By: esquire
What is the APPLICABLE LAW?
The UCC governs the sale of goods, with applicable rules also applying to merchants.
The Common Law are majority rules governing contracts other than the sale of goods.
Mixed contracts are determined by the more important part of the deal, except divided contracts in which both UCC and common law rules may apply.
Types of Ks: Unilateral K: offer expressly required perf as method for acceptance. Divisible Ks: perf divided into 2+ parts under K; number of parts due from ea party is the same; and perf btwn parties is equivalent. Option K: agmt to leave open in exchange for consideration. Ads: gen preliminary proposal unless words are to identifiable person, e.g. first come first serve.
Contract FORMATION problems
Offer requires 1) a manifestation of a present intent to contract demonstrated by promise, undertaking or commitment, 2) definite and certain terms, ...
By: esquire
EXECUTION OF WILLS
Attested: Requires (i) writing; (ii) signed by T; (iii) in presence of two Ws; (iv) W’s sign will understanding that instrument is T’s will. In CA: W’s don’t have to sign in presence of ea other or in presence of T. T doesn’t have to publish that this is his will. Ts and Ws can sign anywhere. Substantial compliance Doctrine: deemed valid so long as no issue of fraud or mistake. Holographic: (i) Signed by T and (ii) material provisions in T’s handwriting. Ex Ev ok to prove T’s intent. Date not required, but may present inconsistency or capacity issues. Interested Ws: unless two disinterested Ws present, presumption that interested W secured gift by wrongdoing. N/A if interested W is a fiduciary.
Intent: Capacity: T must be > 18 years old; able to understand extent of T’s property; know ...
By: esquire
WILLS – ROADMAP
Execution of Wills
Attested Wills: (1) in writing (2) signed by T (3) in presence of 2 witnesses (4) who also sign
Holographic Wills: (1) signed by T, (2) material provisions in T’s own handwriting
Extrinsic evidence is admissible to determine T’s intent
Date issues: inconsistent provisions, capacity
Enforcement of Wills
Incapacity (under 18, unable to understand extent of property, know bounty) → will invalid
Insane delusion (false belief, product of sick mind, affected will) → only affected part invalid
Fraud in the execution (forged signature, didn’t know it was a will) → will invalid
Fraud in inducement (misrepresentation effects content) → only affected part invalid
Undue influence (3 types) → generally only affected part invalid
Prima Facie Case: (1) T has a weakness makes him susceptible; (2) wrongdoer had access to T, (4) wrongful act gets the gift, (5) unnatural result
Presumption: (1) confidential relationship, (2) wrongful act ...
By: esquire
Wills – Opening Paragraphs
Choice of Law
Under California law, where a domicillary dies in California, but executed a will in another state, that will can be admitted into probate in California only if (1) the will complies with California’s formalities of execution or (2) the will complies with the formalities of the place where the will was executed, or (3) the will complies with the formalities of the place where the Testator was domiciled at the time of execution.
Execution of Wills
Formal Wills
Under California law, a formal will must be (1) in writing, (2) signed by the Testator, and (3) witnessed by two persons who are present when the Testator signs the will or the Testator must acknowledge his signature to the two witnesses.
At common law, a witness who was also an interested beneficiary in the will was deemed incompetent, and the ...
By: esquire
WILLS
Intent
Capacity
At the time of execution, testator must: (1) be at least 18 years of age; (2) be able to understand the extent of her property; (3) know the natural objects of her bounty (spouse, issue, parents, etc.); (4) now the nature of her act (that she is executing a will)
Consequences: The entire will is invalid. Property will pass by intestate succession.
Exception: If testator had a valid prior will that was purportedly revoked by the invalid will, then will #1 is probated b/c T did not have capacity to revoke.
Insane Delusion
Elements: (1) T had a false belief; (2) that false belief was a product of a sick mind; (3) there is no evidence to support the belief; (4) delusion must have affected T’s will
Consequence: Only the part of the will which was affected by the delusion is invalid. As to ...
By: esquire
TRUSTS
Private Express Trust: A fiduciary relationship with respect to property whereby one person, the trustee, hold legal title for the benefit of another, the beneficiary, and which arises out of a manifestation of intent to create it for a legal purpose.
Trust property: any presently existing interest in property that can be transferred can be the corpus of a trust. E.g. fee simple, future interest, life insurance. But not illusory interests.
