Introduction to Barbri

 First you here lectures

 Then your PSP will assign homework- PSP is the home page
Books:
 State & Multistate Outlines- Confused about a type of Law, reference books
 Conviser Mini Review- Use for mini review
The app-
 You can download practice questions
 And download videos

Systematic Problem Solving:

 Read the call of the question first
 Ask yourself what the Question is testing me on?
 Question the question to determine what key facts you are looking for
 Read the facts carefully- use a strong knowledge of the rules to narrow the issue
 Predict the correct answer before reading answer choices so you don’t get distracted
by distractors

MBE Immersion Goals:

By the End of this Workshop you will:
1) Have a big picture understanding of each MBE Subject
2) Be familiar with how key rules in each subject are tested
3) Know how to problem-solve MBE questions

200 Multitple Chocie Questions

Across 8 Subjects

Torts

Real Property

Contract

Constitutional Law

Criminal Law &

Criminal Procedure

Evidence

Civil Procedure
1 Min and 48 Seconds per question

My Immersion Workshop Overview:

 1. Complete 5 questions in 9 minutes or less
2. Watch a short big picture overview of the subjects
3. Water a question by question analysis covering:
a. Most of the highly tested MBE rules
b. How to systematically approach MBE questions in all 8 subjects

CONTRACT HYPO EXCERPT:

Question:
 Following the buyers written order for 500 widgets delivery in 30 days, the seller sent the
buyer a contract, already signed by the seller, agreeing to sell 500 widgets to the buyer
delivery in 45 days for a total contract price of $6,000.

What comes to mind as an answer?

 Is this an acceptance? When does the terms become part of the contract?

Associations: 
1) Mirror Image rule? Common law association X
2) UCC Battle of the Forms Provision 

SYSTEMATIC PROBLEM SOLVING STRAGEGY

 Don’t read from the top down always start with the “call” last sentence of the question
 Circle and underline part in the scenario

Succes
s!
Predict the
Answer

Analyze the Question

Actively Read Facts

Question the questions

Start with the Call

Question:
 A woman playing tennis with a man became highly irritated because every time she
prepared to serve, the man started talking loudly. Despite the woman’s repeated requests
to stop, the man persisted in the behaviour. The woman ran towards the man, swinging
her racket to scare him and to get him to stop. However, as she swung the racket, she
slipped and it flew out of her hand as she lost her balance. It flew through the air and
struck the man in the head. The woman slipped because the owner of the tennis court had
not cleaned the court property after some maintenance work.
Assault? Battery? Negligence?

The Call:
  If the man sues the woman for negligence, which of the follow would be her best
defence?

Answers:
 The woman did not intend to make a harmful or offensive contact with the man

 B. The owner’s failure to properly maintain the tennis court was the proximate cause of
the man’s injuries

 C. The woman did not place the man in a reasonable apprehension of imminent contact

 D. The woman could not reasonably foresee that the tennis court was slippery.

 Notice that the distractor facts are related to the answer choices that are legally
significant to the answer choice

EXAMPLE:
 Which of the following standards should the court use in determining the validity
of the ordinance?
 The word standard would make you think of the levels of scrutiny in Constitutional law
 What is the basis of the suit?
 What does the ordinance say?
 What part of the Constitution is being implicated by the question?

Constitutional Law on the MBE

 25 graded Constitutional Law Questions
 Half will test on individual rights

The Constitution was made to limit the powers of the Federal Government:
 Constitutional law Questions will test you on 2 Main subjects:

1) Powers of the 3 branch’s government:

 Legislative powers of congress to create laws under Article 1
 Presidents Executive Powers Article 2
 Federal court Jurisdiction Article 3
 Federalism- Government interplay State
o Restrictions on the legislative authority of the states
 Supremacy Clause
 Dormant Commerce Clause

2) Individual rights that are protected by the constitution

 1st Amendment: Speech, Religion liberty
 5th and 14th Amendment Procedure Process
 14th Equal protection of the laws
 Fundamental rights- Equal protection clause and the substantive due process
clause
  There liberties are limits on federal and state governments

Skills to focus on Constitutional Law MBE Approach

1) Identify what level of government is acting
2) Determine if the question is a powers or rights question
3) Match appropriate power/right to rule or teste provided by Constitution

How to determine the Doctrine Standing:

Must show:
1) Injury in fact- Economic injury/environmental/aesthetic harm directly suffered by the
plaintiff
2) Causation- connection between the injury alleged and the conduct complained of
3) Redressability- the relief sought from the court will eliminate the harm alleges
 The plaintiff must establish a concreate personal stake in the outcome by showing all the 3
listed

Question 1:
$$$ to a state if
it adopts a
Congress
55mph speed
limit

Step 1- Who ?
 Congress is passing the law. Congress provides federal funding to a state but attaches
strings to the federal grant

Step 2- Powers or Rights (individual liberties)?

 Power or authority of congress to pass a law that grants money to states if they do
something in return. It is a congressional powers question under Article 1 of the
constitution

Step 3- Which provision?

 Match the rule to the issue of Spending power.

There are 2 Questions Here:

1) What give congress the power to fund state highways?
2) Does the power also allow congress to place limitations on how the funding is used ?
 What is the best power to regulate this congressional legislation?
 Spending power under Article 1 s.8
 It may attach strings to federal appropriations
Question 2 Federal Statute made by Congress:

Step 1- Who ?
 Congress
Step 2- Powers or Rights (individual liberties)?
 Powers question

Step 3- Which provision?

 Federal-Congress Commerce Power Under the Commerce Clause
 Google Definition: Interstate commerce refers to the purchase, sale or exchange of commodities,
transportation of people, money or goods, and navigation of waters between different states. Interstate
commerce is regulated by the federal government as authorized under Article I of the U.S. Constitution

Congress Commerce Clause-

 There is no establishment clause violation law if a law has a secular(non-religious)
purpose. If its primary effect neither inhibits or advances religion and the law will not
cause excessive entanglement between government and religion
 Gambling as a host side effects not relating to religion. The law here requires no
involvement with any religious institutions

 Congress may regulate things such as:

1) Channels of interstate commerce:

 Roads, Railways, Airspace

2) Instrumentalities of interstate commerce

 cars, trains, airplanes of interstate commerce and also persons and things moving
in interstate commerce

3) Any activity which has substantial economic effect on the stream of

interstate commerce:
 It matters if the particular activity being regulated is:

 Economic commercial in nature Vs. Non-economic non-commercial in nature

and it matters because there is 2 different tests that apply

1) If intrastate activity is economic in nature--> upheld

 if rational basis exist to conclude activity substantially
affects interstate commerce
 Gambling machines regulation will be upheld, if there is a conceivable
rational basis to conclude that the activity in the aggregate substantially
effects interstate commerce

2) If intrastate activity is non-economic in nature Upheld

 if congressional finding that activity affects interstate
commerce
 The activity regulated has a substantial economic effect on
interstate commerce
  Example: Such as a regulation prohibiting the
possession of a firearm in a school zone
Aggregate- Combine
Conceivable- capable
Rational basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are
considered more stringent. Rational basis review is generally used when in cases where no fundamental rights or
suspect classifications are at issue.

Question 2 Answer:
 The statute will be upheld and the plaintiff challenge will be unsuccessful because there
is a rational basis to conclude here, that if people throughout the country play on
gambling machines there will be a substantially effect on interstate commerce. The
demand for machines might increase, machines will be shipped using the roadways, the
amount of money changing hands will increase. The regulation on gambling machines
will therefore substantially affect on interstate commerce.
 This is true even though the regulation regulated, (standing in front of a gambling
machine and putting money into it) occurs only in 1 state.
 Congress can still act under its comer clause power because in the aggregate substantial
activity may affect interstate commerce and commerce between the state
 The distractor here is religious liberties

 A is incorrect because the statute will be upheld and citizen motivation asking for
the law does not attain it.
 B is incorrect because the statute will be upheld and congress powers are not only
limited to regulating powers on channels or instrumentalities of interstate commerce
 C is incorrect because this test is inapplicable to regulate commercial activities
 D is correct because the question is testing on the standard and regulating a
commercial activity rather than a non-commercial activity. D states the correct rule
for a commercial activity

Question 3: State Regulation of Interstate Commerce

Dormant Commerce Clause:

 State regulations on interstate commerce will be upheld only if to requirements are met:

1)The State Regulation is Non-Discriminatory

 A state may not pass laws that favour its own local interest and
discriminate against interstate commerce
 Some discriminatory laws are upheld in a few instance- (very important for the test)

2) The State Regulation does not unduly Burden Interstate Commerce

 A balancing test is used here to weigh the state interest in the regulation
against the burden imposed on interstate commerce
 Example: A state law requiring that all trucks entering the state use a
particular form of mud guard, which another type of equally
effective mud guard is permitted in every other state. This
 constitute an example of an undue burden on interstate
commerce and this regulation would be struck down
Exam Tips:
 State action is hard to spot because the actual words “state action” do not appear in the
question itself or the answer choices
 Standing and state action is an issue that you should always be on the lookout for any
constitutional law rights question. This is the second step in our approach is it a powers
question or is it a rights question.
 If it’s a rights question think first of whether or not there is a state action, to prove that
the government has infringed on someone’s individual rights

State Action
State actions means that:
1) There must be governmental conduct-(as opposed to purely private action or conduct)
o Before private acts that negatively impact individuals can be punished or
restricted under the 1st and 14th Amendments. A plaintiff must prove state action.
The state action requirement is in certain provisions of the US constitution that
prevent governments from doing things to individuals.
 Example: Government cannot restrict your freedom of speech,
government cannot deny people liberty without due
process, government may not take a person’s property
without paying compensation
 Private parties owe you no constitutional rights, however sometimes the line between
government and private blurs

2) May apply to private conduct if state is significantly involved in the conduct of

private parties
 Example: When a governmental entity is significantly involved in
a private person’s actions or a private person undertakes
an activity that it traditionally and exclusively a
governmental function. When the line is blurry we have a
state action issue
 Therefore the 14th Amendment guarantee of due process and equal protection as well as
the 1st Amendment guarantee of free speech, would apply to prevent infringement of
constitutional rights by the company town
 Regarding significant state involvement, if the state affirmatively facilitates, encourages
or authorizes private acts of discrimination, the private acts will be considered state action
 Example: providing roads, sidewalks, parks, fire and police
protection
 Marsh V Alabama case case dealt with a company town. Running a company town is
the classic example of a public function, since the company town is performing activities
that are traditionally and exclusively carried on by the government.
 Grace Marsh, a Jehovah's Witness, distributed religious literature on the sidewalk.
The Gulf Shipbuilding Corporation owned Chickasaw, Alabama in its entirety as
a company town. Marsh was convicted of criminal trespass.
  The Court reasoned that a company town does not have the same rights as a
private homeowner in preventing unwanted religious expression. While the town
was owned by a private entity, it was open for use by the public, who are entitled
to the freedoms of speech and religion.
 The Court employed a balancing test, weighing Chickasaw’s private property
rights against Marsh’s right to free speech. The Court stressed that conflicts
between property rights and constitutional rights should typically be resolved.

 Brentwood Academy V Tennessee Secondary School Athletics (TSSA) Case:

 TSSA (Association) is a not-for-profit membership corporation organized
to regulate sports among its members, of the public and private high
schools. The Association's role in regulating competition in public
schools and has been acknowledged by the State Board of Education.
Brentwood Academy sued the Association after it penalized the academy
for placing "undue influence" on football recruits. Voting members of the
Association were public school administrators.
 Brentwood claimed that the rule's enforcement was state action that
violated the First and Fourteenth Amendments.
 The Court held that the organization is a state actor for civil rights
purposes. "The nominally private character of the Association is
overborne by the pervasive entwinement of public institutions and public
officials in its composition and workings, and there is no substantial
reason to claim unfairness in applying constitutional standards to it

 Where a private high school sports association was supported by funds from public
schools who had a governing body made up of mostly school officials & who’s
meetings were held during school hours & who’s employees could join the state
retirement system & which was funded by gate receipts, the associations actions would
be considered state action.
Gate receipts- sum of money taken at a sporting venue for the sale of tickets.

