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NEW JERSEY BOARD of BAR EXAMINERS

Independence - Integrity - Fairness - Quality Service

July 2016 Questions and Sample Answers

 

Question Order:

Torts

Constitutional Law

Evidence

Civil Procedure

Real Property

Criminal

Contracts

 

Question 1 - Torts

Tony raises alligators on his farm in rural New Jersey. He keeps the animals penned inside a wire-fence enclosure. On the enclosure’s gate is a large sign, reading “Danger: Keep Out!”

Barry lives next door to Tony. One night, he sneaks onto Tony’s property and opens the gate to the alligator enclosure, purposely allowing the animals to escape. Barry has long resented Tony’s popularity in the neighborhood, and hopes that Tony will be blamed for the escaped alligators.

Vera lives in a nearby town. On the night in question, she is driving past Tony’s property when she accidentally veers into a ditch, flattening her tire. Angry at herself and too impatient to wait for a tow truck, Vera begins walking in the dark toward town to obtain assistance.

Just a few steps into her journey, however, Vera trips over one of Tony’s alligators, which by then had crawled onto the roadway. Vera falls to the ground, breaking her right leg.

Tony hears Vera’s screams from inside his house and rushes to the roadway to find Vera in agony on the ground. Unsure of what to do, Tony calls his best friend, Mike, who is in his final year of medical school. Tony does his best to follow Mike’s instructions over the phone, but poor cell phone service in the area makes Mike’s instructions difficult to hear.

An ambulance eventually arrives and takes Vera to a nearby hospital, where she undergoes emergency surgery. As a result of complications related to Tony’s emergency treatment, Vera suffers permanent leg damage.

Pete is a columnist for the local newspaper. In writing about the incident, Pete states that Vera “is known in the community for filing frivolous law suits. Wonder if she’ll take that path again? Guess we’ll all find out soon enough.”

Six months later Vera contacts you, a prominent attorney, to discuss potential claims against Tony, Barry, Mike, and Pete, as well as potential cross claims or counterclaims. You are asked to prepare a memorandum, outlining all claims among the various parties.

PREPARE THE MEMORANDUM

 

Sample answer 1a.

To:       Vera

From:   Attorney

Re:       Possible Claims

Hello Vera,

Here is a brief summary of the possible claims you may have against each party. I have included each party's likely defenses, counterclaims, and cross claims, as well.

Tony:

There are a number of possible claims that could be levied against Tony. The most obvious of those claims is a strict liability claim. When someone owns a wild animal, they are strictly liable for all harm caused by that wild animal, regardless of the precautions taken to prevent such from happening. As such, defenses such as a lack of foreseeability or the defendant acting with reasonable care are rendered void. The caveat, however, is that the injury must actually be caused by the inherent danger or wildness of the animal. While we can certainly make a claim against Tony for strict liability, he will most likely be able to defend that claim because despite owning alligators, a clearly dangerous and wild animal, it was not any inherent wild action of the animal that caused your harm, but rather you tripping over the alligator that broke your leg.

You also have a claim against Tony for negligence. Although a stranger does not owe a duty to come to the aid of another injured stranger, once they do, they owe a duty to that person to not leave them in worse condition than they found them. While it was noble of him to come to your aid, it was Tony's negligent emergency treatment that led to your permanent leg damage. He will most likely be liable for that injury. Tony does have two possible defenses. If this jurisdiction has a good samaritan statute, Tony will most likely not be held liable. A good samaritan statute simply protects a rescuer from incurring liability when his or her intention was only to help another. Also, Tony may claim that both you and Mike are comparatively negligent, which means that your actions contributed to the injury and as such you will be responsible for whatever percentage of fault a court deems appropriate. He will claim that but for your impatience to wait for a tow truck and Mike's flawed instructions, he would not have administered the negligent aid. You will, however, be able to claim that his negligent aid was the proximate cause of the heightened injury, while Mike can claim that it was the poor cell phone service, not his instructions, that led to the negligence.

Tony also has a cross claim against Barry for both trespass to land and trespass to chattel. In a trespass to land claim, all the plaintiff must do is show that the defendant entered onto their land without permission. The defendant will then be liable for all damages that occur as a result of that trespass. A trespass to chattel claim requires that the defendant deprived the plaintiff of his property and in doing so, either caused damages to that property via a prolonged deprivation or actual, physical devaluation. Here, the facts make clear that Barry entered Tony's property without permission and deprived him of his property, the alligators. A court very well may find Barry responsible for all injuries that occurred due to those torts, including those faced by your claims against Barry.

Barry

You have a clear negligence claim against Barry. To prove negligence, one must show that the defendant had a duty, breached that duty, but for that breach the injury would not have happened, and that damages occurred. One has a duty of reasonable care. When they breach that duty, they are liable for all foreseeable consequences of that breach. In this case, Barry released a number of dangerous animals. It is quite foreseeable that those animals could cause damage while on the loose, which they did in the form of your tripping over one of them. Like Tony, Barry's best defense will be to say that while you being attacked by an alligator may have been foreseeable, merely tripping over one was not. He will also claim that you have comparative negligence. If this is a pure comparative negligence jurisdiction, you will be responsible for whatever percentage of fault the court allots to you. If not, the court may find that Barry is not liable for any damages if you are found to be more than 50% responsible for the injury.

Pete

You also may have a claim of defamation in the form of libel against Pete. To satisfy such a claim, we would have to prove certain elements: the defendant must utter these words against the plaintiff, the words were published, and they caused the plaintiff reputational harm in the eyes of a respectable group. The level of intent needed depends on the plaintiff's standing in the community and the nature of the subject matter. If the plaintiff is a public figure, the burden is higher in that they must prove that the published words were not only a lie, but also made out of malice. For non-public figures and public matters, the words must simply be made negligently. If the matter is not public nor is the plaintiff, even a lie may be construed as defamation. Our case, however, involves runaway alligators, so it would most likely be construed as a newsworthy, public matter. As you can see, we must evaluate whether you are considered a public figure or not. Pete's best defense, which will work regardless of your standing in the community, however, would be to prove that the statements he made were true.

Mike

Like Tony, you may be able to claim that Mike was negligent in his duty to administer aid as a rescuer. His best defense, besides comparative negligence, will be to assert that but for the poor cell phone service, his instructions would have been adequate for your treatment.

 

Sample answer 1b.

Memorandum

To: Vera

From: Applicant

Re: Potential claims against Tony, Barry, Mike and Pete

 

Per your request, following describes various potential claims against Tony, Barry, Mike and Pete, as well as potential cross claims and counterclaims by and among you and the aforementioned parties.

Vera v. Tony

You have a potential claim against Tony under strict liability for injuries you suffered as a result of tripping over one of his alligators. Under tort law victims of physical injury that result from a wild animal generally may bring a claim against the owner of such animal. A strict liability action is easier to bring since one must only prove causation and damages. However, causation with respect to dangerous animals is generally limited to the dangerous propensities of such animals, much like a strict liability action for inherently dangerous or ultrahazardous materials is generally limited to what makes the activities dangerous (i.e., explosion of fireworks rather than a box of fireworks falling on you without exploding).

Here, Tony's alligator is clearly a wild animal and you suffered a physcal injury when tripping over the alligator to break your leg. However, that you merely tripped over the alligator is not related to the dangerous propensity of alligators and therefore you may have a hard time winning your case in strict liability.

As an alternative, you may bring a negligence action against Tony. A negligence action requires duty, breach, causation and harm. A person absent a special duty has an obligation to act as an ordinary prudent person with reasonable care to prevent foreseeable harm. After a breach of sucy duty, the breach must be both an actual and proximate cause of theTony injury for a potential tortfeasor to be liable. Absent a breach of duty there cannot be an action in negligence even if the other elements are met.

Here, a court may find that Tony was reasonable in keeping his alligators within a wire-fence enclosure and posting a clear no tresspassing sign, and so you may have difficulty making a claim for negligence against Tony.

However, Tony was also potentially negligent in deciding to offer negligent medical care. A person typically does not have a duty to help another person unless they created the injury, or have a special relationship or duty (such as a parent to a child). If a person does decide to help, absent a good samaritan law, a person is liable if there assistance was itself negligent and contributed to the harm. Here, Tony arguably had a duty to help you based on his ownership of the alligators, but in any event he did decide to help but his help led to additional injury in that you broken leg turned into permanent leg damage. There is no indication of a good samaritan law at issue, but even if one were present it is normally limited to medical professionals. Tony called Mike, who was not a licensed professional but was in his final year of med school, so it is a close call whether relying on Mike's advice for help was reasonable. However, even if it were, Tony would likely be found to be unreasonable in trying to rely on such advice when he had poor cell phone service and may not have been able to properly hear Mike's instructions. Given the number of potential grounds for unreasonable actions by Tony in this regard you are likely to find him at least partially responsible and liable for your additional injury (if not the underlying fall from the alligator).

To note, if you were able to bring a successful claim against Tony either in strict liability or negligence, Tony would arguably raise a cross-claim against Barry for criminal tresspass, or tresspass to chattels. On the criminal tresspass charge, a person will be found liable if they intentionally make a movement that enters another's property, which Tony cleary did here by opening the gate and entering the property despite the keep out sign. He may also potentially be found liable for tresspass to chattels. A party may be foudn guilty of tresspass to chattels by taking the property of another person. The alligator's were cleary Tony's property and by releasing the alligator Barry deprived Tony of his alligators.

Tony may also raise a cross-claim against Mike for negligent in providing medical care instructions when he was only a med student and not a licensed medical professional, but it is unclear on the facts whether and to what extent Mike's instructions (rather than the faulty phone connection) resulted in the added damage to your leg from Tony's care.

Vera v. Barry

You arguably have a better claim for negligence against Barry. The same elements of a nuisance claim described above would apply as to Barry. Barry was arguably negligent in releasing animals that he knew to be dangerous which an ordinary prudent person would not do. You were injured as a result of the release of the alligators (actual harm) and it is foreseeable that a person may be hurt by a wild animal let loose on the road, not only for their dangerous propensity but also for being an object that is difficult to see at night on the side of the road.

Barry would likelyt raise as defenses your contributory negligence. A person is contributorily negligent if they also act unreasonably and such negligent action is both an actual and proximate cause of the injury suffered. Here, Barry would point to your driving off the the road and deciding to walk in the dar krather than waiting for a tow truck. WHile the facats indicate that you were not negligent in your driving, the decision to walk along the road is arguably negligent since it is dangerous to walk along a dark road at night. That being said, most jurisdictions follow pure comparative negligence (rather than contributory negligence in a minority of jurisdictions that would bar recovery if the plaintiff was negligent, either at all or over a statutorily set level, so even if your negligence contributed to the action you are likely to still recover from Barry for the percentage of his negligence.

Vera v. Mike

You may have a claim for negligence against Mike in providing improper medical care that resulted in exacerbating your injury based on the legal analysis discussed above with respect to Tony and his phone conversation with Mike. This may be a difficult case to make based on the facts since it is unclear if Tony properly relied on Mike's advice and Mike may qualify under a good samaritan statute, but it is certainly worth joining him to the suit even if he is only slightly responsible since under a joint and several liability with pure comparative negligence, you would be able to recover the entirety of your damages from Mike even if only slightly at fault, and it would be for Mike to seek contribution from the other potential tortfeasors Barry and Tony.

Vera v. Pete

You may also have a claim of defamation against Pete. A cause of action for defamation requires the plaintiff to show that the defendant (a) made a defamatory statement, (b) of or concerning the plaintiff, (c) that was published and (d) resulted in harm. A statement is defamatory if it is untruthful and likely to damage the business reputation or cause other real harm to the plaintiff; a mere opinion is not sufficient to be defamatory. Publication requires revealing the information to at least one third-party Most jurisdictions also require a degree of fault based on the nature of the comment and whether the plaintiff is a public or private person. If a public person, the plaintiff must show actual malice; if a private person on a matter of public concern, the plaintiff must show that the defendant acted recklessly or negligently in making the statement. If a private person on a matter not of public concern, the plaintiff need only show negligence.

Pete's statement clearly satisfies the second and third prongs as it named you specifically and was published in the local newspaper so as to be available to the entire community. Whether or not the statement is defamatory is not clear on the facts. In order that to demonstrate that the statement regarding the filing of frivolous lawsuits was untrue, you would have to showe that you either haven't filed any lawsuits or that if you did there was not any dismissals that such suits were frivolous by the court, or that no one in the community knows you to be such a person. Even if untruthful, since Pete's comments refer to what is known in the community, he would only need to show that members of the community that he spoke with felt that you were such a person. And assuming you are a private person, filing of lawsuits is arguably a matter of public concern (since it addresses the use of the court system and the tax dollars that support the court system) and so it is more challenging to show that Pete was reckless rather than merely negligent in making his comments. In short, I would need more information to determine the likelihood of success of your claimm against him on the merits, but it may be an uphill battle based on the facts presented.

Please feel free to reach out to me directly with regard to the above and any questions or concerns you may have regrading these matters.

 

Question 2 – Constitutional Law

It is motion day in the local trial court.