The beneficiary: any ascertainable person or group of people can be the beneficiary (“B”), including a corporation, or unincorporated ass’n (modern law only). But, watch out for the RAP.
Trustee: A trust must have a trustee, but the court will not allow the trust to fail solely b/c there is no trustee. When necessary, the court will appoint a trustee.
Intent: Settlor (“S”) must manifest an intention to create a trust.
Must ...
By: esquire
Torts
I. Intentional Torts
Basics
Two Steps: (1) identify the elements that a P needs to get to the jury, and (2) identify the affirmative defenses that the D can use.
Prima Facie Case (generally):
Act by the defendant (voluntary movement)
With the specific (goal oriented) or general (knows w/ substantial certainty) intent to effect certain consequences (choosing a particular means, not necessarily an injury).
Note: intent may be transferred in limited circumstances
Incapacity is not a good defense to intent. Kids, crazy people, drunks are all capable of committing an intentional tort.
Ignore the extreme or hyper sensitivity of the P
Result must have been legally caused by Ds act or something set into motion by him. Satisfied if D’s conduct was a substantial factor in bringing about the injury.
Specific Intentional Torts:
Battery: (i) harmful/offensive contact: unpermitted by an ordinary or reasonable person (judged by a reasonable person standard), ...
By: esquire
TORTS
Structure for an answer
General Considerations
Plaintiff is suing Defendant for X
To establish a prima facie case for X, Plaintiff must prove…
Here, Plaintiff will show…[analyze each element]
Conclusion
Defenses
Problem Solving Approach
I. General Considerations
Vicarious liability
Joint liability
Survival Actions
Wrongful death
Immunities
II. Intentional Torts
Assault
Battery
False Imprisonment
IIED
Trespass to chattels/Conversion
Trespass to Land
Nuisance – balance the interests
Defenses – consent, defensive force, necessity, privilege of arrest
III. Harm to Economic and Dignitary Interests
Defamation
CL: (1) defamatory statement, (2) of and concerning P, (3) publication, (4) damages
Defenses: consent, truth, privilege
Constitutional issues: (1) falsity, (2) fault
Invasion of Privacy: Misappropriation; Intrusion; False light; Publication of private facts
Misrepresentation (intentional or negligent);
Malicious Prosecution;
Abuse of Process;
Interference w/ Business Relations
IV. Negligence
Elements: (1) duty – foreseeable plaintiff, standard of care; (2) breach of duty – custom & usage, statutory violation, res ipsa; (3) causation – factual (but for, substantial factor, unascertainable) & proximate (foreseeable harm); damages
Special negligence actions: attorney malpractice, negligent ...
By: esquire
Remedies
Tort Remedies
DAMAGES
Compensatory Damages: Plaintiff is entitled to compensatory damages to put her in the position she would have been had the wrong not occurred. Must show:
Causation: “But for…”
Foreseeability: The injury must been foreseeable at the time of the tortuous act
Certainty: The damages cannot be too speculative.
Applies to economic losses (special damages), but not non-economic damages (general pain and suffering, disfigurement)
All or Nothing Rule: For future damages, plaintiff must show that they are more likely to happen than not.
Unavoidability: The plaintiff must take reasonable steps to mitigate the damage
Calculation: single lump sum payment, discounted to present value. Forget inflation.
Nominal Damages: Where the plaintiff has no actual injury, the court may award nominal damages to serve to establish or to vindicate the plaintiff’s rights.
Punitive Damages: Where the plaintiff’s injury results from “willful, wanton, or malicious conduct” on the part of the ...
By: esquire
Real property
I. freehold estates
Present Possessory Estates
Estate
Language to Create
Duration
Transferability
Future Interest
Notes
Fee simple absolute
“To A and his heirs”
“To A”
Absolute ownership, of potentially infinite duration.
Devisable (transferable by will), descendibile (transferable by statutes of intestacy if its holder dies w/out a will), alienable (transferable during life).
None.
A’s heirs get NOTHING.
Fee tail
“To A and the heirs of his body.”
Lasts only as long a there are lineal blood descendants of grantee.
Passes automatically to grantee’s lineal descendants.
Reversion (if held by grantor); Remainder (if held by third party).
Fee simple determinable
“To A so long as…”
“To A until…”
“To A while…”
Grantor must use clear durational language.