Test Tip:
 On the MBE where a private person is acting, (also based on case law) you would
find that there is not state action because the state is not significantly involved in
the conduct of private entities.
 None of the following cases were sufficient to make the private actor’s action,
state action

No State Action Where: (private actors’ action were state action)

(state public grant/funds & private entity does something bad, state can’t do anything about it)

 Grant of a state license:

 A state grant of a liquor licence to a private entity that discriminates based on race
 State grant of a school licence to private school that has a discriminatory
admissions policy
  Grant of a monopoly to utility company (exclusive possession/control of supply/trade in a commodity/service)
 State grant of a monopoly to a privately-owned utility company under heavy state
regulation

 Grant of state land or funds

 A state grant of land to a private museum owned by an entity that engages in
discriminatory hiring
 A state grant of over half the funds used by a private University that terminated a
professor based on her speech related activities

 In each of these cases the private entities were allowed to engage in acts of discrimination
against its members, students or employees without being subject to any constitutional
restriction under the 1st and 14th Amendments, since there was no state action

Question 3 Answer:
 Defendant- Organization
 Plaintiff – Private entity being sued for the violation of the constitutional
provision(state action)
 The expelled member is bringing a suit seeking reinstatement because her explosion
violates the 1st and 14th Amendments
 This is a rights question
 If there is a sufficient nexus(connection) over the organization and the state to
implicate constitutional protections
o Reworded: Whether there is state action when a private organization
that was incorporated by the state discriminated against a worker
 No, the organizations strongest Constitutional defence is the lack of state action
here
 A is the correct, because the 1st & 14th Amendments do not apply to private organizations
actions, so not state action is allowed.
 B is incorrect because racist objectives are generally protected but not in private
organizations where the state has no action.
 C is incorrect because it is assuming that equal protection is met under the facts, which it
does not apply so it cannot be met
 D is incorrect because it does not present a constitutional defence

Question 4 Deals with Equal Protection: (The substantive law, MBE skills & methodology)
 4/5 questions on the Multistate dealing with this area
 It is important to be aware of the triggering event in any Equal Protection analysis
 Look for persons similarly situation being treated differently.

Equal Protection Applies :

 When similarly, situation people are being treated differently
 Assuming the state action requirement is satisfied, when you recognize a classification
where such treatment exists between similarly situation persons, you then:
 Then determine what level of scrutiny to apply to the discrimination:
 1) Strict Scrutiny

 2) Intermediate Scrutiny

 3) Rational Basis

1) Strict Scrutiny: When the government differentiate between people based on a suspect
classification or when a fundamental right is involved:
 Necessary- A law is not necessary unless there is no less restrictive alternative means
available to achieve the governmental objection sought
 An objective- is compelling if it is necessary or crucial to our society
 Very hard burden for the state to satisfy, usually loose & law will presumptively invalid
 Example: preserving national security, protecting constitutional rights

APPLIES W HEN: TEST & W HO HAS

W HAT BURDEN:
1) Discrimnation is RIGHT TO PRIVACY :
based on suspect Governm ent m ust
classification
show: (CAM PERS- acronym)
(RAN-acronym)
- Race
Buden is on the state to show 1) C ontraception
-Alienage and that the:
-National orgin 1) Law is necessary to 2) A bortion
achieve 3) M arriage
-i.e. no less restrictive means
2) Fundamental right is 4) P rocreation
implicated:
5) E ducation, private
- Right to vote 2) A Compelling
-Right to travel government interest 6) R elations,family
-i.e. necessary or crucial for 7) S exual relations
-Right to privacy- (CAMPERS) society

2) Intermediate Scrutiny-This test is used when a government classification is based on:

 There must be a close fit between the governmental action involved and the goal
 In sex discrimination cases the court has gone even further requiring the state to show an
exceedingly persuasive justification for its action
 Government activity concerning a few other issues such as commercial speech and time,
place and manner restriction of speech in public forms are also tested under a forum of
intermediate scrutiny but the test is formulated a little differently and use your more
 specific test on the exam
TEST & BURDEN:

Burden is on the
Government:
GOVERNMENT MUST
SHOW:
APPLIES WHEN:
1) Law is substantially
1) Discrimnation is based on related to an
gender
-i.e., close "fit" needed not
necessarily least restrictive means
2) Discrimination is based on
child being born to unwed
parents 2) Important govenment
(marital & non-marital children) interest
What is an important interterest?

--> Something less than compelling;

something more than legitimate

---> Gender discrimination-requires

"exceedingly persuasive justification"
Rational Basis - The burden is on the plaintiff to show that > box 3
 Usually loose
 Necessities for life- food, shelter, clothes, medical care, social and
 Social and economic welfare measures (broad heading under type of discrimination)

TEST:
APPLIES W HEN: RATIONAL BASIS IS
APPLIED IF: PLAINTIFF M UST
SHOW :
DISCRIM INATION IS BASED
1) Neither strict ON: 1) Law is not rationally
scrutiny nor -Age related
intermediate
scrutiny apply -Poverty/wealth
-Mental capacity 2) To any legitimate
governmental interest
-Necessities for life

Question 4 Answer:
 Defendant- County- actor is the state not the federal government
 Plaintiff- Women

Rights Question on Equal Protection Issue:

 Focus on the suspect class of alienage, use strict scrutiny
 Since this woman is a resident alien and not a US citizen, she may not compel the county
officials to include her on a panel for jury selection
  Answer here is no because the exception that jury service is a self-governing activity that
states may limit to citizens
 A & B is incorrect because alienage is permitted when dealing with participation
in government
 C is correct because jury service may be constitutionally denied to aliens
 D is incorrect it does reach the right conclusion but for the wrong reason and she
does not lack standing and is not a rights answer

GENERAL RULE:

1) State discrimination against aliens Apply strict scrutiny

 Exception: Where function of government or participation in government is involved &
these specific areas the state may discriminate against aliens, subject to minimal rational
basis scrutiny.
 The courts have consistently held that the government may restrict such areas as
voting and jury service to citizens and deny such privileges to aliens

Discrimination concerning self-government:

 Examples: to the exception are based on case law and include:
 Police, teachers, serving on a jury

2) Federal Discrimination against legal or illegal aliens Apply rational basis test
 Federal discrimination against aliens is not suspect, strict scrutiny would not apply
 Example: the federal government can require a 5-year waiting
period before an alien can be entitled to Medicare benefits
 Under Article 1 section 8 of the Constitution, congress has preliminary power for
aliens based on its immigration and naturalization power
 A legal alien is not a suspect classification so this would fall under the rational basis test
 Exception: Children of legal aliens have a right to free public education through
the 12th grade in this case the court applied intermediate scrutiny
 Plyer V Doe –
o US Supreme Court struck down a state statute denying funding for education to
undocumented immigrant children in the US. Municipal school district's attempted to
charge an annual $1,000 tuition fee for each student to compensate for lost state funding.
The Court found that any state restriction imposed on the rights afforded to children
based on their immigration status must be examined under an intermediate
scrutiny standard to determine whether it furthers a substantial government interest.
Question 5 Deals with the 1st Amendment:
 In the MBE when you read a question that presents a statute regulating 1st Amendment
rights:
 Step 1:A statute may be unconstitutional as overbroad, if it punishes protected and
unprotected speech
 Vagueness if it is so unclearly defined that person of average intelligence must guess at
its meaning
 Prior restraints are a restriction on free speech in advance of publication, except for a few
sensitive issues dealing with national security,
 o PR are generally invalid and will be struck down, a gage order banning the press
from attending a criminal trial

 When you determine that the statute is regulating 1st Amendment rights, (free speech or
expression) Step 2
 Speech Express- the message
 Speech Conduct- the method- usually the time, place or manner of the speech

First Amendment Question Approach:

Step 2:-- Is the Statute
attemptin to reg content or
conduct.?

Step 1:
Determine if statute is
Consider facial regulating content of
attack on statute speech/expression or
to render the statute conduct of speech
void, 3 doctrines:
expression:

-Overbreadth
-Vagueness -If content--> apply strict
scrutiny (prob be invalid)
-Prior restraints

-If conduct--> apply time,

place and manner test

 When you recognize the statute in your question is simple a time, place and
manner regulation of speech related conduct, you should apply a different test.
 Depending on if the speech is in a public form, a designated public form, limited
public form or a non-public form

Time, Place and Manner Test:

 Applies to content neutral regulations of both public forms and designated public forms
 Similar to intermediate scrutiny

 Public forms is an area traditionally associated with the exercise of 1st Amendment
Speech related activity. A place historically opened for speech activities
 Examples of public form includes things like streets, parks and
sidewalks
  Speech in Designated Public Forms are areas where the government allows public
property not historically open to speech related activity, to be used for speech activities at
particular times
 Examples of designated public forms are the use of school rooms for
after school use or social, civic or recreational groups
 Non-public forms- are areas where the property is not historically been open for speech
related activities
 Examples Military bases, jails and government work places

 Limited public forms- are places that are open for speech activities for a particular
purpose
 Examples school auditorium that is thrown open to the public to
host a candidate debate

 In such forms a governmental regulation is

valid, if regulation must:
PUBLIC NONPUBLIC
FORUMS/DESIGNATED FORUMS/LIMITED PUBLIC
PUBLIC FORUMS FORUMS
Regulation must: Regulation must:

1) Further a substantial or an 1) Be viewpoint neutral

imporant government interest

2) Be reasonably related to legitimate

2) Be narrowly tailored (no more government purpose
restrictive than necessary)

3) Leave open alternative channels of

communication
 Most content regulation of speech will be invalid because the strict scrutiny test applies
and strict scrutiny test is hard to meet
 There are 6 Areas of 6 Amendment Speech that is Deemed Unprotected based on content

Categories of Unprotected Speech:

 There are 6 areas of 6th Amendment Speech that is deemed unprotected based on
content:
1. Speech advocating imminent lawlessness
2. Fighting words
3. Obscenity
4. Child Pornography
5. False/deceptive advertising
6. Defamation

Question 5 Answer
  Who? State
 It’s a rights question, dealing with the 1st Amendment Freedom of Speech

The statute is a content neutral time, place and manner regulation on:
 A speech related conduct because the regulation is not attempting to regulate the
content of speech making and picketing regulation but rather how and where the
communication must be offered (not in a noisy manner, not within 100ft).
 The regulation furthers a significant government interest by restricting noisy
protest that could disturb the legislature during debate
 It is narrowly tailed since the restriction only applies when the legislature is in
session to vote or debate
 The regulation leaves open alternative channels of communication by allowing
speeches in the large park opposite of the building
 A is correct because
 We conclude that the state statute is constitutional & is valid on its face and as applied, so
it will apply to the leader

Civil Procedure
 Personal Jurisdiction is most likely tested on the essays
 25 graded Civil Procedure questions on the multistate
 2/3 of the questions will focus on the 3 topics:
 Personal and subject matter jurisdiction and venue
 Pretrial procedures such as pleadings, joinder of parties, claims and discoveries
 Motions- both pre and post-trial motions

Civil Procedure has 2 main categories:

1) Jurisdiction-
  Personal Jurisdiction
 Can the plaintiff sue the defendants in this state?
 Subject Matter Jurisdiction & Removal Jurisdiction?

