7/21/21

Answer choice D is correct. At common law, conspiracy is (i) an agreement (ii) between two or more persons (iii) to accomplish an unlawful purpose (iv) with the intent to accomplish that purpose. Here, the unlawful purpose was to obtain money from the retailer by false pretenses. False pretenses is (i) obtaining title to the property (ii) of another person (iii) through the reliance of that person (iv) on a known false representation of a material past or present fact, and (v) the representation is made with the intent to defraud. In this case, each individual and the employee had the intent to obtain money from the retailer through the retailer's reliance on each individual's false representation that he had obtained all of the game pieces through authorized, legitimate channels. However, there was not an agreement among all of the individuals to participate in the employee's scheme, but only separate agreements between the employee and each individual to obtain money from the retailer by false pretenses. Consequently, the employee and all of the individuals cannot properly be convicted of entering into a single conspiracy.

A retailer sponsored a game that required individuals to collect game pieces in order to win various monetary prizes. An employee of the retailer embezzled the rare game pieces necessary for the significant monetary prizes. The employee then separately contacted various individuals, each of whom was given a rare game piece. The employee did not disclose and the individuals did not learn that the employee gave game pieces to anyone else. Each individual then submitted the necessary game pieces, including the rare game piece provided by the employee, to the retailer for a monetary prize. In order to obtain a prize, each individual falsely stated that he had obtained all of the game pieces through authorized, legitimate channels. Upon receipt of the prize money, each individual paid 50 percent of the money to the employee, as previously agreed.Among other offenses, the employee and all of the individuals were charged with entering into a single conspiracy to obtain money from the retailer by false pretenses.Can the defendants properly be convicted of this conspiracy?

A restaurateur purchased a very old home, intending to do a substantial amount of work to modernize it and turn it into a restaurant. The restaurateur's final project was to have the living room, which he used as a special event space, rewired because there were no overhead lights in the room, and it had to be lit solely by lamps. The restaurateur hired a highly-recommended electrician. A few hours into the project, the electrician noticed some wiring that had been originally installed incorrectly. He realized that the project would take more work than he had thought, and that there was a possibility that even a small misstep could cause a fire. He notified the restaurateur, who told him to complete the project. During the second day of the project, the electrician made a mistake that resulted in a small fire in the living room, injuring the restaurateur.In an action brought by the restaurateur to recover for his injuries, what standard is applied to determine whether the electrician is liable?

Answer choice D is correct. A professional person, like an electrician, is expected to exhibit the same skill, knowledge, and care as an ordinary professional in the same community.

A doctor walked through the front door of a police station and asked to see the police chief. When the chief appeared, the doctor told him that he wanted to confess to murdering his wife. Before talking with him further, the chief read the doctor his Miranda rights. He asked the doctor to sign a document stating that he understood his Miranda rights and waived them. The doctor complied with the request. The doctor then said, "I killed her with the fish knife she kept in the wood block on the counter. I stabbed her in the heart and severed an artery. She is lying in our kitchen." At that very moment, police officers were at the doctor's house, having received a 911 call from a neighbor. They found the dead wife.Three weeks later, the court appointed a psychiatrist to examine the doctor. The psychiatrist reported that the doctor was mentally ill, could not make rational choices, could not understand his rights, and was compelled by his illness to confess.Is the doctor's confession admissible?

Answer choice A is correct. A confession must be voluntary to be admissible. Here, the doctor's confession was voluntary, and the police did not coerce him into making it. Answer choice B is incorrect. Because the doctor had been given Miranda warnings prior to making his confession, the fact that he was neither in police custody nor subject to police interrogation is irrelevant. Either of these facts would excuse the failure of the police to give Miranda warnings to the doctor prior to the doctor making his statement. However, the issue here is whether the doctor's confession was a product of his own free will in the absence of a custodial interrogation.

A recently incorporated painting company entered into a contract with the owner of an office building to repaint the public areas of the building. Since the painting company wanted to establish a good reputation in the market, it discounted its price. The painting company expected to make $10,000 in profit on the contract. Midway through the project, the building owner ordered the painting company to cease work; the painting company immediately complied. At that time, the painting company had incurred costs of $100,000. The cost of hiring another painting company to perform the same work would have been $115,000. The work performed had increased the value of the office building by $50,000. The painting company filed a lawsuit against the building owner. The fact finder determined that the owner's repudiation of the contract was without justification.What is the maximum amount of damages the painting company can recover?