Potentially infinite, so long as event does not occur.
Alienable, devisable, descendible, subject to condition.
Possibility of reverter (held by grantor).
F.S.D.P.O.R.
2 Rules re Defeasible Fees:
Words of mere desire, hope, or intention are insufficient to create a defeasible fee.
Absolute restraints on alienation ...
By: esquire
Real Property – Opening Paragraphs
Landlord-Tenant Relationships
Tenancy for Years
A tenancy for years is a tenancy that continues for a fixed period of time. A tenancy for a period greater than one year comes under the statute of frauds, and thus must be in writing, signed by the party to be charged, to be enforceable. It terminates upon the specified date.
Periodic Tenancy
A period tenancy is one that continues for successive or continuous intervals. It may be created expressly or by implication. The party who wishes to terminate the lease must provide written notice, and the notice must be at least equal to the length of the period itself. Also, the tenancy must end the conclusion of a natural lease period.
Assignment
An assignment occurs when the assignor assigns his entire interest under the lease to another. The assignee stands in the shoes of the ...
By: esquire
Landlord-Tenant
Nature of the leasehold
Tenancy for years
Periodic tenancy
Tenancy at will
Tenancy at sufferance
Assignment or sublease:
By tenant: absent an express restriction in the lease, a tenant may freely transfer his leasehold interest.
Assignment – An assignment occurs when the assignor assigns his entire interest under the lease to another. The assignee stands in the shoes of the original tenant in a direct relationship with the landlord. The LL and T2 are in privity of estate, and each is liable to the other on all lease covenants that run with the land. But, LL and T1 remain in privity of contract, thus T1 remains liable for all unpaid rent.
Covenants run w/ the land: If the original parties to the lease intended that the covenants run with the land, and if the covenant “touches and concerns” the land, each will be liable to the other for ...
By: esquire
PROFESSIONAL RESPONSIBILITY
Method: (1) identify the duty; (2) identify the breach; (3) identify what the lawyer should have done.
Duties to the Client
The duty of loyalty: The atty must exercise her professional judgment solely for the benefit of the client, free of compromising influences and loyalties.
Concurrent Conflicts: An atty must not represent two clients with conflicting interests unless: the atty reasonably believes she can represent everyone effectively despite the conflict AND each client consents in writing after consultation (potential v. actual conflict).
Conflicts between lawyer and client:
Atty may enter into business with a client only if: (1) the terms are fair to the client (2) fully disclosed in understandable writing, (3) opportunity to consult an outside lawyer;(4) client consents in writing.
Loans: CA – may loan money to your client in all matters as long as there is a written I.O.U. ABA – ...
By: esquire
Performance Test – Methodology
A
85 min (2-3:25)
5 min (3:25-3:30)
90 min (3:30-5)
pproach
Read general directions
Read task memo
Outline task memo
Tear out task memo
Read the library; put key words in the TOC
Read the file; put key words in the TOC
Re-focus on the big picture
Write your answer
Document
Skill Tested
Notes
Memo of law
Legal analysis
Objective
Issue-by-issue
Memo or points & authorities
(brief in support of motion)
(persuasive memo)
Legal analysis
Persuasive
To the judge
Argument-by-argument
Jurisdictional statement: “This court has jurisdiction over the subject matter of this action because…”
Trial brief
Legal analysis
Persuasive
Tell the judge what law to apply
Appellate brief
Legal analysis
Persuasive
Memo to judge
Legal analysis
Persuasive if representing client
Object if clerk for the judge
Client letter
Legal analysis
Objective
Make recommendations
Letter to opposing counsel
Legal analysis
Must be persuasive
Position Paper
(persuasive letter to agency)
Legal analysis
Persuasive
Theory of the Case Memo
Legal analysis
How the case law and facts fit
Part persuasive, part objective
Case Plan
Legal analysis
Steps in handling the case from start to finish. Overall goal first, then id and examine ...
By: esquire
EVIDENCE
I. Relevance
Two-Step Inquiry
Is the evidence relevant (tends to prove or disprove a material fact)?
