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Independence - Integrity - Fairness - Quality Service

Bar Examination Sample Q&A - July 2006


Questions and Sample Answers

July 2006

Civil Procedure
Constitutional Law

Question #1


Phil and his wife, Cynthia, prominent individuals in their community, are having marital problems and agree to see a therapist. They hope to work through their issues to save the marriage.  

They consult with Dr. Tony, a noted family specialist, who sees the couple once a week for two months. All parties agree progress is being made.

One evening, at a party, the normally discreet Dr. Tony consumes so much alcohol that he begins to babble to other guests about the ongoing therapy involving Phil and Cynthia. One of the guests is Barry, publisher of the Gazette, a local newspaper. Because the newspaper is so small, Barry doubles as the gossip columnist.

The next day, Barry writes a column that includes the following comment: “Sources tell me that Phil, our mayor, and his wife, Cynthia, a neurosurgeon, are heading for Splitsville, and their upcoming divorce will be nasty and will focus on Phil’s affinity for internet porn.”

Phil and Cynthia suffer great embarrassment. In addition, within a week, the city council votes to remove Phil from the mayor’s post, although he will continue to be paid the mayor’s salary for the balance of his term.

Phil becomes reclusive, rarely going out in public. By contrast, Cynthia becomes irate, and she demands that Barry print a retraction. When Barry refuses, Cynthia takes out a full-page advertisement in the town’s other newspaper, the Bugle, in which she notes that Barry was convicted 20 years earlier of rape. While  the statement is true, Cynthia was unaware that the conviction was vacated just last year based on newly discovered DNA evidence. 

Phil and Cynthia consult you, an attorney, and your investigation reveals the facts outlined here. They ask you to prepare a memorandum, outlining their potential causes of action, and any crossclaims or counterclaims they might reasonably anticipate.



Sample Answer 1


TO:  Attorney

FROM: Applicant

DATE: July 27, 2006

RE:  Phil and Cynthia's Potential Claims, Cross-Claims, and Counterclaim

I. Phil and Cynthia v. Dr. Tony

(a) Defamation

Phil and Cynthia have a potential defamation suit against Dr. Phil.  Defamation requires a defamatory statement that is published and people believe to be true.  A defamatory statement is one that damages an individual's reputation.  Further, publishing requires the defamatory statement be disseminated to one person other than the person whose reputation it attempts to damage.  When the defamatory statement is spoken it is called slander.  Unless slander fits into an exception making it slander per se, the plaintiff must also prove damages.

In this case, Dr. Tony told guests about Phil's and Cynthia's marital problems.  These statements do harm both Phil's and Cynthia's reputations, especially because they are prominently well respected individuals in the community.  Further, it was published to not just one other person but an entire party.  Moreover, Phil and Cynthia have damages because Phil lost his job (although he did not lose his pay, which could be a potential problem for such a suit). Phil also has become reclusive and rarely goes out in public, so there is a potential suit for defamation.

However, there is a problem because a defense to defamation is truthfulness.  Here, it is likely that Dr. Tony's statements are truthful and therefore he could properly defend against a defamation suit.  Moreover, for a public figure, which Phil was because he was the mayor, defamation requires malice (intentional or reckless dissemination), which may not be able to be proven in this situation.  It is likely the Court will find Dr. Tony negligent due to the fact that he was intoxicated when making his statements.

Accordingly, it is unlikely we would be successful in a defamation claim for Dr. Tony.

(b) Public Disclosure

A second possible lawsuit against Dr. Tony is the privacy tort of public disclosure.  This tort requires public dissemination of private information.  Here, the information disseminated was of a very private nature because Dr. Tony is a therapist and has a duty to keep his communications with his clients confidential.  Moreover, it was regarding Phil's and Cynthia's marital problems, which are private just because of the fact they are about their marriage.  Dr. Tony may try to apply the exception to public disclosure, which is private information of public importance.  An example of such would be Vice President Cheney's medical records because of his heart condition.  Here, because the marriage trouble of a public figure, such as a mayor, could be of public importance because it affects his ability to perform his public duties, this could be a possible defense.  However, because it was a privileged communication, see below, I do not think it will be a winning defense to Dr. Tony for this claim.

(c) Negligence

A third claim against Dr. Tony could be a action for negligently disseminating a privileged communication.  A client and therapist have a privileged relationship and all communications between them are privileged.  Further, Cynthia and Phil are the holders of the privilege so only they can waive it.  Because Dr. Tony owed a duty of care to Phil and Cynthia, and he breached that duty causing injury to our clients it is likely he can be sued for malpractice.  It should be noted that "but for" Dr. Tony's breach,  the injury would not have occurred, that is, the defamation.  Moreover, Dr. Tony should be liable to the full extent of his injuries because the publishing of his statements in the Gazette or other media source is foreseeable because Phil was a public figure.  Accordingly, it is likely that Phil and Cynthia can bring a successful negligence action against Dr. Tony.  Note that his intoxication is not a defense.

II. Phil and Cynthia Against Barry and Gazette

(a) Defamation

As discussed earlier, defamation is a published defamatory statement.  Here, because Barry published the statement in a writing it is considered libel.

In a defamation case for a libelous statement you do not have to prove injuries, so it will be easier to prove defamation against Barry.  However, again, defamation may be defended against if it turns out to be true.  Also, Barry has the defense of Phil being a public figure.  Under these circumstances, it would be easier to argue that his publishing was malicious.  Accordingly, if the statements are false, which based on the facts is unlikely, we would be able to bring a defamation claim against Barry.  It should be noted because this was in the gossip column, if people did not believe it to be true but rather opinion, we will not have a defamation claim against Barry or the Gazette.

It should be noted that we may be able to also bring the same claim against Gazette because they are Barry's employer.  Employers are vicariously liable for their employees' negligent conduct.  However, the intentional torts of employees are not covered.  Accordingly, the Gazette may have a defense.  However, if it is determined it was part of Barry's job to do such reporting even if intentional, we may have another argument for vicarious liability.  Accordingly, it depends on the circumstances.

III. Counterclaim Against Cynthia by Barry

Barry has a potential counterclaim against Cynthia because she published a defamatory statement against Barry in the Gazette.  Because it is libel, Barry would not have to prove damages.  Cynthia would try to assert the defense of truth because it once was true but this argument is likely to fail because the rape conviction was vacated.  Because Barry is a private individual and the statement is of public concern, the disseminator need only be negligent although it must be malicious for punitive damages. Accordingly, because he has a cause of action whether the statement was made negligently (because she thought it was true) or maliciously (she wanted to ruin his reputation), Barry can assert two claims against Cynthia.


In conclusion, we can likely assert a successful claim of negligence against Dr. Tony.  Defamation may be more difficult to prove against Dr. Tony, Barry and the Gazette because of the aforementioned reasons.  Moreover, Barry has a strong counterclaim against Cynthia and a public disclosure claim will also be difficult to prove against Dr. Tony.


Sample Answer 2

To:  Phil and Cynthia

From: Associate

Re:  Potential Causes of Action

Date: July 27, 2006

You have asked me to prepare a memorandum outlining your potential causes of action against Dr. Tony and Barry regarding the recent unfortunate events.  I hope to be of assistance on this matter.

Re: Dr. Tony

You may have a valid claim against Dr. Tony for the tortuous offense of defamation, particularly for defamatory slander.  You may also allege intentional infliction of emotional distress and a violation of physician-patient confidentiality.

First, as to the slander claim: slander consists of a spoken defamatory statement that identifies a particular person (plaintiff) and is damaging to their reputation.  It requires publication - that the statement be spoken to at least one person other than the plaintiff (it is a de minimis publication requirement) and that the statement caused the plaintiff actual harm.  If the statement concerns a public figure, the plaintiff must show actual malice (not ill will, but knowledge or reckless disregard for the statement's truth) and falsity to prevail.

Here, Dr. Tony spoke defamatory words to guests at a dinner party, specifically identifying Phil and Cynthia.  He satisfies the publication requirement (spoke to other guests) and the comments about their marital counseling could be injurious to their reputation in the community.

However, you must show actual malice as a public figure - as you are the mayor - as well as falsity.  Dr. Tony will likely counterclaim alleging that the statements were true (you were undergoing therapy) and that you are therefore unable to show knowledge or reckless disregard for their truth and can't show falsity.  Therefore, you may be unable to prevail on this slander claim against Dr. Tony.

Furthermore, with slander, you must prove damages.  This is not slander per se, so damages are not presumed.  (Slander per se would be comments about your occupation or unchastity or that you committed a crime of moral turpitude).  Damages must be economic harm, not emotional.  Dr. Tony will cross-claim that you only suffered emotional harm and can't prove economic harm because you'll continue to be paid for this mayoral term.  You may be able to counter that you only will be paid for this term and have been removed from office, but as mentioned earlier, even if that amounts to damages, Dr. Tony will likely succeed in showing no actual malice or falsity was proven and you may lose.  Dr. Tony may also allege he was drunk and so didn't intend to slander you.  But that won't be successful as slander if not an intentional tort and negligence (acting unlike a reasonable person) would suffice.

But your claim for intentional infliction of emotional distress (IIED) may be more successful.  This requires extreme or outrageous conduct on the defendant's part and severe emotional distress suffered by you.

If we can show Dr. Tony's statement was outrageous, we can win because you certainly suffered severe distress in that Phil has become reclusive and doesn't go out and Cynthia is irate.

However, Dr. Tony may cross-claim that his conduct was not outrageous and therefore does not amount to IIED.  You could counter that breaching the physician - patient confidentiality regarding marital therapy is outrageous and you may succeed on an IIED claim.

Re: Defamation by Barry

Barry could be accused of libel - the written form of defamation - he published an article making defamatory statements about you.  This satisfies the de minimis publication requirement and the injury to your reputation, and specifically identifies you ("Phil, the mayor" and "Cynthia, the neurosurgeon").  But you must show actual malice and falsity as you are a public figure.  If you can show that Barry (B) acted with knowledge or reckless disregard for the truth of the statements (actual malice) and that they were false, you can prevail.  This would be hard because the source of his knowledge was your doctor, so he may have reasonably relied on the information.  But his comments about your "heading for splitsville" and Phil's "affinity for internet porn" may be false (unclear from my investigation thus far), but you seem to want to work through your marital difficulties and so the "heading for splitsville" comment could satisfy the actual malice and falsity requirements on your libel claim against B.

Unlike slander, damages are presumed in libel cases.  So you do not need to show economic harm.  Therefore, you have a strong claim of libel against B.

Barry v. Cynthia

Barry may cross-claim against Cynthia for defamatory libel for her advertisement.  Because Barry is a private figure, he would only need to show Cynthia © acted with negligence as to the truth or falsity of the statement.  Because the conviction was true, but was vacated recently, he may be able to show the requisite negligence as to the truth of the statement.  He would argue C was negligent as to her unawareness of the newly discovered DNA and the vacation of the conviction.  He will easily be able to show the defamatory nature of the statement (conviction for rape is a crime of moral turpitude and certainly would damage his reputation) and publication element is satisfied because it is published in a newspaper of general circulation.