1.         Isaiah owns and operates a smoke shop in the same town as a local college. Concerned with rising e-cigarette and vapor pipe usage among the college’s students, the city enacts a zoning ordinance prohibiting all smoke shops within two miles of the college’s campus. As a result, Isaiah’s smoke shop business loses all of its economic value. Isaiah moves for summary judgment challenging the ordinance.

2.         In 2015, Brittney was convicted of illegal possession of a stun gun. The stun gun provision was enacted as part of a comprehensive gun control legislative package. While incarcerated, she converted to a non-traditional religion and led a prayer group that prison officials suspect is a cover for ongoing illegal activity within the facility. Brittney’s diary was confiscated as part of the investigation into the religious group’s alleged criminal conduct. Brittney has filed a lawsuit against state prison officials in their official and individual capacities seeking monetary damages and injunctive relief. She has also challenged the underlying stun gun conviction.

3.         Clarence is admitted to practice law in New Jersey and New York. His law firm is located in New Jersey, but he does not maintain an office in New York. As a result of recent legislation passed in New York barring from the practice of law attorneys who do not maintain a physical office location, Clarence has lost a significant number of clients based in New York. He now has filed suit challenging the bona fide office legislation and has moved for a declaratory judgment against its enforcement.

4.         As a small child, Yvette received vaccinations against common childhood ailments, such as measles, chicken pox, etc. She was recently diagnosed with autism, which her parents attribute to the vaccinations she had received. They have also objected to any further medical treatment for Yvette on religious grounds, even though her life may be in jeopardy without it. Her parents have filed a lawsuit against the vaccine manufacturers, alleging various state law tort claims. The Vaccine Protection Act (“VPA”) was enacted in 1990. The VPA’s legislative history implies that Congress may have sought to limit and/or bar state law claims against vaccine manufacturers. The manufacturer now seeks summary judgment dismissing the parents’ claims. The State’s Youth Services department has also sought an order compelling Yvette’s required medical treatment.

You are the law clerk to  the  judge  assigned  to  resolve the various motions presented in the aforementioned cases. In preparation for motion day, the judge has asked you to research and draft memoranda on the constitutional law claims and defenses.

PREPARE THE MEMORANDA

 

Sample answer 2a.

MEMORANDUM OF LAW

TO: Judge

FROM: Law Clerk

RE: Preparation for Motion Day

Dear Judge,

Please find below a discussion of the constitutional law claims and defenses. I hope this is helpful as we prepare for motions day. I am glad to follow up on any further research questions you may have.

I have made an attempt to organize all four matters in chronological order, starting with Isaiah.

1. ISAIAH

Isaiah's motion for summary judgment challenging the ordiance should be denied.

The issue is whether the zoning ordinance is an infringment of a number of Isaiah's constitutional rights.

First, in the City of Renton, the Supreme Court upheld a zoning ordinance that did not allow nude dancing establishments virtually anywhere in city limits. This case discussed the effects test where if a city could show that certain effects came from the activity, they could not ban it all together, but could passed legislation that would move the activity to another part of the city.

States have general police powers and can regulate a number of matters. E-cigarettes and vapor pipes are generally bad for ones health and cities may impose certain restrictions such as banning smoking indoors. Because the city where Isaiah resides has the power to pass zoning legislation that promotes the health and wealth of the community, the ordinance is not necessarily constitutional.

Isaiah may argue that a First Amendment issue is at play.

The First Amendment prohibits the federal government from infringing on the free speech rights of citizens. The Supreme Cout has continually distinguished between speech, conduct, and when the two combine.

Isaiah's activity here is more than likely pure conduct, and not speech.

Isaiah is also claiming that the ordinance amounts to a taking, because he has lost all economic value.

The Constitution prohibits taking private property for public use without just compensation. Public use has been defined broadly by the Court in cases like Kelo, where the Court upheld taking private property from one individual, and giving it to another private individual to stop blight or economic deterioration. The Court has also found that when a regulation deprives a landowner of almost all economic value in the property, a taking has occured, such as prohibiting all residential development on beach front property. Even physical invasions of one's property may constitute a taking, such as requiring the installation of a cable box. Or, regulatory takings that require raisin growers to give some of their crop to the federal government.

In this matter, Isaiah is claiming that the zoning ordinance has deprived his property of all economic value. His claim is unlikely to suceed becuase the property can be used in a variety of other ways. In the case of a taking that causes complete economic loss, courts typically look at investment backed expectations.

2. BRITTNEY

Brittney has two very unrelated claims that I will address in turn.

-Vagueness

While legislative power rests with Congress, the Supreme Court has announced that when a law is vague, or overbroad, it may be a violation of due process. A law should be clear enough that it gives citizens notice of the precise conduct that is prohibited. A vague law that is inconsistent in application will probably fail on due process vagueness grounds. Likewise, a law that is so overbroad, that it punishes almost any activity, will also be a violation of due process. The issue with overbreadth is that it places too much discretion into the hands of police, judges, and juries to determine what the law means in application and on its face. A facial challenge to the law will cause the entire law to be struck down. An as applied challenege will not invalidate the law, but simply its application to the particular defendant.

Brittney's motion is not very clear, and limited in the facts, but it appears that she is arguing that a comprehensive gun control legislative package should be found unconstitutional. Brittney was convicted for illegal possession of a stun gun. She is currently incarcerated for the conviction. Generally speaking, gun control legislation is designed to limit gun ownership, or regulate what types of firearms can be bought and sold. Brittney was found with a stun gun, which is not typically the object or aim of gun control legislation. While some members of the Supreme Court have detested legislative history, necessary to this analysis may be what the congressional intent of the legislation was.

Brittney's motion wil require us to look closer at the actual statute, its legislative history, and the nature of the underlying offense to conclude if her conviction was proper.

Based on the very limited facts and information it appears that her claim will be succesful.

-Commerce Clause

And just in case, it may be necessary to consider the commerce clause. If on motion day there are other challenges to the statute, the government may defend on the grounds that the commerce clause is the basis for legislative authority to pass the statute. It is true that the commerce clause grants Congress a plethora of powers to regulate even activities that are not directly related to, but have a significant impact on interstate commerce. This has been the basis for past gun control legislation is likely valid here as well.

-Penological Interests

Brittney's main motion will regard her lawsuit against prison officials. The issue is whether a number of her constitutional rights have been infringed.

The Supreme Court has held that prisoners do not leave their constitutional rights behind when they cross the prison walls. Rather, a prisoner's constitutional rights are balanced against the penological interests of the prison. The constitutional right that recieves the least amount of protection inside prison walls is the general right to privacy. The Supreme Court has found that prisons may regulate whether inmates can marry, they may intervene during hunger strikes, they employ discipline and other schemes to keep order, and they may search prison cells. Because of the harsh realities of prison, prison officials have broad discretion to maintain order and discpline. However, this does not mean that prisoners have no protections.

The Supreme Court has also held that prisons may have to make some reasonably accomodations for religious observances.

Here, Britteny has converted to a non-traditional religion and she is a prisoner. Brittney's diary was confiscated, and prison officials believe she may be using the religious group as a cover for illegal activity. Because Brittney has a very limited right to privacy in prison, and the penological interest of maintaing safety is high, the prison officials conduct here will likely be upheld by a court. Prison officials are given very broad deference by not just the Supreme Court, but most courts in the country. This means that courts are unlikely to second guess their conduct unless there is an extreme case of abuse or indiscretion of behalf of the official.

Brittney may attempt to argue that the Fourth Amendment applies to the confiscation of her diary, but it does not. She has almost no expectation of privacy while in prison, and as such, cannot maintain that her diary was confiscated in violation of the Fourth Amendment.

-First Amendment Religion

The First Amendment sets out two principles, that the government is not to interfere with the religious worship of its citizenry, and that the government is not to establish religion.

On these limited facts, Brittney may be trying to argue that she is being targeted for her religion. She may even argue for some sort of accomodation. While prisons cannot infringe on the right to worship, they are not bound to honor all requests from prisoners either. Prison officials may need to make reasonable accomodations in limited circumstances.

-Relief

Because of the foregoing analysis, Britteny should not be allowed to recover monetary damages or enjoin the prison officials.

3. CLARENCE

Clarence is a lawyer who works in New Jersey. Clarence is challenging a law in New York that has cost him a number of clients. The law requires that he maintain an office in New York in order to practice there.

-Contracts Clause

The Contracts Clause of the Constitution prohibits legislation that interferes with current economic interests.

On motion day, Clarence is likely to argue that the New York legislation is an interference with his already existing client relationships.

-Privileges and Immunities

The privileges and immunities clause prohibits states from discriminating against nonresidents. This particular legislation likey falls into that category. By requiring Clarence to maintain an office there, Clarence is barred from having clients in New York, even though he is a licensed New York Attorney. This prohibts Clarence from being able to maintain his office in New Jersey alone. This law will almost undoubtedly be found to discriminate against out of staters. The state of New York will have difficulty showing the purpose behind the statute because attorneys can easily travel to New York if they need to meet with their clients.

-Commerce Clause

This piece of New York legislation could also be overturned on commerce clause grounds. Because Congress' power to regulate commerce exists even when it is not exercising the power in a particular area, states cannot step in and enact legislation that unduly interferes with interstate commerce. This legislation almost certainly will keep resident lawyers of New Jersey whom are barred in New York from doing business there.

4. YVETTE

Yvette's parents are witholding further medical treatment from her on religious grounds. The issue is whether the state has the power to intervene.

-Parental Rights

The Supreme Court has held that parents have a right to direct the upbringing of their children. This includes choices such as where to send them to school or what to teach them. However, this right is not absolute. While this is considered a fundamental right, the State also has an interest in the protection of its children. And so there are a number of situations where the state can step in to interevene on a child's behalf.

Yvette's parents will not be able to argue that their parental rights give them absolute control over Yvette to the point of refusing medical treatment. On this claim they should be denied.

-Medical Treatment

The Supreme Court has also held that a competent adult has the right to refuse unwanted medical treatment. Competent adults do not have a right to die, Glucksberg. However, the key to this analysis is competent adult. Fundamental privacy rights do protect government interference with most personal decisions.

Here, Yvette is a child. She is not a competent adult. If her parents are found to be making decisions that will ultimately end in her death, such has refusing life saving medical treatment, the interests of the state will kick-in and they will be able to administer the treatment.

-VPA Legislation

The manufacturer's motion for summary judgment will probably survive, here are some of the key factors to consider.

Preemption may apply, when Congress has legislated in a field, this may keep the states from being able to do something inconsistent with that scheme, Here it looks like Congress wanted to protect Vaccine makers from tort liability in order to encourage vaccine making. If this is the case, the manufacturer in this case should survive summary judgment if the claim against him is barred at law.

Conclusion

I hope that answers your questions regarding claims and defenses. Please let me know if I can clarify or do further research.

Thank you.

 

Sample answer 2b.

MEMORANDUM

From: Law Clerk

To: NJ Judge

Re: Motions

You have asked me to research and discuss constitutional law issues for motions in the following cases. Please reach out to me if you need anything else.

1.

The U.S. Constitution allows for the government to take property for a reasonable public use in a doctrine known as eminent domain. This use can be private or public as long as it is a reasonable use, and as long as the owner receives fair market value for the taking. Eminent domain is only implicated when government actual takes title ownership of a proper. As American Constitutional law has developed, lesser takings have received attention under the eminent domain provisions. For example, regulatory takings may occur when a property is so regulated by the government that it loses all reasonable uses and all economic value. When there is no possible use for a property due to excessive government regulation, the government should compensate for the taking. When an individual has started construction on a project, they may be grandfathered in as a prior acceptable use because their right vested when they started construction in reliance on previous zoning laws. Similarly, a vested right may be recognized for existing structures that are affected by changes in zoning regulations. However, state, county, and local governments typically have power to dictate zoning laws in a way that promotes the health, safety, and welfare of the community and to uphold the character of a community.

Here, Isaiah's smoke shop has lost 100% of its economic value, and as such may be considered a regulatory taking. However, a court analyzing this would want to look at other possible uses for the property. The zoning change prohibits smoke shops only, and only within 2 miles of a college's campus. While this is financially destructive to Isaiah's business interests, this does not complete remove value from the property. Isaiah could convert the store to another use, sell the property and relocate the smoke to 2 or more miles off campus, or convert it to another acceptable use under the zoning codes. An inconvenience to Isaiah does not necessarily mean his constitutional rights have been violated when the zoning ordinance was passed for the good of the community. A court would analyze the zoning change in light of these other possible uses - and, considering that there is a local college nearby, it may be reasonable for a court to determine that another tenant could easily fill in and Isaiah could re-locate his business. Isaiah's individual interests would be balanced with the government interests in preventing easy access by college students to e-cigarettes and vapor pipe usage. Summary judgment should be denied if more investigation is needed and if there is a reasonable material question of fact implicaed by Isaiah's case. A court may decide that the determination of these issues is a political question best left to the other branches of government - legislative and executive - to decide. Isaih's relief may be in advocacy to these branches rather than in a courtroom.