 Does the federal court have power to hear this type of case?
 Venue
 Which federal court may hear the case?
2) Procedure-
 Rules that determine when, where and how certain litigation tools should be used:
 Service of process
 What must a party do to properly serve a defendant?
 How long does a party have to submit his answer?
 How can a party bring a 3rd party to the case?
 What motion should a defendant file to dispose of the case after discover
and before trial?
 How long does the defendant have to move for a new trial?
 Motions
 Discovery
 Trial
 Appeals

Subject Matter Jurisdiction

 Diversity Jurisdiction
 Complete diversity each plaintiff must be a citizen of a different state than every
defendant
 Corporations
 Determined at the time the action arose not when the case if filed
 Amount in controversy $75,000 exclusive of interest and costs
 Aggregation- can add 2

 Federal Question Jurisdiction

 Article 3 section 2 of the constitution
 Federal district courts have original jurisdiction over all civil actions arising under
the constitution, laws, or treaties of the United States
 A federal question must appear in complaint as part of plaintiff well pleaded
cause of action
 The existence of a defence based on federal law will not create federal question
jurisdiction
 Once a claim is properly brought in federal court supplemental jurisdiction may
sometimes be used to allow a state claim to be herd, even without diversity or the
$75,000
 Supplemental Jurisdiction rule is where a plaintiff has both federal question and
state law claims- the court has discretion to exercise supplemental jurisdiction
over state law claim if:
  The supplemental claim arises from a common nucleus of operative facts as the
federal question claim
 The claims ordinarily would be tied in one proceeding

Question 1:
 There is a federal question, however no diversity and the amount doesn’t meet the
$75,000. In order for supplemental jurisdiction to be satisfied the court must have subject
matter jurisdiction over 1 claim and over related claims that have common nucleus of
operative facts. Stock broker and negligence are not nuclease of operative facts so
supplemental jurisdiction is not available.
 A is wrong because a plaintiff may join unrelated claims if it is nucleus of operative facts

Question 2: refers to whether a court has power over the person being
 Personal Jurisdiction must be:
o Statutorily authorized and Constitutionally standard

1) Statutorily Authorized
 State statutes may authorize personal jurisdiction based on either of several factors:

Presence at the time of service:

 The defendant’s presence in the forum state along with proper service of process
Domicile
 The defendant’s domicile in the forum state, where a person lives
Consent
 Where the defendants consents to personal jurisdiction
Long arm statute
 Where the states long arm statute provides a basis for jurisdiction
Notice
 The due process clause requires that the parties receive fair and adequate notice of the
action

2) Constitutional Standard-
 The constitutionality of personal jurisdiction in the modern due process standard tells us
to focus on 3 main issues for the constitutional standard:

1) Contacts
 There must be sufficient minimum contacts between the defendant and the forum states
such that jurisdiction is fair and reasonable
 Purposeful Availment- The defendant must have purposely availed herself to the
benefits and protections of the form state (defendant)
 Foreseeability- she must have known or reasonably anticipate that her actions or
activities in the forum state render it foreseeable that she may be
hauled into court in the forum state
2) Relatedness-
  The plaintiff claim must be related to the defendant’s contacts with the forum state
 Under relatedness personal jurisdiction can be either:
 Specific Jurisdiction Current cause of action only long arms statute
 Applies to situation where the court may exercise jurisdiction for the complained
of cause of action based on the defendant’s purposeful activities in the forum state
 Plaintiff claim must be related to defendants contact with forum state

 General Jurisdiction- All cause of action domicile or at home

 Applies when the defendant is at home in the jurisdiction
 Corporations are at home in any state where it is incorporated and in the state in
where is has its principle place of business
 In this case the court may exercise personal jurisdiction on the defendant for any
cause of action
3)Fairness—(important for essay in the multistate)
 The exercise of personal jurisdiction must be fair, it
 Must not offered tradition notion of fair play and substantial justice

Question 2 Answer:
 Defendant state B resident driving in state A
 Defendant filed a 12-B motion to dismiss based on a lack of personal jurisdiction
 Plaintiff state A resident driving in state A
 Plaintiff filed a negligence action consistent with state A’s long arm statute
 The statutory requirements to file in action have been satisfied
 The defendant was driving in state A so it is related to the defendants contact in the
forum state, so it is fair and may have personal jurisdiction over the defendant even if he
doesn’t consent or domicile.
 B- is an incorrect statement of law because PJ cannot be exercised based on plaintiff’s
state resident
 C is incorrect because it deals with general jurisdiction and the fact pattern deals with
specific jurisdiction
 D is incorrect because consent is not the only basis of exercising PJ over a defendant

Question Example:
 Example: A defendant, who resides in State C, is driving his car in
State A and runs a red light. His car collides with a vehicle
driven by our plaintiff, a State B resident. The plaintiff is
bringing a negligence action against the defendant based
on diversity in federal court in State C, claiming $76,000
in damages.
 Does the State C federal court have personal jurisdiction over the defendant?
o No, there is no basis for specific jurisdiction for the complained cause of action
since the claim arose in state A and is unrelated to the defendant’s state C activity
o However, because the defendant resides in state C he is at home, therefore the
court has general /personal jurisdiction over the defendant
Federal Rules of Civil Procedure
 Congress delegated its legislative power to the US Supreme Court, to have much of the
authority to enact laws controlling the procedure used in federal courts
 The US Supreme Court has control over the drafting of the rules of civil
procedure and it continues to be intimately involved in drafting of revisions.
 The rules were authorized by the Rules Enabling Act, which is an act by congress
 The Rules Enabling Act, allows the rules of federal civil procedure to supersede
state law in federal court in situations where the federal rule governs procedural
matters and doesn’t interfere with substantive rights
 In 1938 the Erie doctrine was established to ensure that the state court play the
primary role in forming common law rules for torts, contracts and other
substantive areas

Question 3: Deals with the Erie Doctrine

 The Erie Doctrine only applies to diversity cases
 In only diversity cases the Erie doctrine will allow a federal court to apply state
substantive law and federal procedural law
 If it is a federal question or the constitution, laws under treaties then that’s federal
question and federal law applies under the supremacy clause, then DO NOT apply the
Erie Doctrine

In a Diversity Action using the Erie Doctrine we apply:

 Federal Procedural law applies
 State Substantive law applies
 This principle applies when there is no conflict between the state law and the federal law
on a particular matter, however if there is conflict follow this approach

Erie Doctrine Conflict Approach:

1) Is there a federal rule (directive/constitutional provision/statute/federal rules of civil
procedure) on point which is arguably procedural?
 If so, apply federal law
 If not, a federal judge may apply federal law for procedural matters if it is not determined
to be procedural then apply state law for substantive matters

 How does a judge determine if its Procedural or a Substantive matter, to apply the right
law?
o Three Supreme Court Tests:
1) Outcome Determinative Test- Does it substantially affect outcomes?
 An issue is substantive if it substantially effects the outcome

2) Balance of interest test- Does state have greater interest?

 If the state has the greater interest the issue is substantive

3) Forum shopping deterrence- Increase litigation in federal court?

 If failing to apply state law would increase litigation in federal court, then
the issue is substantive
  If the application of any of these 3 tests results in a determination that the issue is
substantive, state law applies
 If apply these tests and the determination results in the issue being procedural, then
federal law applies

Areas that the Court have Deemed Substantive Issues:

 1) Statutes of limitation
 2) Rules of tolling statutes of limitation
 3) Choice of law rules
 4) Elements of claim or defense
 All Considered Substantive
1) Statutes of limitation is a law which sets the maximum time that parties have to initiate legal proceedings from
the date of an alleged offense

2) Rules of tolling statutes of limitation is a legal doctrine that allows for the pausing or delaying of the running of
the period of time set forth by a statute of limitations, such that a lawsuit may potentially be filed even after
the statute of limitations has run.(based on circumstance such as intimation, or when it is discovered like in fraud

3) Choice of law rules is a set of rules used to select which jurisdiction's laws to apply in a lawsuit. Choice of
law questions most frequently arise in lawsuits in the federal courts that are based on diversity jurisdiction, where
the plaintiff and defendant are from different states.

4) Elements of claim or defense- The points a plaintiff must prove to win a given type of case are called the
"elements"

Question 3 Answer:
 Substantially effecting the outcome and resulting in a greater award to the
plaintiff
 There is no federal statute or rules specifically addressing the situation
 The procedural test will not apply
 Therefore, for a lack of a federal directive you cannot apply federal law
 You must apply any 1 or more of the 3 tests to decide if the issue was substantive
or procedural
 Here it is likely that the Outcome Determinative Test could be used to suggest
that the federal court should apply the state standard and not admit the evidence
 We can also reason that if the federal court were to apply federal law instead of
the state law, the plaintiff such as the patient would engage in forum shopping to
find the most favourable federal court venue as to not to incur a reduction in
recovery of damages
 Either of this argument would be a valid point for the federal court to apply state
law and NOT admit the evidence
 A is incorrect because it want to admit evidence because its procedural and there is no
federal law to be procedural
 B is incorrect because it state the arguably procedural evidence and procedural is based
on federal law and the question doesn’t have federal law
 C is incorrect because it is too broad because it only deals with the evidence being
substantive and procedural
  D is Correct- because it goes through the proper state steps in order to reach the proper
determination so that the evidence will not be admitted

Question 4: Deals with 3rd Party Claims and the Test for Impleader
 Impleader is a procedural device before trial in which one party joins a third party into a
lawsuit because that third party is liable to an original defendant.
 Example: Under a typical fact pattern where a defendant under tort law
wishes to seek indemnity against a 3rd party, by shifting the entire
burden of loss to the third party, he may bring an impleader action
subject to certain requirements
 This test for impleader is not the same transactional or occurrence test which is used in
many other areas of civil procedure
 Supplemental Jurisdiction will be available here since a claim for indemnity rises from
the same common nucleus of operative facts as the underlining claim
 In addition, the impleaded third-party defendant may also assert defence to the plaintiff
original claim as well as defence to the 3rd party liability asserted against him/her
 Richard an impleaded 3rd party defendant, R does not have to rely on the 3rd party
plaintiff to assert defences against the original plaintiff, the federal rules allow him to do
that plus
 If the third-party defendant has a defence against the third-party plaintiff say for example
that the indemnity liability arises out of a contract between the 3rd party plaintiff and the
3rd party defendant, then the 3rd party defendant may assert defences such as any
contract defences against the 3rd party plaintiff

Test for Impleader:

Defendant who is a
VS. third party
Plaintiff
Plaintiff (TPP)
VS. Impleads Action
subject to certain requirements

Third Party Defendant

(TPD)

A defending party may implead a

non-party only if the defendant, who
is now our third-party plaintiff alleges
that the non-party who is now our
third-party defendant is or may be
liable for all or part of Defendants’
Liability to the original Plaintiff
Approach to use in Civil procedure Multistate questions
 Circle parts of the question and make diagrams on who is the P or D where they are from,
what state that accident occurred

Diagram Facts:

? Developer

Joinder VS.
VS.
Same transaction
or occurrence
Sub- Contractor
General Contractor

VS.
Impleads

 May the subcontractor assert a claim in the pending action against the developer
seeking payment for the cost overruns?
o Yes, the federal rules say that a third-party defendant may assert a claim against the
plaintiff, if the claim arises out of the same action or occurrence of the original claim
o Sub-contractor is not required to bring his claim against the plaintiff at this time in
the pending action.

 Why? would he want to wait and bring an independent action against the developer
later on?
o Federal rule of civil procedure 14, the rules says may so the claim is permissive it
is not compulsory

Question 4 Answer:
 Plaintiff- Developer
 Defendant General contract
 Our third-party plaintiff- General Contractor is impleading the subcontractor by
transferring the liability to the subcontractor
 3rd Party Defendant- subcontractor
 Plaintiff- Subcontractor can bring a claim against the developer
 A & B is incorrect because the 3rd party defendant may assert a claim against the plaintiff
 C is incorrect because he has the option of asserting the claim he is not barred to assert the
claim
 D is correct because the subcontract may assert the claim in an independent action if he
prefers to.

Test Strategy for Joinder Issues focus on:

o Do the federal rules permit joinder?
 o Is there subject matter jurisdiction over the claims and/or added claims?