Answer choice A is correct. Although expectancy damages normally are awarded in a breach-of-contract action, restitutionary damages are permitted in cases where the nonbreaching party has partially performed a below-market-price contract. Otherwise, the breaching party would profit from its breach. Consequently, the painting company may recover the benefit conferred upon the owner as measured by the amount the owner would have had to pay to secure the same performance as that rendered by the painting company.

Twenty years ago, a federal district court found that a city school district, but not surrounding suburban school districts, had violated the Constitution; the district court issued a complex desegregation order. At the time integration efforts began, the city school district was 70 percent white. The city school district is now only 25 percent white. This decline was largely due to white families either moving to surrounding suburbs outside of the city school district or sending their children to private schools within the school district. To attract those white students back into the district schools, and to limit any further movement of white students from the district, the court orders the city school district to build five expensive, state-of-the-art magnet schools.For which of the following purposes is this order unconstitutional?

Answer choice A is correct. Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. A court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. If there is no such evidence, a federal district court can only remedy constitutional violations (i.e., race discrimination) that occurred within a particular school district. Hence, the court can issue orders that aim to keep white students in the district schools or to attract white students in private schools within the district to its public schools. However, the court cannot seek to attract white students from surrounding suburbs into the district without evidence of discrimination in the suburbs.

A federal study found that almost all of the accidents on a particular state's highways were caused by out-of-state residents. Congress passed a law requiring the payment of tolls at all of the state's borders. The law also required that any driver with an out-of-state driver's license pay an additional toll and leave a credit card number for the state to use in the event that the out-of-state driver caused an accident on one of the state's roads. Several out-of-state motorists have challenged the constitutionality of the law.Which of the following provides the best ground for challenging the constitutionality of the law?

Answer choice A is correct. The Due Process Clause of the Fifth Amendment applies against the federal government, and provides that "no person shall be...deprived of life, liberty, or property, without due process of law." The Due Process Clause contains a substantive component that guarantees certain fundamental rights, including the right to travel among the states. This includes the right to enter one state and leave another and to be treated as a welcome visitor. Because this law impinges on a fundamental right, it is subject to strict scrutiny.

A plaintiff properly filed a negligence action in federal district court based on diversity jurisdiction. Although either party could have filed a demand for a jury trial, neither party did. The case was heard before a judge. The defendant admitted liability, but contested the amount of damages sought by the plaintiff. The judge considered both documentary as well as testimonial evidence before detailing her findings and making the award. The defendant has timely appealed this award. What is the appropriate standard of review for the appellate court to apply to the amount of damages awarded by the trial judge?

Answer choice A is correct. The amount of damages to be awarded is a factual finding. As such, the award must not be set aside unless clearly erroneous.

The owner of a ranch sold a small portion of the northwest corner of the ranch to a young couple. The couple built a residence on the land. The deed provided that the couple and their heirs and assigns would have the right to cross the ranch to access a public road, which ran along the southern boundary of the ranch. The deed, which was promptly recorded by the couple, did not specify where the crossing was to be located and there was no existing trail or path. However, the couple adopted a somewhat circuitous route that fit the contours of the land and the owner acquiesced in their choice.Several years later, the couple divorced and sold the residence to a writer. The writer continued to use the unpaved route chosen by the couple to access the public road. Since the couple purchased the land, the character of the surrounding area has changed from rural to suburban. Recently, the owner of the ranch sold it to a developer. The developer has subdivided the ranch into lots for homes that are to be accessed by a grid of streets. Because the access route to the writer's residence prevents the developer from maximizing the development of the ranch land, the developer has offered to connect the writer's residence to the grid without charge. The connection to the grid would provide the writer not only with greater direct access to the public road but also a paved surface. The writer, however, has refused. The developer brought suit against the writer, seeking a judicial determination as to the location of the writer's right of access to the public road.How should the court rule on this action?

Answer choice A is correct. The deed by the rancher to the couple created an express easement. Although the location of an express easement is generally spelled out in the deed or other conveyance instrument, here its location was determined by the couple with the rancher's agreement. Once the location is fixed, under the majority rule, the owner of the servient estate may not unilaterally change the location of the easement. Answer choice B is incorrect because it is the owner of the servient estate, not the owner of the dominant estate, that has the right to fix the location of an easement when the location of the easement is not fixed by the instrument, set by circumstances, or selected by the parties. Moreover, here, the location of the easement was fixed by the rancher's agreement with the location selected by the couple, so neither owner had the right to select the location of the easement. In addition, once fixed, under the majority rule, neither owner may unilaterally change the location of the easement.