Isaiah may also claim that the regulation is a proxy for speech regulation. Under the First Amendment, individuals have a right to free speech and free expression. Speech has historically been widely defined in our Constitution to protect even conduct if it relates to expression. Here, there is no indication that Isaiah's business ownership is a matter of speech. While the regulation is entirely content-based, it is not speech based and the regulation is unrelated to the suppression of speech, serves what the city would call an important government interest, and is narrowly tailored to fit those goals. Even if this were considered a proxy for speech regulation due to the impact on college students alone, the government could raise these arguments. It is unlikely that this would be a strong argument as speech and expression do not seem to be strongly impacted by this ordinance.

2.

Brittney has challenged the seizure of her diary as a result of a prison's investigation into alleged criminal conduct.  Individuals, including incarcerated individuals, are covered by the Free Exercise rights of the First Amendment of the Constitution. An individual cannot be discriminated against due to religious belief, and this is a near-impenetrable shield against government regulation. However, governments may regulate religious conduct if there is an important reason for doing so. Laws and regulations that impact religious conduct are acceptable typically if they are neutral and generally applicable. An individual cannot claim an exemption from neutral laws, even if it impacts their religious conduct (except under the ministerial exception which applies only to individuals within religious organizations).

Here, Brittany cannot be punished for her religious beliefs, even though non-traditional. She cannot be punished for her non-traditional religious conduct either, per se, but regulations by a state actor can be used in a neutral, generally applicable way to prevent harm to others. Prison officials, suspecting that the religious activity is a cover for illegal activity that is ongoing in the facility, may reasonably investigate as long as they do so in a way that makes sense as applied to all individuals regardless of religious belief. All individuals whose religious conduct raises flags should be dealt with in the same manner, regardless of the content of the religion's belief system.

Brittney's diary was seized as a result of her conduct. An illegal search seizure occurs under the Fourth Amendment of the Constitution when there is a violation of an individual's reasonable expectation of privacy. An individual in prison has little expectation of privacy due to the nature of their confinement, and therefore the seizure of Brittney's diary is proper.

It should also be noted that in a government owned, non-public forum (such as a state-owned prison or hospital), reasonable restrictions on speech can occur that may not be acceptable in public forums outside of the prison. Here, any impact on Brittney's speech was due to an investigation of illegal activity, impliating the safety of other prisoners and prison officials. Therefore, the regulation is presumed reasonable unless there is a concern with disparate use of the law rather than applying it neutrally.

Brittney's suit is against state prison officials in their official and individual capacities. This avoids 11th Amendment concerns that prevents an individual from suing a state directly in many cases. It should be determined whether there is statutory immunity, or a waiver of such, for prison officials in their official capacity before ruling on this issue. In any case, Brittney may sue the prison officials in their individual capacity based on their official conduct (a legal fiction of sorts).

Brittney has also challenged her conviction for stun gun regulation. It is unclear whether this regulation is federal, state, or local in nature. In any case, governments typically have wide powers to enact laws. The federal government, for example, is one of limited powers yet an expansive interpretation of those powers under the Commerce Clause. The 2nd Amendment of the Constitution protects the right of individuals to keep and bear arms, but this right, like all constitutional rights, is subject to limitations for strong government interests. Things like background checks before gun purchases can be made, and limitations on those with mental diseases from purchasing guns, have been upheld as reasonable regulations.  Therefore, the stun gun provision of the comprehensive gun control legislative package is likely to be upheld based on government's legitimate powers in regulating this arena.

3.

Clarence has challenged the NY regulation barring attorneys from practicing law if they do not have a physical branch presence in NY. The Constitution contains robust protection against out-of-state discrimination by states, in a few areas, including the Privileges and Immunities Clause of Article IV, the Comity Clause, and the Dormant (or negative) Commerce Clause. For example, the comity clause prevents regulation of out-of-state individuals solely based on their out-of-state citizenship. This especially applies in employment contexts. Furthermore, the Dormant Commerce Clause exists when Congress has chosen not to regulate an area of commerce. If this is the case, a state may regulate commerce only if they do so in a non-discriminatory manner, or a manner that does not unduly burden interstate commerce; unless Congress consents to the regulation.

The Supreme Court has held that states may not discriminate against out-of-state attorneys in a way that prevents them from practicing. While a state may impose reasonable regulations, such as bar passage and pro hac vice rules (for temporary practice in a state), a state may not completely bar individuals from practicing law simply because they do not live in the state. This violates the privileges of citizenship of NJ as it relates to NY and other states in the US. Here, the discrimination against out-of-state interests is clear and therefore under both the Comity Clause and the Dormant Commerce Clause, NY's law is unconstitutional.

4.

The vaccine manufacturer is seeking summary judgment against Yvette's parents for their action, which should likely be granted. The Supremacy Clause of the Constitution holds that, when Federal and state laws conflict, Federal law always prevails. Sometimes, the federal government chooses to pre-empt state laws either expressly or impliedly. There is an implied preemption issue when legislative history discusses an intent to limit or bar claims against certain actors, even in state courts. The federal government, in some circumstances, can even choose to "preempt the field" and rule itself Supreme over all litigation concerning a particular topic, such as vaccine, asbestos litigation, and torts involving airlines.

Here, the various state law tort claims by Yvette's parents are based on vaccine manufacturer liability. The VPA has impliedly pre-empted the field of litigation against vaccine manufacturers. Therefore, the state law tort claims by Yvette's parents are likely barred by the VPA, which is Supreme under our constitutional system.

 

Yvette's parents are also impacted by the Youth Services order that is sought to compel Yvette to receive medical treatment. Under the implications of the 5th and 14th Amendment (applied to states), individuals have certain non-enumerated rights under the principle of substantive due process. These rights include the right to direct the upbringing of one's own children, which is a fundamental right, and the right to seek or refuse health care. Laws and regulations that impact fundamental rights face strict scrutiny, and are only upheld if they are necessary for a compelling government interest, using the least restrictive means to fulfill that interest.  Individuals also have, as discussed above, a right to Free Exercise of religion. A challenge to a law on Free Exercise grounds fails if the law is neutral and generally appliable to all.

Here, Yvette's parents have a fundamental right to direct the upbringing of their child.  Yvette has a right to receive or refuse health care, which her parents can assert for her as her legal guardians. The government has a competing interest in providing immunity to the entire nation for common childhood ailments. Laws impacting health and safety are often upheld because the government interest is compelling. There would, therefore, be a battle of competing interests between Yvette's parents and the government. The government will likely prevail over Yvette's parents' substantive due process rights, even those that are fundamental, because of the compelling nature of the government interest (public health), and the minimally restrictive means used (i.e. only requiring vaccination for common ailments, not all ailments). Lastly, any challenges to the law based on Free Exercise grounds will fail because there are no exemptions for religious conduct that does not conform with the law, when the law is neutral and generally applicable, as here.  An order compelling Yvette's treatment is neutral and generally applicable because any individual would be forced to comply with the vaccination treatment, regardless of religious belief.

Question 3 – Evidence

Nancy worked for Gordian Avionics Inc. (“GA”), a national missile and satellite navigation firm, as a senior software designer. GA provides avionic software services to both private and government clients. Nancy’s employment agreement contained a restrictive covenant that prohibited her from working as a software designer for any competing company within the United States for five years after the termination of her employment. GA terminated her employment, effective October 1, 2015, citing excessive absences in its termination letter.

Nancy moved and started as a consultant for NASA’s Jet Propulsion Laboratory. Three months after her employment began, she received a “cease and desist” letter from GA’s lawyers. For the next few weeks, Nancy and GA’s president went back and forth regarding the restrictive covenant and concerns raised about her time at GA.

Despite their efforts, no agreement was reached and GA filed suit seeking a preliminary injunction, permanent injunction, and damages. After discovery was completed, counsel for both Nancy and GA submitted a Final Pre-Trial Order, which included a joint Motion In Limine wherein:

Counsel for GA seeks to introduce the following:

1.         An e-mail sent by Nancy to GA’s president, where she admitted that her work “could be seen as a violation of the covenant,” but that she wanted to “resolve this without resorting to litigation” and offered not to seek a bonus she felt she was owed and to pay GA $10,000 in exchange for mutual releases.

2.         A certified letter from the U.S. Department of Education establishing that Nancy, despite her affirmative representation, did not obtain her degree from an “accredited U.S. institution,” which was a prerequisite to her employment at GA.

3.         A certified judgment showing that, in July 2006, Nancy was convicted of manslaughter in connection with her fiancé’s death. Her pardon application was granted after she served 18 months in prison.

Counsel for Nancy seeks to introduce the following:

1.         An e-mail from GA’s general counsel, sent to its Board  of Directors, outlining her opinion that the company’s restrictive covenant is “poorly drafted, of questionable legality, and needs to be rewritten immediately . . .” that was copied by error to all of GA’s senior staff.

2.         A False Claims Act complaint filed by Nancy in the months preceding her termination, which alleged that GA was providing faulty software to the government, thereby guaranteeing future “updating work” for the company.

3.         Six written performance reviews by GA’s Vice President, including one dated August 2015, all of which fail to reference any concerns regarding Nancy’s “absences.”

You are the judge’s law clerk and are assigned to write a memorandum advising the judge how she should resolve the motion and why.

PREPARE THE MEMORANDUM

Sample answer 3a.

To: Judge

From: Law Clerk

Re: Evidence Introduced by GA and Nancy

 

Counsel for GA

1. Gordian Avionics (GA) will not be permitted to introduce the testimony of Nancy (N) as they were made in connection with a settlement agreement.

The first issue any introduction of evidence will have to deal with is whether or not the evidence is relevant. Evidence is relevant if it likely makes a claim more or less likely. The threshold for admissible evidence is very low.

The main issue with testementary evidence is argued under the rules for hearsay. Evidence is hearsay if it is an out of court statement offered to prove the truth of the matter. There are many exceptions to the hearsay rule. One exception is if the statement was made by a party opponent. Parties can introduce statements made by their opposing parties, but there are some limitations. One limitation is that if the statement is made in connection with genuine offers of settlement when litigation is contemplated. This is because judicial efficiency favors settlements.

In this case, N admitted her work "could be seen as a violation of the covenant" but that she wanted to "resolve this without resorting to litigation" and offered not to seek a bonus and was willing to pay 10,000.

This evidence is clearly relevant. It makes it more likely that N violated the non-compete, or at least that she thought she might have in some way harmed the interests of her former company.

However, although this is a statement of an opposing party, it is clearly made in the contemplation of litigation, because N explicity says she wants to avoid court. She also offered not to seek money, and offered to pay a settlement. It is clear that N is attempting to avoid litigation, and because that promotes judicial efficiency, this Court should not punish her by using her statement against her.

2. GA should be denied the opportunity to introduce a certified letter from the U.S. Department of Ed establishing N did not get a egree from an accredited U.S. institution, even if it could possibly be used to impeach her.

This type of evidence is clearly of the type usually acceptable. As a certified letter, it likely meets the business records exception, which allows for the introduction of evidence that bears government seals, because that evidence is typically not treated as hearsay.

Additionally, it could be used to challenge N's credibility when she testifies.

However, the main problem with this evidence is that it is probably not relevant. As previously said, evidence is relevant if it likely makes a claim more or less likely. The threshold for admissible evidence is very low. However, even under this relatively low standard, some pieces of evidence will fail. This certificate shows that N did not meet the minimum standards for working at a job she already quit. However, this case is about whether or not N violated the terms of a non-compete clause. Whether or not she lied on her application does not change whether or not she violated a non-compete after she left. Because the introduction of this evidence is more likely to confuse a jury than aid in any real determination, it should be excluded.

It is possible that GA could ask N whether or not she lied on her application to attack her credibility. However, they likely would not be allowed to introduce this evidence if she said no, because it is a collateral matter.

3. GA will not be able to introduce evidence of N's manslaughter conviction in 2006.

Typically, evidence of convictions is not allowed in civil cases for the purpose of proving the defendant is a bad actor. However, certain types of convictions are excluded. The relevant exclusion in this case is for felonies, provided they are not too remote, and were not the subject of a pardon. Remoteness is found when the person has been convicted or released from incarceration (whichever is later) for more than 10 years.

In this case, N's conviction likely fits the typical discription of a felony that would be allowed in as evidence. Even though it wouldn't likely meet relevance standards for a non-compete clause case, it's possible that it could be relevant to impeaching N.

N's conviction was for manslaughter, a felony, in 2006. She was released from incarceration 18 months later, placing her release in either 2007 or 2008, depending on how late in 2006 she was convicted. It doesn't matter, because both are within 10 years of the current year, 2015 (the facts state that's when she was terminated, it's unclear how long has passed since then, but this answer assumes it is still 2015). However, despite the fact that her conviction meets the standard, it fails because N was pardoned. Felony convictions that are pardoned cannot be used as evidence, even if they are otherwise admissible.

Counsel for N:

1. GA's letter indicating the restrictive covenant is poorly drafted is likely admissible.

This evidence relevant because it shows awareness on behalf of the company that their restrictive covenant is unreasonable.