C, you can counter that B is not a private figure because he voluntarily injected himself into a public controversy re: the mayor's marital status.  If so, he'd be a public figure and he would need to show you were actually malice as to the falsity of the conviction.  Also, you can argue that even is he is a private figure, he wrote on a matter of public concern and so he'd need to show actual malice to get punitive damages from you (thereby limiting your potential liability).  These are strong arguments and you may be able to show you did not act with knowledge or reckless disregard as to the "falsity" of the conviction by not being aware of the vacation.  It was only vacated last year and you could even argue a reasonable person may not have known that, so you were not even negligent as to its falsity (rebutting B's claim even if he is found to be a private figure).

You may also have a claim for intentional infliction of emotional distress (IIED) if you can show (1) extreme or outrageous conduct by B and (2) that you suffered severe emotional distress as a result.

Due to Phil's reclusiveness and the outrageousness of B's comments re: Phil's use of and affinity for internet porn, you may satisfy those elements and succeed.  You both suffered great embarrassment and need not show physical harm.  So we can probably successfully argue that B is liable for IIED against you.

I hope you found this helpful.  There are a number of potentially strong claims of defamation and intentional infliction of emotional distress for the recent events.


Question #2

Rosa attends a private New Jersey college. One night while entering her off-campus apartment, she is surprised by Don, a fellow student. Don pushes himself into Rosa’s apartment and asks Rosa for a date. Rosa refuses and asks Don to leave. Don asks: “Why won’t you go out with me when you’ll date anyone else?” Rosa replies: “You’re a jerk. Now get out or I’ll call the police!” Don becomes enraged and follows Rosa into her kitchen as she picks up the telephone. 

Don rips the telephone off the wall, and the phone strikes Rosa. As a result, Rosa falls, banging her head against the kitchen counter. She is bleeding from her head. Don says: “You slut, look what you’ve made me do!” He then proceeds to pull off her pants to have intercourse. While Don leans over Rosa’s body, he feels her go limp and notices a large pool of blood. He then gets up and sets fire to the kitchen drapes. 

Firefighters and police arrive shortly thereafter and find Rosa dead. They conduct a search of the entire apartment without a warrant. The medical examiner concludes Rosa died from a non-survivable blunt head wound. DNA is obtained from the semen found in her body. 

Three years later, Don is arrested by campus security at the same college for a sexual assault upon another co-ed, Betty. That crime involved a fire that occurred in Betty’s home. A check of police records reveals that the DNA sample taken from the body of Rosa is matched to Don. During post-arrest processing, Don is read his Miranda rights for all offenses relating to Rosa. Don is then taken to the campus security office holding cell. A local policeman is called to take Don to the police station where Betty is giving her statement and is expected to view a line-up.

When the local police officer arrives on campus, he handcuffs Don, and takes him from the holding cell to a patrol car. As the police officer opens the car door, he says: “Come on pervert, let’s go.” Don responds: “Don’t call me a pervert. Rosa was a slut! She got what she deserved.” The officer then asks, “What about Betty? Did she get what she deserved too?” Don says: “I don’t know.” 

At the police station, Don exits the police car and enters the police building. Betty, unescorted, passes them in the hallway on her way to the bathroom. When she sees Don she screams: “There he is, there’s the guy who attacked me!” 

You are an assistant prosecutor. The prosecutor is preparing to assemble a grand jury. He wants to know what crimes, if any, Don may be charged with against Rosa and Betty and wants you to anticipate any problems you will face at Don’s trials. 


Sample Answer 1


To: Prosecutor
From: Applicant
Date: July 27, 2006
Re: Don’s Prosecution
Crimes against Rosa

Criminal Trespass

The first cause of action aginst Don will be a criminal trespass. He was located in Rosa’s apartment without her permission. He pushed himself into the apartment and was told to “get out” or Rosa would call the police. Such consitutes a trespass because Don was in a physical location without permission of the occupant. Don will be guilty of criminal trespass.


Battery is the offensive touching of another’s person. Here, Don battered Rosa by hitting her with the phone when he pulled it off the wall, attempting to prevent her from calling the police. Being struck by a phone hard enough to draw blood and kill one is certainly offensive and therefore Don will be guilty of battery.


Assault at common law takes two forms. One form is a failed battery. Such did not occur here because Don successfully battered Rosa. The other is when the victim is placed in apprehension of an immediate battery. Apprehension does not refer to fear, but rather to knowledge. If Rosa even for a second was aware that the phone Don yanked off the wall was going to strike here, then she was placed in apprehension of an immediate battery and Don will be guilty of assault.


Burglary is defined as the breaking and entering of a dwelling at night with the intent to commit a felony. Here, Don broke he “pushed” himself into Rosa’s apartment, thereby using even a modicum of force. He entered because he physically entered Rosa’s apartment. Rosa’s apartment was her dwelling, as there is where she lived while attending college. It occurred at night, as stated in the fact pattern.

Don’s only potential defense on the burglary charge is the intent. Burglary, like all property offenses is a specific intent crime. Therefore, the prosecution must prove that Don entered with the intent to commit a felony, any felony. The facts do not indicate what Don’s intent was when he forced himself into Rosa’s apartment. It may have been to ask for a date, however, because of the end result (rape, arson, murder), a colorable argument could be made that he entered the apartment with the intent to commit a felony (and a violent one at that). 

Therefore, Don’s actions likely satisfy all elements of burglary and he should be found guilty.


Rape is unpermitted sexual contact with another. By unpermitted, we mean non-consensual. Here, Rosa did not consent. Her pleas with Don to leave the apartment do not evidence consent and the fact that she was unconscious when the intercourse occurred precludes her from giving voluntary consent. The actus reus (required act) is completed upon any penetration, no matter how slight. It can be presumed from the fact pattern as well as the fact that Don’s semen was recovered that he at least penetrated Rosa. Therefore, Don will be found guilty of Rosa’s rape.

Felony Murder

Murder is the killing of another human being with malice aforethought. As to the actus reus here, Don took the life of Rosa, therefore satisfying that element. As to the mens rea (the mental element), for a conviction of murder one of four mental statements must exist: 1) intent to kill; 2) intent to do seriously bodily harm; 3) depraved heart (gross recklessness or disregard for the value of human life); or 4) felony murder. The strongest argument here is that of felony murder. For felony murder to apply, the prosecution need only prove that the killing occurred as a foreseeable consequence during the course of an enumerated underlying felony (burglary, arson, rape, robbery, kidnapping are the usually enumerated felonies). During the course means exactly what it says, that the murder did not occur after the commission of the felony. Here, Rosa died during the course of numerous enumerated felonies (burglary, arson, and rape will all be sufficient). Further, her death was foreseeable, as a blunt trauma to the head could certainly kill another person (thus making rape the likely best predicate offense here since the strike to the head lead to the rape). Don’s only defenses will be any defense to the underlying felonies (which appear weak to non-existent) or that the death was not foreseeable (also a weak defense)

Don will not be able to downgrade the murder to voluntary manslaughter. Voluntary manslaughter is the murder of another that is downgraded because the killing was the result of an adequate provocation. The most common provocation is that of a spouse finding his spouse in an adulterous relationship with a third party. Here, no such relationship existed with Rosa. Further, calling Don a “jerk” and yelling at him will not be sufficient as generally mere words are inadequate to rise to the level of adequate provocation.


Arson is the malicious burning of a dwelling of another. Burning requires a material wasting of the structure. If only the drapes burned, then an arson did not occur. But if the floor or walls of the apartment materially wasted, such will satisfy the elements. As to a dwelling, the apartment was where Rosa resided. Finally, it was Rosa’s dwelling. She was in possession (we are concered about possession, not ownership with common law arson) and therefore that element is also satisfied. Arson is finally a specific intent crime, therefore we must prove that Don intentionally set fire to the dwelling. Because of the preceeding crimes, his intent to destroy evidence will seem strong and the intent to commit arson will exist. Therefore, Don should be found guilty of arson.

Crimes against Betty

Rape/Sexual Assault

Rape is unpermitted sexual contact with another. By unpermitted, we mean non-consensual. The facts are unclear as to what happened with Betty, but likely a cause of actio nwill arise if she was in fact sexually assaulted.


Again, arson is the malicious burning of a dwelling of another. Burning requires a material wasting of the structure. More facts would be required to prove that Don committed arson at Betty’s home (specifically, the extent of the damage)

All crimes

The State (prosecution) bears the burden of proof as to all elements of all crimes beyond a reasonable doubt.


If Don successfully alleges that any of his statutory or constitutional rights were abridged, via the Exclusionary Rule, he will be permitted to exclude any evidence resulting from that violation as well as any evidence that was the product of such violations (known as the Fruit of the Posionous Tree doctrine), subject to some limitations (ie Independnet Source Doctrine; Attenuation; Inevitable Discovery).

Fifth Amendment

The Fifth Amendment to the US Constitution (which has been incorporated to apply against state and municipal conduct) protects criminal suspects from self-incrimination. Specifically, the USSC in Miranda held that all criminal suspects subect to custodial interrogation are entitled to received warnings informing them of their right to remain silent, that anything they say can and will be used against them in a court of law, of their right to an attorney, and if indigent, their right to an appointed counsel. These rights can be waived via a voluntary, intelligent and knowing waiver. The Fifth Amendment is not offense specific (compare to Sixth Amendment) and thus attaches to all crimes, not just those chared. The first pre-requisite is custody, which arises when a suspect is no longer free to leave. When Don was arrested, he was no longer free to leave and custody was satisfied. Interrogation refers to any actions by police that are reaosnably likely to elicit an incriminating response. That includes direct interrogation and any other conduct that may lead to a response. However, if a suspect “blurts” out information, such does not violate Miranda.

Here, a campus police officer called Don a pervert while putting him into a police car. First, the 5th Amendment applies only to government conduct. A cop’s actions are government conduct. The cop’s conduct was not reasonably likely to elicit a response. He didn’t specifically comment on the crime or hint at anything. He merely called him a name and told him to get in the car. Therefore, Don’s comment that “Rosa was a slut!” was more likely a blurt and therefore not subject to Miranda because there had been no interrogation.

Thus, Don’s comments will likely be admitted.

However Don’s comments about Betty (“I don’t know”) if attempted to be admitted into evidence would be inadmissible. The police officer asked a direct question of Don. While interrogation need not be a direct question, such an interrogatory certainly counts. Combined with the custody, Miranda applies. It could be argued that by answering Don waived his Miranda rights. However, because this evidence is not probative at all, I would advice this office not to even introduce it and avoid any potential challenges by Don’s defense counsel.

Due Process/Sixth Amendment

Suspects also have safeguards against unconstitutional lineups.

The first safeguard is that of the Sixth Amendment (which has been incorporated to apply against state and municipal conduct). This safeguard requires that any post-charge line-up or show-up be conducted before an attorney. Pre-charge lineups and photographic arrays conducted at any time are always permissible in the absence of counsel. Here, Don was processed and thus charged. Therefore, he was entitled to an attorney for any lineup or show-up. A show-up occurred when he was paraded past Betty. The police will argue that the show-up was not contrived as Betty by mere happenstance was going to the bathroom. However, the cops purposefully brought Don to the precinct where Betty was.