A farmer granted to a shepherd the right to construct a road along the eastern boundary of his farm. The purpose of the road was to permit the shepherd to access a pasture that he owned in order to graze his sheep there. The instrument creating this right was recorded, and the shepherd constructed a dirt road to the pasture and used it for several years. Recently, the shepherd sold the pasture to a company. Due to a change in the character of the area from agriculture to commercial, the company intends to build its headquarters on land, using the road as the sole means of accessing the headquarters. While the road is not the only means by which to access the property, it is a reasonable one. Given the new use of the property, the developer has proposed, in contradiction of the express terms of the easement, widening and paving the road. The farmer has filed suit to enjoin the company from widening and paving the road.Should the court permit the company to widen and pave the road?

Answer choice A is correct. The farmer granted the shepherd an express easement to construct and use a road on the farmer's property. If an express easement specifically limits that easement in a particular manner, this limitation is binding on the holder of the dominant estate. Consequently, since the document creating the express easement specifically prohibits the widening and paving of the road, the court should enjoin the developer from doing so. Answer choice B is incorrect. While an easement may be in gross, there is a presumption that an easement is appurtenant. Here the easement directly related to the shepherd's use of the pasture, not to the shepherd personally. Consequently, it was an easement appurtenant, which transfers automatically along with the transfer of the land to which it relates.

A chicken farmer raised chickens to sell to people who wanted to eat fresh, organic, cage-free eggs at a lower cost than buying from a store. A nutritionist who was interested in raising chickens contacted the chicken farmer. The two entered into a written agreement that contained a clause stating that the agreement was the final and complete agreement between them. Prior to finalizing the contract, the farmer and the nutritionist had spoken on the phone, and they orally agreed that the farmer would not sell the chickens to the nutritionist unless she built a chicken coop for the chickens. After the contract was signed, the nutritionist attempted to have a chicken coop built, but due to the difficulty of building one in her small backyard, the coop would not be completed until after the chickens were delivered. On the day of delivery, the farmer refused to sell the chickens to the nutritionist when he saw that the chicken coop was not habitable.Is the farmer in breach of contract?

Answer choice A is correct. The parol evidence rule generally prevents a party to a written contract from presenting prior extrinsic evidence that contradicts the terms of the contract as written. However, parol evidence may be admitted to prove a condition precedent to the existence of the contract. Here, the farmer agreed to sell the chickens to the nutritionist on the condition that she build a chicken coop to house the chickens. Although the oral agreement regarding the chicken coop occurred prior to the finalization of the contract, it is admissible as a condition precedent. Thus, the farmer is not in breach of contract because the nutritionist did not satisfy the condition precedent to the existence of the contract for the chickens.

During discovery in a state court action, an attorney inadvertently disclosed an impromptu letter sent by his client to the attorney regarding the client's thoughts and feelings about the litigation. Belatedly, the attorney took steps to rectify the error. Under the applicable state law, the disclosure did not constitute a waiver of the attorney-client privilege because it was inadvertent.In subsequent litigation in a federal action to which the client was a party, the opposing party sought discovery of the letter, which was relevant to that party's claim.Does the attorney's prior inadvertent disclosure of the letter constitute a waiver of the attorney-client privilege for purposes of the federal action?

Answer choice A is correct. Under the federal rule, an attorney's inadvertent disclosure of a communication that is protected by the attorney-client privilege can operate as a waiver of the privilege when there is a failure by the attorney to promptly take reasonable steps to rectify the error. However, this rule does not apply when the disclosure was made in a state court proceeding and the applicable state law does not treat the disclosure as a waiver. When state law is more protective of the attorney-client privilege than the federal rule, applicable state law governs and the disclosure is not treated as a waiver in a subsequent federal proceeding

An employer filed suit in state court against a former employee. The employee was domiciled in the same state in which the employer was incorporated and had its principal place of business. The employer's complaint alleged that the former employee violated an employment agreement and sought damages of $50,000 for the violation. The employee, after timely filing a compulsory counterclaim against the employer for federal patent infringement, timely filed a petition for removal with the proper federal district court. The petition asserted the existence of subject-matter jurisdiction on the basis of a federal question. In response, the employer filed a motion to remand the case to state court for lack of subject-matter jurisdiction. In ruling on this motion, the district court remanded the case to state court.Which of the following would support the court's action?