Typically, documents from counsel will be treated as work product, and in the alternative, protected under lawyer-client privilege. These documents will only be admissible under limited circumstances. For work product to apply, the communication must have been created in the anticipation of litigation, and generally they will only be admissible if the opposing party has no reasonable way to get the evidence in. For lawyer-client privilege, the circumstances that apply to this situation invovlve the care with which the counsel took to maintain confidentiality, and whether or not they attempted to enforce the privilege after making an accidental disclosure. In addition, accidental disclosure typically applies when the disclosure is made to opposing counsel. It is especially important to enforce the privilege when the opposing counsel accidentally discloses too much information in an attempt to fulfill discovery requests, because the law should seek to protect lawyers who make honest errors in an attempt to be fair to their opposition.

In regards to work product, it's unclear if this email was drafted in anticipation of litigation. It's perfectly reasonable to assume the in-house counsel was just reviewing employment contracts, realized how poorly the non-compete was drafted, and wrote a memo indicating a need to update it. If the email was just a general thought, it likely wouldn't be considered work product, because it they wouldn't be able to argue that it was prepared for litigation.

However, even if it's not work product, it is likely protected by attorney-client privilege. That's a fact specific analysis, however, and shouldn't be ruled on without more information. For instance, there are no suggestions at this point regarding whether or not GA's counsel ever attempted to retract the document. It's also clear that the disclosure was not made to opposing counsel during discovery, but to their own staff. Because it appears that this error, while careless, does not meet the typical definition of privilege as contemplated by the accidental disclosure rule, and it should not protect GA now.

2. The False Claims Act complaint filed by N should be allowed in.

This evidence is clearly relevant. It will be used to show that GA's attempted enforcement of the non-compete clause is retalliatory, and not for the purpose of protecting any legitimate company interest. This evidence will be used especially if the court attempts to reform the clause to better suit the needs of the company. If N can show the company is using the clause to bully her, she will be able to make a better claim for non-enforcement.

The main issue with this evidence is that it GA will argue that the testimony in the document is hearsay. Although most out of court statements are hearsay, this statement probably is not. Consider the last part of the hearsay rule, which is that the out of court statement is hearsay if it is offered for the truth of the matter asserted. In this case, the matter is whether or not the enforcement of the clause is valid. There is also the matter of this document, which is that the company provided faulty softare to the government, guaranteeing future "update work". When looking at a statement, it is useful to ask whether or not it matters for the purpose of the case if what the declarant said was true.

In this case, it doesn't matter whether or not N was telling the truth about GA. This is because the issue is whether or not the non-compete is valid. N isn't trying to prove that GA actually was cheating the government with bad software, she's trying to prove why she was fired. Because it doesn't matter if the statement about the software is true, the statement is not hearsay, and as such, is admissible.

3. The six written performance reviews should be let in, and there are at least two reasons why.

They are relevant because they speak to whether or not the company was protecting its interests by firing N then enforcing the non-compete clause.

The first reason is that they are likely admissible under the hearsay exception as a business record. A business record is admissible when it is used to prove something that was drafted by a person who had a duty to a company to accurately write information down, and was done in the course of regular business.

It is unclear how long N worked for GA, but the fact that she had six performance reviews indicates that they were conducted somewhat regularly. Because they are kept in the regular course of business, the last remaining issue is whether or not the person drafting had a duty to draft accurately. Because performance reviews can make or break an employee's ability to continue working, it is likely that the documents would have been expected to be generated carefully and accurately, and by an agent of the company.

In this case, because the records were kept regularly, and should be accurate, they should be allowed in for N to show she was not fired for the reasons given, which will affect reformation of the clause.

That all assumes that the documents are considered hearsay at all. Admissions of opposing parties, as previously discussed, are admissible as nonhearsay. In this case, there will be a question to whether or not they are truly admissions. It is likely that, even though the documents don't say that N wasn't late, they don't say she was late either. That is the type of information one would expect to have in a performance review that played a part in the firing of an employee. Because GA neglected to put them, a jury should be permitted to find the inverse- that GA did not genuinely believe that N was late, because they never included it as part of her reviews.

Sample answer 3b.

To: Judge

From: Clerk

Date: 7/2/16

Re: Evidentiary Issues

Your honor,

You have asked me to advise on how to rule on the six evidentiary issues raised the joint motion in limine. As a general rule, all evidence is presumed to be admissible if it is relevant, meaning that it makes a material issue (one that is germane to a claim or defense at issue) more or less likely, so long as there is no rule or law precluding its admission. I deal with each issue in turn below:

- Nancy's email

This email should be excluded as confidential settlement discussion. GA will argue that it is an admission by a party opponent and thus admissible for any purpose GA sees fit. An admission by party opponent is a statement made at any time for any reason by a party opposed to the one offering it at trial. Here, GA seeks to offer a statement (email) made by Nancy (opposing party), meaning that it should not be considered hearsay or otherwise excluded so long as it is relevant. It certainly is relevant as it makes the question of whether she is violating the covenant more likely.

However, there is a broad public policy exception for this email: settlement communications. The statements made in the course of settlement may not be used other than for very specific purposes under very specific instances. This is because we wish to promote settlement between the parties. Here, the email was for the purpose of settling the issues with GA ("resolve this without litigtion") even before litigation began - a case need not be filed, only reasonably anticipated, for settlement to be a concern. That it admitted something about her new work is irrelevant, not violating the protection. Therefore, it must be excluded.

- DOE Letter

This should be excluded. It is irrelvant. There are no issues raised in this matter over whether or not she was qualified to work at GA. In fact, the quality of her work at GA is not even in question. As it is irrelevant, it should be excluded.

Further, as it has no probative value, its admission would violate Rule 403, as prejudicial. Evidence, even relevant evidence, must be excluded if the undue prejudice substantially outweighs the probative value. Here, there is zero probative value and the risk of prejudice is high against Nancy.

- Certified Judgment

This, too should be excluded, both as substantive evidence and as an attempt to impeach Nancy. GA seeks to admit it as character evidence, which is impermissible as a substantive matter where the character of the party is not in question. Here, Nancy's character is not in question; what is in question is whether the new job violates the covenant and whether she was routinely absent from work.

Further, it should be excluded as impeachment evidence because it is not permitted as a prior bad act - which requires that, in civil cases, the witness have committed a crime of dishonesty (such as fraud) or one with a maximum penalty of over 1 year in prison in the last 10 years. This conviction was almost exactly 10 years ago (over 10 years ago if the conviction was entered into before the 28th of the month) and will be past 10 years by the time of trial. Further, even for events within the last 10 years, where the convicted was pardoned and there has been no recidivism, the conviction should be treated as nonexistent. Therefore, it should be excluded.

- GA's email

This Court should reserve judgement on this pending further evidence. Here the issue is one of competing rules. It should be admissibl as an admission of party opponent as discussed above: it is a statement by a GA officer on behalf of the company being offered by Nancy on a relevant issue. However, it is also a communication from counsel on a matter offering legal advice and should therefore be excluded under the attorney-client privilege. The attorney-client privlege attaches whereever a communication is made to/from counsel from a client with the purpose of providing or receiving legal advice, and it overrides other rules which would generally grant admission.

However, the attorney-client privilege is dependent on maintaining a protected communication chain. The privilege may be waived where the communication is overheard or seen by a 3rd party where the attorney and client were not acting reasonably to protect their communication (for example, there is no privilege for words spoken over the phone at a crowded bar). Here, Nancy can argue that sending the email to all GA senior staff constitues such a waiver. This Court will need to determine further facts to rule, though. First, who and what are "senior staff?" If that group is limited to the control group of GA, then there was no waiver as the people who received it were the one responsible for company policy and protected by the waiver. Second, was there an effort to claw-back the email? Where a privilege is distributed in a way that would typically waive it, if the attorney did take reasonable precautions in the process and attempted to demand its return immediately after learning of the breach, then the privilege will survive.

At this time, we need more information to determine these issues and whether there has been a waiver. Therefore, the Court should withhold its judgment on this issue.

It should be noted that it is highly relevant to the underlying legality of the covenant, the central issue in this case.

- FCA Claim

This claim should be admittted. GA will argue that it is hearsay as an out of court statement; however, it is not being offered for the truth of the matter asserted: that GA violated the FCA. It is being offered as true reasoning for why Nancy was fired. Nancy need only show it - and evidence that GA was aware of it - to show that they fired her not for any absences but for this claim as retaliation. As the underlying cause of the termination is at issue as raised by Nancy, it is highly relevant to that issue.

Nancy may also argue that it is a public records exemption, but this is unnecessary and as it was not produced by the government, it cannot fall into that exclusion.

- Performance reviews

These should be admitted under the business records exclusion to hearsay and as an admission of party opponent. First, they are hearsay: they are being offered by Nancy to show the truth of the matters asserted therein: that she was not habitually absent enough to warrant any concern by GA.

However, hearsay statements may be offered if they are properly authenticated business records. To be so, they must have been kept in the ordinary course of business at or about the time the underlying events occurred by someone with direct knowledge (or who had received the information from someone with direct knowledge and an obligation to speak truthfully) of the facts contained therein. It is highly likely that Nancy can show at trial that these reviews were kept in the normal course of business - that a company like GA would do routine performance reviews is to be expected - at or about the time of the reviews, and by someone with direct knowledge. Here, the VP likely either had direct knowledge or relied on the obligation of the direct supervisors to provide him with honest information. Therefore, these should be admitted as business records.

Additionally, as they were produced by GA, they should be considered statements of GA. Therefore, Nancy is free to admit them as admissions of the party opponent, as discussed above.

Question 4 – Civil Procedure

In 2010, John, a grantor, established a New Jersey irrevocable trust (“Trust”) with his daughter, Rani, as the trustee and his wife, Abigail, the beneficiary. Rani and Abigail reside in New York. The Trust sold an office building in Exotic City, New Jersey, to a Delaware limited partnership (“LP”), consisting of two partners residing in Maryland and New York. On February 1, 2012, LP financed the transaction by executing a promissory note (“Note”) issued to the Trust in the amount of $100,000. The Note was secured by a mortgage on the office building.

Several years later, LP defaulted on the Note. Rani, Abigail, and John retained the services of Law Firm pursuant to a legal services agreement (“LSA”) to recover on the Note. The LSA specifically authorized John to make all decisions during Law Firm’s representation, including the distribution of any proceeds based on a limited power of attorney from Abigail and Rani to John effective through May 1, 2014.

On April 1, 2013, Law Firm filed a complaint in the U.S. District Court of New Jersey on behalf of the Trust seeking $75,000 plus interest in damages against LP for breach of contract. On April 20, 2013, LP filed a motion to dismiss for lack of subject matter jurisdiction, which the court granted.

On May 15, 2014, Abigail and Rani informed Law Firm that they no longer wished to be bound by the LSA and that John no longer had the authority to make any decisions related to the Note or distribution of any recovery. John had filed for divorce and Abigail no longer trusted him. Law Firm complied by terminating the existing LSA and taking all further instructions related to the Note and litigation from Rani and Abigail pursuant to a new services agreement.

On September 1, 2014, Law Firm, pursuant to Rani’s and Abigail’s request, filed a foreclosure action on behalf of the Trust in the state court of New Jersey, Chancery Division, against LP. John filed a motion to intervene in this foreclosure action and require Law Firm to follow his instructions in the litigation, which the judge denied based on the termination of the LSA and the expiration of the power of attorney. John then filed a motion for reconsideration, which the judge also denied, in which he raised a new argument that his marital rights to the office building should allow him to intervene. John did not appeal the judge’s rulings.

Subsequently, John filed a complaint in the state court of New Jersey, Law Division, against Law Firm alleging professional malpractice and breach of contract for failing to follow his instructions in the foreclosure litigation. Law Firm filed a motion to dismiss the Complaint arguing estoppel, which the Law Division judge denied.

You are an associate at Law Firm who has been requested to prepare a memorandum that provides a legal analysis and opinion on the following issues:

1.         Did the U.S. District Court judge rule correctly in granting LP’s motion to dismiss?

2.         Was the Chancery Division judge correct in denying John’s motion to intervene?

3.         Was the Chancery Division judge correct in denying John’s motion for reconsideration?

4.         Was the Law Division judge correct in denying Law Firm’s motion to dismiss?

PREPARE THE MEMORANDUM

 

Sample answer 4a.

To:                  Senior Partners

From:               Associate

Re:                   Validity of Motions in Trust v. LP and John v. Law Firm

1. LP's Motion to Dimiss

The U.S. District Court judge ruled correctly in granting LP's motion to dismiss for lack of subject matter jurisdiction. The issue is whether the parties met the requirements of diversity jurisdiction.

A federal court may not hear a case unless it has subject matter jurisdiction over a claim. There are two different methods of establishing subject matter jurisdiction: diversity jurisdiction, or federal question jurisdiction. The issue here is diversity jurisdiction, because there is no federal claim alleged in Law Firm's complaint against LP. In determining whether diversity jurisdiction exists, courts look to 1) whether there is complete diversity of citizenship between all plaintiffs and all defendants, and 2) whether the amount in controversy exceeds $75,000.

In Law Firm's suit against LP, a court would likely find that there was complete diversity. The suit was brought on behalf of the Trust, which is it's own legal entity. The Trust was created in New Jersey; thus, for the purposes of the law suit, it is a "citizen" of New Jersey. The law suit was brought against LP, a general partnership. The citizenship of a general partnership is determined by the citizenship of each and every partner. Here, the partners are from New York and Maryland. Thus, the plaintiff Trust is completely diverse from the defendant partnership because there is no overlap of citizenship.

