Bar Prep 2022 Q and A

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. What must a party seeking a preliminary injunction establish? ans: (1) The party is likely to succeed on the merits; (2) The party is likely to suffer irreparable harm in the absence of such relief; (3) The balance of equities are in his favor; AND (4) The injunction is in the best interests of the public. When may an answer assert a cross-claim against a co-defendant? ans: When the claim arises out of the same event that is the subject of the original claim. When does a Federal Court have supplemental jurisdiction? ans: When it arises out of the same common nucleus of operative fact as the original claim and the original claim is within the court's Subject-Matter Jurisdiction through either Federal Question or Diversity Jurisdiction. How may process be served on a corporation? ans: May be effective either (1). By delivering the summons and complaint on an officer, managing agent, general agent, or agent appointed to receive process; OR (2). By following State law in the State where the District Court is located. In a diversity action, are procedural issues addressed by State or Federal Law? ans: Procedural Issues are decided under Federal Law if there is a valid Federal Law, even if a State rule or statute is in conflict. Third-Party Claims (Impleader) Requirements ans: Claims made by a defending party against a nonparty for all or part of the defending party's liability on the original claim. Impleaded claim must relate to the original claim against the defending party. How to judge whether a third-party claim is related to the original claim? ans: Does the claim arise out of a common nucleus of operative fact such that all claims should be tried together in a single judicial proceeding? What does counsel certify under Rule 11 when presenting a paper to the court? ans: (1) The paper is not being presented for any improper purpose; (2). The claim, defenses, and other legal contentions are warranted by law or by a nonfrivolous argument for extending, modifying, or reversing the law; (3). The factual contentions have evidentiary support or will likely have evidentiary support after discovery; AND (4). The denial of factual contentions are warranted on the evidence. Requirements for serving a motion for sanctions under Rule 11. ans: (1) Motion must be made separately from any other motion and must describe the specific conduct alleged to violate Rule 11; (2). The motion must first be served on the opposing party who is then given a 21-day safe harbor to withdraw or correct the challenged pleading. (3). Once the safe harbor passes, if the opposing party fails to correct, the party seeking sanctions may file the motion with the court. When and on whom may a court impose sanctions under Rule 11? ans: The court may, in its discretion, imposes sanctions on attorneys, the law firm, or the party after notice and a reasonable opportunity to respond. Limitation of Sanctions under Rule 11 ans: Sanctions are limited to what will deter the misconduct in the future. Types of Sanctions under Rule 11 ans: Either a nonmonetary directive or an order to pay a penalty to the court. Sanctions can also include an order directing payment to the movant for reasonable attorney's fees and other expenses directly resulting from the violation. Note: The court is not permitted to impose monetary sanctions against a represented party for violating the requirement that the legal contention of the paper be warranted by existing law or by a nonfrivolous argument. What must a plaintiff show to have standing? ans: (1) Injury in fact; (2) the injury was traceable to the challenged action; AND (3) The relief requested must prevent or redress the injury. i.e. The injury must be concrete in some way. What is the State Action requirement under the constitution? ans: The constitution only protects against wrongful conduct by the government, not private parties. To have State Action, you must have government action. The court, however, will find State action where a private party carries on activities that are traditionally and exclusively performed by the state. i.e. Company Towns. Note: The 13th Amendment is the only Amendment that applies to personal conduct. What Amendment makes other fundamental rights, and other Amendments applicable to the States? ans: The Fourteenth Amendment Due Process Clause What Amendment makes the Equal Protection Clause applicable against the Federal government? ans: The Fifth Amendment Due Process Clause. What does the First Amendment Protect Against? ans: Protects the freedom of speech as well as the freedom not to speak. It also protects the freedom of religion, and association. Types of Forums for Purposes of the First Amendment ans: Traditional Public Forum -- Forums typically held open for free speech purposes. Parks, sidewalks, etc. Limited Public Forums -- Non-Public Forums that not typically held open but are in certain instances. Universities, etc. Non-Public Forum -- Forums that are not traditionally held open for speech related activities. Prisons, DMV, etc. What ability does the government have to regulate speech in a traditional public forum? ans: The government may only regulate speech if the restrictions are: (1) Content neutral as to both subject matter and viewpoint; (2) Narrowly tailored to serve a significant government interest; and (3) Leave open ample alternative channels for communication. When may the government regulate expressive conduct? ans: When (1) The regulation is within the government's power to enact; (2) The regulation furthers an important governmental interest; (3) The governmental interest is unrelated to the suppression of ideas; AND (4) The burden on speech is no greater than necessary. What is a prior restraint? ans: Regulation of speech that occurs before the expression When is a prior restraint permissible? ans: Generally, prior restraints are presumed to be unconstitutional UNLESS (1) There is a particular harm to be avoided; AND (2) Certain procedural safeguards are provided to the speaker. When can the government regulate speech in a nonpublic forum? ans: When the regulation is (1) Viewpoint-Neutral AND (2) Reasonably related to a legitimate government interest. May a state forbid speech that advocates for the use of force or unlawful action? ans: Yes, if (1) The speech is directed to inciting or producing imminent lawless action AND (2) It is likely to incite or produce such action. Defamation standard for public officials/figures? ans: Plaintiff must prove that the defendant acted with actual malice i.e. knowledge of the statement's falsity or reckless disregard for whether it was true or false. Defamation standard for a private figure but speaking on a matter of public concern? ans: Plaintiff must establish negligence with respect to the falsity of the statement. What is the test for restrictions on commercial speech? ans: (1) The commercial speech must concern lawful activity and be neither false nor misleading; (2) The asserted governmental interest must be substantial; (3) The regulation must directly advance the asserted interest; and (4) The regulation must be narrowly tailored to serve that interest. (narrowly tailored just needs to be a reasonable fit, not least restrictive means). Standards of Review under the Equal Protection Clause: ans: Strict Scrutiny: Least restrictive means of achieving a compelling government interest. Burden on Government. Intermediate Scrutiny: Substantially related to an important government interest. Burden on Government. Rational Basis Review: Rationally Related to a Legitimate Government Interest. Burden on Challenger.