Answer choice A is correct. Under the well-pleaded complaint rule, federal question subject-matter jurisdiction exists only when the federal law issue is presented in the plaintiff's complaint. It is not sufficient that a defendant's counterclaim, even a compulsory counterclaim, arises from federal law. Here, the employer's complaint alleged a state law cause of action, the employee's breach of a contract with the employer. Consequently, there was a lack of subject-matter jurisdiction based on the existence of a federal question, even though the employee's compulsory counterclaim clearly asserted a federal law claim.

A plaintiff sued a defendant corporation for negligence based on product liability in federal district court sitting in diversity jurisdiction. The plaintiff had been injured when her lawnmower, manufactured by the defendant, shot debris into her eye, permanently blinding her. The defendant corporation asserted the defense of assumption of the risk. At the time of the federal district court case, the forum state's highest court had never addressed whether assumption of the risk could apply as a defense in a product liability action. The federal district court, relying on lower court rulings in the state, predicted that the forum state's highest court would not allow the defense of assumption of the risk and refused to instruct the jury on the defense. The defendant lost the case and appealed to the appropriate U.S. court of appeals. During the pendency of the appeal, the forum state's highest court issued an opinion holding that the defense of assumption of the risk applies in product liability cases in the forum state.Should the U.S court of appeals allow the defendant to raise the issue of assumption of the risk on appeal?

Answer choice A is correct. When a forum state's highest court has not spoken on an issue, a federal district court sitting in diversity must try to determine how the state's highest court would rule on the issue, if it did consider it. To make this determination, the federal court will generally look to any lower state-court decisions that have considered the issue and will follow a lower court's view, unless it believes that the highest state court would not follow it. If, after a federal district court action has been completed, the state's highest court rules on an issue in a way that is different from the way the district court predicted, then a federal appeals court is bound by the state court's ruling. In this case, the forum state's highest court had not yet considered the application of assumption of the risk to product liability actions when the federal district court made its ruling. Thus, the district court was permitted to follow the rulings of the state's lower courts on the issue to predict that the state's highest court would not allow the defense. However, since the forum state's highest court subsequently issued an opinion holding that the defense of assumption of the risk applied to product liability actions, the U.S. court of appeals is bound by that ruling. Thus, it should allow the defendant to raise the issue on appeal.

A taxpayer filed an action in federal court against the IRS for a refund. The IRS served upon the taxpayer a request that the taxpayer admit that she was not entitled to claim a business deduction for a specific expense. The taxpayer, determining that the requested admission required the application of law to facts, did not reply to the request.What is the effect of the taxpayer's action?

Answer choice B is correct. A matter is deemed to be admitted unless the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. A matter admitted is conclusively established, but only in the pending action; it cannot be used against the party in any other proceeding.

A daughter purchased an airplane ticket for her elderly mother. The daughter also signed up with the airline's text message emergency alert system. Before the mother's airplane was scheduled to land, the daughter received a text message from the airline stating that the airplane had just made an emergency landing because one of the passengers required immediate medical assistance. The daughter called the airline to ask whether the passenger was her mother. The airline representative refused to disclose the name of the passenger, but disclosed that the passenger matched the daughter's description of her mother, was sitting in her mother's seat, and had just died of a heart attack. The daughter went into shock and fainted, hitting her head on the ground. The mother had actually traded seats with another woman who matched her physical description. The daughter sued the airline to recover damages under a theory of negligent infliction of emotional distress. At trial, the daughter established that she had been traumatized by the airline's misinformation, and suffered ongoing chronic headaches as a result of her fall.Is the daughter's claim likely to succeed?

Answer choice B is correct. A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm's way if the plaintiff demonstrates that: (i) he was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and (ii) the threat of physical impact caused emotional distress. However, the duty to avoid infliction of emotional distress also exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant, such as when a common carrier mistakenly reports the death of a relative. Here, the airline representative mistakenly told the daughter that her mother had passed away. Thus, even in the absence of any threat of physical impact, the daughter can still recover under a theory of NIED

A grand jury indicted the defendant on drug trafficking charges. A week after his indictment and subsequent arrest, the defendant was brought before a judge to determine bail. The judge denied bail, and refused to hear arguments from the defendant's counsel that there was not probable cause for the defendant's detention. Following the bail hearing, the defendant's counsel filed a motion to dismiss the charges against the defendant, arguing that the defendant was denied his right to a preliminary hearing as to whether there was probable cause for the defendant's detention. The judge promptly denied the defendant's motion, and scheduled the case for trial.Did the judge err in denying the defendant's motion?