Don’s due process rights might also have been violated. Due process mandates that any lineup that is unnecessarily suggestive or so improper as to suggest which suspect is guilty would be invalid (examples would be having only one suspect in handcuffs in a lineup or knowing that the suspect was of one race, having all other lineup individuals of another race). Here, the fact that Don was handcuffed being paraded through the precinct with cops will likely violate his due process rights.

However, Betty’s identification will still be admitted despite the constitutional violation due to an exception. If the witness has an independent source for the identification, a constitutionally invalid identification is still permitted. Betty here was sexually assaulted. Likely, because of the nature of the offense and the time necessary for the offense to occur she has an independent source for her identification of Don and therefore will be permitted to identify him.

Fourth Amendment

The Fourth Amendment protects all from unreasonable searches and seizures by the government. A search is presumptively unreasonable if it occurs without a warrant. However, numerous exceptions exist. (note, the 4th Amendment has been incorporated and applies against all state and municipal conduct)

Here government conduct occurred when Rosa’s apartment was searched following the fire.

Despite the warrantless search, Don will not be able to assert any 4th Amendment rights because he lacks standing. An individual cannot assert the constitutional rights of another. One can only challenge an unreasonable search if they were the owner, occupier, or overnight guest of a premises searched. The mere fact that incriminating evidence was discovered is insufficient. Therefore, because Don was a not an owner, occupier, or overnight guest at Rosa’s he cannot challenge the warrantless search of Rosa’s apartment.

Even if Don could challenge the search, he will be unable to succeed because an exception applies. One well-known exception is that for emergency situations (also for evanescent evidence). This doctrine permits the government to search the premises if an emergency situation exists, regardless of any level of suspicion. Here, a fire was occurring and the police and firemen broke in. Such was an emergency. Once on premises, they are not limited by the emergency exception to search (note, even if the emergency exception had limits, Rosa was lying dead in plain view. Because they were legally entitled to be in her apartment, the cops could view anything that was in plain view).

Additionally, Don will lack standing to challenge the semen found in Rosa. Only Rosa could challenge such a search and she is now dead. Further, even if a warrant was needed, the evanescent evidence exception (evidence which will disipate with time) would likely have applied.

Sample Answer 2


To: Prosecutor
From: Asst. Prosecutor 
Subj: Potential Criminal Liability for Don

I. Don’s Crimes during his encounter with Rosa

With respect to Don’s contact with Rosa, Don has most likely committed battery, rape, arson, and murder, each crime will be examined in turn. 

The common law crime of battery is defined as an offensive touching of another without the other’s consent. In the present situation, Don committed an offensive touching of another when he ripped the telepone off of the wall and the phone strikes Rosa. Although Don personally may have not touched Rosa at this point, his actions of swinging the phone caused an offensive touching. Therfore Don has commited the crime of battery. Furthermore, when Don, who was already asked to exit the premises, touched Rosa by pulling off her pants, it can be said that she did not consent to the touching and a battery occurred at that point as well. 

The common law crime of rape is defined as any intercourse with a woman the defendant is not married to against her consent – note that most current statutory laws extend protection to married spouses and males as well. In this case, the facts stipulate that intercourse occured. Therefore, the issues is whether Rosa did not consent to the intercourse. It is rather clear that Rosa did not consent as she seems to be unconscious when the sexual acts occur. However, the common law is mired in a gray area with respect to silence as consent when dealing with rape. Some jurisidictions require actual consent in order for a defendant not to be held culpable for rape. Other jurisdictions do not have this requirement, and it is on the P to assert that she did not consent. Regardless of the view employed by NJ, it appears that Rosa did not consent when she asked Don to leave her house. Therefore, Don can be properly charged with rape. 

The common law crime of arson is defined as an malicious burning of a dwelling house of another, although most jurisdictions now include all buildings including the defendant’s own property in the definition of arson. In the present situation, the fact stipulate that Don set fire to the kitchen drapes. If only the drapes where burnt and there was no damage to the building structure itself this would not be arson. However, any damage, including mere charring to the structure of the building is sufficient to sustain a charge of arson. Furhter information on the damage to the apartment will be needed to properly charge Don with arson. 

Finally, Don may be liable for the crime of murder or attemepted murder. The common law definition of murder is the unlawful killing of another with malice aforethought. Malice aforethought is defined as having the requisite intent to kill, the intent to do serious bodily harm, killing as a result of a depraved heart or reckless indifference, and finally felony murder – murder committed during the commission of a felony. Don most likely killed Rosa with the strike to the head, however, the requisite level of intent must attach. Based on the facts Don probably did not intend to kill Rosa nor cause serious bodily harm. However, Don may be held liable for reckless indifference./ depraved heart murder as he caused the situation that left Rosa unconscious and rather then seeking/rendering help (which is his duty because he caused the peril) he decided to have intercourse with her limp body. If these actions do not rise to the level of reckless/depraved heart murder, Don may be liable for felony-murder. Since rape and arson are both felonies where te felony murder rule attaches, however felony murder probably shouldnt apply if the the commission/ intent to commit of the felony did not occur before the death of the victim.

If a court finds Don did not satisfy any intent for murder and did not commit felony murder, he should be liable for attempted murder, if a court finds that Don intentionally set fire to the room with the intention of killing Rosa. Note that attempt require specific intent to commit the act and the substantial step. These would be satisfied following the preceding rationale. 

Note there was no burglary, because even though this may be considered a constructive breaking and entering, it is unclear that Don had any intent to commit a felony inside. 

Don’s crimes with respect to Betty. 

Based on the facts given, apply the above analysis for arson, battery, and rape and apply it to Betty’s situation. Since the fact are sparse, if those elements as listed above are satisfied, Don will most likely be culpable for those crimes. However, the fact seem present to support such allegations. 

Potential Problems

The first potential problem is that the police conducted a search of Rosa’s house following the fire without a warrant. Although this search would probably be covered by the exingent circumstances exception to the warrant requirement, it is unnecessary to explore this issue. In order for a search to be found in violation of the 4th Amendment, the party asserting the claim must have standing . In this case, Don would not have standing in another person’s house where he neither lived nor was an overnight guest to assert a reasonable expectaion of privacy. Therfore there are not 4th amendment issues with the search of Rosa’s house and the evidence procurred. 

The second potential problem is whether or not Don’s statements to the Police are admissible or were they given in violation of his Miranda rights. In this situatio, campus security appears to have been deputized with some type of detention/arresting power and they properly Mirandized Don. Therefore there probably was not a need to re-Mirandize Don again prior to his statements. However statements given to police are only in violation of Mirada if they occur while the suspect is in custody and subject to interrogation and the suspect has either not been properly Mirandized or has not waived his rights under Miranda. Therefore whether or not the campus security’s Mirandizing counts is not an issue with respect to Don’s first statement. Don blurted out that Rosa “got what she deserved”. The statmenet by the police officer “come on you pervert” does not rise to the level of interrogation, i.e. likely to elicit an incriminating response.

The statment that Don makes after the Officer asks whether Betty got what she deserved will turn on whether or not the campus security’s Mirandizing is valid. 

Finally, there appears to be no violations with respect to Betty blurting out her accusation against Bob. Since Bob was on his way to a pre-charge lineup, and the 6th amendment right to counsel did not attach. Furthermore, Bob did not request his 5th amendment right to an attorney. The only other concerns would be due process concerns that the Police purposefully brought Don near Betty for pre-identification purposes. However, the facts do not allude to such actions. 


Question #3

A State of New Berry statute provides: 

Every instrument concerning an interest in land shall, until duly recorded in the County Clerk’s office, be void and of no effect against all subsequent bona fide purchasers, not having notice thereof, whose deed shall have been first duly recorded. A recorded instrument shall be notice to all subsequent purchasers of the instrument and its contents. 

Several years ago, Alice’s application to subdivide her 10-acre parcel of land located in New City, State of New Berry, was approved by New City’s planning board. The resolution permitting the subdivision provided the two resulting 5-acre lots (“Lot 1” and “Lot 2”) “shall not be further subdivided, to help preserve open space in New City.” 

Alice sold Lot 1 to Bill and delivered a deed that did not note the restriction on further subdivision. Alice sold Lot 2 to Cara and delivered a deed that did note the restriction on further subdivision. Bill and Cara recorded their respective deeds in the County Clerk’s office. 

On June 1st Bill contracted to sell Lot 1 to Mike, the mayor of New City. An article about the mayor’s expected purchase of Lot 1 appeared in The New City Gazette on June 2nd. On July 1st Mike paid the contract price to Bill and received a deed for Lot 1, which he recorded on July 6th. 

On June 15th Bill contracted to sell Lot 1 to Nancy. Nancy’s title searcher reviewed the County Clerk’s records pertaining to Lot 1. On July 2nd Nancy paid the contract price to Bill and received a deed for Lot 1, which she recorded on July 3rd. 

Thereafter, Nancy, a builder, filed an application with New City’s planning board seeking permission to subdivide Lot 1 into several buildable lots. Cara, who still owned Lot 2, filed an objection to Nancy’s application based on the planning board’s prior restriction. The planning board denied Nancy’s application based on the prior restriction and cited the continuing need to preserve open space. 

Nancy files suit against New City’s planning board and Bill. Nancy seeks approval of the proposed subdivision and states she would not have purchased Lot 1 if she had known about the prior restriction. Cara intervenes claiming the restriction should be enforced against Lot 1. Mike files a separate action against Nancy and Bill to quiet title to Lot 1. 

The two actions have been consolidated. You are the law clerk for the judge handling these consolidated actions. You are asked to prepare a memorandum analyzing (1) the issues involved in the planning board’s denial, (2) the quiet title action, and (3) what other parties and claims relating to property issues might be added to the consolidated actions. 


Sample Answer 1


To: Judge

From: Law clerk

Re: Planning Board's denial, quiet title action, and other parties and claims relating to the property issues.

You have asked me to prepare a memorandum regarding the issues involved in the planning board's denial and the quiet title action as well as other related property issues.

With regard to the planning board's denial, two issues arise. First, the issue of negative covenants and equitable servitudes. Second, the issue of the planning board's police power to regulate property for the general public's health, safety and welfare.

Negative covenants are agreements regarding land that require a person to do or refrain from doing something regarding her land. Here, Alice's application to subdivide contained a negative covenant, because it prevented her from subdividing beyond lot 1 and 2. Thus it related to her land, or touched and concerned it. It was duly recorded in the resolution by the planning board. To run with the land, there must be notice (actual, inquiry, or record) for the person on whom there is a burden. Here, there is no notice to anyone because Alice sold the lot to Bill without a note of the restriction.

Therefore, the issue of negative equitable servitudes is better suited to this case. Negative equitable servitudes are similar to negative covenants in that they also relate to the land and make promises to do or not do something with the land. In cases of subdivisions, the majority rule is that negative equitable servitudes apply to all parcels in a subdivision as long as a person who purchases one of those parcels has notice of the equitable servitude and the subdivider intended for the restriction to apply to all portions of his subdivision. Therefore, when a person buys property with a deed that does not refer to a negative servitude or restriction, they can still be required to abide by the restriction as long as they had that notice.

