Bar Prep 2022 Q and A
Actual Authority ans: Exists when a principal makes a manifestation that causes the agent to reasonably
believe that the agent is authorized to act on the principal's behalf
Apparent Authority ans: Exists when a third party reasonably relies on manifestations by the principal
concerning the agent's authority to act on his behalf.
Undisclosed Principal Consequences ans: If a third-party has no knowledge of the principal's existence,
an agent who enters into a contract on behalf of the undisclosed principal becomes a party to that
contract
Partially Disclosed Principal Consequences ans: If the third-party knows of the principal's existence, but
not the identity, unless the agent and third-party agree otherwise, the agent becomes a party to that
contract.
When can a principal ratify a contract? ans: Four Requirements: (1). Principal must ratify entire contract;
(2). Principal and Third Party must have legal capacity to enter into the contract; (3). Ratification must
occur before the third-party withdraws from the contract; (4). Principal knows the material facts of the
transaction.
When is Discovery permitted? ans: Discovery is generally permitted with regard to any non-privileged
matter relevant to any party's claim or defense.
Does information need to be admissible for it to be discoverable? ans: No
May a party discover documents or tangible things prepared in anticipation of litigation or for trial by or
for another party or its representation? ans: Generally, no, unless the party can show that it (1) has a
substantial need for the materials to prepare its case AND (2) cannot, without undue hardship, obtain
the information by other means.
Note: Mental impressions of an attorney are never discoverable.
When may a party be subject to sanctions for failing to take reasonable steps to preserve electronically
stored information? ans: When such information should have been preserved in anticipation of
litigation?
What does the court take into consideration when determining sanctions for failure to preserve
evidence? ans: The prejudice to another party AND the intent of the party that failed to preserve the
evidence.
In cases involving failure to preserve electronically stored information, what measures may the court
order. ans: (1). Generally, the court may order measures no greater than necessary to cure the prejudice
OR (2) if the court finds intent, the court may instruct the jury that they may or must presume that the
information was unfavorable to the party that destroyed the information.
,When does a federal court have diversity jurisdiction? ans: When no plaintiff shares a state of citizenship
with any defendant AND the amount in controversy exceeds $75,000.
When is the defense of subject-matter jurisdiction waivable? ans: The defense of subject-matter
jurisdiction is not waivable at any time AND may be properly raised by any party at any time, even on
appeal.
What does the full faith and credit clause do? ans: Requires state courts to give full faith and credit to
other state and federal court judgments. Likewise, it requires federal courts to give full faith and credit
to other federal and state court judgments.
When may a party against whom enforcement of a judgment collaterally challenge the original court's
jurisdiction? ans: Only when the jurisdictional claims were not litigated or waived in the original action.
What is claim preclusion (res judicata)? ans: CP provides that a final judgment on the merits of an action
precludes the parties from successive litigation of an identical claim in a subsequent action.
For claim preclusion to apply, the claimant and defendant must be the same in both actions (or they
must be successors in interest).
When does issue preclusion (collateral estoppel) apply? ans: Issue Preclusion precludes the relitigation
of issues of fact or law that have already been necessarily determined by a judge or jury as part of an
earlier claim. Unlike claim preclusion, only that party against whom the issue is precluded must have
been a party to the original action.
(1) the issue must be the same from the prior action; (2) the issue must have actually been litigated; (3)
the issue must have been determined by a valid and binding final judgment; AND (4) the determination
of the issue must have been essential to the judgment.
Trial courts generally have broad discretion for when issue preclusion applies? If a plaintiff could have
easily joined an earlier action, a trial judge should not allow the use of offensive issue preclusion.
Which party may remove a case to federal court? ans: The defendant (the plaintiff would have had to
initially file in federal court)
When may the defendant remove a case to federal court? ans: A defendant may remove a case to
federal district court when the civil action was filed in state court and the federal court has original
jurisdiction.
NOTE: A defendant may not remove a case to federal district court under diversity jurisdiction when the
defendant is a citizen of the state where the case was originally filed.
When may a district court transfer a civil action? ans: When the case could have originally been brought
in the other district or division AND it is convenient for the parties and/or is in the interest of justice.
Where is venue proper? ans: (1) In a judicial district where any defendant resides if all the defendants
are from the same state, (2) in a judicial district where a substantial part of the events or omission on
, which the claim is based occurred; or (3) when venue is not otherwise proper, where a court has
personal jurisdiction over both parties.