Answer choice B is correct. A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within 48 hours of the defendant's arrest. There is no need to hold a preliminary hearing if probable cause has already been determined through a grand jury indictment or an arrest warrant. Answer choice A is incorrect because the defendant was not entitled to a preliminary hearing, and thus there is no issue of waiver. Answer choice C is incorrect because a defendant is not entitled a determination of probable cause to detain following arrest when the defendant was arrested following a grand jury indictment or pursuant to an arrest warrant. Answer choice D is incorrect because the defendant was not entitled to a preliminary hearing under the circumstances, and thus there is no issue of waiver.

The owner of commercially zoned property in a major city entered into a 75-year lease with a developer. The developer demolished the existing structure on the property and constructed a multi-story office building. Under the terms of the lease, the developer retained the right to purchase the property at the end of the lease term for a nominal sum. Ten years later, the owner sold all of its rights in the property to a buyer. The buyer then filed an action seeking a declaratory judgment that the developer's right to purchase the property was void.The jurisdiction continues to adhere to the common law Rule Against Perpetuities.How should the court rule? A

Answer choice B is correct. Although the common law Rule Against Perpetuities applies to options to purchase real property, it does not apply to an option to purchase the property that is held by a current leasehold tenant. In this case, because the developer is the current lessee of the property, the rule does not apply. Consequently, the developer's purchase option is not void.

wo cousins owned adjoining parcels of land that each had inherited from their bachelor uncle. Each constructed a residence on his parcel and allowed the rest of the land to remain in its natural state as woods, since doing so increased the value of both parcels. The cousins executed a written agreement, each promising the other, on behalf of himself as well as his heirs and assigns, not to cut down the trees on his parcel. The agreement was filed in the local land records office. Ten years later, the younger cousin sold his parcel to a buyer in fee simple. Subsequently, while the older cousin was away, the buyer cut down the trees on her land. On his return, the older cousin filed a lawsuit against the buyer based on his rights under the prior agreement, seeking damages from the buyer based on the diminution in value of his parcel due to her removal of the trees on her parcel.Can the older cousin successfully prosecute this lawsuit against the buyer?

Answer choice B is correct. Among the requirements for a party to seek damages from a subsequent owner of property for the violation of a real covenant is the requirement that horizontal privity exist between the original parties to the agreement. This means that there must be some shared property interest apart from the covenant itself, such as a landlord-tenant relationship or the relationship between a buyer and seller of land, for the covenant to run with the land and bind a subsequent holder of the property. Here, the two cousins did not have a shared property interest, but instead were merely neighbors. As such, horizontal privity did not exist between them at the time of the agreement, and the older cousin cannot recoup damages from the buyer for violating the agreement

At a trial for negligence, the plaintiff testified that the defendant, Dave, struck her as she was crossing behind his car. Immediately prior to the accident, the plaintiff and defendant had been visiting a friend. The plaintiff's attorney called the friend to the stand at trial to testify that she didn't see the accident, but heard the plaintiff exclaim, "Dave, stop!" immediately before the friend rushed from her house to find the plaintiff on the ground behind the defendant's car. The defendant alleged in his pleadings that he did not hit the plaintiff with his car.Is the friend's testimony admissible?

Answer choice B is correct. An excited utterance is a statement made about a startling event or condition while the declarant is under the stress of excitement that it caused. Excited utterances are not excluded from evidence, despite being hearsay. The event must shock or excite the declarant, and the statement must relate to the event. In this case, the statement was made while the plaintiff was under the stress of an imminent accident. The plaintiff's statement also related to the event. Therefore, the friend's testimony regarding the plaintiff's statement is admissible.

A defendant in a robbery case was awaiting trial, though his attorney had negotiated with the prosecution to allow him to be under house arrest while awaiting trial, instead of sitting in jail. The police had been unable to find the gun that the defendant purportedly used to commit the robbery, and knew that finding the gun would greatly help the prosecution make its case. One of the police officers decided to visit the defendant at his home. After talking with the officer for about 30 minutes, the defendant decided to confess to the robbery. The defendant also admitted that the gun was hidden in a random office building downtown, which the police had never thought to search. Based on the confession, the officer got a warrant to search the building and found the gun. The prosecutor plans to introduce both the confession and the gun into evidence at the defendant's trial.On a motion by the defense to suppress the confession and the gun, how should the court rule?