Here, Nancy wants to subdivide Lot 1, but Lot 1 cannot be subdivided according to the planning board's denial of her application. The denial was based on the prior restriction placed on Alice's application to subdivide. Nancy will argue that she bought this property from Bill, and Bill never told her about the restriction. She claims that she would never have bought the property had she known about the restriction. Indeed, she conducted a record search pertaining to Lot 1 and still claims that she never had notice of the restriction. This is because she bought the lot from Bill and Bill bought the property from Alice who never noted the restriction on further subdivision in his deed.

However, the planning board's denial is legitimate on these grounds because Alice divided the lots (Lot 1 and 2) with the obvious intention to apply the restriction to both lots. Indeed, this is evident because her original application to subdivide was only permitted by the planning board if she agreed to never further subdivide to help preserve open space in New City. Thus Alice was certainly aware of the restriction on the property and intended for it to apply to both Lots 1 and 2. Alice may have erred when she sold the lot to Bill and did not note the restriction on further subdivision with regard to Lot 1. However, she did note the restriction on Lot 2, which she sold to Cara. Indeed, Cara's deed noted the restriction.

Therefore, at the time of the original subdivision, Alice intended for the negative restriction to apply to both Lots 1 and 2. Nancy had no actual notice of this or even record notice, but she could have developed knowledge of the restriction through inquiry notice. Indeed, Cara's subdivision contained the restriction. Cara is not objecting to Nancy's application based on that prior restriction. If Nancy had walked around the two lots or had spoken to Cara before purchasing the property - or even Bill, who may have known about it - then she would have been on inquiry notice to do further research and ask the planning board about the restriction before she purchased the property. Because Nancy did not take such action prior to purchasing the property, she took the property at her own risk.

Indeed, as established, the common scheme doctrine of negative equitable servitudes can be applied to the instant case. Under this doctrine, Nancy was on inquiry notice of the negative servitude when she purchased the property and had an obligation to further look into it. Therefore, under that doctrine, the restriction can lawfully be applied against her.

In addition, the issue of the planning board's right to zone for the general welfare, under its general police power, can be applied to this issue. Localities have the general police power to zone as they see fit, in accordance with protecting the general welfare, and the health, safety, and enjoyment of the public.

Here, the planning board denied Nancy's application based on the prior restriction because of the continuing need to preserve open space. The planning board had this original intent when it initially restricted Alice's application to subdivide. This restriction is legitimate because it is for the general welfare - in other words, it is to help preserve open space in New City. Therefore, under New City's police power, the planning board is certainly entitled to deny Nancy's application based on its protection of the general welfare.

With regard to the action to quiet title, Mike has filed a separate action against Nancy and Bill under the theory that he is the rightful owner of Lot 1. He will lose on this argument because Nancy was a bona fide purchaser for value of Lot 1.

Under the recording statute of New Berry, a bona fide purchaser for value will "win" a piece of property, in a land dispute, if that person was the first to record the deed for that property. To be a bona fide purchaser for value, a person must purchaser property for value, or money, and he must not have notice of any body else's claim to the property.

Here, Bill contracted to sell Lot 1 to Mike on June 1st. He also contracted to sell the same parcel to Nancy on June 15th, 2 weeks later. However, when he contracted to sell the property to Mike, the title did not pass to Bill. He did not give the deed to Mike until July 1st. Mike recorded the deed on July 6th. Under the recording statute, nobody was on notice of his deed through "record notice" until he recorded it on July 6th.
Here, Nancy purchased the property and received the deed on July 2nd. She recorded it the next day, on July 3rd. Thus she recorded before Mike and has priority over Mike as long as it is established that she was a bona fide purchaser for value when she purchased that property.

Here, the statute implies that a recorded instrument will provide notice to purchasers, to establish whether or not that person is a bona fide purchaser for value. Here, Nancy bought the property before Mike recorded the deed. In that way, she had no record notice of his deed. In fact, she even had a title searcher review the records in the county pertaining to Lot 1 and, from the facts, she did not have any notice of Mike's deed after that search. That search also did not put her on inquiry notice that Mike might have a deed to the property already. Inquiry notice puts a person on notice, as a form of constructive notice, that they should make a reasonable investigation as to whether or not anybody already holds a deed to the property they are purchasing. Thus her title search did not put her on inquiry notice.

The only notice that Nancy can be charged with is constructive notice, in the form of inquiry or actual notice, from the article in the Gazette regarding Mike's purchase of Lot 1. However, two important things about that article should be noted. First, the article only said that Mike was expecting the purchase Lot 1 - not that he had in fact purchased it. Moreover, there is no evidence that Nancy actually read that article, or that anybody told her about it. Even if it could be argued that the article put her on constructive notice, it seems as if she would not have been expected to conduct a reasonable investigation as to Mike's interest in the property when the article was published on June 2nd and there was never a follow-up article between then and when Nancy bought the property on July 2nd - one month later. Thus even if she saw that article, it is safe to assume that she was not on constructive notice of Mike's ownership.

Therefore, Mike will likely fail on his action to quiet title with regard to Nancy because she was a bona fide purchaser for value, as she paid for the property and had no notice that he had already purchased it. Mike will have a claim against Bill, but not to quiet title. He can only claim fraud or misrepresentation against Bill, but Nancy is a bona fide purchase for value and Bill cannot quiet title by taking the property away from her at this point.

Finally, Nancy can make a claim of a taking against the city board. A taking occurs when, under the 5th amendment, and applied to localities through the 14th Amendment, the government takes private property away for the public without just compensation. Takings can occur because of a regulation that devalues a person's property so that it has no reasonable economic use for that person. They can also occur through physical condemnation of the property or a physical intrusion of it. A person can also make a legitimate taking argument even if a restriction applied to them before they acquire the property.

Here, Nancy bought property that had a restriction on it before she purchased it from Bill. However, she can still make a takings challenge against the board because their denial of her application devalues her property for all economically viable purposes that Nancy might have. Indeed, Nancy is a builder and she bought the property to subdivide it into several lots. She stated that had she known about the prior restriction, she never would have purchased it. Therefore, she bought the property for the sole purpose of subdividing it and the restriction, via a zoning regulation, takes away all economically viable uses of her property.

The zoning board is legitimately taking away her private property for public use - indeed, it stated that it is applying the restriction to preserve open space. However, this does not mean that she is not entitled to just compensation. Just compensation is compensation for one's property in the form of the fair market value of that property. Therefore she has a viable claim for a taking and the board must give her just compensation for that taking.


Sample Answer 2



To: Judge
From: Clerk
Re: Issues Related to Lot 1 and Lot 2 in New City
The following issues have been raised with respect to Lot 1 and Lot 2 in New City:

1. The city planning board's denial of Nancy's license to subdivide Lot 1.

Nancy's petition to subdivide Lot 1 involves issues of whether the restriction on subdivision when Alice first petitioned to subdivide the property runs with the land. Normally, in order for a covenant on real property to run, there must be horizontal privity between the original covenanting parties, there must be vertical privity with subsequent purchasers, the covenant must touch and concern the land, it must be in writing, there must be intent for it to run, and there must be notice to subsequent purchasers. Horizontal privity existed between Alice and Bill because she sold him the land. Vertical privity existed between Bill and Nancy because she purchased the land for value via valid deed. However, there is no indication that either Bill or Nancy was ever on notice that the restriction on subdivision existed, that Alice intended it to run, or that it was in writing. Therefore, Nancy's petition to subdivide should not have been denied by the board on the grounds that its previous decision formed a covenant restricting subdivision on the property. For the same lack of notice, intent, and writing, there was no equitable servitude that could have bound Nancy's subdivision.

A second issue is whether Cara has standing to object to Nancy's proposed subdivision. Cara would only have standing if Cara's property rights were protected by some restriction on subdivision of Nancy's land. As noted, there were no equitable servitudes or covenants on the property. The only theory that Cara can argue is an implied equitable servitude. This arises when an individual who purchases property should have been on notice of a missing restriction in his deed because all other deeds from a common grantor contain the restriction. Because Alice only divided her property into two lots, there was not a common scheme of restrictions on grants she made. Nancy was not put on inquiry notice about her own property because of the restriction on Cara's land.

Finally, there is the issue of whether the city council's action violated the takings clause of the U.S. Constitution. Note that the purchaser of real property may challenge a state restriction as a violation of the takings clause even though the restriction was in place before she purchased the property. The takings clause comes into play when a landowner's use of his property is ruined as the result of either actual taking or regulations that make the property useless to him. Nancy, as a developer, needs to subdivide the property in order to put it to the use for which she purchased it. The restriction amounts to a regulatory taking. When a regulatory taking occurs, the government must demonstrate that the restriction was for an arguable public use. Here, the preservation of open space is arguably a use that benefits the public, so the council's restriction is valid. However, Nancy should be compensated for the property.

2. In the quiet title action, Nancy should prevail. According to the state recording statute, a bona fide purchaser for value without notice prevails over previous purchasers who fail to record. Both Mike and Nancy were bona fide purchasers because they bought the property for value and without knowledge of each other's claims to it. Mike did not record his purchase until after Nancy both made and recorded her purchase, even though Mike purchased the land earlier. Nancy should therefore win if she did not have notice of Mike's earlier purchase. The issue is whether publication of Mike's purchase in the newspaper was sufficient to put Nancy on notice before she closed on the property and recorded her deed. There are three types of notice: actual, inquiry, and record notice. Nancy did not have record notice because Mike did not actually record. Nothing suggests Nancy had actual notice, or that Mike's presence on the land put her on inquiry notice. While publication in the newspaper may suffice when dealing with creditors or in estate actions, a private purchaser of land should not be presumed to be on notice just because something appears in the newspaper.

3. An additional party to the action should be Alice, the original grantor whose failure to covenant in the deed to Bill about the restriction on the property has led to the litigation. At best Alice was negligent, at worst fraudulent, and she should be joined. Depending on what type of deed he conveyed the property by, Bill should be sued for breaches of warranty of marketable title and breach of the implied covenant of good faith and fair dealing for his double-dealing the property to both Mike and Nancy.

Question #4
Constitutional Law

The Constitutional Law Clinic ("Clinic") has received several new requests for representation. 

1. Using its powers of eminent domain, State has condemned a seedy section of waterfront property ("Properties"), offered the Properties’ owners compensation above market value, and entered into a deal to sell the Properties to the NBA’s New Jersey Angels, for the team to construct a multi-million dollar basketball arena and entertainment complex. The Properties’ owners object, at any price, to the condemnation because they enjoy the neighborhood’s "tradition of unfettered debauchery." 

2. Sonia and Maria, both of whom are of Hispanic origin, were recently married. After closing on the purchase of a home, they discover a restrictive covenant in the deed prohibiting the sale of real estate to lesbians or Hispanics. County Clerk refuses to record the deed because of the restrictive covenant. Owner then resells the home to a white, heterosexual couple. 

