaps the parties will see reason if they can be convinced that the cost of proving any of these claims would likely dwarf any realistically likely recovery. 



Contract Claims Against Company

There are no contracts between Company and Liz, or Company and Owner. Thus, absent some imputation of the contract between John and Liz, Company has no contractual liability because its product was not even used.

Liz and Owner could argue that John was acting as Company’s agent, and thus the company should be liable under John’s contract. They may have been induced to believe this by the fact that John was wearing company apparel, and even though his product name was similar to Company’s. Even so, as a subcontractor, John was not an agent of Company, because the contractual relationship between John and Company did not establish the assent and control necessary for an agency relationship. Because Company’s product was not used, and because there was no contractual nexus between the parties, the Company has no liability to Liz or Owner.

Moreover, the facts are unclear as to whether Liz knew she was getting John’s product. The fact that she was paying half the usual price suggests she may have been well aware she was not receiving company products.

Company’s Claim Against John

The contract between Company and John states that John receives his payment for “pursuing Company business opportunities.” Moreover, the contract requires that John “inform company of all leads.” John did not perform either requirement in this case when he solicited sales of his own product. This cannot constitute substantial performance of his contract. Thus, John committed a material breach. To the extent John was paid for this show appearance, he must return the money.

Company could also argue that it lost money as a result of John’s breach. A breaching party can be liable for all foreseeable consequential damages that result from that breach. In this case, Company would argue that it is entitled to $24,000.00, the value of the lost sale to Liz. John, on the other hand, could argue that it was not foreseeable that Liz would have purchased the more expensive Company product.

Owner’s Claims

Again, there was no contract between Owner and John, so his main contractual claim would be against Liz. Owner would argue that by installing a malfunctioning software system, she breached her agreement to perform the electrical work.

Owner has a right to expectation damages as a result of the breach. Thus Liz would be liable for the costs of installing the electrical system according to specifications. Moreover, Liz would be liable for the foreseeable consequential damages of her breach. Liz was aware that Owner had expensive high-end equipment that could be damaged by poor software. As a result, Liz is liable to Owner for the value of the damage done to Owner’s computer.

If John is a merchant in software, which it appears that he is, Owner may have a claim against him for breach of the implied warranty of merchantability under Art. 2 of the UCC. As a result he would be liable for the same expectation and consequential damages as Liz.

Liz’s Claims Against John

John is a merchant in goods, software, under UCC Art. 2. Thus, his sale of goods comes with an implied warranty of merchantability; in that his software is fit for its ordinary use.

Since his software was not fit for use, John breached his warranty. As a result, he is liable for all expectation and foreseeable consequential damages. John would have to refund Liz’s payment price. Moreover, it should have been foreseeable that his malfunctioning product could damage the house. Thus, John is responsible for paying Liz to the extent of her own liability to Owner.

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