Answer choice B is correct. The evidence should be suppressed because there were both Fifth and Sixth Amendment violations. The defendant's Sixth Amendment rights were violated because he was represented by counsel in the matter at issue and there was no effective waiver of that right. Evidence obtained in violation of a defendant's Sixth Amendment rights may not be introduced at trial. This is the case for both statements of a defendant and any evidence derived from such statements. In addition, the defendant's Fifth Amendment rights were violated. Since the defendant here was under house arrest, he was in "custody." A reasonable person would not believe that he was free to leave under such circumstances. Since there were no Miranda warnings given, the confession is inadmissible. (Note that the lack of Miranda warnings would not necessarily preclude admission of the gun.) A

A farmer owned a 10-acre farm. Six months before his death, the farmer ceased farming the land, but continued to live in his residence on the land with his friend and maintain the two acres of his property that surrounded the residence. After the farmer died, the farmer's friend continued to live in the residence and maintain the two acres. The friend believed that she was the owner of the farm pursuant to the terms of the farmer's will, prepared shortly before his death, which specifically devised the farm to her. Unbeknownst to the farmer's friend, the farmer, several years before his death, had deeded ownership of the farm to his son, which the son did not record. The son became estranged from his father shortly thereafter and did not learn of his father's death for 11 years. Recently, the son brought an ejectment action against the farmer's friend.The statute of limitations for adverse possession in the applicable jurisdiction is 10 years. In addition, the applicable jurisdiction has adopted a notice-type recording act.Is the farmer's friend likely to be awarded the entire 10-acre farm?

Answer choice B is correct. Under the doctrine of adverse possession, ownership of real property is transferred to a person who exercises open, notorious, hostile, and exclusive physical possession of that property for a certain amount of time. If a person enters property under color of title (a facially valid will or deed) and actually possesses only a portion of the property, then constructive adverse possession can give title to the whole. Here, several years before his death, the farmer transferred ownership of the farm to his son. Consequently, the farmer's provision in his will that devised the farm to the farmer's friend was not effective. However, for 11 years after the farmer's death, the farmer's friend occupied the residence on the farm and maintained the two acres surrounding it. Because the applicable jurisdiction has a 10-year statute of limitations, the farmer's friend has adversely possessed the residence and the two acres surrounding it. Although the friend did not actually possess the remaining eight acres of the farm, the friend likely constructively adversely possessed the eight acres through color of title as the friend erroneously thought that she owned the entire farm based on the farmer's will.

A defendant was charged with defrauding a federally insured bank. At trial, the defendant, in response to a question by the prosecutor, denied owing $125,000 to creditors at the time of the alleged fraud. The prosecutor showed the defendant a bankruptcy petition that she had filed, showing secured claims of $125,000 against her during the relevant time. The defendant testified that the information in the petition was incorrect and had been withdrawn.Can the prosecutor introduce the bankruptcy petition into evidence as an opposing party's statement?

Answer choice C is correct. A statement made by a party in a pleading filed in another action can be admissible against the party in the current action as an opposing party's statement. Although the statement in the pleading of another action is not conclusive evidence of the truth of the matter asserted in the statement, it is nevertheless generally admissible as evidence of the truth of the matter asserted in the pleading. Answer choice A is incorrect because there is not a general hearsay restriction on the use of a previous civil pleading filed by a criminal defendant against that defendant. Answer choice B is incorrect because the subsequent withdrawal or amendment of a pleading does not prevent its use in another proceeding as an opposing party's statement. It is left up to the party to explain why the pleading was withdrawn or amended. Answer choice D is incorrect because a statement need not be against the opposing party's interest in order to be admissible as an opposing party's statement.

A telecommunications company retained a lawyer to represent it in a commercial dispute in which it was the plaintiff. The fee agreement provided that the lawyer would bill the company on an hourly basis but would not collect anything except costs "unless and until the telecommunications company received a recovery or settlement in the action." Due to disagreements with the lawyer's strategy for the trial, the telecommunications company discharged the lawyer and hired a new law firm on a contingency basis to represent it in the case. The company was ultimately awarded a large judgment. The original lawyer sued the company for her uncollected fees. The company denied owing the lawyer anything, asserting that no money was due yet because the judgment had not actually been collected.The lawyer wants to introduce evidence that the judgment has been collected by showing disbursements from the new law firm's trust account to the telecommunications company.Is this evidence admissible?

Answer choice C is correct. The attorney-client privilege prevents anyone from testifying about confidential communications made to an attorney for the purpose of obtaining legal services. Here, the payments made out of the trust account were not communications made for the purpose of obtaining representation, and are therefore not covered by this privilege.