General Rule: evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence it’s relevant (logical relevance), but evidence must relate to the time, event, or person involved in the present litigation
Exception: certain similar acts may be relevant if probative of a material issue: (1) to prove cause and effect, (2) to show common plan or scheme of fraud, (3) to show instrumentality, (4) to infer intent from prior conduct, (5) to rebut impossibility, (6) to establish value, (7) habit (need specific description + recurrence), (8) business routine. Must show: substantial identity of material circumstances.
If relevant, should the evidence nonetheless by excluded based on:
Judicial discretion: exclude if the probative value of the evidence is substantially outweighed ...
By: esquire
Is The Evidence Admissible?
Proper form? Leading?
Proper purpose?
Logical relevance – must tend to prove or disprove a material issue in dispute. Remember similar happenings.
Legal relevance – should relevant evidence nonetheless be excluded?
Judicial Discretion: probative value substantially outweighs risk of unfair prejudice, confusing the issues, wasting time, misleading the jury.
Public Policy: liability insurance, subsequent remedial conduct, settlement offers, payment or offer to pay medical expenses, guilty pleas.
Character evidence
Civil case: generally inadmissible to prove negligence, fault, or a person’s conduct on a given occasion. But, admissible if character is in issue or for impeachment.
Criminal case: generally admissible to show MIMIC or for impeachment. But, evidence of the D’s bad character is inadmissible at the prosecution’s initiative to show propensity to commit a crime unless and until the D opens the door by presenting evidence of his good character to show innocence of the ...
By: esquire
criminal PROCEDURE
I. Exclusionary Rule
The Rule: A judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant’s 4th, 5th, or 6th Am rights. Under the rule, illegally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded.
Limitations
Does not apply to the conduct of grand juries – grand jury witness may be compelled to testify based on illegally ceased evidence
The rule is inapplicable in civil proceedings
In order to qualify for exclusion, the search in question must violate either the federal constitution or a federal statute
Exclusion is not an available remedy in parole revocation proceedings
Good faith defense
No exclusion where the police rely in good faith on a judicial opinion later changed by another opinion
No exclusion where the police rely in good faith on a statute or an ordinance later declared unconstitutional.
No exclusion ...
By: esquire
CRIMINAL LAW
Accomplice Liability: One who, with the intent that the crime be committed, aids, counsels, or encourages another in the commission of a crime is deemed a party to the crime, and thus may be held guilty of the criminal offense.
Inchoate Offenses
Solicitation: (1) asking someone to commit a crime (2) with the specific intent that the person solicited commit the crime.
Conspiracy: (1) an agreement between two or more persons, (2) an intent to enter into an agreement, (3) an intent to achieve the unlawful purpose or objective of the agreement, [(4) the majority of state also require an overt act in furtherance of the conspiracy].
Attempt: (1) specific intent to commit the crime, and (2) an overt act in furtherance.
Crimes Against the Person
Murder: unlawful killing of a human being with malice aforethought. Malice aforethought exists if (1) Intent to kill; (2) ...
By: esquire
criminal law
I. Jurisdiction and General Matters
Jurisdiction
Generally a state has jx. over a crime if that sate is the legal situs of the crime. Either the conduct happened there or the result happened there. More than one state may have jx. over a single crime.
Crimes of omission – jx. lies where the act should have been performed.
Merger
Generally, there is no merger. You can be convicted of more than one crime from a single act.
But, there is merger for solicitation and attempt. That is, solicitation and attempt merge into the substantive offense. Thus, actually committing the crime is a complete defense to attempt.
Note: conspiracy does NOT merge with the substantive offensive. So you can be convicted of conspiracy to rob and robbery.
II. Essential Elements of a Crime
A crime always requires proof of a physical act and a mental state.
Physical Act
Any ...
By: esquire
Corporations – Opening Paragraphs
Organization
De Jure Corporation
In order to form a valid corporation, one or more incorporators must file articles of incorporation with the Secretary of State. When the Secretary accepts the Articles, a de jure corporation is formed.
The articles of incorporation must also state the corporation’s purpose. At common law, where the corporate directors engaged in activities which were beyond the scope of the corporation’s purpose – so called, ultra vires activities – those activities were void. However, under the modern approach ultra vires contracts are valid. But, shareholders may seek an injunction, if the shareholders learn that the corporation is planning an ultra vires activity. Moreover, responsible individuals can be held liable for losses dues to ultra vires activities.
De Facto Corporation
Where a person makes a good faith effort to comply with the incorporation statute, but unbeknownst to the ...