Alternatively, if the court looked for citizenship not at the location of the trust, but at the citizenship of the executors of the trust, they would find that diversity did not exist. Rani and Abigail are from New York. Although the facts do not state where John is a citizen, it is irrelevant, because Rani and Abigail's New York citizenship would be enough to destroy complete diversity with LP, because of the partners is also a citizen of New York.

However, the amount in controversy clearly fails to surpass the minimum required for diversity jurisdiction, and on these grounds we can certainly say that the motion to dismiss was properly granted. The amount in controversy requirement for diversity jurisdiction is more than $75,000 -- $75,000 exaclty is not sufficient. Further, a plaintiff cannot use added interest to make a claim exceed the required amount. Here, the claim against LP was $75,000 plus interest. Because the interest does not add to the damages alleged, the amount in controversy requirement was not met.

The Court was therefore correct is dismissing the suit against LP.

2. John's Motion to Intervene

The judge correctly denied John's motion to intervene. The issue is whether John's motion to intervene was based on permissive intervention or intervention by claim of right.

A motion for intervention allows a third party, who is not a party to a lawsuit, to join the case. Such a motion allows the third party to assert their rights or interests in the claim. There are two types of intervention: permissive and claim of right. Intervention by claim of right can be asserted when a plaintiff shows either than he has an unconditional statutory right at issue in the case, or that he has an interest that will be harmed if he is not permitted to intervene. The court has no discretion to deny a motion to intervene by right. In contrast, permissive intervention can be asserted when a plaintiff shows that he has a conditional statutory right at issue in the case, or where there is a common issue of law or fact between the claim he asserts and the claim at issue in the suit. The court has discretion to grant or deny motions for permissive intervention.

Here, John's motion can be classified as a motion for permissive intervention. Although he is the settlor of the trust, the trust is irrevocable, and is provided to Rani as the trustee and Abigail as the beneficiary. Although John had perviously had a power of attorney of the trust distribution, that power of attorney had lapsed at the time of the suit. Further, because the LSA was no longer in effect, John no longer had any vested interests in the trust, and therefore no interest in the foreclosure. There is also no unconditional statutory right alleged.

As such, whether to allow John to permissively intervene was within the discretion of the court.

3. John's Motion for Reconsideration

The judge corrrectly denied John's motion for reconsideration. The issue is whether John became aware of new facts or evidence that might alter the court's ruling on his earlier motion.

A motion for reconsideration may be filed after an initial motion is denied, where the moving party has become of new facts or evidence that may alter the court's initial ruling. Motion's for reconsideration should be denied, however, where the evidence offered on reconsideration was available to the plaintiff when the first motion was filed, and the plaintiff simply failed to assert it. Motions for reconsideration cannot be used to continually give the moving party more bites at the apple; a motion for reconsideration is only proper if based on new grounds.

Here, John's marital status between the time of his first motion to intervene in September 2014 and his subsequent motion for reconsideration was unchanged. He had filed for divorce from Abigail in 2014 and, on the facts here, remained either divorced or in the process of obtaining the divorce at the time the second motion was filed. John should have asserted his claim as to marital rights in his original motion to intervene; his failure to do so does not merit a different result upon a motion for reconsideration.

4. Law Firm's Motion to Dismiss

The Law Divison judge properly denied Law Firm's motion to dismiss the complaint based on estoppel. The issue is whether John was estopped from enforcing his alleged rights under the LSA and as power of attorney.

A party may be estopped from asserting a claim when that issue has been decided in a previous case. Collateral estoppel applies where 1) the party against whom the issue is being asserted was a party to the original case, 2) the issue was essential to the first case, 3) the party against whom the issue is being asserted had a full and fair opportunity to litigate the case, and 4) the judgement as the original issue was final and on the merits. New Jersey has abandoned the mutuality rule, which means that the parties do not have to be identical in both the original case and the case in which estoppel is asserted; it is sufficient that the party against whom estoppel is asserted was a party in the prior action.

Here, Law Firm moved to dismiss on the grounds that the issues of professional malpractice and breach fo contract alleged by John had been resolved in an earlier proveeding, when John made a motion to intervene in the Trust's action against LP. However, John can not be considered a party to this action because his motion to intervene was denied. Further, he did not have the opportunity to fully and fairly litigate the issue because, again, he was not a party; the motion was collateral to the ultimate issue in that case. Finally, a judge's determination that a party may not intervene does not amount of a final judgment on the merits.

On these grounds, the Law Division judge was correct in determining that collateral estoppel had not attached to John's asserted issue. The Law Firm's motion was thus properly denied.

Sample answer 4b.

To: Law Firm Partner

From: Associate

Re: In Re Trust v. LP

The District Court ruled correctly in granting LP's motion to dismiss: In order for federal court to have subject matter jursidciton over a matter, it must have either federal question jursidiction or diversity jurisdiction. Federal question jurisdiction exists when the claim arises under federal law, the US constituion, or US treaties. Here, the claim is a contract cause of action, which is typically based off of state law. Thus, the district court did not have federal question jursidiction. The issue, therefore, is whether the district court had diversity jurisdiction.

For diversity jurisdiction to be proper, two elements must be satisfied. First, there must be complete diversity, which exists when each plaintiff is of diverse state citizenship of each defendant. Second, the amount in controversy must exceed $75,000. An indiviuals state citizenship is determined by their domicile. A domicile can be established by physical presence in the state and an intent to remain there permenately. A partnership, on the other hand, is deemed to be a citizen of every state where a partner is domiciled. Here, Rani and Abigail are citizens of New York and are parties to the litgation. Although they signed a limited power of attorney, John sued on behalf of the trust and they have legal interest in that trust. Furthermore, the facts make it clear the John, Rani, and Abigail all retained the services of Law Firm. In regards to the partnership, it conists of two members, one of which is a New York resident. Thus, two plaintiffs and one defendant are citizens of New York. Since there is not complete diversity, the district court does not have subject matter jurisdiction. Consequently, the district court correctly granted LP's motion to dismiss.

Even if the trust (founded in NJ) is treated as a single entity for the purpose of this suit, creating complete diversity, the amount in controversy is not satisfied. Under the federal rules, the claim must exceed $75,000, exlcuding interests and attorney's fees. Here, the amount is $75,000 plus interest. Therefore, the claim does not exceed $75,000 and diversity jurisidiction still would not exist.

The Chancery Court was correct in denying John's motion to intervene: Generally, an indiviual may intervene in a lawsuit when the litigation affects a property or legal interest and such interest cannot be adequately defended by the existing parites in the suit. Here, John is the settlor of the trust, his wife is the beneficairy, and his daughter is the trustee. Given both his familial relationship to the parties and his legal relationship to the Trust, John is not a necessary party to the litigation. His daughter and his wife can both adequately represent his interest. Additionally, John has no right to share in the proceeds of the foreclosure action. Only the wife, as beneficiary of the trust, will benefit. Therefore, releif can easily be shaped so as to avoid prejudice to John. Furthermore, since John no longer held the power of attorney over (expired on May 1, 2014) he did not have the authority to control the legal recourse sought by his wife and daughter. Thus, the district court correctly denied John's motion to intervene because no inequity will result due to John's absence.

The chancery court correctly denied John's motion for reconsideration: Under the NJ Rules of Civil Procedure, a motion for reconsideration is limited to issues raised during trial or based of newly discovered facts that the moving party did not unreasonably fail to discover prior to or before trial. Here, John already knew he was going to divorce his wife. Thus, he should have known that divorce ends the divorced spouse's rights as a beneficiary to a trust. As a result, he should have argued this claim in the first instance. He cannot raise it for the first time after the case has been decided on the merits. Therefore, the chancery court correctly decided on John's motion to dismiss.

The Law division judge incorrectly ruled on Law Firm's motion to dismiss: In order for a party to assert issue preclusion the same parties in the previous litigation must be before the court on a different cause action. The party seeking to assert preculsion must show that the issue he is trying to estopp was actually litigated and that the other party had a opportunity to be heard on the issue. In most state, the mutality principle has been abloshed. As a result, an indivual not a party to the first litigation may use preculsion in the second litgation if the use would be fair and reasonable and the above factors were met. Here, the Law Firm should be allowed to assert issue preculsion because there was a final judgment on the merits as to whether or not john could intervene in the previous lawsuit. As an essential finding to the judgment, the court ruled that the LSA had been terminated and that the power of attorney expired. It would be fair and reasonable because Law Firm is being sued on a breach of contract that a prior court ruled was terminated. Therefore, the court should have allowed Law firm

Question 5 – Real Property

Elizabeth agrees to lease commercial space (the “Space”) to Steve for three years. The agreement provides that Steve is not permitted to assign or sublease the Space without Elizabeth’s per- mission. After one year, and without informing Elizabeth, Steve agrees with John to allow John to occupy the Space in exchange for John making rent payments to Elizabeth. John begins operating a book store at the Space and makes rent payments to Elizabeth, who does not notice that the rent checks are from John.

Soon after John occupies the Space, another tenant begins operating an extreme fitness center above the Space. Patrons of the fitness center throw heavy objects as part of their training. John complains to Elizabeth and Steve about the resulting noise interfering with John’s ability to operate the book store. John indicates that if the noise does not stop he will leave the Space. Thereafter John moves out. Elizabeth, who has taken no steps to find another tenant for the Space, advises Steve that she will hold Steve responsible for the remaining rent.

Steve’s residence is located on Lot 1. Adjoining Lot 2, owned by Lou, is elevated above Lot 1 with a garage located near the boundary line with Lot 1. Steve decides to install an in-ground pool on Lot 1. Steve obtains the proper permits and hires a profes- sional excavator to begin the work. During the first day of excava- tion the garage on Lot 2 collapses. Lou wants Steve to pay for the damage to the garage.

Steve’s son lives in a house on Lot A, which is owned by Steve. Adjoining Lot B is owned by Chris, who is constructing a house on it. Steve’s son is irritated by the constant noise from the on-going construction as it prevents Steve’s son, who works the night shift, from sleeping in the afternoon. Additionally, Steve is annoyed because construction debris from the site constantly blows onto Lot A and he fears that a crane being used on Lot B may swing and hit his house on Lot A.

Steve comes to your law firm. Steve does not want to pay any additional rent to Elizabeth for the Space, does not want to pay for the damage to Lou’s garage, and wants Chris to stop the construc- tion on Lot B.

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

PREPARE THE MEMORANDUM

Sample answer 5a.

TO: Steve

FROM: Lawyer

RE: Memo regarding your claims

Dear Steve,

You have asked our firm to analysis your potential claims to bring against Elizabeth, Lou, and Chris. My analysis is as follows:

Steve v. Elizabeth

You took out a commercial lease from Elizabeth. You then either assigned or sublet the space to John. If you leased the bookstore to John for the remainder of your three year lease, then it was an assignment. If it was for less than the remaining two years, then it was a sublet. This makes a difference because if it was only a sublet, you will still be liable for paying the rent. If an assignment, John will be liable too. You did breach the prohibition on assignments or subleases when you leased to John without Elizabeth's permission. Usually, that would make you liable to Elizabeth for the breach. However, we can argue that Elizabeth waived the conditional requirement of permission by accepting John's rent checks without objection. Even if she did not notice John was writing the checks at first, John complained to Elizabeth when the noise starting occuring, and Elizabeth did not object then either.

You can bring a claim for constructive eviction on John's behalf. Constructive eviction occurs when the premises becomes so uninhabitable that it has breached the tenant's right to quiet enjoyment of the premise. This typically occurs when a utility stops functioning, or something substantial to make to take away your right to enjoy your property in peace. When the premises become unsuitable for living, the tenant must notify the landlord, allow the landlord reasonable time to correct the situation, and if the landlord does nothing, the tenant may move out and cease paying rent. The tenant should pay rent into an escrow account until the situation has been settled.

Here, John was operating a bookstore and the fitness center's noise was interfering with John's ability to operate the bookstore, as bookstores generally need quiet. While this is not a utility, this may be a substantial enough interference with John's right to quiet enjoyment that a constructive eviction occurred. John notified both you and Elizabeth, and thereafter moved out. John was within his rights to move out. Although John moved out, your lease with Elizabeth has not expired. Although John has been constructively evicted, you have not been. If John was an assignee, then you may be off the hook since John planned to stay for the entrie lease, and now that he has been constructively evicted, Elizabeth should have the responsibility to mitigate damages and find a new tenant. However, if it was a sublet, you would had planned to come back to the space. It would then depend on whether or not the noise was enough to constructively evict you as well. If it is, which may be the case depending on how you use the space, then you would also be constructively evicted and not owe rent. If you are not, then you will owe rent.

Steve v. Lou

Regarding your situation with Lou, you have subterraneous land rights, such that you may excavate beneath your property. If you excavate, and there are preexisting structures on the surrounding land that collapse, then you will be strictly liable for the damage caused. If the structures contributed to the collapse, then you will only be liable for any negligence. So whether or not you owe Lou money for his garage depends on 1) whether the garage contributed to the collapse or 2) if it did, were you or the people doing your excavation for the pool negligent in any manner? I would need to know more information about how the collapse occurred, which may require us to hire some experts, but I can't guarantee you can get away without paying Lou here.

Steve v. Chris

You have several claims you can bring against Chris, including nuisance and trespass.

Private nuisance claims can be made when the activity of a neighboring property owner substantially and unreasonably interferes with the quiet use and enjoyment of your land. Substantial means that a ordinary average person in the community would find the activity disturbing. Unreasonable means that the utility and usefulness of the activity, including your neighbor's right to use his land as he wishes, is outweighed by your need for quiet enjoyment of your property. You can either claim damages and/or request an injunction to stop the nuisance.

Here, Chris's construction is irritable, and understandably so. However, Chris does have a right to build on his property. Construction is typically disturbing to the average person, although the fact that your son sleeps during the day will likely not be considered by a court because he is more sensitive to noise than the average person. I think the problem may be that the court will balance the equities, and find that Chris is able to construct a house on his land. However, we may be able to compromise and seek an injunction that limits the time of the construction, if that were to help. Your son may just need to buy some strong earplugs, unfortunately.

We do have a stronger claim for trespass though for the blowing debris. Tresspass is entering or physically invading another person's land intentionally without permission. A person does not have to enter the land for a tresspass to occur, rather, a physical invasion can occur by other objects if those objects were in the control of the person and they allowed them to enter the property. The debris from the construction site is blowing onto Lot A, which is a physical invasion. Trespass does not require damages, just the other elements mentioned. Since those elements seem to be met here, we can bring a claim for trespass.

As for the crane, there's not much we can do at this point since no damages have occurred, but we can ask for an injunction to prevent the crane from being swung close to your house.

Please note that my analysis is only my opinion, and I nor the firm can guarantee you any results. We will do our best to secure the best outcomes possible.

Sincerely,

Attorney.

Sample answer 5b.

I. Introduction and Facts

Steve has come to the firm with three separate issues, all involving real property. The facts of each specific case will be discussed with the relevant legal principles applied to each matter.

II. Rights, Obligations, and Liabilities

A. Rent to Elizabeth for Space

Steve's rights, obligations, and liabilities depend on an analysis of the assignement of the commercial lease for the Space. A lease does not automatically contain a prohibition on assignement. If the lease is silent on the issue, there is a presumption that the lease is freely assignable. However, a lease may prohibit assignemnts by the terms of the lease. If a lease prohibits assignments without the consent of the lessor, a assignement will not be permitted. However, the rule in Dumpor's case establishes that even if there is a prohibition on assignment, but the lessee assigns the lease anyway the condition is considered waived if the lessor accepts payment or performance under the lease from the assignee. This analysis hinges on whether or not the lessor has notice of the assignment. Notice can be actual or constructive. Actual notice is imputed to a lessor when they know, or conditions exist so that they should have known, of the fact. Unless there is a novation that occurs when a lease is assigned the original lessee remains liable for the lease as they are in privity of contract with the lessor, while the assignee is in privity of estate. A valid novation occurs when there is an agreement between the assignee and the lessor to releive the lessee/assignor of all liability. A nuisance exists if conditions are such that interfere with reasonable use and enjoyment of the property that one occupies. A nuisance does not rise to the level of constructive eviction unless it interferes with the habitability of the premises. If a lease is broken before the end of the term, a landlord can sue for damages. However, the damages will be reduced by the landlord's duty to mitigate- the landlord may not sit idly by while damages acrue.

Here, Steve assigned the lease to John. Although there was an express prohiition on assignments, Elizabeth accepted the checks from John thereby approving of the assignment. Additionally, she had actual notice of the assignment in that she could have looked to see who the checks were coming from. The fact that she did not look does not preclude a finding of notice becuase conditions exsit where she should have known of the assignment becuase the checks were coming from a different person. However, there is no novation. The result of this is that John is in privity of estate, but Steve remains in privity of contract. Without the novation, John remains personally liable. The gym above the bookstore may be a nuisance as the throwing of heavy objects may interfere with the use and enjoyment of the property, it does not rise to the level of a constructive eviction. After John moves out, Elizabeth can sue him for the rent since he had taken over Steve's lease. But, she can still sue Steve becuase he remains personally liable. Steve can assert the defense that she has not fulfilled her duty to mitigate to lower the damages he may owe for breaking the three year lease early. Elizabeth will not be able to recover the remaining rent but Steve will be liable for the damages and reasonable costs assocaited.

B. Damage to Lou's Garage

Steve's rights, obligations, and liabilites to Lou for the damage of the garage depend on the application of the lateral support doctrine. Owners of adjacent lots owe each other a duty of lateral support for the land. An owner of a lot will be strictly liable for the subsidience of adjacent land in its natural and unimproved state. If there is a building on the land, its damage must have occured because the land would have subsided even without the building being on the land. However, if the damage to land only occured because of buildings or other structures on the land, the owner of the adjacent lot must prove that the owner of the lot was negligent in causing the subsidience.

Here, Steve obtained the proper permits and hired professionals to excavate. Even as an independent contractor, Steve will be liable for the actions of the company because excavating is an ultrahazardous activity for which he will still be liable. However, the professional excavaotor may be assumed to have exercised reasonable and due care. There are no facts provided to support a presumption that there was negligence involved. There is also no information provided as to whether or not the land would have subsided in its unimporoved state. wtihout this information, a full examination of liabilites cannot be performed. Steve will have to pay for the damage if the land would have subsided anyway in its unimproved state or if the excavator was negligent. If the land only subsided because of the improvements on the land and the excavator was not negligent, Steve will not have to pay for the damages to the garage.

C. Injunction to Stop Construction

Steve's rights obligations, and liabilities with respect to stopping the construction on the land adjacent to the lot he owns that his son lives on depends on whether ownership or possession is required to bring the claim. A nuisance claim, discussed supra, can only be brought by the occupier of the land becuase the alleged nuisance is an interference with use and enjoyment of the land. The standard used for a nuisance claim uses the average person in the community. A nuisance action cannot be maintained becasue of the particular sensisbilities of the plaintiff, when the activity would not harm or bother the average person in the community. A trespass action can be brought by the possessor of the land. Trespass occurs when there is an encroachment onto the land of another by defendant or defendant causing something to enter into the land of the defendant. A tresspass is an interference with possession of the land- not hte use of the land. Actual damage to the land is required for a tresspass action, unless the trespass is intentional. A preliminary injuction or a temporary restraining order may be issued by the court to enjoin activities. A preliminary injuction lasts until a case is resolved and a TRO lasts for 14 days. A preliminary injuction requires notice, but a TRO can be granted ex parte. A plaintiff must show (1) immediate and irreparable harm, (2) lack of adequate legal remedy, (3) likelihood of success on the merits, (4) balance of hardship of the parties.

Here, Steve cannot bring a nuisance claim becasue he is not the occupier of the land. His son could bring a nuisance claim as the occupier, but his particular sensibilites of sleeping during the day to work at night will not be the standard used. He is unlikley to prevail on a nuisance claim for that reason. Steve may be able to bring a claim for tresspass becuase of the debris that constantly blows on to the land. Likely he will have to prove damages to the land caused by the debris. The presence of the debris alone, if not intentional is not enough to maintain the action. He could also bring an action for a preliminary injuction or a TRO regarding the crane. However, he is unlikely to succeed on the merits of the claim. He cannot show immediate and irreparable harm because he is worried about the possibility of the crane swinging and hitting his house- he has not provided any evidence to substantiate this fear. The balance of the hardship between the parties here does not weigh in Steve's favor. He cannot show that he may actually sustain damages and if the use of the crane is enjoyed Chris will not be able to build his house. Not being able to construct a house on one's own property is a much larger hardship than the unsubstantiated fear that a crane of neighboring property may possibly hit one's house.

III. Conclusion

Steve is laible to Elizabeth for unpaid rent on the commerical lease for the Space, but not for the full amount- only up the amount to which she is entitled in consideration of her duty to mitigate. Steven's liabiltiy to Lou depends on the cause of the damage and any potential negligence- more facts are needed. Steve cannot sue for nuisance for Chris' constrcution becuase he is not he occupier of the land. Steve may be able to sue for the debris if it has caused damages. Steve is unlikely to get an injuction or TRO to stop the construction use of the crane.

Question 6 – Criminal

Andy stormed into the Jerseyville Jewelry store with a gun in hand. He ran towards the clerk, Violet, pistol-whipped her with the gun, and demanded a Rolex watch from the case. Andy took the watch and fled the store. Violet chased after him. Once on the street, a scuffle ensued between the two during which Violet was knocked unconscious and fell into the street. Andy ran from the scene.

A few minutes later, a car driven recklessly by Carl struck and killed Violet. Carl had just left the Jerseyville Pub after drinking three martinis in an hour’s time. After his arrest, it was determined that his blood alcohol content rendered him legally intoxicated.

Meanwhile, a few blocks from the store, Andy found his friend Barry who was waiting in a parked car as Andy had instructed him to do. Andy reached through the window and threw the watch under the front passenger seat. Andy then said: “Get this watch out of town, I think the cops are coming,” whereupon Barry sped away undetected by any witnesses.

Later that day, Barry was pulled over by the Jerseyville police for speeding. The officer asked Barry to step out of the car and then searched the car finding the Rolex watch that had been reported stolen. The officer told Barry to sit on the curb and asked him: “Who owns the watch?” Barry replied: “I am not sure, my friend Andy gave it to me earlier and asked me to hold it for him.”

Barry was arrested and taken to police headquarters. He was placed into a cell with Andy who had been apprehended by the police. Both Andy and Barry were read their Miranda rights. After the cell door was closed, Andy said to Barry: “You fool, I told you to get the watch out of town.” Andy’s statement was recorded by the police.

You are a clerk in the prosecutor’s office. The assistant prosecutor handling this matter has asked you to prepare a memorandum detailing all possible charges against all potential defendants as well as all anticipated defenses and motions to be filed by all defendants.

PREPARE THE MEMORANDUM

Sample answer 6a.

MEMO

TO: ASSISANT PROSECUTOR

FROM: CLERK

RE: STATE OF NJ V. ANDY, BARRY, AND CARL

1. ANDY

Andy can be charged with Robbery, Aggravated Assault, and Simple Assault, and possibly felony murder.

In New Jersey, robbery is a specific intent crime, and is an unlawful taking of property by force or threat of force. At common law, a battery is a general intent crime and requires an unlawful or offensive touching.New Jersey does not recognize the crime of battery, but instead calls the crime "assault."  An assault is an attempt to commit a battery or intentionally placing a victim in fear of imminent bodily harm, or an actual harmful or offense touching. New Jersey recognizes the crime of aggravated assault, which is striking a victim with a deadly or deadly weapon. Simple assault is a lesser assault, like a harmful touching.

In this case, Andy stormed into the Jerseyville Jewlery store with a gun and demanded a Rolex watch from the case after he pistol-whipped Violet, the clerk, thus taking property by force, and constituting a robbery. The pistol whip to the face was an assault with a dangerous weapon because it was a heavy blow to the face with a hard object. In addition, later, when they fled the store, a scuffle ensued between the two and Violet was knocked unconscious, constituting at the very least, a simple assault.

In addition, we may also be able to bring a first degree murder charge against Andy on the basis of felony murder. At common law, a murder commited while engaged as a principal or accomplice to a specifically enumerated felony (ie inherently dangerous) is felony murder. Robbery is one of those felonies. The death must be foreseeable and the actor will be liable provided that the crime occurs before he reaches a point of temporary safety.

In this case, Andy committed a robbery (see above), and it was foreseeable that the robbery victim might chase after the robber. The scuffle between them ensued and was still part of the continuing felony, which caused Violet to be rendered unconscious and subsequently hit by Carl, who was driving recklessly. Andy caused the fall and ran away from the scene. He had not reached a point of temporary safety. He may defend by arguing the death wasn't foreseeable, and that he wasn't the cause. However, we may still bring the charge.

2. BARRY

Barry will be liable as an accomplice, and for receiving stolen property.

An accomplice is someone who aids, encourages, or assists in the commission of a crime with the intent that the crime be commited. An accomplice will be liable for all foreseeable crimes in futherance of the crime. At common law, a conspiracy is an agreement to pursue an unlawful objective, with the intent that the objective be accomplished. Most states today require an overt act, although mere preparation will suffice. Receiving stolen property occurs when a person received property that he knows or reasonable should know was stolen.

In this case, Barry was likely an accomplice. Specifically, he listened to the instructions that Andy had given him and parked the car to wait for Andy. There are not enough facts to show whether Barry knew of Andy's plan, but he at least knew afterwards (and would be an accessory after the fact) because Andy reached through the window, threw the watch under the passenger seat (ie he concealed it because he didn't throw it on the seat) and stated, "get this watch out of town, I think the cops are coming." Barry thereafter sped away, undetected by any witnesses. As such, he is an accomplice to Barry because he aided him in covering the fruit of his cirme. The facts do not indicate enough to show whether there was a conspiracy between them, but if the above is satisfied, we can charge him with that too. Finally, Barry received stolen property because he took/accepted the watch, knowing it was stolen.

Barry may try to defend claiming he wasn't aware of what Andy was doing and should not be liable as an accomplice. However, he at least knew after the fact so, he will likely be convicted of that. Moreover, he will claim that he cannot be liable for Andy's other crimes (ie felony murder) because that was not foreseeable. We will argue that a death in the occurence of the robbery is always foreseeable. However, because there are not enough facts to indicate that Barry knew the robbery was going down, he will likely be successful in this argument. Nevertheless, he will likely be guilty as an accessory after the fact and for receiving stolen property.

3. CARL

Carl can be charged with driving while intoxicated ("DWI"), reckless driving, and vehicular manslaughter while DWI, but the DWI will merge if Carl is found guilty of vehicular manslaughter while DWI.

In New Jersey, a person commits the offense of DWI if he, inter alia, commits a per se violation of N.J.S.A.4:50, ie he was driving with a blood alcohol level of 0.08% or higher. Reckless driving is driving in a way that poses a reckless disregard for the safety of others. Vehicular manslaughter while DWI does not require a specific intent to kill, but is a form of involuntary manslaughter ("IV"). IV is an unintentional killing that was done through either gross negligence or while committing a misdemeanor, or unenumerated felony. In NJ, a lesser crime will merge, and a defendant may only be convicted of either the lesser crime or the more serious crime, but not both.

In this case, Carl was driving a car recklessly after consuming three martinis in only an hour. Aftter his arrest, it was determined that his blood alcohol content rendered him legally intoxicated. As such, he may be charged with a per se violation of DWI. In addition, he was driving recklessly, while drunk, which caused him to hit a pedestrian, so he may also be charged with reckless driving. Finally, the car recklessly driven by Carl struck and killed Violet. He was driving recklessly, and drunk, which at the very least constitutes criminal or gross negligence. Thus, Carl may be charged with vehicular (involuntary) manslaughter. If he is found guilty of vehicular manslaughter while DWI, the lesser included DWI will merge.

Carl may try to defend by saying he was so intoxicated that he lacked any specific intent. However, all of the crimes listed above do not require specific intent, so this defense will be unsuccessful.

MOTIONS

1. Barry will make a motion to suppress the watch and the statement, and will be successful in suppressing the watch only, but not the statement.

The Fourth Amendment to the US Constition, and the NJ Constitution, provide that individuals shall be free from unreasonable searches and seizures. Generally, a warrant is required in order to search or seize someone or something, unless an exception applies. In order to search a car under the automobile exception to the search warrant requirement, a police officer must have probable cause (PC). PC is a higher standard than reasonable suspicion, and requires specific, articuable facts that a crime has been committed. If the police search without probable cause, the search will be invalid under the exclusionary rule, and any evidence obtained will be suppressed as fruit of the poisonous tree (the illegal search). Under Miranda, a person who is subject to cusodial interrogation is entitled to certain warnings advising him of his right to remain silent and to obtain an attorney. In order for these rights to trigger, the person must be in custody, ie reasonably believe he is not free to leave. Interrogation is words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. If there is custodial interrogation and the defendant wasn't given the warnings, statements will be inadmissible in the prosecution's case in chief (but may be admissible to later impeach the defendant).

In this case, Barry was validly stopped and pulled over for speeding. However, there are no facts that give rise to probable cause to search the car. The officer immediately asked Barry to step out and then searched it. Moreover, the Rolex was located under the passenger seat, so we would have no argument that it was found in plain view (ie in plain view when the police were in a place that had a legal right to be). Thus, the Rolex will be excluded from evidence. However, the subsequent statement will be admissible. Specifically, while the officer did interrogate (question likely to illicit an incriminating response) Barry by asking him who owned the watch, Barry was not in custody because he was on the side of the road, not arrested yet, and no other facts would give rise to a finding of custody. Roadside stops are brief and temporary, and thus are not custody because a reasonable person would believe he is free to leave. As he was not in custody, Miranda warnings were not required, and the statement that Andy gave him the watch will be admissible into evidence.

2. Andys motion to suppress the statement will be unsuccessful, and the statement made in the cell will be admissible.

Miranda rights only apply to custodial interrogation by the police. Andy knew he was talking to Barry, and thus he cannot bring a 5th Amendment challenge.

He may try to bring a 6th Amendment right to counsel challenge based on the statements, but this will be unsuccessful. Specifically, the 6th A right to counsel applies after formal charges are brought, which were not yet done in this case. In addition, Barry wasn't acting as a police informant, so there was no action by the police. Finally, citizens do not have a reasonable expectation of privacy in a jail cell, so any statements made in a jail cell will be admissible absent some right to counsel violation as discussed above. Thus, Andy's statement in the jail cell that was recorded by the police will be admissible against him, and a motion to suppress that statement will be unsuccessful.

Sample answer 6b.

TO: Assistant Prosecutor

FROM: Clerk

DATE: July 28, 2016

RE: Charges and Defenses

MEMORANDUM

1. Conspiracy

I will begin with conspiracy because it is important to note that Andy and Barry may each be charged with any crime that was a foreseeable result of the conspiracy.

Conspiracy requires an agreement to commit a crime between two parties, each with the requisite intent to committ the crime agreed upon, and some overt act in furtherance of the conspiracy. The overt act may be very minor or slight.

Here, Andy and Barry can each be charged with conspiracy. Andy and Barry agreed to commit the crime. Andy went into the jewelry store and committed the robbery, and it can be inferred from the facts that Barry agreed to committ the crime because he was waiting in his car at a strategic location around the corner for Andy to arrive and deliver the stolen goods, in this case the Rolex. Accordingly, Barry also be charged with any crime committed by Andy that was a foreseeable result of the initial crime agreed upon in the conspiracy. In this case, that could include battery, robbery, assault, and murder or involuntary manslaughter. Each of these crimes is a forseeavle consequence of an armed robbery, which is extremely dangerous, and is an inherently dangerous felony.

2. Assault

Assault requires intentionally causing another to reasonable apprehension of iminent offensive or harmful bodily contact (a battery). Here, Andy can be charged with assault. When he entered the store, the facts tell us that he "stormed" the store "ran towards the clerk," with "with a gun in hand." A reasonable person under these circumstances would likely suffer from apprehension of imminent harmful bodily contact, and here, Andy was robbing a jewelry store and committing a robbery, so it is very likely that he intended to cause the apprehension. Because this crime is a foreseeable result of an armed robbery, Barry may also be charged.

3. Battery

Battery requires voluntary or volitional harmful or offensive contact to a third person. In this case, Andy voluntarily "pistol-whipped" Violet with the gun after rushing towards her. The act was obviously intentional and voluntary, because Andy immediately demanded cash from the register immediately there after. Being pistol-whipped with a handgun is indisputably hamrful or offensive bodily contact. Andy also battered Violet when he knocked her unconscious in the street when she pursued him. Violet had a right to puruse him, as he committed a felony directly upon her. He cannot claim self defense, so it is likely he will be convicted of battery, probably for each seperate incident. Again, Barry can be charged because a battery is a foreseeable crime in lieu of the conspiracy they agreed upon.

4. Robbery/Larceny

Larceny requries the intent to permanately deprive another of their property, and actually derpiving them of their property. Robbery requires the intent to permanately deprive somebody of their property, and doing so by some physical action to their person or some menacing threat of immediate bodily harm.

Here, Andy and Barry can each be charged, and once again Barry can be charged because he agreed to the conspiracy. Andy went into the jewelry store with the intent to deprive the owners of their property. Specifically, he demanded a Rolex watch from the case. Not only did he threaten Violet, he pistol-whipped her. Accordingly, the two co-conspirators may be charged with larceny and/or robbery.

5. Murder

Under the facts, it is possible to argue that the two co-conspirators may be charged with Murder.

Murder requires the intentional killing of another human being with malice aforethought. Here, it would be very tough to argue that Andy intentionally killed Violet, or that he had the requisite mens rea (premeditation - however slight) to commit the crime. However, when someone is killed during the commission of an inherently violent felony, "felony murder" is in play. Robbery is an inherently dangerous felony.

Here, Violet died during the commission of an inherently dangerous felony, and it may be argued that Andy is respsonsible for her death becuase he knocked her unconscious and left her to die in the street. However, it is more likely that Carl was the intervening cause of Violet's death. It could be argued that you could charge Andy and Barry with felony murder, but conviction is highly unlikely.

6. Involuntary Manslaughter

Involuntary Manslaughter requires the unintentional killing of a human being with criminal negligence. In this case, Carl can be charged with involuntary manslaughter. He had just left the Jerseyville Pub, and was clearly intoxicated based on the fact that he had three martinis in less than an hour. Furthermore, he was arrested and it was determined that he was legally intoxicated. Driving under the influence is criminally negligent, and Carl caused Violet's death, unintentionally. He should be charged with involuntary manslaughter.

7. Barry is likely to file a motion to Supress

Barry will probably file a motion to supress the evidence of the watch as violating his 4th Amendment right agaisnt unconstitutional searches and seziures. He will also likely assert that his 5th Amendment rights were violated when he was not given proper miranda warnings before a custodial interrogation.

The Jerseyville police pulled him over for speeding, and they had probable cause to do so because he violated a traffic ordinance. It is not clear from the facts if they knew of the conspiaracy and the watch via Andy, who the facts tell us was previously apprehended. If not, the officer had no reasonable suspicion (which requires an officer to point to and artiuclate reasonably specific facts that criminal activity was afoot) or probable cause that Barry had committed any crime. Absent reasonable suspicion that the driver is armed and dangerous, and absent any probable cause that a crime has occurred, police may not order a driver from a car and search them. Here, the facts do not suggest that the police formed either, so when they ordered Barry out of the car it was very likely an unconstitutional seizure. At that point, it was a custodial interrogation becuase the policeman ordered Barry to step out of the car, so a reasonable person would not feel they were free to leave in that situation. The search of the car was unconstitutional, so the Rolex watch that was covered may be excluded pursuant to a proper motion for suppression as "fruit of the poisonous tree."

Furthermore, besides the unconstitutional search, Barry was subjected to an unconstitutional custodial interrogation. As previously noted, he was apprehended and told he could not leave - he was told to sit on the curb. At that point, he was technically under arrest and should have been given miranda warnings. Instead, the policeman asked him "who owns the watch?" This is an interrogation because that is a question that the officer should reasonably know if likely to elicit an incriminating response. Accrodingly, the statement that Andy gave the watch to Barry and told him to hold it could be suppressed as unconstitutional.

8. 6th Amendment Confrontation Clause Violation

The facts are unclear, but if Andy was charged with a crime at the time in which he was recorded, he may be able to assert that his sixth Amendment rights weree violated. He was read his Miranda warnings, so his voluntary statement cannot be considered unconstituionally obtained, but if he was already charged with a crime, his 6th Amendment rights were violated because he was recorded concernign the facts of the crime.

Question 7 – Contracts

Lucy needs a new cell phone. She hears an advertisement over the radio that one of the popular carriers of cell phone service, Notsosmart, has offered to cover customers’ costs associated with switching cell phone service to Notsosmart. She decides to visit a Notsosmart store and get a new phone.

Ivan is a new employee of the Notsosmart store. Ivan tells Lucy that Notsosmart is the best service around and will cover any costs associated with her change in service. Lucy is happy with this arrangement because she currently has an installment plan on her phone and has a balance of approximately $500 to pay off the phone. Additionally, she thinks there may be a penalty if she ends her service with her current cellphone service carrier. She tells Ivan about both of these issues and Ivan says, “No problem, Notsosmart has it covered.”

Lucy then looks at a new cellphone, the P1. She sees that Notsosmart is also offering a “buy one, get one free” sale on the P1. She asks Ivan about it, and he tells her that she has to pay for both cell phones, and then Notsosmart will send her a refund in the mail for the purchase price of the second P1 phone.

Lucy goes to the counter to pay for her phones. She reminds Ivan about the balance on the old phone and the possible penalty for ending her current service. Ivan tells her not to worry about it. He says that she should bring a copy of her receipt of payment of any charges associated with her change in the service to the Notsosmart store, and she will receive a reimbursement in the mail. Lucy pays $500 for the P1 and an additional $500 for the “free” one. After she pays for them, Ivan attaches a number of documents to her receipt of the transaction. Ivan asks her to sign the first document to “verify” her signature.

Approximately 45 days later, Lucy walks into the same Notsosmart store with a receipt for $1,000 she paid in costs for ending her cell phone service with her previous carrier and a

$500 receipt for the second P1 phone she had purchased from Notsosmart 45 days ago. Additionally, her P1 is malfunctioning. She wants to exchange the malfunctioning P1 for a new one.

She speaks to Virgil who is an employee of Notsosmart. She asks for Ivan, and Virgil tells her that Ivan does not work there anymore. She tells Virgil that she has $1,500 worth of receipts and expects to receive a reimbursement from Notsosmart. Virgil tells her that Notsosmart has a limit of reimbursement of $500 per transaction. Lucy argues that Ivan never told her about the limit. He points to the documents attached to the receipt of the transaction with Ivan. Virgil then says, “If you ever read the documents that were given to you, you will see that there is a limit of $500 that is eligible to be reimbursed.” Additionally, Virgil tells her that the documents state that Notsosmart gives no warranty on the products they sell. Based upon that document, Virgil refuses to replace the malfunctioning P1 phone. Lucy looks at the documents and sees for the first time that buried in the fine print on the last page, it states that Notsosmart disclaims all warranties of their products and that there is a limit of reimbursement of $500 per transaction.

Lucy yells, “Well then I will see you in Court!” Virgil then retorts, “No you won’t because all disputes are subject to arbitration . . . I guess you missed that too!”

Lucy has come to your law firm for a consultation. Please prepare a memorandum setting forth all her rights and liabilities associated with the fact pattern above.

PREPARE THE MEMORANDUM

Sample answer 7a.

MEMORANDUM

TO: Lucy

FROM: Associate

RE: Lucy's rights and liabilities

Below is an analysis of the claims and liabilites you have regarding your conflicts with Notsosmart.

Before giving an analysis of the claims, it is first important to note that your contract with Notsosmart is goverend by the UCC. All contracts are goverend either by the UCC or by Common Law. Common Law covers contracts for services and real estate. UCC governs contracts for goods. A contract cannot be goverend by both the common law and the UCC (unless the contract is easily separable). If a contract is mixed with goods and services, then one must use the predominant purpose test to determine which governs. The predominant purpose test determines the main purpose of the contract. If it is primarily for the purpose of sale of goods, the UCC applies. If it is primarily for the purpose of services, then the Common Law will apply.

Here, this may be interpreted as a mixed contract because it is for the sale of a good, or the cell phone, but also for services, such as cell phone service. However, using the predominant purpose test, the UCC will govern as the main purpose of the contract is for the sale of goods, or the purchase of a cellphone. Thus, UCC will be used in the analysis below.

I. Express Warranties

Express warranties are express garuntees given by merchants to a buyer. A merchant is a business person in the business of selling the particular good. If a merchant makes an express warranty, garunteeing that a product can be used in a particuar way, and if the garuntee is stated as a fact and not as an opinion, then the express warranty cannot be disclaimed and the merchant will be held to that garuntee. Express warranties cannot be disclaimed.

Here, Ivan provided you with an express garuntee that Notsosmart would cover any costs associated with the change in service. It was not an opinoin, it was a fact. It was supported by the advertisement you heard on the radio. While the advertisement was not an offer but an invitation to deal, it is further circumstantial evidence of the express warranty provided. Moreover, you went above and beyond the role of the average in consumer in making sure that the express warranty was express. You confirmed the advertisement and you checked with Ivan mutliple times. Ivan was an employee of Notsosmart. New or not, he had authority to create the express warranty, and Notsosmart must be held to it.

Further, express warranties cannot be disclaimed. Thus, the line in the receipt that states that there is a $500 limit will not be enforceable. Therefore, Notsosmart will have to be held to their express warranties that they would reimburse you for these fees and for the additional phone.

It is important to add that Ivan's comment that Notsomart has "the best service in town" likely would not be seen as an express warranty. This statement did not garauntee that you would receive the best service in town, and was delivered more as an opinion that as a fact. Thus, Notsosmart likely will not be held liable for breaching an express warranty for being the best service in town.

II. Implied Warranty of Merchantability

Secondly, all UCC contracts contained implied warranties. An implied warranty of merchantability is a warranty that a product will work as an ordinary consumer would expect it to work, for its ordinary purpose. Only merchants can be held to this standard, and again, merchants are business people in the business of selling the particular good. An implied warranty of fitness for a particular purpose, on the other hand, can be held against merchants and non-merchants. This implied warranty promises if a buyer relies on a seller's expertise, that the product will perform as to the particular purpose that the seller said it would perform to. Unlike an express warranty, implied warranties can be waived. A waiver of the implied warranty of fitness for a particular purpose must be in writing, and the waiver of the implied warranty of merchantability does not need to be in writing. However, if it is in writing, the disclaimer must be conspicious. Words like "as if" are conspicious enough for the purposes, hower the disclaimer cannot only be written in a sales receipt, after the fact. It must be written in the agreement, conspicously written not only on a sales receipt.

Here, we can argue that Notsosmart breached both of these warranties and that they were not properly disclaimed. First, Notsosmart breached its implied warranty of merchantability in regards to the P1 phone that is malfunctioning. Notsomart is a merchant as it is a business person in the business of selling these phones. Thus, it can be held to this warranty. Furthermore, the phone did not perform in its ordinary capacities. Thus, Notsosmart breached its duty of merchantability.

Secondly, Notsomart breached its implied duty of fitness for a particular purpose.  You reasonably relied on Ivan's expertise in making this deal. Ivan was a worker at Notsosmart, so it was reasonable to rely on his expertise and knowledge of Notsosmart's deals. You told Ivan you were interested in this plan particularly because of the fee your prior cell phone provider had for ending a contract. Thus, he knew about this issue, and the other costs that would be associated with ending the service. You reasonably relied on his statements. Thus, Notsosmart refusing to follow through with the reimbursements is a breach of the implied warrnanty of fitness for a particular purpose.

However, Notsosmart may argue that this implied warranty for fitness for a particular purpose is usually in regards to a use of the actual good, not of services like those described above. Thus, they may succesfully argue that this implied warranty does not apply.

Morever, Notsosmart may defend itself for both implied warranties, arguing that it disclaimed all warranties in the agreement you signed. However, implied warranties cannot be disclaimed in final bills. They must be conspiciously disclaimed in the agreement, before payment. Though Notsosmart may argue that that agreement was nt finalized until you signed the paper, because you had already paid, this likely would not be a winning argument. Disclaimers cannot be disclaimed in a bill, thus Notsosmary likely will not be found to have disclaimed the warranties.

Thus, while the breach of the implied warranty of fitness for a particular purpose may be questionable, we have a strong claim against Notsosmart for a breach of the implied warranty of merchantability.

III. Defenses to Formation

We also have a variety of defenses to contract formation. A contract is formed with an offer, acceptance, and bargained for consideration. However, if, in forming the contract, something occurs that inhibits the formation, there may be a defense that enables a party to get out of the contract or declare the contract invalid. Defenses include unconscionability, duress, and misrepresentation, among a variety of others.

Unconscionability

We may have a defense of unconscionability in regards to the arbitration statement and the warranty disclaimers, if the court were to find that the disclaimers were appropriately placed in the receipt of bill.

Unconscionability is a difficult defense to prove, but if we are able to prove that the contract was unconscionable, we may be able to get out of it entirely. There are two forms of unconscionability - procedural and substantive. Procedural unconscionability provides that something in the bargaining was fundamentally unfair. Imbalance of bargaining power is often found to be a cause of procedural unconscionability. Substantive unconscionability relates to the actual substance of the agreement. To find substantive unconscionability, there must be something in the contract, a hidden term, for instance, that is fundamentally unfair. Adhesion contracts are often found to be unconscionable.

We could argue that the arbitration terms and implied warranties were hidden terms, as they were listed only after the purchase, and they were hidden in small print on the last page of a lot of documents. While not reading the contract cannot be proof that something is unconscionable, if a court finds that it was reasonable that you did not see the small print, especially because it was not given to you until after the purchase, it amy be able to conclude that the contract was unconscionable.

Misrepresentation

We also may have a defense of misrepresentation. Misrepresentation occurs when one party to the contract misrepresents a material term of the contract, and the other party reasonably relies on that  misrepresentation when entering into the contract. If this is found, then the innocent party may be able to get out of the contract based on this defense.

Here, Ivan misrepresented the terms of the contract to you. He told you that Notsosmart would cover all of your fees, ranging from the high fees to get out of your contract, to the refund for the phone in the "buy one, get one free" offer. Because he worked at the store, because you asked a lot of questions, and because it was consistent with the advertisement you heard, it was reasonable for you to rely on this misrepresentation.

Thus, we will likely be succesful in getting out of the contract based on mispresentation.

Mistake

Finally, mistake is also a defense for formation of contracts. A mutual mistake occurs when both parties to a contract are mutually mistaken as to a material aspect of a contract. If this occurs, then the contract is voidable by either party. A unilaterial mistake is when one party is mistaken as to a material term of the contract, and the other party knows or should know of this mistake. If this occurs, the party who does not know of the mistake can void the contract.

Here, whether or not Ivan knew of the mistake, we could make a valid defense on this front. If Ivan was mistaken, thne you could both make this claim. If only you were mistaken, Ivan likely knew of the mistake, or should have known as he was an employee. Either way, you relied on this mistake and would have a valid defense and reason to void the contract because of it.

Damages

Damages for breach of contract claims are typically monetary. Expectation damages are the most common. These damages put you in the place where you should have been had the contract been performed. You may also receive consequential damages for expenses incurred as a result of the contract.

Here, you will likely be entitled either to your money back that you paid for the phones, in which case you would likely need to return the phones, or for the reimbursements you were entitled to under the contract. If you would like to remain with Notsosmart, then we would likely request the expectation damages under the contract. If not, then we could return the fund and ask for incidental damages incurred because of the contract, or reliance damages based on your reliance on the representations.

 

Sample answer 7b.

Memorandum

To: Lucy

From: Lawyer

Re: Claims Against Notsosmart

The following memorandum summarizes your possible causes of action against Notsosmart.

Breach of Contract/Rescission Due to Fraud

The first cause of action you may bring against Notsosmart is for breach of contract. The issue is whether Notsosmart has done anything that violates the written contract you entered into when you purchased the phone from them.

When considering a contracts cases, the first thing a judge will do is look to see whether a valid contract has been entered into. A contract exists where there is an offer, acceptance and consideration. Next, the court will review the terms of the contract to determine whether a breach has occurred.

Here, you entered into a written agreement with Notsosmart when you purchased a new cell phone from them. This written agreement consisted of the written documents that Ivan handed to you along with your receipt. A court would likely find that this agreement constitutes a valid contract. Notsosmart advertised an opportunity to customers to cover their costs associated with switching their cell phone service to Notsosmart. By going to the store and expressing your interest in this opportunity, you made an offer to Notsosmart, which Notsosmart accepted when they sold you the two phones and set you up with their service. This agreement was supported by consideration--you paid Notsosmart $1000 and they provided you with a phone and service. Thus, the court will likely find there to be a valid contract.

Additionally, the court is unlikely to find that Notsosmart breached the terms of the contract when it refused to reimburse you for your expenses. When parties have entered into a written contract, and this contract appears to be a final expression of the parties' agreement, under the parol evidence rule, the court will not consider any extrinsic evidence to alter the terms of the agreement, even if it is a contract under the New Jersey Uniform Commercial Code, which governs the sale of goods. Thus, the court is unlikely to consider the oral statements that Ivan made to you regarding reimbursement because these statements would alter the terms of your written agreement.

Notwithstanding this, given your circumstances, there is a strong argument to be made that Notsosmart fraudulently induced you into entering the agreement with them and that the agreement should be rescinded. Fraud, also known as material misrepresentation, occurs when 1) an individual makes statements; 2) that are false; and 3) material; and 4) these statements induce another person to act in a certain manner; 5) that causes harm to the relying party. It is irrelevant whether the party intended to defraud the other. Here, Ivan made false statements to you that were material; his statements concerned the amount that you would have to pay under the agreement. Moreover, these statements induced you to enter into the contract with Notsosmart and caused you to sustain monetary damages when Notsosmart refused to reimburse your expenses. Thus, you would likely succeed in arguing that the contract was fraudulently procured and should thus be rescinded. Under the parol evidence rule, the court will allow you to submit evidence of the statements that Ivan made to you to prove that he fraudulently induced you.

Notsosmart would likely argue that despite Ivan's statements, they did not defraud you because the contract laid out all of the terms, and failing to read the contract is no excuse. However, you may defend by pointing out that you did not receive a copy of the paperwork until after you had paid for the phone, and by that point, the contract had already been formed.

Recission of Contract

In the alternative, you may seek to have the contract with Notsosmart rescinded on the grounds that it was unconscionable. The issue is whether the agreement was so one-sided as to "shock the conscience."

Whether an agreement is unconscioable is a question of law for the judge. An unconscionable agreement typically contains both procedural and substantive unconscionability. Procedural unconsc. is present when the agreement is very long, contains highly technical terms that are difficult for a lay person to understand and buries important terms in the fine print. This appears to be the case here. However, the contract does not appear to be substantively unconscionable.

Breach of Express Warranty

You may bring a claim against Notsosmart for breach of express warranty. The issue is whether Ivan's many statements about Notsosmart taking care of your change of service fees constitute an express warranty, to which you may hold them.

Promissory Estoppel

You may make an argument for promissory estoppel, which is an equitable remedy. To obtain this remedy, a plaintiff must show that she relied on a statement made by the defendant; that this reliance was reasonable; and that as a result, she suffered harm. Here, you may argue that you relied on Ivan's many false statements about Notsosmart paying your change of service fees and his statements about the amount that you would be reimbursed when you decided to enter into the contract. This reliable was reasonable because you had no reason to believe that he would lie to you. Additionally, you suffered damages.