3. In a cost-cutting measure, State abolished jury trials in civil proceedings. Liz has sued her daughter, Sonia, for visitation rights with Darryl, her grandson. Sonia stopped Liz’s visits with Darryl because of Liz’s criticism of Sonia’s marriage to Maria. Liz is concerned that her inability to present her case to a jury will be an impediment to the success of her non-constitutional claims. She also is uncertain about the viability of her constitutional visitation claim, because State has a statute denying grandparents visitation rights. 

4. Peter’s execution by lethal injection is approaching quickly. Peter accepts his fate but has learned that lethal injection is a lengthy and painful experience. If Peter had a choice, he would prefer a firing squad or the gas chamber. 

The Clinic’s director asks you to prepare a memorandum assessing the merits and likelihood of success of the constitutional claims raised by the prospective clients’ issues. 


Constitutional Law
Sample Answer 1


To: Clinic Director
From: Associate
Date: July 27, 2006
Re: Requests for Representation

1.Takings Clause Challenge

This claim is not likely to be successful because the government’s taking is likely proper under the Takings Clause of the Fifth Amendment, incorporated against the states through the due process clause of the Fourteenth Amendment. 

Under the Takings Clause of the U.S. Consitution, the government may take property by eminent domain as long as the taking is for public use and the government provides the owner of property with just compensation. The U.S. Supreme Court has recently defined the term “public use” in Kelo v. City of New London to have a very broad meaning. A public use is any purpose that is rationally related to promoting the welfare of the public. The Court specifically found that the taking of property for economic redevelopment and revitalization is a proper public use. 

Here, the state has condemned a "seedy section" of the property, which most likely means that this section is in need of revitalization. The government plans to use the property to construct a basketball arena and entertainment complex. The owners may object that this seems to be a private use because the government is giving the property to a private corporation. However, the government has a strong counter argument that this new use will revitalize the waterfront property and will bring much needed business back to the city, leading to an increase in jobs and tax revenue for the city. In addition, the public will benefit from having a new sports and entertainment complex because they will be able to attend basketball games and other events in the city. Under Kelo, this public use is likely to be upheld even though it is a taking in which property is being given to a private corporation for a private facility because it will bring about economic benefit and is rationally related to promoting the public’s welfare. 

2. Racially Restrictive Covenants are Invalid

Sonia and Maria are likely to be successful in a constitutional claim challenging the racially restrictive covenant. The key issue is whether the Constitution can be invoked at all, given the requirement of state action. As a general matter, the Constitution protects people from acts of discrimination by the federal and state governments, but it does not provide protection from discriminatory acts by private citizens. Thus, where a private actor has discriminated, there is no viable constitutional claim because there is no state actor (unless it is a claim under the 13th Amendment against involuntary servitude, which does apply directly to private conduct). However, the United States Supreme Court has held that judicial enforcement of a racially restrictive covenant amounts to state action and is unconstitutional in violation of the Equal Protection Clause of the Fourteenth Amendment. 

Here, the county clerk refused to record the deed because of the restrictive covenant prohibiting the sale of real estate to lesbians or Hispanics. This is similar to state action by way of enforcement of a racially restrictive covenant and it will be held to be state action. 

Sexual orientation is not a suspect classification under the Constitution, and thus, it would be subject only to rational basis review. As a result, there is not likely to be a constitutional violation for the county clerk’s refusal to record the deed on the basis that Maria and Sonia are lesbians. However, discrimination on the basis of Hispanic origin is discrimination on the basis of race. Race is a suspect class that is entitled to strict scrutiny, meaning that a government actor must not discriminate on the basis of race unless the government proves that it is necessary to achieve a compelling government interest. Thus, the county clerk’s refusal to record the deed based on the restriction in the deed prohibiting the sale of real estate to Hispanics violates the constitution.

3. Liz’s Constitutional Claims

Right to a Jury Trial

For actions at law in New Jersey, there is a constitutional right to a jury trial. Therefore, if Liz has properly brought this claim in a civil proceeding in the Law Division of the New Jersey Superior Courts, then she is entitled to a jury of six. The verdict in New Jersey does not have to be unanimous; it can be a 5-1 jury verdict. However, there is no constitutional right to trial for actions in equity. In this case, the primary claim that Liz is asserting is for visitation of her grandson. This might be characterized as belonging in Family Court, which is part of the Chancery Division of the Superior Court of New Jersey. If it is deemed a claim in equity, Liz would not be entitled to a jury trial. Also, under the equitable clean up doctrine in New Jersey, a court of equity that is dealing primarily with claims for equitable relief may decide ancillary or incidental issues of law without violating the party’s constitutional right to a jury trial.

Therefore, if Liz does properly bring a civil action for visitation of her grandson, then she will be constitutionally entitled to a jury trial and she will be entitled to a jury of six. However, if it is an action in equity, then she will not be entitled to a jury trial in New Jersey.

Standing to Seek Visitation

Under the cases or controversies requirement of the Constitution, a party must have standing to be able to bring a claim in court. Usually, standing requires the party to show injury in fact, causation and redressability (sic). The Supreme Court has specifically addressed constitutional issues, including standing, with respect to grandparent and third party visitation rights. In order to have standing to bring a claim for third party visitation of children, there must be a specific statute that grants standing or the person must have stood in loco parentis for the last 12 months, meaning that the party seeking visitation must have acted as a parent to the child with the biological parent’s permission for the previous 12 months. Here, the state does not have a statute granting standing to grandparents. In fact, the state has a statute denying grandparents visitation rights. Unless Liz has stood in loco parentis to Daryl with Sonia’s permission for the last 12 months, she most likely does not have standing to bring a claim for visitation. 

Standing with respect to visitation of grandchildren is a special constitutional concern because a parent has a fundamental right to raise her children and there is a presumption that a parent’s decision to prevent her child from visiting with third parties will be in the child’s best interest (sic). Under Troxel, the parent’s due process are denied if a state forces the parent to allow visitation between the child and a third party against the parent’s wishes unless the third party can show that the parent is unfit. Here, Liz is not likely to be able to show that Sonia is an unfit parent. Liz could try to argue that the fact that Sonia is depriving her son of his grandmother to punish Liz for criticizing Sonia’s marriage to Maria shows that Liz is unfit. However, the Supreme Court has indicated that much more is needed than merely showing that the visitation would be beneficial to the child or would be in the child’s best interests. The party seeking visitation bears a heavy burden of showing that the mother is unfit, and it is unlikely that Liz can meet this burden here. Therefore, Liz is unlikely to be able to overcom (sic) Sonia’s due process right to raise her son, Darryl, as she sees fit without interference from the state.

4. Cruel and Unusual Punishment

Peter will likely assert a claim for cruel and unusual punishment under the Eighth Amendment but it will likely not be successful. The Court has declared that the death penalty itself is not cruel and unusual punishment as long as the requirements of Due Process have been satisfied. In a death penalty case, a defendant must be allowed to present mitigating evidence, the statute must not restrict the amount or kind of mitigating evidence the defendant may present, the statute may not impose the death penalty for a certain class or type of offenses (i.e. such as if you kill a police officer you get the death penalty), and a jury must decided (sic) the aggravating factors necessary for imposition of the death penalty. If all of those requirements are met, the statute authorizing the death penalty is legal and does not violate the constitution’s prohibition on cruel and unusual punishment or the due process clause.

However, Peter may still assert a claim that lethal injection is a method of cruel and unusual punishment in violation of the Eighth Amendment. The likelihood of success of his claims is slim because the court will not consider subjected preference for one type of death penalty over another. The fact that Peter would prefer a firing squad or the gas chamber will not make the use of lethal injection cruel and unusual punishment. The defendant’s subjective feeling as to the type of procedure used to enforce the death penalty will not be a strong basis for an Eighth Amendment claim.

Constitutional Law
Sample Answer 2

1. Eminent Domain

The State’s condemnation of the Properties implicates the Takings Clause of the Fifth Amendment of the United States Constitution. Pursuant to that claim, the state may take property for "public use" provided just compensation is provided. The two limitations on the State’s eminent domain powers are that it be for "public use" and the Just Compensation Clause’s requirement of just compensation. 

Under current U.S. Constitutional law doctrine articulated in Kelo v. New London, the Supreme Court has given an extremely expansive interpretation of public use. Public use essentially means public purpose and embraces the concept of taking private property and selling it to a private entity, provided the government reasonably believes there will be a public purpose. 

In this case, the public purpose includes the economic growth the presence of an NBA team will have on the surrounding economy. For instance, the NBA arena and complex will likely employ local residents, increase travel into the area and provide a general boon to a seedy section of the State. 

The Supreme Court’s doctrine attaches great deference to state and local governments that make public use determinations. Thus, the only really plausible limitation on the this issue would be State’s own state constitution or law as interpreted by its State Supreme Court. For example, some jurisdictions in the wake of Kelo have prohibited this kind of public use taking. Many others, however, follow the federal doctrine. 

Finally, the just compensation clause requires that compensation be measured from the condemnees perspective, not the condemnor. Thus, the fair market value price, plus incedential costs of moving, etc., constitutes just compensation. 

2. Restrictive covenant

a. Hispanic identity

The restrictive covenant prohibiting sale of a home to Hispanics violates federal statutes passed pursuant to the 13th Amendment. The prerequisite of state action is met because the County Clerk’s refusal record the deed constitutes sufficient state action which brings the couple’s claim within the protections of the constitution. (Shelley vs. Kramer).

Under 13A enabling clause, Congress passed statutes which prohibits refusing sale of a house to individuals based on race or national origin. Since that is exactly what this restrictive does it is unconstitutional. 

Additionally, Sonia and Maria have an equal protection claim that will be reviewed under strict scrutiny. When there is state action that discriminates on the basis of race or national origin, the government must show that the action is necessary to achieve a compelling government interest. Clearly cannot (sic) be done here. 

2b. Lesbian aspect of covenant

Unfortunately for Sonia and Maria, sexual orientation is not afforded the same protection as race or national origin. Under Equal Protection analysis, sexual orientation is not a "suspect class" but rather a class that receives only minimum basis rational review standard. The burden is on the challengers (Maria and Sonia) to prove that there is no conceivable legitimate or reasonable purpose and that the law/covenant is not rationally related. Rational basis review provides extreme deference to the state action and this case, Sonia and Maria will not be able to meet their constitutional burden because the court will find some/any legitimate reason on this aspect of the covenant to stand. 

3a. Jury trial

The Bill of Rights provides the right to a jury trial in civil actions in federal court. Under the doctrine of selective incorporation, most of these amendments have been incorporated against the states via the due process clause of the Fourteenth Amendment. The right to jury in civil proceedings is not one of the incorporated provisions. As a result, the state is free to abolish the civil jury trial without violating the Federal Constitution. 

3b. Grandparents visitation rights.

The issue is whether Liz has a fundamental right to visit her grandson. According to U.S. Supreme Court doctrine, she does not have such a right. Where family relations are impacted, they are protected under the substantive due process clause. The parent’s interests in raising their own child outweighs any interests the grandparents may have to visitation rights. In some jurisdictions, however, the state has provided them, the United States Supreme Court has not, and allowed visitation rights to grandparents absent a showing of a very good reason not to.

4. The United States Supreme Court has held that the death penalty does not constitute "cruel and unusual punishment" which is proscribed under the Bill of Right. Similarly, lethal injection has never been held to constitute a cruel and unusual means of implementing the death penalty. 

While prisoners have asserted constitutional protections in general (no reasonable expectation of privacy in a cell) they may still raise constitutional claims. Most likely, however, Peter would have to compile more evidence that lethal injection is cruel and unusual to support any type of appeal. While a death row convict has a right to (pursue) an appeal, Peter will not likely receive the remedy of choosing the method of his death. Analogously, Washington v. Grunster (sic) held there is no right to receive physician assisted suicide. It is unlikely the USSC would afford a greater choice in a somewhat similar matter to a death row convict.


Question #5 

Paula, a New Jersey resident, is involved in a motor vehicle accident with three other vehicles while driving through Virginia. 

Lawsuit #1 

Paula files suit in New Jersey state court against Defendant Driver 1 and Defendant Driver 2. The driver of the third vehicle had left the scene of the accident without being identified. The case is listed for trial after eight months. Immediately prior to trial, Defendant Driver 1 files a motion to dismiss the case against him based on lack of personal jurisdiction. But for the accident with Paula, in Virginia, he has had no contact with the state of New Jersey. The court denies the motion. 
The case proceeds to trial. The jury delivers a substantial verdict in Paula’s favor against Defendant Driver 1 but finds Defendant Driver 2 had no liability. Defendant Driver 1 files a motion for judgment notwithstanding the verdict ("JNOV") or, in the alternative, for a new trial. The trial court denies both motions, and Defendant Driver 1 files an appeal. 

Lawsuit #2 

In the meantime, Paula learns the identity of the unknown driver ("Defendant Driver 3") and files a new lawsuit against him. Defendant Driver 3 names Defendant Drivers 1 and 2 as Third Party Defendants, not just for indemnification and contribution as to Paula’s claims, but also alleging that they caused damage to Defendant Driver 3. Shortly thereafter Defendant Driver 3 files a motion to dismiss Paula’s complaint based on New Jersey’s Entire Controversy Doctrine, which Defendant Drivers 1 and 2 join. The trial court grants the motion to dismiss. Paula files an appeal.

Defendant Drivers 1 and 2 respond to the appeal, arguing that even if Paula is permitted to go forward with the lawsuit against Defendant Driver 3, they are entitled to dismissal on Entire Controversy grounds. 

The two appeals are assigned to the same appellate panel. You are the law clerk assigned to prepare a memorandum addressing and analyzing the following issues: 

(1) Was Defendant Driver 1 entitled to dismissal for lack of Personal Jurisdiction? 
(2) Describe the standards the trial court should have applied in reviewing the JNOV motion and the standard for reviewing the motion for a new trial, and explain the differences. 
(3) Was the trial court correct in dismissing the case against Defendant Driver 3? Explain. 
(4) Regardless of your conclusion on Issue No. 3, if the case against Defendant Driver 3 is allowed to proceed, are Defendant Drivers 1 and 2 entitled to dismissal, or is Defendant Driver 3 permitted to keep them in the case as parties? 


Sample Answer 1


To: Judges on the Appellate Panel
From: Law Clerk
Re: Issues on appeal

Issue # 1

The issue presented is whether Defendant driver 1 (defendant) timely moved for dismissal for lack of personal jurisdiction. Pursuant to the New Jersey court rules, the Superior Court of New Jersey may exercise personal jurisdiction to the fullest extent allowed by the Due Process Clause of the Constitution. Hence, there are five means by which a New Jersey court can personal jurisdiction over the defendant: (1) waiver or general appearance; (2) consent; (3) personal service in the state; (4) domicile; and (5) minimum contacts. The facts do not indicate that two through five are applicable. Hence, the issue is whether defendant waived the personal jurisdiction requirement.

Under New Jersey law, a defendant may seek dismissal for lack of personal jurisdiction in either defendant’s preanswer motion to dismiss or in defendant’s answer. However, if defendant fails to assert lack of personal jurisdiction in the preanswer, defendant may still do so in the answer. Defendant must then make a follow-up motion 90 days after service of his answer. Failure to do so constitutes waiver.

Here, defendant waited until the eve of trial to move for failure to dismiss for lack of jurisdiction. Because defedant did not comply with New Jersey law, the defense is waived and defendant was not entitled to dismsissal on that ground.

Issue # 2

In reviewing a motion for judgment notwithstanding the trial (JNOV) the applicable standard is whether the evidence is legally sufficient to support the jury’s reasoning. The court looks at the evidence and draws all favorable references to the non-moving party. Put another way, the JNOV standard simply requires the court to inquire whether any valid line of reasoning exists to support the jury’s verdict. The standard does not require the court to determine if the jury was actually correct. 

On the other hand, the standard for motion for a new trial is whether the jury’s verdict, while legally sufficient, is so flawed as to amount to a denial of justice. Put another weigh, that the jury verdict is against the weight of the evidence. The court does not look at all of the inferences in favor of the non-moving party. The court simply determines whether the jury verdict is reasonable. The motion is also available when there has been prejudice to the moving party. For instance, the judge A motion for a new trial is a far less drastic remedy because the parties will have another chance to present their case.

Issue # 3

The court incorrectly dismissed the cliam against defendant driver 3. New Jersey’s Entire Controversey Doctrine provides that once parties are joined to an action, the joined parties must assert all transactionally related claims against each other. The relevant claim here is Plaintiff versus defendant driver 3. Defendant driver 3 was not a party to the action between Plaintiff and defendants 1 and 2. Thus, defendant driver 3 does not recieve the shelter of the Entire Controversey Doctrine.

Issue # 4

The issue is whether New Jersey’s Entire Controversey Doctrine bars Defendant 3’s cross-claims and indemnification claim against Defendants 1 and 2 (defendants) for indemnification. Here, Defendant 3 has brought a claim for indmification against defendants. Hence defendants for this claim are third party defendants. In additon, defendant 3 has brought a damages claim against defendants for damage caused to her car. Note, plaintiff has not asserted any claims against defendants. Therefore, since defendant driver was not part of plaintiff’s first action and plaintiff has not filed any claims against the defendants in this action, defendant driver 3 is permitted to keep them in the case. 

Sample Answer 2


To: Appellate Panel

From: Law Clerk

RE: New Jersey Civil Procedure Issues

1. Personal Jurisdiction over Driver 1 was proper because Driver 1 consented to jurisdiction in New Jersey State court by filing a motion to dismiss 8 months after suit was filed.

Under New Jersey Civil Procedure, a New Jersey court has personal jurisdiction over the Defendant by (1) physical presence in New Jersey; (2) domicile in New Jersey; (3) consent to jurisdiction; and (4) under the long arm test for minimum contacts. There is no mention in the record that Driver 1 was physically present in New Jersey when served; and thus there is no personal jurisdiction by physical presence; Driver 1 was a Virginia domiciliary, and thus there is no personal jurisdiction over the driver by domicile. Further, Driver 1’s only contact with the State of New Jersey was the accident. Under New Jersey long arm jurisdiction, the party must have sufficient minimum contacts with the state such that it would be fair to hail them into a New Jersey court. For specific jurisdiction under minimum contacts, if there is only 1 contact with the state, the cause of action must have arose out of that transaction. Because the accident occurred in Virginia, the cause of action arose in Virginia.

Thus there is no personal jurisdiction under the longarm based on specific jurisdiction. For general jurisdiction, Driver must have been doing continual and systematic activity in New Jersey. As explained above, the driver’s only contact with New Jersey was the accident. Thus, there is no general jurisdiction under the longarm. However, by making a general appearance in New Jersey state court for the case and failing to raise lack of personal jurisdiction in Driver 1’s answer or pre-answer motion to dismiss, Driver 1 waived the affirmative defense of lack of personal jurisdiction, and consented to jurisdiction in New Jersey state court. Because at the time the defense was raised the case has been going on for 8 months, it is safe to say that the time for Driver 1 entering his pre-answer motion to dismiss and his answer passed. Driver 1 cannot assert lack of personal jurisdiction after this. Thus, the trial court properly dismissed Driver 1’s claim based on lack of personal jurisdiction. 

1. Standard to be used for JNOV and for a new trial and the differences between the two.

A Judgment Notwithstanding the Verdict (JNOV) is filed within 10 days after judgment is entered against that party. In order to file a JNOV, the party must have moved for a directed verdict at the end of all the evidence asking the judge to decide in the party’s favor as a matter of law. If the directed verdict was not granted and the case went to the jury, which resulted in judgment being entered against the party that moved for a directed verdict, this party can move for a JNOV. The standard the trial court should have used for reviewing a JNOV (which is the same for a directed verdict) is that looking at the facts in the light most favorable to the non-moving party, reasonable minds cannot differ that judgment should have been awarded for the moving party. If the court grants the JNOV, then judgment is entered by the court for the moving party. This means that the party wins.

In contrast, the standard the trial court should have used for reviewing a motion for a new trial is whether the judgment was manifestly unjust and it prejudiced the losing party. This is typically due to either misconduct by a juror or witness, new evidence was discovered that could not have been discovered prior to trial, or the judgment was substantially against the weight of the evidence; if a motion for a new trial is granted, the judgment on the books is vacated and the court permits the party to essentially retry the case. The outcome of the 2 motions is the central difference, and this is why the standard for a JNOV is much stricter. Because for a JNOV the losing party at trial wins which is a much harsher result than granting a new trial where the winning and losing party re-try the case.

2. The court incorrectly dismissed Driver 3’s suit based on the Entire Controversy Doctrine.

Under New Jersey’s Entire Controversy doctrine, all parties to a suit must file all of their claims against each other arising out of the same transaction. In effect all claims, counterclaims, and cross-claims are compulsory. This is stricter than the federal rule. If a party to a suit does not allege all of their claims arising out of the same transaction, the claims are forever waived. 

However, this rule only relates to claims against parties to the litigation. It does not require joinder of a party who is not a party to the lawsuit in order to assert claims against this person arising out of the same transaction or occurrence. Thus, Paula has a right to sue Driver 3 in a separate action on claims arising out of the same transaction or occurrence, and the trial court improperly dismissed the case against Driver 3.

3. The Entire Controversy Rule does not apply to Driver 3.

If the case against Driver 3 is permitted to proceed, Defendant Drivers 1 and 2 are not entitled to dismissal. A defendant can implead another party for contribution or indemnity if they owed a duty in tort to the defendant, which increased or aggravated the defendant’s liability to the plaintiff. Under New Jersey’s Entire Controversy Doctrine Driver 3 would be required to file the indemnity and contribution claims because they arose out of the same transaction or occurrence, and if he did not assert them they would otherwise be waived. Similarly, Driver 3’s claim that Defendant Drivers 1 and 2 caused damage to his car arose out of the same transaction or occurrence and Driver 3 must assert the claims or lose the right [And note: the original suit between Paula and Driver 1 and Driver 2 is not the same suit involving the same claims in Paula’s suit against Driver 3] Furthermore, because Driver 3 is not a party to the original suit and does not have to be joined under the Entire Controversy Rule, this rule does not come into play. Thus, the court should not dismiss the case against Drivers 1 and 2, because Driver 3 can sue Driver 1 and Driver 2 under New Jersey’s Entire Controversy Rule. 


Question #6

Buyer manufactures televisions, and Buyer was poised to enter the high-end LCD television market. On April 26, 2005, Buyer entered into a written contract with Seller to buy the highly specialized welding machine used to make the high-profit, high-end LCD televisions. Under the terms of the contract, Buyer would pay $350,000.00 for the machine and make an immediate $35,000.00 deposit; Seller would deliver the machine by mid-June 2005. The contract also had the following provisions: "cancellation charge of 15% of contract" and "shipping dates are approximate, Seller not liable for delays caused by circumstances beyond Seller’s control." 

Unbeknownst to Seller, Buyer received in May an order for 6,000 LCD televisions for delivery in the first week of September. Buyer would make $1,500.00 profit on each television. In early June, Buyer asked Seller about a delivery date, and Seller was noncommittal. In late August, Buyer went to Seller’s business to examine the machine that Seller was still putting together. Missing from the machine was a part/feature that was specified in the contract and that would make use of the machine easier for Buyer’s employees. Seller said that part would not be available for at least nine months; the company that makes the part is located in a country that endured a tsunami. Buyer nonetheless told Seller that Buyer would accept the machine without that feature, and Seller promised to call Buyer on September 1, 2005, to arrange for "quick" pick-up. 

Seller did not call on September 1st. On September 2nd, Buyer spoke to Seller, who said the machine would not be ready until September 12, 2005. At that point, Buyer cancelled the order by facsimile because of the "extraordinary delay in delivery" and "Seller’s failure to be truthful with Buyer." Within an hour, Seller called Buyer and said the machine would be ready the next day. 
Buyer replied, "Thank you, but no thank you." Without the machine, Buyer could not produce the 6,000 LCD televisions. Buyer sued demanding return of the deposit plus interest, costs and other "damages." Seller counterclaimed for the 15% cancellation fee and lost profit from the sale. 

The trial judge has asked you, his law clerk, to prepare a memorandum outlining the issues presented in the case. 


Sample Answer 1


To: Trial Judge
From: Law Clerk
Re: Buyer v. Seller

Since this a contract for the sale of goods, Article 2 of the Uniform Commercial Code is the applicable law. The first issue is whether the written contract entered into the parties was supported by consideration. Consideration is a bargained for legal detriment. The issue in this case is whether the fact that the parties were allowed to cancel the contract, subject to a cancellation charge of 15%, made the consideration in this contract illusory because the parties were not legally bound to do anything and were able to get out of the contract. The most likely outcome is to find that there was a contract, in spite of the cancellation clause, because the parties were still bound to perform the contract in good faith and there was other valid consideration for the contract - the contract price on the seller’s part and delivery of the goods on the buyer’s part.

The next issue in this case is whether the cancellation clause, and the 15% cancellation charge are valid. The fact that a party is entitled to collect 15% of the contract price if they somehow cancel the agreement makes the cancellation clause a liquidated damages clause. In essence, the clause provides that if one party breaches the contract, the other party is entitled to 15% of the contract price as liquidated damages. A liquidated damages clause is valid unless it amounts to an unfair penalty. If the liquidated damages clause is an unfair penalty then it is void. A liquidated damages clause consitutes an unfair penalty if the amount of damages is unforeseeable at the time the contract is made. In this case the liquidated damages is void as a penalty because it is impossible to say that either party's damages would be 15% at any given point after the contract is made. For example, if the Buyer had cancelled the contract the very next day, he would have to pay 15% of the contract price even though it is unlikely that in 1 day the Seller suffered any damages. Therefore, this provision was void and unenforceable as a penalty.

The next issue is whether the seller breached the contract by not complying with the delivery term. Failure to comply wit h a material term in the contract is a material breach entitled the other party to cancel the contract and sue for damages. In this case, the contract provided a shipping date of mid-June. However, the contract also provided that "shipping dates are approximate" and "Seller is not liable for delays caused by circumstances beyond Seller’s control." The issue is whether this was an illusory promise and whether it is enforceable in light of the restriction. The promise was not illusory because the court will read in a term that the Seller will use good faith and its best efforts to deliver by the time stated in the contract. To determine whether the Seller has breached this term, it is necessary to determine whether the original delay in shipping was Seller’s faulty or was because of circumstances beyond Seller’s control. Certainly a tsunami in the country that produces an important part would be a circumstance beyond control; however, it seems that the tsunami did not occur until well after the original time for delivery. However, it is not clear whether the tsunami occurred in August or if that’s when Seller told Buyer about the tsunami. Furthermore, there may have been other circumstances that were beyond Seller’s control that lead to the delay.

The next issue is whether the modification of the contract, that the machine would be acceptable without a special part, was valid. The issue is whether the modification of the agreement was made in good faith. Under the common law, a modification of a contract required new consideration. However, under the UCC, new consideration is not required for a modification - the only requirement is that the modification was made in good faith. Here, the modification was valid because it was made in good faith. The Seller had a good-faith reason for needing extra time based on the tsunami in the country that produces the necessary part. Furthermore, the Seller was not aware that Buyer had already received a substantial order, and was not aware of Buyer’s economic condition. Therefore, the modification of the contract was valid because it was made in good faith.

The next issue is whether Seller repudiated the contract by not calling Buyer on September 1, 2005 to arrange for "quick" pick up and by statements made after Buyer contacted Seller. When Buyer spoke to Seller and Seller told him that the machine would not be ready until September 12, 2005, even though the modified contract provided for a delivery date of September 1, 2005, Seller made an unambiguous statement of an intent not to perform under the terms of the contract and this was a repudiation of the contract. Therefore, Seller was entitled to cancel the contract.

The next issue is whether Seller effectively revoked his repudiation of the contract. Normally a party that has repudiated a contract can revoke the contract as long as the other party has not changed position and can provide adequate assurances at the request of the other party. In this case the revocation of the repudiation by Seller came the next day so the Buyer had not changed position and Seller assured buyer that he would be ready to perform the next day. However, this may not have been effective because at the time the Seller was already in breach of the modified contract, because the contract called a delivery date of September 1 and it was already September 12. The issue is whether this was a material breach which entitled Buyer to cancel the contract. A breach is material if it goes to the heart of the agreement. It seems like in this case that time was not of the essence and at the heart of the delivery because the Buyer tolerated many delays. However, Buyer modified the agreement to provide for a delivery date of September 1, and this was at the heart of the agreement because Buyer was relying on having the machines by that time so that he could do work on the order he had received for televisions. Therefore, the breach was material.

The final issue is what damages the parties are entitled to. The Seller is not entitled to the 15% cancellation fee because, as stated earlier, that fee was a liquidated damages clause that amounted to a penalty and was therefore unenforceable. Buyer is entitled to damages to protect his expectation interest. Since the Seller breached and the Seller still has the goods the Buyer is entitled to the market value of the goods at the time of the breach minus the contract price. Buyer is also entitled to incidental damages, which are the damages he has sustained in enforcing his rights under the contract. Finally, Buyer is not entitled to consequential damages for the amount he lost when he could not produce the 6000 LCD televisions. In order to get consequential damages, the damages must arise out of the plaintiff’s special circumstances at the time the contract was made and the defendant must know of these special circumstances. In this case, Buyer had damages that arose out of his special circumstances because he was relying on his contract with Seller to produce LCD televisions under his contract with the buyer of the televisions. However, these special circumstances did not arise until after the contract was made. Furthermore, the Seller was not aware of these special circumstances. Therefore, Buyer was not entitled to consequential damages.


Sample Answer 2


To: Judge
From: Law Clerk
Re: Seller v. Buyer

This memorandum addresses Buyer’s claims against Seller arising from an alleged breach of a contract for the sale of goods. Article 2 of the UCC applies to all issues since the contract was for a machine, which is a good since it has movable tangibility. 

(1) Formation

The issue is whether the lack of a material term regarding delivery date negates the formation of the contract for failure of a meeting of the minds.

Under Article 2, a written contract does not have to contain every material term. When a term is missing or unclear, a court may interpret the term under the guidepost of commercial reasonableness and the parties’ expectations. The court made use prior course of dealings or trade usage to fill the gap. Therefore, a missing material term does not negate the formation of the contract.

Here, the contract stated the due date was mid-June, but also said shipping dates were approximate. Though this material term not defined, the contract was still properly formed.

(2) Determing the Proper Shipment Date

The issue here is what the contracted shipping date was. When a term is ambiguous, a court may use parol evidence only if the contract was not fully integrated and the testimony does not contradict the written contract. Generally courts disfavor using evidence from before the contract was formed if the contract was meant to be a full and complete document of the parties’ bargain.

This contract, however, appears to be only partially integrated. It defines the shipping date as mid-June and incorporates references to "approximate" dates and "delays caused by circumstances beyond Seller’s control." If the court is persuaded that the contract is partially integrated, it may take evidence of what the parties actually meant by "mid-June" and use such evidence to explain the term.

(3) Post-Contract Modification

Even assuming the court determines the intended contract date, the court must then determine whether there was a proper post-contract modification to the date.

Under Article 2, a post-contract modification may be made without consideration. However, if the contract as modified required a writing under the Statute of Frauds, then the modification must be in writing. The Statute of Frauds (SOF) requires a writing if the contract is for $500 or more.

Here, Band S attempted to modify the shipping date to September 1, 2005 from mid-June. The contract was for $350,000. So, the modified contract required a writing. Since the modification was not in writing, it did not validly become part of the contract.

(4) S’s Defense of Impracticability 

S Maintains that he was unable to get a required part because the manufacturer could not produce it due to a tsunami. The issue is whether this factor excused S’s performance.

Under Article 2, a party is excused from performance if an unforeseen event makes the party’s performance commercially impracticable. Examples of such events include labor strikes, if they were unforeseen by the parties at the time of the contract formation. Impracticability does not excuse performance due to a market downturn.

S will assert that it was completely excused from the contract when a tsunami wiped out one of its suppliers. This is a persuasive argument if neither party anticipated the tsunami (i.e. the tsunami occurred after the contract was formed).

However, B will assert that he agreed to accept the machine without the part in question. This estopped B from rejecting the good for nonconformance based on that particular missing part. So, the difficult question is, given B asserting and estoppel, whether S can still use the doctrine of impracticability to excuse all performance under the contract.

Under the guideposts of commercial reasonableness and hearing the parties’ expectations, it would seem unfair the excuse all of S’s performance under the contract through the doctrine of impracticability.

(5) B’s Allegation for Breach of Contract for Lateness

The issue is whether S breached the contract for failing to deliver the machine.

Article 2 requires perfect tender. There is no question of miner or material breach. Therefore, if one party fails to perform perfectly according to the contract, he has completely breached the contract.

To decide whether S breached the contract, the court must refer to its decision on the actual contract date and whether the post contract modification to September 1, 2005. However, regardless of the court’s decision, it appears S breached by failing to deliver by September 1, 2005.

(6) B’s Claim for Bad Faith
Article 2 requires all parties to act in good faith, which is honesty in fact. The court must decide if S failed its duty of good faith by lying. Nothing in the facts creates that impression currently.

(7) Liquidated Damages

The court must decide if the clause creating a cancellation charge of 15% was actually a liquidated damages clause that capped B’s recover.

Liquidated damages clauses are valid if they are flexible and try to place a value on future damages that are hard to calculate.

B did not cancel the contract, rather S breached. So S is not entitled to a cancellation fee. B May recover damages that more accurately reflect his loss.

(8) Damages for Cover: Incidental Damages

If the court determines that S breached the contract by not delivering on time, the court may award incidental damages and damages for cover. The court may also return the deposit to B.

Damages for cover is the difference between the price of buying a new replacement of like kind and the contract price. This only applies if B purchased another machine. Incidental damages are the administrative damages and costs associated with the delay.

(9) Consequential Damages

Consequential damages are the costs associated with the breach if they were foreseeable at the contract’s formation. Here, B may not recover his lost profit from his failure to sell 6000 tvs to another buyer, because S had no knowledge of that contract and thus, the lost profits were not foreseeable.

(10) Anticipatory Repudiation

I may argue that it did not breach because there was no set delivery date "due to circumstances beyond their control." Thus, they will argue that B breached by anticipatorily repudiating (canceling the contract before performance was due).


Question #7 

Danica is suing Pat for injuries Danica suffered in a two-vehicle collision that occurred in Small Town, New Jersey. Minutes before the collision, Danica had been traveling in her classic Volkswagen Beetle when she felt that she was too drowsy to continue driving. Danica had been drinking. Danica had also taken sleep medication. As she decided to pull over, Danica’s vehicle collided with a truck operated by Pat. Concerned about getting into an accident because her truck was in a state of grave disrepair, Pat had been driving slowly. 

While in the Emergency Room, Danica became concerned any treatment could cause an adverse reaction, and she told the doctor she had been drinking and had taken sleep medication just before the accident. 

Shelly, the owner and sole operator of Small Town Blogger, happened to be at the Emergency Room on the day of the accident. She spoke to a number of people and, in her daily public column about Small Town, wrote a story entitled: "Town Drunk Danica Does it Again." The column, which is read by a few of the residents, also mentioned the irony of Pat’s being involved in the accident, given her juvenile history of convictions for stealing classic Volkswagen Beetles. 

Once out of the hospital, Pat immediately had her truck completely serviced to conceal its poor condition at the time of the accident. After receiving the complaint from Danica, Pat counter-sued for her injuries and for damage to her truck. 

In preparation for trial, Danica could only locate Local, a recent graduate of an auto mechanic training school to testify that Pat’s brakes were not well maintained and the truck had been completely overhauled. 

At trial, both parties have submitted In Limine motions. Pat wishes to call Shelly to testify about Danica’s being the town drunk. Pat also wishes to call Danica’s doctor to testify whether Danica stated she had ingested any drugs or alcohol. Danica wishes to use Pat’s prior juvenile convictions to impeach Pat. Danica also wishes to call Local as an expert to testify about the condition of Pat’s brakes and that Pat had her truck completely overhauled after the accident. 

You are the law clerk to the judge assigned to decide the motions. Prepare a memorandum advising the judge which motions should be granted or denied and why. 


Sample Answer 1


(1)        Shelly testifying that Danica is a drunk may not be admissible.  Generally, character evidence in the form of reputation will be admissible as long as it goes to the essential matter of the case.  In this case Pat wants to bring in evidence of Danica’s reputation for being a drinker to show that she was probably drunk at that time of the accident which is what Pat alleges caused the accident.  Courts are generally hesitant to admit character evidence of a bad reputation to show nothing more than the person was acting in conformity at the time of the event in question.  Therefore it will probably not be admissible as reputational character evidence.

Pat may not be able to convince the court to bring it in as habit evidence. 

Courts generally let evidence of a particular person’s habit into evidence to show they probably were conforming to the habit.  The court will examine how specific and personal to the party the habit is.  Here, a habit of getting drunk will probably not suffice. However, the town blog mentioned that Danica had “Done It Again.”  This might be alluding to numerous times Danica had been involved in drunk driving accidents.  However, that still may not be enough of habit.

Even if the argument is close between allowing the drunk driving in or not, the court will most likely rule that it should be kept.  Evidence, even relevant evidence, will be excluded if the prejudice to one party substantially outweighs the probative value.  Here, a court would probably find the probative value is outweighed by prejudice to Danica.

Pat may be able to call Danica’s doctor to admit the statement that she injested drugs or alcohol.  Generally, hearsay is an out of court statement made by the declarant offered for the truth of the matter asserted.  However there are many exceptions to the hearsay rule.  One such is the ‘statements for the purpose of medical diagnosis’ exception.  A court will allow a statement that would otherwise be hearsay into evidence if it was made by declarant for the purposes of getting medical treatment / diagnosis.  The theory behind the exception is that people are less likely to lie when they are speaking to a doctor to aid their own health.

Here, Danica made the statement for medical diagnosis / treatment.  Danica told the doctor because she was being treated in the Emergency Room.  She didn’t want the alcohol + sleeping pills to effect treatment   There is inditia of truth in disclosing the statement to the doctor + should be let in.

Pat’s juvenile convictions will probably not come in.  As a general rule of law, courts will not admit a person’s juvenile record into evidence.  The policy is that courts want to give juveniles a fresh start, and do not want the mistakes they made years ago to continue to get them in trouble.  Pat’s record is likely not admissible.

Pat can keep the testimony of her subsequent brake job out of evidence.  As a matter of policy, courts do not admit evidence of subsequent remedial measures to correct a defect into evidence.  If such evidence were admissible, people may not want to rectify dangerous conditions out of fear of suit.  This rule encourages people to make defects safe again.  Pat’s going to the mechanic + fixing the brakes probably won’t come into evidence for that public policy reason.

However, Danica may be able to bring in the testimony from Local concerning the conditions of the brakes before the repair.  Courts will let in expert testimony if (1) witness is qualified as an expert, (2) is testifying to some scientific or technical matter, (3) uses generally accepted procedures + processes that other experts rely on, and (4) is not testifying to a lay matter.

Here, Danica may be able to show that Local is an expert.  Local did graduate from mechanic training school.  There he learned technical aspects of mechanics that gave him a specified Knowledge of cars.  Pat may attack the expert qualifications by alleging he cannot be an expert because he just graduated + lacked years of experience.  However, the condition and mechanics of brakes is a relatively easy to spot thing in the world of mechanics.  Therefore, Local’s training and firsthand knowledge of Pat’s brakes will probably qualify him as an expert.

Local is testifying to a technical matter.  A general lay person does not have much knowledge of the workings of an automotive brake system

Local is relying on generally accepted procedures + practices.  Most mechanics probably rely on their training and observations to make a mechanical opinion.  Here, Local saw the brakes + used his graduate skills.

Finally, Local is not testifying to a lay matter.  While some people have automotive knowledge, intimate observations of brake systems are not very common knowledge. Therefore, Local is not testifying to a lay matter.

Local is probably an expert who can testify.

Sample Answer 

Memorandum of Law

(1)        Motions made “In Limine” occur outside the presence of the jury.  The purpose is to evaluate whether the proposed evidence or testimony should be admissible at trial. The Judge makes this determination.  NJ typically adheres to the Federal Rules of Evidence (FRE).

(2)        Character Evidence Re: Danica

Pat wishes to call Shelly to testify about Danica’s being the town drunk. This is known as character evidence.  Character evidence is generally inadmissible to prove conduct in conformity.

Here, the facts do not state that Danica herself has called a witness to speak of her reputation for a relevant character trait.  Rule is that a party may only call their own character witness if the adverse party has “opened the door” by calling their character witness.

(3)        However, Pat may argue that the evidence is admissible as habit evidence.  Habit is defined as a repetitive response to a particular situation. (example – if someone always picks up their mail at a certain time in the day).

Pat will argue that Danica drinking habits are relevant.  It appears unlikely that Pat will prevail on this argument because the facts do not indicate that Danica always drinks before she drives.

(4)        A creative argument that Pat could make is that the evidence is not being offered as a MIMIC purpose.  “MIMIC” evidence includes evidence of “motive,” intent, absence of mistake or a accident, identity, or part of a common scheme or plan.  We do not know whether those facts exist here, but if Pat could prove (for example) that Danica is known to get into accidents as a part of a plan to falsely collect insurance proceeds, perhaps she could get the evidence in.

(5)        Pat wishes to call Danica’s doctor to testify.

Pursuant to hearsay exception, doctors can testify to a patients statements that were made for the purpose of medical treatment so long as it relates to their condition or to the general cause of the medical condition.  Statements directing liability are inadmissible.

Under that hearsay exception, it appears Pat could ask Danica’s doctor questions about whether Danica said she had ingested any drugs or alcohol.

Note that the Federal Rules of Evidence do not grant the privilege of doctor-patient to prevent a doctor from testifying.  The Federal rules do have a priv. for psycho-therapist-patient, but that is inapplicable here.  NJ could adopt a doctor-patient priv. and if they did enact one, the courts (federal) must recognize it pursuant to the Erie doctrine.

(6)        Admissibility of Prior convictions

Prior convictions are admissible against a party only if the conviction is a felony that is not more than 10 years old, or relates to a crime of truthfulness of not more than 10 years old.

Danica will not be able to introduce Pat’s convictions for 2 reasons: (1) they are “juvenile” and does not constitute as a “felony” and (2) the FRE does not consider drug or theft crimes as included in the category of showing “truthfulness.”

(7)        Can Local testify?

The issue here is whether Local will satisfy the expert testimony qualifications under the rules of evidence.  The Judge makes this determination under the prevailing Daubert standard.

Factors include the expert’s qualifications, reliability, basis of opinion, and whether his testimony is based on methodology generally accepted in his field.  If Local satisfies these factors, his status as a recent graduate will not be dispositive.  We must also ensure that his testimony will be helpful to the jury.  It appears it will be because the issue of Pat’s brakes is important in this litigation.

(8)        Issue of Subsequent Remedial Measures

Generally, the rules of evidence prohibit the introduction of subsequent remedial measures.  The policy behind this rule is to encourage post-accident measures and to increase safety. However, subsequent remedial measures are admissible if the party disputes notice, ownership, or control.  Here, it appears Pat did not service her car for safety/remedial purposes, but rather to cover up her liability.  Danica can argue this is tantamount to fraud if Pat denies ownership or control of her vehicle.

(9)        Lastly, as a general rule, it may be important to note that evidence is only admissible if it is relevant.  Relevancy is measured by determining whether the evidence would make a material fact more or less probable than without the evidence.  Evidence must relate to a time, event, or person connected to the present litigation.



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