Seeing his elderly neighbor struggle to shovel large amounts of snow from a sidewalk, a man decided to shovel the neighbor's sidewalk himself. The man wanted to help the neighbor so she would not injure herself. He figured that if anyone else used the sidewalk, he could charge them later for the work performed. The man continued to shovel the sidewalk for the remainder of the winter. The neighbor knew the man was doing the shoveling and never objected. She even wrote him a note on the first day of spring indicating that she would love to pay him for the service. A second neighbor regularly used the particular sidewalk as well. When the man ran into the second neighbor at the grocery store one day, the second neighbor said he would pay the man for taking such good care of the neighborhood. At the end of the winter, the man placed a bill on the doorstep of both the elderly neighbor and the second neighbor. The service charges were comparable to the reasonable market rate for such services. The jurisdiction applies the material benefit rule.From whom can the man can likely obtain payment?

Answer choice C is correct. Under the material benefit rule, when a party performs an unrequested service for another party that constitutes a material benefit, the performing party (here, the man) can enforce a promise of payment made by a party who benefits from the service rendered. In this case, both neighbors benefited from the shoveling and both offered payment. However, the material benefit rule is not enforced when the performing party rendered the services without the expectation of compensation. Here, the facts indicate that the man wished to shovel the snow for his elderly neighbor in a gift capacity—i.e., so she would not injure herself. He had no such motivation for the second neighbor and can enforce that payment.

A borrower who was a citizen of State A defaulted on a loan that was secured by a mortgage on undeveloped land located in State B. Pursuant to a "power of sale" clause in the mortgage, the lender, who was a citizen of State C, conducted a foreclosure sale of the land. At the sale, which was held in State B, the lender bought the land, but did not have the sale judicially confirmed. Because the purchase price was less than the outstanding amount of the loan, the lender sought a deficiency judgment against the borrower in a State A court. Under the laws of State B, a lender is not entitled to bring a deficiency judgment unless, within 30 days after a foreclosure sale, the sale is judicially confirmed. Under the laws of State A, there is no similar restriction on the right of a lender to bring a deficiency judgment.The court determines that the conflict-of-laws rules of its own state should apply and that, under those rules, State B has the most significant relationship to the loan, the lender, and the borrower.Should the court apply State A law or State B law regarding the lender's right to a deficiency judgment to resolve this matter?

Answer choice C is correct. When there is an issue regarding real property and there is a conflict as to which state's law should be applied to resolve the issue, the general conflict-of-laws rule is that the law applied by the forum court should be determined by the conflict-of-laws rule that would be applied by the state court where the property is located (i.e., situs). However, issues that relate to a foreclosure but do not affect an interest in land, such as the mortgagee's right to bring suit upon the underlying debt without having first proceeded against the mortgaged land, are determined by the law that governs the debt for which the mortgage was given. The law of the state that has the most significant relationship to the transaction and the parties governs the debt for which the mortgage was given. Since State B has the most significant relationship to loan, the lender, and the borrower, the court should apply the law of State B in determining whether the lender can bring a deficiency action against the borrower.

A man planned to assault the female manager of a convenience store by hiding in the store's bathroom just before closing time and then attacking her after she locked up for the night. On the chosen night, the man happened to enter the store as the last customer was exiting. The customer held the door open and the man walked through the open door. The man hid in the bathroom, but, having a change of heart, exited the store when he heard the manager announcing, "Closing time." On his way out of the store, he took a candy bar and shoved it in his pocket.Burglary is defined by statute as "unlawfully entering a building or occupied structure with the purpose of committing a felony therein."The man is charged with burglary. Of the following, which is likely his best defense?

Answer choice D is correct. As defined by the statute, burglary requires that the entry into the building or occupied structure be unlawful. Here, because the man entered the store during normal business hours, he can argue that as a member of the public he had the implied consent of the store owner to be on the premises and thus his entry was not unlawful.

A police officer observed a woman threatening to hit a young girl. The woman was waving her arms around, standing very close to the girl, and screaming. The officer arrested her for disturbing the peace and making violent threats. Immediately after arresting the woman and placing her in handcuffs, the officer searched the woman's purse, which she had been carrying on her shoulder. Inside, the officer found an illegal weapon.The woman moved to suppress the weapon.Will the court likely grant the woman's motion?

Answer choice D is correct. The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers "immediately associated" with the person (such as a shoulder bag or purse). In this case, the officer was legally entitled to search the woman's purse incident to her lawful arrest for disturbing the peace and making violent threats. Accordingly, the woman's motion to suppress will be denied.

A woman was hiking along an isolated trail through the woods. Although primarily uninhabited, there were a number of homes a few hundred feet off the trail. As she was walking along the trail, the woman passed an elderly couple walking in the opposite direction. Right after passing them, she heard the elderly woman scream for help because her husband was having a heart attack. The woman immediately got out her cell phone to call 911, but she had no cellular reception. As she looked around, she noticed a tall metal post a few hundred feet off the trail to her right. Knowing it would improve her cellular signal, the woman ran up to it, overlooking a "No Trespassing" sign in her haste. Unbeknownst to her, the post was located on the property of a homeowner. The woman called 911 and immediately left the homeowner's property without causing any damage to it. The homeowner saw the woman enter and exit his property.If the homeowner sues the woman for trespass to land, what is the woman's best defense?

Answer choice D is correct. Trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. No proof of actual damages is required. However, the privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another's personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm. The privilege applies if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant. If this defense is established, the property owner is entitled to recover actual damages, but he cannot recover nominal or punitive damages nor can he use force to eject the defendant. Here, the woman should argue that she had a qualified privilege of private necessity to enter the homeowner's property because she was trying to call 911 in order to help the elderly man who was having a heart attack.

A defendant was charged with allegedly raping a female student when he took her home after their date. The defendant's main defense is that the sexual intercourse was consensual. The student has testified that she was drinking on the evening of the date, but that she remembered everything that happened after she returned with the defendant in his car to his apartment. She testified that she agreed to go to the defendant's apartment, but that when they arrived, he attacked her and raped her in his living room. On cross-examination, the defense asked the student if she remembered the color of the defendant's car that she rode in that evening. She testified that it was black. The defense then tried to admit into evidence a properly authenticated photograph of the defendant's car showing that the defendant's car was actually purple. The prosecution objected.Is the court likely to grant the prosecution's objection?

nswer choice A is correct. Generally, a party may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness's testimony. In this case, the student testified inaccurately about the color of the defendant's car, but this mistake is likely irrelevant to the crime at issue in the trial. Therefore, the court is unlikely to find that impeachment as to this collateral matter is proper.

A federal statute generally makes age discrimination in the hiring or firing of employees illegal and provides for a civil action for damages against the offending employer. The statute applies to public as well as private employers and contains a clear statement of Congressional intent to abrogate state immunity. In federal court, an employee sued her employer, a state agency, for violation of this statute and sought relief in the form of retroactive money damages. The state agency moved to dismiss the action as constitutionally prohibited. The state employee conceded that the age discrimination that she experienced was rationally related to a legitimate state interest.Should the court dismiss the action on constitutional grounds?

nswer choice C is correct. The Court has interpreted the Eleventh Amendment as barring unconsented private suits against a state for retroactive money damages. Congress may abrogate state immunity from liability if it is clearly acting to enforce rights created by the remedial provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments (i.e., the Civil War Amendments), and does so expressly. Here, Congress is not remedying conduct that violates the Fourteenth Amendment's Equal Protection Clause, as age is not a suspect or quasi-suspect class and thus a state's age-based discrimination merely needs a rational basis.

A plaintiff and a defendant were both injured in an automobile accident when their cars collided. The plaintiff brought suit against the defendant in federal court under diversity jurisdiction, asserting negligence by the defendant resulting in $150,000 in damages. The defendant asserted a counterclaim against the plaintiff for negligence resulting from the same accident. He also joined a motorcyclist to the claim who was present at the scene of the accident and had swerved in front of the defendant immediately before the defendant's collision with the plaintiff. The defendant claimed that the plaintiff and the motorcyclist each owed him $25,000 in damages on the counterclaim as a result of their negligent actions. The plaintiff and the defendant are citizens of different states, but the motorcyclist resides in the same state as the defendant. The motorcyclist filed a motion to dismiss the claim against him for lack of subject-matter jurisdiction.Must the court dismiss the claim against the motorcyclist? A

nswer choice C is correct. The defendant's claim against the plaintiff is a compulsory counterclaim. The motorcyclist is an additional party to the compulsory counterclaim against the plaintiff. Compulsory counterclaims and the joinder of additional parties to compulsory counterclaims fall within the court's supplemental jurisdiction. Thus, it is irrelevant that the defendant's claim against the motorcyclist could not independently meet diversity jurisdiction. Accordingly, answer choice A is incorrect.