Question 5: Deals with Entry of Default Judgements

Entry of default- A default is a notation(explanation) in the case file by the court clerk
that there has been no answer filed within the time permitted by the rules
 Under the general rule a defendant formally served with a summons and a
complaint must respond either by a motion to dismiss or by filing an answer
within 21 days after service
 If a rule 12B motion to dismiss is made such as defence for lack of personal
jurisdiction, lack of subject matter jurisdiction, improper venue, insufficient
process or service if process, failure to state a claim in which relief can be
granted, failure to join a necessary or indispensable party. Then the defendant’s
response pleading is to be served within 14 days of the court’s denial of the
motion
 A defendant who waives formal service generally must respond within 60 days of
the request was mailed to her by the plaintiff to answer
o If he doesn’t waive he may be liable for the cost of service
 As a general rule entry of default judgement is made when the defendant does not
oppose the case either by failing to plead or failing to otherwise defend
 Once the entry of fault is made they entry of default cuts off defendants right to
contest liability unless the defendant has the entry of default set aside
 However, the entry of default does not entitle the plaintiff to obtain the requested
relief, the plaintiff has to still get a judgment
 After default, plaintiff must still obtain a judgment. Defendant can still contest
damages at default hearing
Entry of default and the default judgement are 2 different things because they
try to trick you with this

Entry of Default- If you are served and you don’t respond within 30 days. The plaintiff may file a request for entry
of default with the court clerk on the 31st day. The clerk will enter default against you. A simple default doesn’t
mean you legally owe a certain amount of money.
A default judgment identifies the amount you owe the plaintiff. If a defendant has not showed up in court to defend
against a lawsuit filed against her, so the plaintiff wins by default. Somebody accuses you of something, you have an
opportunity to defend yourself, and you don’t, so as long as you got proper notice of the lawsuit and you just don’t
show up, plaintiff wins by default). A default judgment makes you a judgment debtor. Plaintiff may use all sorts of
legal procedures to legally take your money and property.

Under the Federal rules:

 The clerk may enter a default judgement only in certain circumstance such as:

1) The amount must be certain in the dispute

 The amount must be certain and must be asserted and proven in the
plaintiff affidavit

2) The defendant must NOT have appeared

 Not appearing is simply not showing up or appear
  Once the defendant appeared even if he or she did not answer, the
clerk’s ability to enter a default judgment is cut off and only the judge
may do so

 What constitutes an appearance?

o The defendant would have appeared, if Appearance is satisfied by either by
 1) Any formal appearance or
 2) Any action by the defendant indicating that he intends to contest
on the merits
 Once the defendant has appeared he/she must be given notice by first
class mail, at least 7 days before the hearing of the plaintiff request
to enter a default judgement. (referred to as additional notice)

Question 5 Answer:
 2 months passed following the ruling far more than the standard 14-day period
and the trucking company did not file an answer
 The trucking company filed a 12B motion to dismiss for not having personal
jurisdiction even though the motion was denied, that pre-answer constituted an
appearance.
 It was an action indicating that the trucking company intended to contest the case
on the merits, therefore the defendant must be provided notice of the hearing for
the default judgement
 The clerk can make “notion” in docket, but cannot enter default judgment only the
judge can because:
1) Amount not for sum certain
2) defendant has appeared
 Defendant must be given 7 days before the hearing on the motion for the default
judgement
 A & B are incorrect because the clerk cannot enter the default judgement because the
defendant appeared
 C is incorrect because the trucking company must receive notice
 D is correct because the judge may enter a default judgment as long as the trucking
company receives notice
Video 2 MBE 2h44 mins
Torts MBE Questions:
 25 scored Tort questions
 12 or 13 Negligence Questions- biggest on the MBE
 About 90% of Tort questions deal with intentional torts, negligence or strict liability

3 Primary Tort Causes of Action:

 1) Intentional Torts- Defendant intends to do act that causes the plaintiff harm,
not accident.
 2) Negligence- Defendant accidently causes plaintiff injury by acting
unreasonably, these are usually accidents
 3) Strict Liability- Defendant causes plaintiff injury without any faulty on
defendant’s part, matter of policy that certain types of activity
by their very nature are hard to protect certain individuals from
even when the activity is done carefully.
 Example: Transporting hazard chemicals, plaintiff wins when the defendant
was doing the act even if he wasn’t negligent

3 Step Approach for Identifying Cause of Action:

 1) Do the facts support an intentional tort cause of action?
 Purpose, desire, intent, substantial certainty
2) Do the facts support a strict liability of cause of action?
 Abnormally dangerous activity like toxic waste, or explosives
 Wild animals like a shark, snake
 Dangerously defective product
3) Did the defendant accidently cause an injury, making a negligence of cause of
action appropriate?
 Duty
 Breach
 Causation
 Damages
 Defences to negligence

Example: Defendants Perspective If an answer says:

 Plaintiff needs to stop the defendant from climbing the later to get damages
 Damages
 Causation
 Breach
 Duty
 A. Defendant will prevail because he was not the proximate cause of plaintiff’s
harm
 B. Defendant will prevail, because he owed no duty to the plaintiff

 B is the better answer because it’s the first part in the ladder and proximate
cause is under the 3rd part of causation. If the defendant didn’t owe a duty in
the first-place proximate cause would not come up

Negligence Ladder of Elements – Defendants Perspective-

 Prove the prima facie case by proving all of the elements
 Duty
 Breach
 Causation
 Damages

A. Plaintiff will prevail because he was an invitee

B. Plaintiff will prevail, because defendant was the proximate cause of plaintiff’s harm
 B is the better answer because proximate causation is only 1 element away
from making her claim in the prima facie case, the more elements the
plaintiff can prove the better to proving her case

Prevail because- Win/successful

Not prevail because- not win/unsuccessful

Question 1:Negligence- Deals with Duty not product liability

  Motorist is our plaintiff
 Owner is our Defendant

 What does defendant own?

 Duty of care: Every person owes a duty of ordinary reasonable care to all
foreseeable plaintiffs
 The plaintiff: the motorist is a person who is owed a duty of care
 The defendant: Conduct would be measure at what the average person would do,
he was blown off
 Plaintiff will not prevail, to show the owner breached his duty to operate the
mower with a duty of care and to act reasonably under the circumstance

 How is what defendant owned connected to the plaintiff lawsuit?

 Did owner owe a duty to motorist? If so, what was that duty?
 Was it an ordinary duty of care or was it a higher duty?

 Do the facts indicate that the own breached the duty?

 Yes-the plaintiff should prevail if she can prove causation and damages
 No, the duty was not breached- plaintiff will not prevail

Distractor: Look for answers that deal with the persons conduct not a 3rd party liability like B
 B is incorrect because product liability issues not negligence, even if the product was
defective he could still breach the duty to the motorist.
 C is incorrect because the defective piece caused the plaintiffs harm not the owner’s
operation
 D is a true but irrelevant type of distractor because a land owner owes a duty to passerby
to exercise a reasonable care in activities on his land

Vicarious Liability (e.g. respondent superior)

 The only time you deal with a 3rd party in in Vicarious Liability
 Look at the tortfeasors conduct rather than the defendants conduct
 The defendants conduct does not matter
 What matters is the legal relationship between the defendant and the tortfeasor

Defendant (e.g. Tortfeasor/Neglgent actor

Plaintiff
Employer) (e.g. Employee)

Zone of Danger
 If the motorist swerved and hit a bicyclist that they would be P2 because they are in the
zone of danger
 The owner still did not breach his duty of reasonable care to the motorist or the cyclist

Zone of Danger P2 can recover only if

she can establish that a
reasonable person would
have foreseen a risk of
injury to her under the
circumstance
 D P1 P2

Question 2:Negligence- Deals with Breach

 The doctrine deals with Res Ipsa Loquitue (RIL)
o The thing speaks for itself
o Once RIL is established, the plaintiff has made a prima facie case and no directed
verdict may be given for the defendant,
o The plaintiff won’t prevail if the jury rejects the inference of negligent

 A Plaintiff can use RIL if she can satisfy the following requirements:
1. The accident causing the injury is of a type that would not normally occur
unless someone was negligent
2. The negligence must be attributable to the defendants; and
3. The plaintiff must be free from fault- the plaintiff must show that the
injury was not attributable to her
 To prove that the injury was not attributable to her the plaintiff must
show that the instrumentality causing the harm was within the
exclusive control of the defendant

Motions for Directed Verdict:

 Motion for Directed Verdict- Request that judge direct a verdict for the moving party
rather than give the case to the jury.
 When the plaintiff asks to take the case away from the jury and moves for directed
verdict is almost always denied except in the rare case where the plaintiff has
established a statutory violation by the defendant and there are no issues of proximate
cause and damages to prove.
 When the defendant moves for a directed verdict- could be granted if plaintiff has not
or failed to establish breach of duty or defendant’s statutory violation has been
excused or does not apply
 Most cases on exam- motion for directed verdict should be denied
 When you get a directed verdict call of the question you need to ask yourself if there is any
trailable issue fact for the jury, if the answer is yes
 The bottom line: Deny a motion for directed verdict if there is ANY triable issue of fact for the
jury.
 If the answer is no, then the motion for directed verdict will be granted

Question 2:
 Defendant- Nursing home
 Plaintiff- Patient
 They want a directed verdict, we need to see if:
1) The patient establishing prima facie showing of breach?
 If so there is a triable fact for the jury the direct verdict should be denied
 If not, then the defendant’s motion should be granted
2) What are the patient’s injuries?
3) How was patient injured?
4) How was patient injured?
5) What is the connection between patients’ injuries and nursing home?

Defendant moves for directed verdict:

 Is there any triable issues of fact for jury?
 Yes, injury a result of action by either nursing home or other patients so it is a triable fact
 Therefore, defendants’ motion for verdict will be denied

She will be able to rely on the res ipsa because :

1. The accident causing the injury is of a type that would not normally occur
unless someone was negligent
2. The negligence must be attributable to the defendants the nursing home
 The nursing home accepted violent patients and failed to satisfy its duty of ordinary care
in providing adequate security for its patient
 We also conclude that if the doors were locked the injury must have occurred as a result
of the action of a nursing home employee or of another patient
 Therefore, we can show that the nursing home had exclusive control of the
instrumentality
 The patients beating shows enough evidence to show breach of duty by the nursing home
and send the case to the jury

 The correct answer choices will be either A or B:

o A- focusing on the jury finding
o C- ignores Res Ipsa
o D- criminal acts of 3rd parties will not always cut off liability, nursing home
accepts the fact that they accept violent patients

Question 3: Negligence Per Se

 Is a breach of statutory duty of care which creates a presumption of negligence?
 The duty imposed by the statute replace the general common law duty of care
 Negligence per se and Res Ipsa already establish the duty and breach
 Either doctrine is sufficient to overcome/avoid a directed verdict
Goggle definition: Negligence due to the violation of a law meant to protect the public, such as a speed limit or
building code. Unlike ordinary negligence, a plaintiff alleging negligence per se need not prove that a reasonable
person should have acted differently. The conduct is automatically considered negligent, and the focus of the suit
will be over whether it proximately caused damage to the plaintiff. Deals with only duty

The only difference is that:

 Res Ipsa- interference of negligence does not shift the burden of production
 Negligence per se- presumption of negligence shifts burden of production
For the doctrine of Negligence Per Se to apply the plaintiff must establish by violation of a
statute if it satisfies the test and can show:
 She is in the class intended to be protected by the statute; and
 The statute was designed to prevent the type of harm that she suffered

For a direct verdict always ask if there is any triable issues for the jury to decide?
 Who are the parties?
 What’s the underlying cause of action?
 What proofs do they offer?

Question 3 answer:
 The statute was made to primarily protect children from injuries if they were not properly
restrained
 The plaintiff did not present any evidence that her harm was the type that the statute was
designed to prevent
 Since neither requirement other than negligence per se is met then the plaintiff verdict for
a directed verdict would be denied as it did not meet the test so the statute does not apply
 Can the defendant grant the motion for a direct verdict?
o You would think then that the father’s motion for a direct verdict would be
granted however, the question says “presented evidence of the statute, her injuries
AND the facts stated above” this means she is also trying to sue the father based
on ordinary principles of negligence cause of action based on the father’s
negligence supervision of his child.
 The father breached his duty for not realizing the child unbuckled his seat beat so there is
a triable issue therefore the motion for directed verdict would be denied.
 D is the correct result
 C is incorrect because the father is not negligent for the child negligent conduct. He is
negligent for the child behaviour.