In a diversity action, what law must a court apply? ans: A court must apply the State law of the district
wherein it sits (including conflict of laws provisions) for substantive matters if there is no federal law on
point, but the court will apply procedural rules.
Note: For purposes of eerie, statute of limitations, and evidentiary privileges are procedural.
If venue if transferred, what law must the court to which the action is transferred apply? ans: The court
must apply the law of the original venue if the original venue was proper. However, if original venue was
not proper, the court must apply the law of their own state.
How is diversity for a class action determined? ans: Citizenship of the named members of the action. For
certain class actions where the aggregated amount in controversy exceeds $5 million, diversity will be
met if any member of the plaintiff's class is diverse from any defendant.
How is citizenship of a corporation determined? ans: A corporations is the citizen of every state wherein
the corporation is incorporated AND where it has its principal place of business (nerve center).
How is the amount in controversy requirement met in a diversity action? ans: A plaintiff's good faith
assertion in the complaint that the action satisfies the amount in controversy requirement is sufficient
UNLESS it appears to be a legal certainty that the plaintiff cannot recover the alleged amount.
What are the requirements of a class action under Rule 23? ans: (1) The class must be so numerous that
joinder is impracticable; (2) Questions of law or fact are common to the class; (3) The claims or defenses
of the representative must be typical of the class AND (4) The representative must fairly and adequately
protect the interests of the class.
When may a nonparty intervene in an action upon timely motion? ans: (1) The nonparty has an interest
in the subject matter of the action; (2) The disposition of the action may impair the nonparty's interests;
AND (3) The nonparty's interest is not adequately represented by existing parties.
What is the purpose of a TRO? ans: To preserve the status quo until there is an opportunity to hold a full
hearing on whether to grant a preliminary injunction.
When does a TRO go into effect and how long may it last? ans: A TRO has immediate effect and may last
no longer than 14 days unless good cause to extend it is shown.
When may a court issue a TRO without notice to the adverse party? ans: When (1) immediate and
irreparable injury will result prior to the hearing AND (2) The party certifies that efforts have been made
to give notice or details the reason why notice should not be required.
When may a preliminary injunction be issued? ans: (1) The opponent has been given notice AND (2) The
court has held a hearing on the issue.
Actual Authority ans: Exists when a principal makes a manifestation that causes the agent to reasonably
believe that the agent is authorized to act on the principal's behalf
Apparent Authority ans: Exists when a third party reasonably relies on manifestations by the principal
concerning the agent's authority to act on his behalf.
Undisclosed Principal Consequences ans: If a third-party has no knowledge of the principal's existence,
an agent who enters into a contract on behalf of the undisclosed principal becomes a party to that
contract
Partially Disclosed Principal Consequences ans: If the third-party knows of the principal's existence, but
not the identity, unless the agent and third-party agree otherwise, the agent becomes a party to that
contract.
When can a principal ratify a contract? ans: Four Requirements: (1). Principal must ratify entire contract;
(2). Principal and Third Party must have legal capacity to enter into the contract; (3). Ratification must
occur before the third-party withdraws from the contract; (4). Principal knows the material facts of the
transaction.
When is Discovery permitted? ans: Discovery is generally permitted with regard to any non-privileged
matter relevant to any party's claim or defense.
Does information need to be admissible for it to be discoverable? ans: No
May a party discover documents or tangible things prepared in anticipation of litigation or for trial by or
for another party or its representation? ans: Generally, no, unless the party can show that it (1) has a
substantial need for the materials to prepare its case AND (2) cannot, without undue hardship, obtain
the information by other means.
Note: Mental impressions of an attorney are never discoverable.
When may a party be subject to sanctions for failing to take reasonable steps to preserve electronically
stored information? ans: When such information should have been preserved in anticipation of
litigation?
What does the court take into consideration when determining sanctions for failure to preserve
evidence? ans: The prejudice to another party AND the intent of the party that failed to preserve the
evidence.
In cases involving failure to preserve electronically stored information, what measures may the court
order. ans: (1). Generally, the court may order measures no greater than necessary to cure the prejudice
OR (2) if the court finds intent, the court may instruct the jury that they may or must presume that the
information was unfavorable to the party that destroyed the information.
,When does a federal court have diversity jurisdiction? ans: When no plaintiff shares a state of citizenship
with any defendant AND the amount in controversy exceeds $75,000.
When is the defense of subject-matter jurisdiction waivable? ans: The defense of subject-matter
jurisdiction is not waivable at any time AND may be properly raised by any party at any time, even on
appeal.
What does the full faith and credit clause do? ans: Requires state courts to give full faith and credit to
other state and federal court judgments. Likewise, it requires federal courts to give full faith and credit
to other federal and state court judgments.
When may a party against whom enforcement of a judgment collaterally challenge the original court's
jurisdiction? ans: Only when the jurisdictional claims were not litigated or waived in the original action.
What is claim preclusion (res judicata)? ans: CP provides that a final judgment on the merits of an action
precludes the parties from successive litigation of an identical claim in a subsequent action.
For claim preclusion to apply, the claimant and defendant must be the same in both actions (or they
must be successors in interest).
When does issue preclusion (collateral estoppel) apply? ans: Issue Preclusion precludes the relitigation
of issues of fact or law that have already been necessarily determined by a judge or jury as part of an
earlier claim. Unlike claim preclusion, only that party against whom the issue is precluded must have
been a party to the original action.
(1) the issue must be the same from the prior action; (2) the issue must have actually been litigated; (3)
the issue must have been determined by a valid and binding final judgment; AND (4) the determination
of the issue must have been essential to the judgment.
Trial courts generally have broad discretion for when issue preclusion applies? If a plaintiff could have
easily joined an earlier action, a trial judge should not allow the use of offensive issue preclusion.
Which party may remove a case to federal court? ans: The defendant (the plaintiff would have had to
initially file in federal court)
When may the defendant remove a case to federal court? ans: A defendant may remove a case to
federal district court when the civil action was filed in state court and the federal court has original
jurisdiction.
NOTE: A defendant may not remove a case to federal district court under diversity jurisdiction when the
defendant is a citizen of the state where the case was originally filed.
When may a district court transfer a civil action? ans: When the case could have originally been brought
in the other district or division AND it is convenient for the parties and/or is in the interest of justice.
Where is venue proper? ans: (1) In a judicial district where any defendant resides if all the defendants
are from the same state, (2) in a judicial district where a substantial part of the events or omission on
, which the claim is based occurred; or (3) when venue is not otherwise proper, where a court has
personal jurisdiction over both parties.
In a diversity action, what law must a court apply? ans: A court must apply the State law of the district
wherein it sits (including conflict of laws provisions) for substantive matters if there is no federal law on
point, but the court will apply procedural rules.
Note: For purposes of eerie, statute of limitations, and evidentiary privileges are procedural.
If venue if transferred, what law must the court to which the action is transferred apply? ans: The court
must apply the law of the original venue if the original venue was proper. However, if original venue was
not proper, the court must apply the law of their own state.
How is diversity for a class action determined? ans: Citizenship of the named members of the action. For
certain class actions where the aggregated amount in controversy exceeds $5 million, diversity will be
met if any member of the plaintiff's class is diverse from any defendant.
How is citizenship of a corporation determined? ans: A corporations is the citizen of every state wherein
the corporation is incorporated AND where it has its principal place of business (nerve center).
How is the amount in controversy requirement met in a diversity action? ans: A plaintiff's good faith
assertion in the complaint that the action satisfies the amount in controversy requirement is sufficient
UNLESS it appears to be a legal certainty that the plaintiff cannot recover the alleged amount.
What are the requirements of a class action under Rule 23? ans: (1) The class must be so numerous that
joinder is impracticable; (2) Questions of law or fact are common to the class; (3) The claims or defenses
of the representative must be typical of the class AND (4) The representative must fairly and adequately
protect the interests of the class.
When may a nonparty intervene in an action upon timely motion? ans: (1) The nonparty has an interest
in the subject matter of the action; (2) The disposition of the action may impair the nonparty's interests;
AND (3) The nonparty's interest is not adequately represented by existing parties.
What is the purpose of a TRO? ans: To preserve the status quo until there is an opportunity to hold a full
hearing on whether to grant a preliminary injunction.
When does a TRO go into effect and how long may it last? ans: A TRO has immediate effect and may last
no longer than 14 days unless good cause to extend it is shown.
When may a court issue a TRO without notice to the adverse party? ans: When (1) immediate and
irreparable injury will result prior to the hearing AND (2) The party certifies that efforts have been made
to give notice or details the reason why notice should not be required.
When may a preliminary injunction be issued? ans: (1) The opponent has been given notice AND (2) The
court has held a hearing on the issue.