Negligence Ladder of Elements

 Damages Different Negligence
May be sufficent Theories:
to avoid a
directed verdict 1) Negligent supervision
Causation
2) Negligent hiring
3) Negligent entrustment
When dealing with 4) Negligent Infliction of
Breach directed verdict
Res Ipsa Loquitur & Emotional distress
Negligence per se ask, "is there any
may establish duty triable isssues of
Duty & breach fact for the jury?

Question 4: Negligence- Deals with Causation

 Before a defendant’s conduct can be considered a proximate cause of the plaintiff’s
injury, it must first be a cause and fact or actual cause of the injury.

Tests for Actual Cause (cause in fact)

 But for test- several acts, each sufficient to cause injury alone combine to cause injury
 The standard primary test for actual cause

 Substantial factor test- several causes and any one alone would have been sufficient
 Either cause alone would have caused the plaintiff harm
Summers V Tice
 Alternative causes approach- several acts, but only 1 causes plaintiff injury
 This applies in the rare cases where 2 acts but only 1 causes the injury but it is not
known which one actually caused it. The burden of production then shifts to the
defendants and each must that his negligence was not the actual cause, otherwise
both defendants will be liable.
Summers V Tice Proximate Causation
 Typically, there is more than one actual cause for plaintiff’s injury
You can identify many acts that caused the injury using the But for Test
 Proximate cause/legal cause also required as a means of limiting the scope of liability
Proximate cause is a question of foreseeability
 A defendant is only liable for the harmful results that are the normal and foreseeable
consequence of his acts

Question 4: Answer is dealing with Negligence Per Se

 Plaintiff- Driver
 Defendant-Homeowner
 Home owner liable for his negligent act to start the fire on the neighbour roof

Questions you should ask:

  Why would the homeowner be liable for the plaintiff’s injuries due to the actions of a
third party?
 Did the homeowner breach a duty to plaintiff?
 Did this breach create a foreseeable risk that plaintiff could be injuries by emergency
vehicle?
General Test for Proximate Cause
 Was the harm within the risk created by defendant’s conduct?
o Was the drivers harm within the risk created by the defendant homeowners
negligent conduct in causing the fire?
 Yes,
 Why?
 Because the driver was acting as a rescuer,
 in tort law it is foreseeable that 3rd persons such as the driver will attempt to
rescue victims harmed by the original tortfeasor’s negligent acts
 The response by the paramedic’s vehicle was both reasonable and foreseeable in
an emergency situation
 If an intervening force is foreseeable, it will NOT cut off the defendant’s liability for
his negligent conduct
 Such as the response of the paramedic’s vehicle is foreseeable so the chain of
proximate cause is not broken
 The original tortfeasor is liable for both the proximate and actual cause of the
driver’s harm
How should the court rule in this action?
 We know the homeowner is liable so either A or B
 A- Is correct because it addresses proximate cause which is the key issues needed in this
question to impose liability against the home owner for the injury caused by the
paramedic’s vehicle
 The further the plaintiff can get in the ladder elements the stronger her case will be and
negligence per se will only get to breach, so it only deals with the elements in breach of
duty and choice A deals with causation.
 B-Incorrect because it causing for you to think that it is testing on a negligence per se
question, however it is not testing on a directed verdict, Negligence per se deals with only
breach of duty. To recover damages for personal injury, driver must have shown all the
prima facie elements of a negligent cause of action, not just breach of duty which is what
negligence per se is suggesting in choice B.
 Even if there was no statue per se the homeowner will still be liable to the driver, so the
plaintiff can still establish his prima facie case even without the statute
 C is incorrect because actual cause alone is insufficient to impose liability without a
showing of proximate cause. The emergency vehicle was an actual cause of the driver’s
harm, but for his response to the fire started by the homeowner’s negligence are plaintiff
driver would not have been injured. However, the emergency vehicle was not the
proximate cause of the driver’s harm.
 D is incorrect because it’s a misstatement of the law. A public safety officer(generally a
police officer or firefighter)THEY cannot recover for injuries suffered while in the line of
duty. Is a rule that deals with assumption of the risk and not injuries sustained to others so
it is not applicable to the driver.
Question 5 Deals with Damages:
 If this is a Torts Question assume it is testing negligence unless the facts or call show you
otherwise. Most questions test negligence
 The jogger must prove not only that he owed a duty that was breached but he must also
prove that he sustained damages that were actually and proximately caused by that breach
 We also must look at our plaintiff conduct that may allow our defendant motorist to
assert defences

Question 5
 Plaintiff- Jogger
 Defendant- Motorist
 Despite him using the bike path his accident would not have occurred, the jogger’s
violation of the ordinance was the actual cause of his injury, whether it was a proximate
cause is a question of foreseeability determined by the jury
 It was the motorist negligence failure to stop which was both the actual and proximate
cause of the plaintiff injury

 In a suit by the jogger against the motorist, is the jogger likely to prevail?
 Was the plaintiff harm within the risk created by the defendants conduct?
o Yes, hitting a pedestrian or another driver is within the risk of failing to stop at a
stop sign.
o Yes, because the harm was foreseeable the jogger should prevail

Intervening Force
 An outside force that comes into motion after the defendant’s negligent act and combines
with it to cause the plaintiff’s injury

Question 5 Answer
It is either A or B because the motorist owes pedestrians or other drivers a duty
 A is incorrect because there is no other 3rd party force involved here other than the
motorist and the pedestrian. Neither the plaintiff’s conduct nor the defendants conduct
CAN EVER be characterized as an intervening force.
 B is correct because you must assume pure comparative negligence unless facts tell you
otherwise. In a pure comparative jurisdiction, the plaintiff’s recovery is reduced by
percentage of fault attributed to her. Plaintiff may recover no matter how great her fault.
 C is incorrect because it deals with proximate and actual cause rules and we are dealing
with the plaintiff’s contributory negligence
 D is incorrect because it chooses the same language as A

Damages:
 Modified comparative negligence jurisdiction
 Plaintiff can recover only if she is less than 50% at fault
Evidence
 They are the hardest on the exam
 Most state with how should the court respond to the object and court means the judge

General Approach for Evidence MBE Questions

 Step 1: Underline the cause of action- is its civil case or a criminal case?
 The rules are different in civil and criminal cases

 Step 2: Situate the proceeding and identify the parties and witnesses?
 Determine if you are on direct, cross or redirect examination
 Label your parties and your witnesses like PW or DW plaintiff witness or
defendants witness, so you can figure out who is doing what to whom

 Step 3: Determine the purpose for which evidence if being offered?

 Why and to what extent is it admissible, is it being offered substantively to prove
its truth or offered to impeach to attack the creditability of a witness

In an Evidence Question:
 Always start with this basic principle all relevant evidence is admissible unless there is
some basis or some rule in the evidentiary code that makes the evidence inadmissible or
limits its inadmissibility

Relevant evidence
 Relevant evidence is evidence that has any tendency to make any fact that is of
consequence in the action more or less probable
 We place limits even on relevant evidence if the probative value of that evidence is
limited by the prejudicial impact that the evidence could have on the trial and its outcome

 Identify the evidence that is included in every hypo and run it through a checklist
 If it meets the relevance test? Which it always does
 Any basis to exclude the evidence from being admitted by the court

Three Evidence Categories -Very Important for the Test

 1) Character Evidence
 Documentary evidence or testimony offered to prove that a person acted in
conformity with a particular character trait
 Evidence is introduced to prove a person acted in a particular manner based on
his/her character or disposition such as how he/she has acted before
 Under the federal rules such evidence is inadmissible if your goal is trying to
prove propensity(with certain exceptions)
 If your goal is to prove the person acted in conformity in such a character trait in
this matter, the evidence is technically relevant however it is inadmissible because
 of the restriction, we don’t want to find a person guilty based on evidence that
rests based on their tendency as this could be the one time they acted differently.

 2) Impeachment
 Evidence that proves the witness is not credible for some reason or another
 Lacks creditability because they are bias or in a relationship with the party, deaf
and couldn’t hear the gun shot or blind she couldn’t see the car accident
 The fact finder should give the evidence little credence as they are unreliable

 3) Hearsay
 Definition:
 An out of court statement,
 Other than one made by the declarant while testifying at the current trial or hearing,
 Offered to prove the truth of the matter asserted
 Be careful when a in court witness is the same person as in out of court declarant
 Any statement made outside the court proceeding that is being offered to prove
the content of the statement
 Could be written, oral or conduct such as nodding your head or pointing a finger
made outside of court that is being offered for the very content of the statement to
prove the truth that the statement asserts
 The threshold question for Hearsay is:
 Is the party offering evidence of a pointed finger proposing the evidence to prove
the declarant (the person who made the out of court statement) was identifying the
defendant or to prove that the declarant had the ability to extend her arm.
 If it’s to prove the physical ability to extend your arm then it’s not being offered
for its truth then it’s not hearsay
 Look to see if any hearsay exclusions or exceptions apply
 Example of Hearsay: I am the witness currently on the stand at the trial, I
am the in-court witness. I want to testify in court
today about a statement that I made to the police
officer at the scene of the accident 6 months prior to
this trial. I am the in-court witness but I am also the
very same person as the out of court declarant. I am
trying to introduce a statement/quote other than one
made by me at this present time while testifying
today at trial, this is hearsay. The testimony that I am
about to give as to what I said previously that
testimony will be inadmissible unless a hearsay
exception applies. Be careful when a in court
witness is the same person as in out of court
declarant

Question 1:
 Common Objections use the acronym OPRAH
 O stands for Original Writing Rule/ best evidence rule
 P stands for Privilege
 A party can object to the admission of evidence if the judge determines it
is privilege
 R stands for Relevancy
 Most common objections made
 A stand for Authentication
 When a party is introducing any type of writing, documentary evidence,
proper authentication generally requires laying a foundation, sufficient to
sustain a finding that the evidence is what it is proponent proports it to be
 H stands for Hearsay

Question 1 Answer:
 A is correct because the defendant’s attorney is trying to introduce hearsay
evidence as he is trying to get the defendant to say what he said to the police
officer at the time of the accident not what he said on the stand or it was an out of
court statement. It is inadmissible and no exceptions apply to this hearsay
statement.
 B is incorrect because in order for it to apply the witness must have already been
impeached and the colour of the traffic light relates to a material issue in the case,
so it is clearly not irrelevant
 C and D is incorrect because this is a hearsay statement

Under Federal 801 A a statement is defined as either a:

 Has to be a human statement not an animal or machine
1) Oral or written assertion
2) Conduct intended as an assertion

Assertive V Non-assertive Conduct

 Hearsay can consist of conduct such as these 2 types:
Assertive Conduct is
conduct intended as a Nonassertive conduct is
substitute for words. not hearsay. It is conduct
When it is offered for its intended as a statement,
truth, such a statement or assertion
can be hearsay

Assertive Conduct Examples- nodding of the head indicating yes and pointing to some or
something and wink of the eye, smirk. Assertive conduct is conduct that is tendered in evident to
prove the truth of an assertion

Non-assertive Conduct Examples- criminal fleeing the scene of the crime not because he
committed the crime but because he wants to escape, a person walking with an unsteady gate it is
not done to prove injury or intoxication, rather it is an unintended result of a particular
circumstance

Hearsay Approach:
 Step1: What is the statement? (Isolate the statement)

Step2: Who is the declarant? (are they a party or a non party)

Step3: What is the purpose of the evidence?

Step 3A: offered for its truth and NOT a hearsay exemption, then it is
hearsay and proceed directly to step 4 If it is not hearsay or not
offeded for its truth go to 3B

Step 3B: Not offered for its truth OR a hearsay exemption= non-hearsy
- Impeachment
-Verbal Acts
- State of Mind (notice, knowledge or motive)
- Exemptions (admissions, prior statements of witnesses)

Step 4: Look for a hearsay exception

Step 2: A party or a party employee or representative, if they are a party and the statement is
being offered against that party by the opponent then you should be thinking admissions which
are not hearsay by definition
Step 3B: Not hearsay will be admissible

 Impeachment- evidence offered only to impeach not substantively to prove its truth

 Verbal acts- Statements that have independent legal significance, such as the words of offer
and acceptance in a contract or words of donative intent in a deed or a will, or in tort law the
actual defamatory words themselves in a libel or slander action

 State of mind- (notice, knowledge or motive) is circumstantial evidence offered to show

notice, knowledge or motive of either the declarant or the listener. It is evidence to show the
effect on the hearer. It is not offered to prove its truth, it is the fall back of when hearsay
exceptions fail

 Exemptions- Statements consider to be non-hearsay under the federal rules of evidence even
though they are being offered for their truth. Such as admissions 801D which is referred to
statements by a party opponent or an opposing party statement are non-hearsay by definition.
They are admissible as substantive evidence but are not hearsay exceptions they are
exemptions

Types of Admissions under 801D- (statements of parties)

 Direct Admissions
  Adoptive admissions- either conduct or silence
 Authorized admissions
 Curious admissions
 Co-conspirator admissions

Hearsay Exemptions of 801D Prior Statements of Witness (3p’s)

 Prior sworn inconsistent statements
 Prior consistent statement to offered to rehabilitate impeached witnesses
 Prior identifications

Definition of Adoptive Admission

 When a party adopts the statement of another as his own
 It may be done by conduct of silence

Adoptive Admission by Silence has 3 elements

 A party hears and understand an accusation against him.
 The party is capable of denying it (the accusation)
 A reasonable person would have denied it if it was untrue (the accusation)

Question 2 Answer:
 A Civil case where the plaintiff is the widow and the defendant is the co-worker
 Adoptive admission by silence- “He said the defendant hit him hard in the jaw and the
defendants did not protest or deny the accusation” instead he smirked and laughed
 A is incorrect because it requires unavailability and nowhere in this fact pattern does it
state our defendant was unavailable
 C is incorrect because the 6th Amendment clause does not apply to civil cases
 D is incorrect because the declarant must have believed his death with emanate when he
made the statement.

Very Common for these 2 to be in 1 question:

 Declaration Against Interest must be against the 3 P’s- penal, pecuniary, proprietary
interest when made

Admission by Party-Opponent Declaration Against Interest

 Statement is by or attributable to a  Declarant need NOT be a party
party
 Personal Knowledge of facts NOT  Personal knowledge of facts required
required
 Statement need NOT have been  Statement must have been against
against interest when made interest when made
 Declarant need Not be unavailable  Declarant must be unavailable

 Is the statement being offered for its truth? Does any hearsay exceptions apply?
o Cannot be offered because the witness is not a party
 o It is being offered for its truth, that the witness is intoxicated at the bar
o It is Hearsay because it was an out of court statement

FRE 803 Hearsay Exceptions:

1. Present Sense Impression- A statement that describes or explains an event or condition,
made while the declarant is perceiving/at the same time the
event or condition or immediately thereafter. Very close in
time of when it happens unexcited utterance, so very likely to
fabricate.
2. Excited utterance
3. Present mental, emotion, or physical state
4. Statements for medical diagnosis or treatment
5. Past recollection recorded
6. Business records
7. Absence of a business record
8. Public Records
9. Vital statistics
10. Absence of a public record

Question 3 Answer:
 The witness is the declarant and her statement is the testimony, it is Hearsay but any
exception applies
 B is correct
 A is incorrect because a prior consistent statement may be introduced on redirect either
to rebut a charge of fabrication, rehabilitate a witness who was impeached, but it doesn’t
apply here because there has been no accusation that the witness way lying nor has that
plaintiff witness been impeached.
 C is incorrect because an excited utterance must be made due to a startling event usually
they use a!

Character Evidence
 There will be about 4 questions on the exam on Character Evidence

3 Forms of Character Evidence in Civil Cases:

1) Reputation Testimony- persons general reputation in its community
2) Opinion Testimony- testimony by a witness who knows the person
3) Specific Acts- specific instances of conduct

Character Evidence in Civil Cases under Rule 404

 The general rule: in a civil case evidence of a person’s character is inadmissible to
prove that the person acted in conformity with the trait
 There is an exception: where it is admissible when character is “in issue”. Where
character is an essential element of a cause of action claimer defence, all 3 forms of
character evidence will be admitted (Reputation, Opinion testimony and specific acts will
all come in, in a civil case where character is an issue)
  In a criminal case reputation and opinion testimony are generally admitted when
the defendant opens the door

In civil cases there is a red flag when character is in issue:

 Whose character is at issue?
 Defamation- Character evidence must be only to that character, in a defamation
cause of action must be to the plaintiff

 Child Custody- character of the parents is an issue to prove their fitness to raise
their children

 Negligent Entrustment – the character of a trustee is an issue.

 Example: I lend you my car and you get into an accident. I am
being sued for negligent entrustment. Your character as the
trustee is in issue to prove I was negligent in loaning you my
vehicle.

 Negligent hiring- here it is the character of the employee which is an issue

Question 4 Answer:
 If it was based on a negligent cause of action it would be inadmissible, however because
its deals with negligent entrustment
 B is incorrect- because it does not need to be established if the bank knew
 C is correct- because the jury could find that reasonable investigation by the bank would
uncover that information
Impeachment
 4 questions of impeachment on the multistate
 Extrinsic Impeachment- all other evidence, it could be introducing writing, record, or
calling to the stand another witness to impeach
 Intrinsic Impeachment- means questioning from the mouth of that witness on the stand,
asking the witness of the impeaching fact, during the examination of the witness

Main Impeachment Methods:

1) Bias- is always material it is never collateral. If you get an answer choice dealing with
bias always pick admissible
 The collateral matter rule-which says that extrinsic evidence on
collateral matters is inadmissible to impeach
 It never applies to bias because it’s always material

2) Sensory defects- Inability to see to hear or to remember etc.

3) Prior inconsistent statement Rule 613- Usually admissible only to impeach; extrinsic
evidence may be introduced if a foundation is laid
such as the witness is given an opportunity to
 explain or deny the statement at some point during
the trial.
Under federal rule 801D- If the Prior inconsistent
statements is sworn or falls with another hearsay
exemption or exception, it is also admissible as
substantive evidence.
Sworn is given under oath at a trial, deposition or
some other proceeding. Prior inconsistent
statements are admissible both substantively and to
impeach if sworn.
4) Character – 4 Separate Ways in which character could be used to impeach

1) Reputation or opinion testimony of evidence of a witness for truthfullness under federal rule 608A
2) Bad Acts Impeachment federal rule 608B (involving dishonesty)- on cross examination
- May NOT be proven by extrinsic evidence

3) Prior Conviction- felony NOT involving dishonest/false statements Rule 609

-10 year time limit
-Subject to the Courts discreation to excues

4) Prior Conviction- Any crime involving dishonesty/false statements rule 609

-Automatically admissible no discretion by the court needed, subject to more then 10 year time limit
- Could be felonys or misdeameanors

Question 5 Answer:
 A is incorrect- because a prior felony conviction for crimes that do not involve dishonest
can be used to impeach, although the trial judge has discretion to exclude the evidence if
its probative value is substantially outweighed by unfair prejudice
 B is incorrect- because prior inconsistent statements can be introduced to show that the
witness’s testimony is not credible
 C is Correct- because a record of an arrest, event for a crime such as embezzlement
cannot be used to impeach the creditability of a witness. Since there was no criminal
conviction this would be classified as evidence of a prior bad act that demonstrates
dishonesty. Extrinsic evidence of prior bad acts is not allowed
 D is incorrect- Under rule 608, a witness may be interrogated on cross-examination with
respect to any act of misconduct that is probative of truthfulness (i.e. demonstrates
dishonesty) lying on an expense report would be such an act.
 Video 3 MBE Immersion 3.32 min
Real Property
25 graded real property questions:
 5 from Ownership interests: & Landlord-Tenant Relationship
 5 from Nonpossessory Rights in Land:
 5 from Real Estate Contract
 5 from Mortgages
 5 on miscellaneous subjects

Subject 1- Ownership interests:

 Present possessory estates
o Estates in land that someone can possess now, fee simple or life estate, future
interest such as a remainder or an executory interest
 Future interest-
 Co- tenancies-
o tenancy in common, joint tenancy, tenancy by the entirety
 Special problems- rules against perpetuities

Subject 2- Landlord-Tenant Relationship (important)

 Duties and rights of both tenants and landlords
o Landlord or tenant transfer their interest to a 3rd party
 Leases transfers

Subject 3-Nonpossessory Rights in Land:

 Real Covenants
 Easements
 Profits
 Fixtures
 Zoning Rules
 Equitable Servitudes

Subject 4: Agreements to purchase- Real Estate Contract (important)

 Statute of Frauds
 Marketable title
 Equitable Conversion
  Merger

Subject 5: Mortgages (important)

 Types of security interest
 How interest are transferred
 Priority
 Foreclosure

How to answer a Real Property Question:

What real Property category is
this? Step1
(subjects)

Is the Interest valid?

(all the elements satified)
Step 2

What issue is this question

testing? Step 3
(narrow issue)

Question 1 Ownership- Future Interests: (not that important)

Rules Against Perpetuities- Ask:

 Will the future interest vest or fail within 21 years after everyone then alive dies?
 Look at the facts a check that exist at the moment when the interest is created, will that
interest vest or fail within 21 year, if anyone dies any chance it could happen later its void

Category?
 State and future interest

What kind of interest?

 Land owner is trying to give a fee simple determinative to his sister “so long as” “but if”
 When a defeasible fee is followed by an interest to a 3rd party you have an executory
interest, which will be subject to the rules of Perpetuities

What interest is the question testing?

 Rules of Perpetuities 21 years after some life in being at the creation of the interest
 Intervivos conveyance just a transfer during the life of the grantor, look at the lives in
being at the moment of the conveyance
 Testamentary gift in a will, then you want to know who was alive at the moment the
grantor died
  Possibility of reverted always accompanying a determinable fee that is not followed by a
valid executory interest, if the thing that grantor didn’t want to happen happens it goes
back to the grantor’s estate
 Landowner dies his property goes to his friend
 Both the sister and the friend have valid interest in the property
 The sister through the grant of the defeasible fee
 The friend through the gift in the will
 Daughter has nothing

Rules Against Perpetuities Example:

Community
Landowner Sister
Center

Sister's heirs

Residential purposes
only

 It was made during the grantors life and who was alive at that moment
 The sister will use her as measuring life, it is possible that the sister can die tomorrow and
 The land could be used for residential purposes only by sister heirs for 22 years but then
 They can try to build a mega mall on it, which according to the grant the land would go to
the community center
 The 22 years is all that we need to know that the rule is violated
 Therefore, the executory interest in the community center I

Question 1:
 D is correct- Deny it because the friend has to join in the sale as the daughter does not
have interest in the parcel

Question 2: Landlord & Tenant Law

 Assignment: transfer of entire leasehold balance
o “remainder”
 Sublease: transfer of less than the entries leasehold balance
 3rd party beneficiary -If the first assignee promises the original tenant that he will be
liable for rent through the remainder of the lease term, this is called an assumption of the
lease
 An assignee accepts the original terms of the lease and becomes the promisor and the
original tenant becomes the promise the Landlord then becomes a 3rd party beneficiary
 of the tenant assignee contract, so there is another way for the landlord to recover if the
assignee down the road doesn’t pay rent
 A is the correct answer

Landlord Perfumery

Dry
Promised to pay Cleaner
rent, if default

Video
store

Question 3: Non-possessory interest

 Easement: Right to use or do something on someone else land, it does not give you
exclusive possession or ownership of the land only the right to use it in some defined
matter
 Easement appurtenant
o Dominant- benefited
o Servient-burden
o Bona fide purchaser
 Merger- is a way to terminate an easement by unity of ownership, even if the land is sold
again the easement is still terminated
 An Express Easement Appurtenant-
 B is correct
Zoning Ordinance is a written regulation and law that defines how property in specific geographic zones can be
used. Zoning ordinances specify whether zones can be used for residential or commercial purposes, and may also
regulate lot size, placement, bulk (or density) and the height of structures.
Ingress- the action or fact of going in or entering
Egress- the action of going out of or leaving a place
Abut-be next to or have a common boundary with

 Exam Tip: Multiple transfer can be confusing on the exam. A technique to aid analysis is
to make a quick chart in the margin of the exam booklet. This would have clearly shown
the merger and unity of ownership
WEST EAST
owner owner
buyer owner
Cousin Cousin
lawyer doctor
Dev. C. doctor
Question 4 Conveyancing:
Once the real estate contract is signed
 Equitable Conversion- After execution of real estate contract, buyer is equitable owner
of land and seller is equitable owner of cash
 Legal possess remain with the seller until closing
 “proceeds” should trigger equitable conversion
 Correct answer is C

Question 5 Recording & Mortgages:

 Mortgage is an interest in property that runs with the land and stays latched on until its
released
 Bona Fide Purchaser
 Pays value-which a mortgage lender does
 Good faith- takes
 Without notice- takes, the interest in question(3 notices)
 To prevent a Bona fide purchaser, record you interest
 Recording Statutes:
 Notice- Last BFP always wins
 Race Notice- First BFP to record wins
 Purchased money mortgage – to a mortgage given in exchange for the funds used to
purchase the property, takes priority over prior mortgages and prior claims against the
mortgagor
 May be defeated by subsequent mortgages or leans
A purchase-money mortgage is a mortgage issued to the borrower by the seller of a home as part of
the purchase transaction. Also known as financing, this is usually done in situations where the buyer cannot
qualify for a mortgage through traditional lending channels
 Foreclosure terminates all junior interests that have been joined but has no effect on
senior interests
 A is the correct answer
Contract Law -1h10
Category 1:
 Rules relating to whether a promise is legally enforceable
 Formation issues: requirements to make a promise enforceable:
1) offer
2) acceptance
3) consideration

Category 2:
 Rules for determine what the promise means
 Interpretation issues: determining what was promised
 Breach: determining whether a promise has been fulfilled

Category 3:
 Rules for determining whether promise has been fulfilled
 Breach: determining whether a promise has been fulfilled

Category 4:
 Rules for determining what to do when a promise has been broken
 Remedies: Enforcing legally binding promises

Category 5:
 Additional Contract issues
 Defences- What type of things make otherwise enforceable promises unenforceable
 Application Law: What body or law applies- Article 2- UCC, MPC or Common law?
 Third party rights: Are there additional parties who owe a duty or an owed a duty under
the deal? “I promise to do something for you, if you promise to do something for me OR
MY DAUGHTER”
o Delegation, assignment of rights

Question 1:
 Do we have an offer?
 Invitation to bargain rather than an offer because “interested in selling”- is not
sufficiently definite, expression of promise to commitment or undertaking on the part of
the vendor, or definite and specific terms to constitute an offer but an invitation to
bargain
 Oral, said told, wrote
 Statute of Frauds
 “I will transfer my card”- an offeror to the coach, a commitment, definite and specific
terms manifesting the offerors willingness to enter into a bargain
 Revocation: Offers are revocable prior to acceptance, unless the offer is irrevocable

4 types of Irrevocable offers:

 1) Option contract- own consideration usually money that provides that the offer is
irrevocable for an agreed upon period of time

 2) Merchants firm offer- is a signed offer giving assurance by the merchant for a period not
to exceed 3 months

 3) Performance begun following offer for unilateral contract- A unilateral offer becomes
irrevocable once performance begins, until then it could be revoked.
o A unilateral offer can only be accepted via performance
o A bilateral contract can only be accepted with a promise to perform or performance

 4) Detrimental Reliance- the offer we be held irrevocable as an option contract for a

reasonable length of time where the offeror could reasonable believe the offeree would rely
to his detriment on the offer and the offeree does rely on it. This is in limited to situations
where the offeror could reasonable contemplate reliance before acceptance such as in a sub
contract.

1) The coach didn’t put any money for consideration to hold the baseball cards. This is not valid

2) A vendor’s profession is selling software he collects vintage baseball cards as a “hobby”, so

he doesn’t sell baseball cards as a profession, as a merchant for this purpose. Anyone in a
business is a merchant for purposes for a merchant’s firm offer, while the vendor is in the
software business the vendor was not acting in his merchant tile capacity when he offered to sell
the card under the UCC. The transaction involved the vendors personal life. The merchant rules
on merchant firm offer and confirmatory memo would not apply to this transaction. No
assurances that the offer would be held open. So, this is invalid

3) Was this a unilateral offer and could the coach have accepted via performance? “I will
transfer my 1961 Rogers Maris baseball card to the coach if he gives me $2000 within the next
30 days”. The vendor is promising to sell the baseball card in return of an active request of
payment. This is a unilateral offer. The vendors offer was given for the act to pay the $2000 not
for building the stand. The coach building the stand is a mere act of preparation to receive the
card they don’t apply to the coach’s performance as his performance was to pay. As this is a
unilateral offer the vendors offer is still revocable because performance has not begun. Validly
revocable

4) He build a wooden frame but that doesn’t matter. No detrimental reliance here or where the
offeror could reasonable contemplate reliance before acceptance because no subcontractor
situation here and vendor could not reasonable believe reliance. This is invalid

 The coach will not be successful as the offer was validly revocable, there was no valid
contract and if there was the coach had control over fulfilling the condition and he didn’t.
 D is the correct answer
 In an essay you would still list a merchant’s form offer and how it does not apply
 C Is incorrect because it mentions the rule for a merchant’s confirmatory memorandum
Merchant’s Confirmatory memorandum:
 This is used as a means of satisfying the statute of frauds when only 1 party has signed
writing
 It applies when only both parties are merchants
 If after an oral agreement 1 merchant sends to the other a written confirmation that would
be sufficient to bind the sender
 The merchant who receives it must object to it within 10 days or
 If no objection, statute of frauds is satisfied
 so, he is bound if he didn’t sign
 This doesn’t apply to our facts because both parties were not merchants and the vendors
writing was not a confirmation of the vendors agreement, it was merely an offer

Contract questions should be looked at as a Contract Timeline

OFFER ACCEPTANCE CONSIDERATION

Revocation
Mirror image, Bargained-for
(firm offer, Batter of the exchange CONTRACT
option,) forms, Mailbox IS FORMED
Rule Detriment
Rejection

Once contract it formed then consider:

 Defenses
 Third parties- who might have entered the contract such as 3rd party beneficiaries,
assignment, delegation of duties, novation
Terms of a contract:
 Parol Evidence
 Conditions-(contractual conditions)
 Discharge- Conditions were conditions are excused such as failure to cooperate,
failure to perform, prevention, perspective and inability to perform.
o Duty’s may be discharged- such as frustration of purpose, objective
impossibility, commercial impracticability. If the duty is not discharged each
party has a duty to the other. If the party fails to perform we have a breach and
then focus on remedies
 Remedies- Damages by giving the non-breaching party this expectation interest that
is the benefit of the bargain. In some cases, consequential damages may be awarded
 Specific Performance- money damages are inadequate such as for the sale of land or
unique goods
 Rescission- A party may seek to rescind the contract and seek restitution
 Quasi-contract- Is a Restitutionary Remedy where there is no enforceable contract
and it is used to prevent the unjust enrichment of the other party
 UCC Remedies- Available to buyers and sellers of goods

Question 2:
  Is contract governed by UCC of Common law?
o UCC as it involves sale of goods
 Why would the contract not be enforceable?

 Do we have a valid offer? Acceptance?

o The contract was not a contract it was an offer
o Acceptance was when the offeree sent the acceptance in the mail (mailbox rule).
 Attempt to revoke offer or rescind contact?
o Buyer tried to revoke or rescind the agreement by calling the seller
o When the seller said “that’s all right” he didn’t know the buyer had sent that contract
and could not be viewed as an acceptance to rescind/revoke the offer. There was not
meeting of the minds concerning the recession as the seller didn’t know the buyer
had already accepted the offer.
 The contract was formed right when he put the acceptance in the mail no
recession therefor he could enforce the contract
 A is correct because the acceptance occurred prior to rejection

Mailbox Rule
 In a bilateral contract, acceptance is effective upon dispatch.
o At the moment of dropping the envelop in the mail a contract was formed under our
facts

Exceptions to the Mailbox Rule:

 Acceptance under an option contract
 Unilateral offers
 Offer stipulates acceptance valid upon receipt

Question 3:

Offeree acceptance under the UCC:

 Generally, a buyer’s order is an offer

A seller may accept an offer by either:

 1) Promising to ship goods (accommodation can NOT be used)
 2) Promptly shipping the goods (accommodation can be used)

A shipment of non-conforming goods is both:

 Acceptance and breach of the contract if non-conforming goods are sent
 In a single delivery contract the Perfect Tender Rule applies when
o the shipment or delivery are non-conforming and the buyer may accept the whole
shipment or reject the whole shipment or any commercially reasonable unit or
units and reject the rest and the buyer may seek damages.
 Counter offer if non-conforming goods sent + an accommodation
o If the seller uses prompt shipment as his means of acceptance and notifies the
buyer that the goods are being sent as an accommodation because the goods
 ordered are out of stock or unavailable. The shipment of non-conforming goods
is viewed as a counter offer and not as an acceptance and breach.
o In this situation the buyer may wholly accept the shipment or wholly reject the
shipment because it’s a counter offer
o No breach when the non-conforming goods are being offered as an
accommodation because we have not reached acceptance in our contract timeline
we are still at the formation stage.
 Therefore, the perfect tender rule does not apply to the accommodations

An Accommodation
 An Accommodation may occur only when prompt shipment is used as a means of
acceptance and the seller sends along some form is notice as for the accommodation
 Where the seller promises to ship acceptance occurs at that very moment and therefore
cannot be an accommodation

Narrow the Issue using the Open Book Method:

Acceptance of offer by shipment of
goods

Nonconforming goods
are both acceptance
and a breach

Accomodation
Exception

Question 3 Answer:
 The seller’s shipment of nonconforming goods was not an accommodation it was a
counter offer and there was not breach if not acceptance was offered, therefore the perfect
tender rule does not apply
 C is the correct answer

Question 4 dealing with Remedies:

 Common law contract as it involves contract services
 Non-breaching party whole, by giving him the benefit of the bargain
 Material breach when notified that he was quitting as his words were absolute and
unequivocal(clear)
 Damages put the non-breaching party in a as good as position as if the contract was
performed(the benefit of the bargain
Reasonable
Cost of completion compendation for any Damages
delay

Making the Non-Breaching Party (Parish) whole again

 To do that we have to compensate for any additional costs to the parish above $200,000
because that’s the amount they thought they had to pay to get the wing built
  Cost of completion would be above the contract price of $200,000 and would be another
$40,000
 The parish needs to recover money to make him whole again
$120,000 (paid to contractor)
$120,000 (paid to laborers)
$40,000
$240,000 (total cost to parish)
$200,000 (Contract Price)
Question 4 Answer:
 B is correct

Question 5:
 Plaintiff- the bakery
 Defendant- farmer

Questions to ask:
 Did farmer breach?
o Anticipatory repudiation the immediate party has a cause for action
 Does he have any defenses?
o The plaintiff would argue where such Anticipatory repudiation occurs, the
aggrieved party has an immediate cause of action for total breach and may
recover damages. The bakery would claim that it need not wait until September
1st to bring the suit
o The farmer(defendant) would fail on the argument of commercial frustration. He
could claim that the failure to perform was discharged because of commercial
impracticability.
 When did breach occur?
o Repudiation
o Anticipatory repudiation because duties on both sides were unperformed
 Has there been any performance?
o Duties on both sides were unperformed

Frustration of purpose:
 Purpose of the contract has become valueless by virtue of intervening event

Commercial Impracticability:
 Unforeseen circumstances that make performance extremely and unreasonable difficult
or expensive to perform under the contract

 Is the likely hood of a poor crop nationwide constitute a sufficiently unforeseeably

circumstance to excuse the farmers performance?
o The facts don’t show that the farmer could not produce or procure enough wheat or
source to satisfy the contract and selling crops is risky as there could be droughts,
 floods, insects but they should know that as it is their profession. The poor crop
satisfy the very type of risk the farmers must assume when they enter the contract.
o Therefore, the performance was not commercially impracticable.
o Therefore, the farmers defence for an unforeseen rise in price will be unsuccessful
 Since the farmers repudiation occurred to make him a greater profit performance is not
excused because of impracticability, therefore he beached and repudiation is not excused.
 The farmer will be liable to the bakery for breach of contract
 B Is the correct answer because this is an anticipatory repudiation so the bakery can sue
immediately, they don’t need to wait for the date of performance. The bakery would seek
damages subject to a duty to mitigate. The bakery would be entitled to purchase replacement
goods under the standard buyer’s remedy to recovering costs for covering the breach

Criminal Law & Criminal Procedure- 2h15

 25 scored Criminal Law and Procedure question on the Multistate
o ½ Criminal Procedure- Constitutional protections of accused persons such as
 Arrests
 Confessions
  Right to counsel etc.
o ½ Criminal Law-
 Criminal Law and Criminal Procedure are tested together on the MBE as 1 subject
 Criminal law questions sometimes give a statute to apply as it varies from state to state
 Learn the elements of certain common law crimes

Criminal Law Categories:

 Category 1
 Homicide crimes and other crimes against the person
o Homicide
o Battery
o Assault
o Rape
o Robbery
o False imprisonment
 Category 2
 Crimes against property and the habitation
o Larceny
o Embezzlement
o Larceny by trick
o False pretenses
o Forgery
o Burglary
o Arson
 Category 3
 Inchoate crimes (anticipatory/preparatory crimes that have not been fully
completed)
o Solicitation
o Attempt
o Conspiracy
Testing:
 MR requirement is what they mostly test in
 And don’t forget defences for these crimes

Criminal Procedure
 Mostly constitutional law
 The state can offer more protection than what the constitution provides
 The rules that we will be studying is the minimum protections

Criminal Procedure has 3 Categories

1. Fourth Amendment:
a. The rules concerning search and seizure
b. Warrant Requirements
c. Warrant Exceptions
 2. Fifth Amendment:
a. The Miranda Doctrine
b. Confessions
c. The right to counsel
d. Due process

3. Sixth Amendment
a. The right to counsel and the right to confront your accusers
b. 8th Amendment

Murder:
 The elements in crimes are:

ESSENTIAL ELEMENTS OF CRIME MURDER ELEMENTS

ACTUS REUS: Voluntary Act ACTUS REUS Voluntary Killing
(The guilty act)
MENS REA: Mental State MENS REA: Malice Aforethought
(mental state)
CAUSATION Actual & Proximate Cause CAUSATION Actual & Proximate Cause
(Prosecutor must show
the killing was--------> by
the defendant’s act)
CONCURRENCE Coexistence of Mens Rea & CONCURRENCE Coexistence of killing &
(mental state & the act Actus Reus Malice Aforethought
occurred at the same time)
Question 1 deals with Murder:

Common Law Murder for Malice Aforethought

1. Intent to kill
2. Intent to cause great bodily Injury
3. Reckless indifference to an unjustifiable high risk to human life
4. Intent to commit a felony

Voluntary Manslaughter- (reduced crime of murder) The 2 theories of mitigation are:

1. Adequate provocation
a. If the defendant is provoked and causes a sudden and intense passion such as in
ordinary person would lose control and that person would not have some time to
cool off

2. Imperfect self-defence
a. The women kills the manger and claims self-defence but the jury doesn’t believe
that her conduct meets all the necessary requirements in self-defence to justify the
killing of the manager. If the jury believes that she honestly, reasonably believed
in the necessity of using deadly force against the manger. The charge of murder
could also be reduced to voluntary man slaughter.
Question 1 Answer:
 Involuntary acts such as acts performed during unconscious will not satisfy the Actus
Reas requirement of a crime
 So, if the during accepts this testimony from the expert (that he is unconscious) then this
was not a voluntary act and the defendant can’t be convicted of manslaughter or murder
 D is the correct answer

Question 2 AR & MR of Attempt:

Inchoate Crimes (crimes that have not yet developed)

 All 3 are specific intent crimes:

1. Solicitation

2. Attempt:
a. Specific intent to commit crime -(MR)
& concurrent to:
b. Overt act beyond mere preparation -(AR)

3. Conspiracy

Question 2 AR & MR of Attempt Answer:

Attempt:
 Specific intent to commit crime- He intended to kill his friend
 Overt act beyond mere preparation- he grabbed the gun and went to his friends and
tried to get into his property to kill
 Statute- If he entered onto the property the attempted offence would have merged into
the offence of Murder
 C is the correct answer because it satisfies both the pecific intent to commit crime (MR)
and the overt act beyond mere preparation(MR)

Question 3 Theft Causation & Concurrence:

 Memorise the definition of theft crimes and the range in theft crimes and to be able to
distinguish against them

LARCENY EMBEZZLEMENT
ACTUS REUS: Trespassory taking & carrying ACTUS REUS Fraudulent conversion of
(The guilty act) away of personal property personal property
MENS REA: Intent to permanently deprive MENS REA: Intent to defraud
(mental state)
CAUSATION Actual & Proximate Cause CAUSATION Actual & Proximate Cause
(Prosecutor must show
the killing was--------> by
the defendant’s act)
CONCURRENCE Coexistence of taking and intent CONCURRENCE Coexistence of conversion
(mental state & the act to permanently deprive and intent to defraud
occurred at the same time)

Thief Obtains title Thief Obtains Possession

FALSE PRESENSES LARCENY BY TRICK
ACTUS REUS: Obtaining title to property by a ACTUS REUS Obtaining custody to
(The guilty act) knowing false representation of property by a knowing false
past or present material fact representation of past or
present material fact
MENS REA: Intent to defraud MENS REA: Intent to defraud
(mental state)
CAUSATION Actual & Proximate Cause CAUSATION Actual & Proximate Cause
(Prosecutor must show
the killing was--------> by
the defendant’s act)
CONCURRENCE Coexistence of obtaining title CONCURRENCE Coexistence of obtaining
(mental state & the act and intent to defraud custody & intent to defraud
occurred at the same time)
Robbery
 The crime of robbery is like larceny with 2 additional elements:
1. A theft from a person
2. By force or intimidation

Question 3 Theft Causation & Concurrence Answer:

 The defendant stole the gas with misrepresentation of the sunglasses, as he took them
from the store and just ripped off the tags.
 He was induced to the misrepresentation that he owned the sunglasses and in reliance to
that misrepresentation the clerk agreed to give him some gas. When the exchange was
made title to the gas was transferred to the defendant
 This is a case of false pretenses and the reason it’s not larceny is because he actually
obtained titles to the gas because of his misrepresentation
 Before the clerk accepted the sunglasses, the defendant tried to take the gas by force with
the knife, but because the clerk took the glasses from the defendant it could only be
attempted robbery because the crime was not fully completed
 This is not Larceny because the defendant did not intent to permanently deprive the clerk
of gas but instead barter for the gas
 B is the correct answer because the defendant can be convicted of both false pretenses and
attempted robbery

Question 4 deals with Criminal Procedure, Arrests, Search & Seizure:

4th Amendment Search & Seizure Approach:
1. Is there a valid warrant?
2. If not- does any warrant exception apply?

7 Exceptions to the Warrant Requirement:

1. Stop and frisk

 If reasonable and articulable suspicion policy may:
 Briefly stop and question suspect AND
 Frisk (pat down) suspects outer clothing for weapons only
 Police may reach into suspects clothing and seize an item if she reasonable
believes the object is contraband based on its plain feel

2. Search incident to lawful arrest

3. Plain view
4. Automobile exception
5. Consent
6. Hot pursuit
7. Exigent circumstance

Question 4 deals with Criminal Procedure, Arrests, Search & Seizure:

 We do have a foundation for probable cause and a valid search warrant for the attorney’s
office ONLY
 The client here is out of the attorney’s office and not within the scope of the warrant and
even if the client were in the office the warrant does not allow the police to search a
person on the premises UNLESS the warrant names the person and the facts here don’t
indicate the warrant named the client, so the search can’t be based on that warrant
 The police observation of the client putting what they think is a weapon in his pocked.
This supplies the police with a reasonable and articulate suspicion that the commission of
a crime is afoot. This is sufficient to make a Terry Stop and the police can pat down the
clients outer clothing because they had reason to believe he was armed and dangerous,
however it was marijuana.
 The police conduct was lawful therefore the defence motion will be denied.
 B is the correct answer because it address the stop and frisk situation
 A is incorrect because the pat down is what proceeded to the arrest

 What if the officer inspected bag to determine substance?

 What if suspect was detained because of his race?
o Check your book for these answers

Question 5 deals with Criminal Procedure:

 4 arguments that could be used to attack the admissibility of a statement

of confession:
 1. 14th Amendment Due Process Clause

2. 5th Amendment Miranda Doctrine

A. Custody?
o Would a reasonable person feel free to terminate?
o How similar the situation is to traditional arrest?

B. Interrogation?
o Behavior the police should know is reasonably likely to
elicit an incriminating response
 In the Miranda warnings a detaining may do nothing or
he/she could wave both of his Miranda rights, those rights are
silence and a right to an attorney or assert the right to remain
silent or assert the right to counsel and needs to be explicit,
unambiguous and unequivocal
 The right to counsel is NOT OFFENSE SPECIFIC (look at
6th amendment right

3. 6th Amendment Right to Counsel

A. Formal Charges?
o Prevents the government from eliciting incriminating
statements from defendant without aid of counsel, once
formal charges have been filed.
o Formal charges can be: an indictment or an information
 Unlike the 5th Amendment Miranda Rights the
6th Amendment IS OFFENSE SPECIFIED
 Once the defendant has invoked the right to
counsel, he/she has the right to only the charged
crime, he does invoke the right to a lawyer for
future crimes in which he/she could be charged
 The police can question the defendant about an
unrelated offence

4. Fruit of the Poisonous Tree Doctrine

Questions to ask:
 Was the confession properly attained?
 Was the interrogation about the fight proper?
o They are not required to contact the defendant’s attorney based on the 6th
Amendment right to counsel because the assault and the battery charge is a
separate offence from the DUI charge, the 6th Amendment it is OFFENCE
SPECIFIC.
 o No 6th Amendment right because driver has not been charged, therefore we can
conclude that the interrogation about the fight didn’t implicate(show to be involved in
a crime) and therefore it cannot violate his 6th Amendment right.
o Although it did not violate his 6th Amendment right, it could still have violated
his 5th Amendment right
 Was he free to leave?
o No, he was in custody for the DUI arrest
 Was he interrogated?
o Yes, because the police were asking him questions that they
would have reasonably known would illicit an
incriminating response.
 So, we have a custodial interrogation and the requirements are met
and his 5th Amendment rights apply but as of all rights they could be
waived

Question 5 deals with Criminal Procedure Answer:

 D is the correct answer because the interrogation about the fight was proper under both the
5th and 6th Amendment rights
 As the driver waived his Miranda rights by not being invoked when receiving those
warnings, here the driver never explicitly excised his right to remain silent nor did
he request to have counsel present and we was given new Miranda Rights prior to
interrogation.
 Therefore, 5th Amendment applies (custody + interrogation), but driver waived it
but not exercising them

Video 3 MBE Immersion 2.22 min

Mini Review:
38.24
Constitutional Law
Question 13: