Scott Johns © 2022 all rights reserved

Contracts/Sales
 Contracts/Sales Contracts/Sales "Big
Picture" Issue Spotter

Step 1: What Law Applies? Step 2: Contract Formation? Step 3: Defenses? Step 4: Performance Issues? Step 5: What Remedies?

Uniform Commercial Code O!er? SOF? Interpretation of Terms? Damages?

Article 2 or Common Law?
If Sale of Goods, any merchants Revocation MYLEGS Mistake/Ambiguity? Compensatory
involved (hold themselves out as
experts in goods or regular deal in Rejection Parol Evidence Rule?
goods)? Counteroffer Subjects Required Expectation Measure of
Modification of the Contract?
Damages?
Termination
Irrevocable O!ers Marriage Common Law
< 1 Year UCC Buyer Cover on Replacement Goods or Damages
UCC
Merchant's Firm Offer Land UCC Seller's Remedies
3rd Party Rights and
Option Executor Responsibilities?
Unilateral + Beginning Goods $500 or more UCC (CP-RP) or (CP-MP) or Lost Volume Seller?
Performance Third party beneficiaries? Consequential?
Surety
Detrimental Reliance Assignments? Incidental damages
Requirements
Acceptance? SWAP Delegations? Liquidated damages?

Conditions? duty to mitigate damages/avoidance of damages

Exceptions
Common Law: Mirror Image punitive damages
UCC Acceptance: Battle of the Forms Types Specific Performance?
Specially Manufactured Goods
Non-Contract Remedies?
Written Merchant Confir-
Between Merchants matory Memo Express Conditions
Between Non-Merchants or Admission in Court Implied Conditions Promissory Estoppel?
Merchant & Non-Merchant
Part Performance Satisfaction? Restitution: Unjust Enrichment/Quantum Meruit?
Mailbox Rule & Exceptions
MUDII Excuse?
Consideration?
"Meeting of the Mind" Defenses
Waiver by party benefiting
Common Law Modification from condition
UCC Modification: Good Faith Mistake/Misunderstanding

Retraction of Waiver prior to

Unilateral Mistake Detrimental Reliance

Mutual Mistake Condition violated such that the

violation excuses other side from
Unconscionability/Undue Influence? performing contract
Duress/Fraud?
FRANNI
Illegality?
Discharge?
Incapacity?

Frustration of Purpose?
Rescission?
Accord and Satisfaction?
Novation?
Impossibility?
Impracticability?

Breach?

Right to Seek/Demand Assurances

Anticipatory Repudiation
Breach: unjustified failure to perform absolute duty

Material vs Minor Breach

UCC Perfect Tender Rule vs CL Substantial Performance

UCC Seller's Limited Right to Cure
UCC: Notice of Accommodation Shipment?

Scott Johns © 2020

Contracts/Sales"Ace" Winning Game Plan
Step 1: What Law Applies?
UCC Special Rules for Merchants = regularly deals in particular goods or holds themselves out with special
UCC = contracts for sale of goods (tangible movable objects identifiable at contract formation)
UCC or CL? knowledge or skill as to the practice or goods involved
CL = services and all other contracts (mixed contracts-use predominant purpose test)

Watch for mutual assent based on an objective test of o!er and acceptance

Step 2: Contract Formation?

objective manifestation of present intent to enter into a promise, undertaking, or commitment + UCC - quantity; reasonable terms supplied by gap-fillers
definite and certain terms + communicated to an identifiable o!eree CL - quantity, time, identity of subject matter, parties
O!er revocable unless option contract supported by consideration, UCC merchant's firm
Terminated by revocation (words or conduct terminating o!er); e!ective
o!er (signed writing by merchant with firm o!er for period not to exceed 3 months);
when received (in possession and control)
detrimental reliance, or unilateral contract + beginning performance
O!er? Termination by lapse of time; failure to accept in time state or reasonable period of time
Has the o!er been terminated? Terminated by rejection (words or conduct rejecting the o!er); e!ective when received (possession and control); countero!er operates as
rejection; rejection of option contract does not terminate o!er
death or insanity unless option contract
Terminated by operation of law destruction of subject matter
supervening illegality
CL - acceptance must mirror o!er
UCC Battle of the Forms: acceptance adding new terms is valid;
unequivocal agreement to the terms of acceptance + communicated to between merchants additional terms become part of contract
o!eror + by an o!eree with the power of acceptance UCC - any seasonable manifestation of assent or shipment of
unless material alter contract, o!eror objects, or o!er limited to its
conforming or non-conforming goods
terms; di!erent terms use knock-out rule and reasonable gap-
Acceptance? fillers or treat di!erent terms as additional terms
Method of acceptance - any reasonable manner unless manner stipulated by o!er; reasonable by promise or performance if bilateral contract
and only by complete performance if unilateral contract
Limits on mailbox rule: o!er stipulates di!erent manner of acceptance; option contract, rejection then acceptance
Acceptance e!ective on dispatch if proper post (mailbox rule)
(whichever is first); acceptance then rejection (whichever is first if detrimental reliance by o!eror)
Option K under common law requires consideration (or promissory estoppel substitute) unless UCC merchant's firm o!er
no past consideration unless new promise in writing or part performance
pre-existing duty rule unless new or di!erent consideration, ratification of voidable contract, honest dispute, or pre-existing
duty to third person
part payment in good faith to settle existing debt
Consideration? bargained for exchange for legal detriment payment to settle legal claim in good faith
payment of debt barred by statute of limitations if in writing
promissory estoppel as substitute: promise reasonably expected to induce action + reasonable reliance + enforcement as justice requires
Moral obligation/material benefit rule: a promise may be enforceable if the promise was made in recognition of a benefit previously received that was
not intended as a gift with the value enforced solely to the extent of proportionate benefit
Contract modification under CL requires consideration (unless fair and equitable in view of circumstances not considered by
the parties when contract made) while UCC requires only good faith (no consideration for modification)
Watch out for illusory promises (promise is under sole discretion & control of party) but requirements and outputs promises are not illusory & the
many "substitutes" for consideration

Step 3: Any Defenses?

SOF?

SOF Subjects = MYLEGS

writing with essential terms signed by the party to be charged

CL required for marriage, contracts that cannot be performed in one year, land, executor promises, surety promises
UCC required for sale of goods for $500 or more unless specially manufactured goods, written confirmatory memo, admissions in court, or part performance
SWAP!
mutual: both parties mistaken about basic material assumption with neither assuming risk
MUDII Mistake?
unilateral: one party mistaken about basic material assumption with other party known or should have known of mistake
Unconscionability? one-sided; tested at formation
Duress/Fraud? overcoming will by force or by misrepresentation
"Meeting of the Mind" Defenses
Illegality?
minor
Incapacity? mental illness
intoxication if other person had reason to know

Step 4: Any Performance Issues?

against drafter
ordinary meanings of words
Rules?
custom and usage in the industry
course of dealing between parties
contract terms subject to latent reasonable di!erent meanings; no contract if both have
Mistake/Ambiguity?
di!erent meanings unless should have known
prior or contemporaneous statements are inadmissible to alter the terms of the writing if Completely integrated = one adopted by parties as a complete and exclusive statement
the parties have reduced their agreement to a writing and the writing is intended as a final of terms of agreement and discharges prior agreements within scope
PER?
Interpretation of Terms? integration unless formation defects, condition precedent, ambiguous terms, collateral Partially integrated = integrated (meaning final expression of one or more terms) but not an expression of all terms
agreement, subsequent modifications, etc. only discharges prior agreements only to extent that prior agreements are inconsistent with written agreement
Note: in limited cases, a promise modifying a duty not fully performed is binding if the modification is "fair
CL: modification must be supported by consideration
Modification? and equitable" in view of "unanticipated circumstances" when contract was made
UCC: no consideration needed if in good faith
Express
Warranties Implied warranty of merchantibility by merchant that goods are fit for ordinary purposes
Implied warranty of fitness for particular purpose if buyer relies on seller's judgment based on buyer's stated purpose for use of goods
Must be a promise that is the basis of the bargain
Incidental TPB have no rights

Third party beneficiaries? contract intended for benefit of third party (creditor, donee, and incidental)
rights vest if notice + assent (bring suit to enforce or justifiable reliance)
can sue if vested
assign rights to receive performance under contract
3rd Party Rights and Responsibilities? valid unless material alter duty or risk or prohibited by law
Assignments? irrevocable if paid consideration
multiple assignments: first in time unless paid value without notice
need assent by assignee + present contract + no material alternation of duties
delegation of performance duties under contract
Delegations?
valid unless duties involve personal judgment/skill or change obligations/risk
Definition: an event the occurrence or nonoccurence that will create, limit or extinguish an absolute duty to perform
condition precedent: one that must occur prior to absolute duty
Types condition concurrent: due at same time
condition subsequent: event cuts o! absolute duty
Implied Conditions: Ex. Good Faith; Duty not to hinder
performance; Duty to cooperate; Fair Dealing, etc.
Satisfaction?

Conditions? express conditions require strict compliance while constructive and implied conditions require substantial compliance
Excuse? waiver if voluntarily and knowingly relinquish right; retraction permissible unless estopped by reliance or paid consideration
Frustration of Purpose? unforeseen event destroys purpose/value of contract
Rescission?
Use FRANII accord = new agreement intended as compromise
Accord and Satisfaction?
Discharge? satisfaction = performance of compromise agreement; can sue under original or new agreement until performed
Novation? agreement by all parties to extinguish original contractual duties and replace them with new party/contract
Impossibility? unforeseen event makes performance objectively impossible (death or physical incapacity, illegality, destruction of subject matter)
Impracticability? unforeseen event makes performance commercially extremely di"cult; duty suspended only as long as event exists
definite and unequivocal expression of intent not to perform + only if both duties executory
Anticipatory Repudiation remedies: sue immediately, o!er to rescind and treat as discharged, suspend performance and wait, ignore and urge
assurances: seek in writing if reasonable grounds for insecurity
Material: substantial benefit of the bargain
Right to cure if give notice and new tender within time for performance or if reasonable belief cure shipment
would be acceptable to buyer after time for performance

Breach? Seller Limited Right to Cure?

UCC: Perfect Tender Rule (goods must conform in Installment Contract
Breach: unjustified failure to perform absolute duty
all respects to contract) unless: Seller Shipment as an Accommodation?

Acts as a countero!er instead of acceptance based on shipping non-conforming goods if sent as an accommodation
UCC: Risk of Loss? In UCC non-carrier cases ROL passes to buyer in absence of breach at receipt of goods if merchant is seller otherwise at tender of delivery

UCC Seller Remedies: Lost Volume Seller or CP- MP or CP-RP (resale commercially reasonable + notice)
Expectation: benefit of the bargain
UCC Buyer Remedies: Cover or Damages or CP- MP
Consequential: available if foreseeable and certain
Damages? Compensatory Incidental damages = cost to make replacement contract
Liquidated damages: di"cult to ascertain at contract formation and reasonable forecast (not punitive)
Step 5: What Remedies? Limitation of damage award if mitigation of damages damages available to avoid losses based on reasonable alternatives/e!orts
punitive damages
Specific Performance? unique/rare + not di"cult to supervise
unjust enrichment: conferred benefit + reasonable expectation of compensation + express or implied request of other
Non-Contract Remedies?
promissory estoppel: promise reasonably expected to induce action + reasonable reliance + enforcement as justice requires
Constitutional Law
 Constitutional Law Issue Spotter

Step 1: Government Power Issues?

Federal Court Power

Standing
Ripeness
Article III Requirements Mootness
Abstention
Political Questions
US Supreme Court - Adequate and Independent State Grounds
Jurisdictional/Creation Issues Personal Jurisdiction
Federal Trial Courts
Subject Matter Jurisdiction
Eleventh Amendment Issues
Congressional Power

Interstate Commerce
Enumerated Powers
Tax and Spend Powers
Reconstruction Powers: 13th, 14th, and 15th Amendments
Delegation Limits
Catch-all Powers Speech and Debate Clause
Legislative Veto
Presidential Power

Appointments
Removal Powers
Pardon Powers
O!ce Administration Powers
Executive Privilege
Executive Immunity
Impeachment
Domestic Powers
Foreign A"airs Powers
State/Local Government Power

Police Powers
Supremacy Clause
Preemption
Full Faith and Credit Clause
Federalism Limits State Regulation of Interstate Commerce
Dormant Commerce Clause
State Taxation of Interstate Commerce
Federal Taxation/Regulation of States
State Taxation/Regulation of Fed Government

Step 2: Challenger Claims

State Action
Preliminary Issues Incorporation/Reverse Incorporation
Note: Need a burden on right based on Intentional Discrimination = (a) Facial or (b) Disparate Impact + Motive
Individual Rights Claims

Procedural Due Process Claims

Article IV
Privileges/Immunities Claims
Fourteenth Amendment
CAMPER Strict Scrutiny
Fundamental Rights
Substantive Due Process Claims Abortion
Non-fundamental Rights Rational Basis Review
Fundamental Rights/Suspect Classes (RAN) Strict Scrutiny
Equal Protection Claims Quasi-Suspect Gender/Illegitamacy Intermediate Scrutiny
Other Classifications Rational Basis Review
Intentional Discrimination - Strict Scrutiny
Free Exercise of Religion
Neutral & Generally Applicable Law
Sect Preference - Strict Scrutiny
Establishment Clause
Lemon Test for Non-Sect Preference
Vague
Facial Challenges Overbroad
Prior Restraint
Public Forum
Content Neutral Regulations on Government Property Limited Public Forum
First Amendment Claims Non-Public Forum
Free Speech Generally Strict Scrutiny
Obscenity
Commercial Speech
Content-Based Regulations
Defamation
Fighting Words
Incitement to Lawless Activity
Conduct Regulations on Symbolic Speech
Press
Association
State Contracts Clause
Ex Post Facto Clause
Bill of Attainders
Catch-All Claims Physical
Takings Regulatory
Conditions
Guns
Scott Johns © 2020 All Rights Reserved
 Constitutional Law Ripe - immediate threat of harm

Moot - live controversy at all stages of litigation unless controversy capable of repetition yet evading review,
defendant voluntary ceases, or class action representative claim moot with class member claims still viable

Injury in Fact

Individual Causation

Redressability

Individual member standing

Organization Germane to organizational purpose

Standing - concrete stake in the outcome
Individual member participation not required
Article III Case and Controversy Requirement
No general citizenship standing unless challenging government tax and
Taxpayer
spend measures under First Amendment Establishment Clause grounds

Claimant has standing on own

Third-Party
Di!cult for third party to assert rights or special relationship

Pullman - federal court can abstain based on unsettled state law

Abstention Younger - federal court will not enjoin pending criminal proceedings absent proven
harassment or bad faith

Political Question - Constitutional commitment to another branch and lack of

judicially manageable standards

Supreme Court has original jurisdiction a"ecting ambassadors, public ministers, consuls, and party states

Adequate and Independent State Grounds

= state decision based on state law
FEDERAL grounds such that decision by US
Supreme Court has appellate jurisdiction in all Writ (Discretionary) - petition request for all cases from federal courts of
JUDICIAL Jurisdiction Supreme Court would constitute an
federal power cases subject to congressional appeals & only state courts involving constitutional or federal law
POWER advisory decision on US law and thus not
exceptions and regulations change the outcome of the case - will not
hear case

Appeal (Mandatory) - three-judge district court panels

Congress can establish lower

courts

Examples: Limits on Subject Matter

Jurisdiction: (1) Complete diversity of
Creation citizenship + amount of controversy in
excess of $75000; and, (2) Federal
Question based on plainti"'s well-pled
complaint requirement

Congress can broadly regulate subject to Article

III requirements

Local Municipalities

Actions by United States or

other states

State O!cer suits to enjoin

future constitutional or federal
law violations or actions for
Prohibits federal courts from hearing private party or foreign damages against o!cer
Eleventh Amendment Exceptions
government claims against states personally payment

State Consent - unequivocal

and express

Congressional Abrogation -
unmistakably clear and only
under actions created under
14th Amendment

Scott Johns © 2020

 Appointment of ambassadors, public ministers, consuls, justices, o!cers with advice
and consent of Senate

Appointment Power and Limits Inferior o!cers - appointment if Congress vests in President, courts, or heads of departments

Congress cannot appoint members to administrative or

enforcement bodies

Superior O!cers - at will without congressional interference

Removal Power and Limits Inferior O!cers - removal only for good cause if provided by statute

Congress can remove o!cers only through impeachment

All federal o"enses but not if

Pardon Power
impeached or held in contempt

Congress may override veto by

2/3 vote in each house

Veto Power Pocket Veto - automatic veto if Congress not in session during 10
day veto review period

No line item vetoes

Maximum power - express or implied congressional authority

Little power - acts against express congressional will

Chief Executive Power
Mid-range power - congres-
sional silence

No power to declare war

FEDERAL War
EXECUTIVE Military power in actual hostilities
POWER
Foreign Relations Power to represent the U.S.

Treaties are supreme law of land - preempts conflicting state law

Treaty power - enter into Last in time prevails between

treaty with advice and federal statute and treaty
consent of 2/3 Senate
Foreign A"airs Constitutional limits prevail
over treaties

Signed by the President and the

head of a foreign nation

Preempts conflicting state law

Executive Agreements
Conflicting federal law prevails

Does not require the consent of the

Senate

Great deference unless

Executive Privilege demonstrated need in
criminal proceedings

Absolute immunity from civil

Executive Immunity damages based on action
within o!cial responsibilities

Treason, high crimes, bribery, and

misdemeanors with majority of House
Impeachment Limits
to impeach and two-thirds of Senate to
convict and remove from o!ce

Scott Johns © 2020

 Can aggregate only if
economic e!ects!
Interstate Commerce Power
Regulate channels, instrumentalities, or activities with
substantial e!ect

Taxing Power - some reasonable relationship to revenue production or

independent congressional power to regulate

Spending Power - any public purpose for the common defense and
general welfare

Declare War

Raise Armies and Provide for Navy

War
Enemy Combatants - U.S. citizens in U.S. have meaningful opportunity to contest
detention before neutral decision-maker

Postal Power

Implied Investigator Power

Property Power

Bankruptcy

Plenary Naturalization/Citizenship

FEDERAL
LEGISLATIVE Admiralty Power
POWER

Coin Money and Fix Weights and Measures

Patent and Copyright Power

Thirteenth Amendment - outlaw badges and

incidents of slavery

Fourteenth Amendment - enforce by appropriate legislative (congruent and proportional) to remedy rather than create
constitutional rights against states

Fifteenth Amendment - enforce voting rights

Delegation - need intelligible standards and power not uniquely confined to Congress to delegate to
executive or judicial branches

Speech and Debate Clause - during legislative process

No legislative veto without bicameralism and presentment

Necessary and Proper - convenient and appropriate

Scott Johns © 2020

 State = Police powers to protect health, safety, welfare, and morals

Supremacy Clause = makes US Constitutional, federal statutes, and treaties the supreme law of the land

Express statement of congress preempting state legislation

Implied Occupation of Field: state law prevents/

Preemption frustrates achievement of federal objective

Implied Conflict: state law

conflicts with valid federal law

Full Faith and Credit Clause: requires final judgment on merits by court with personal and subject matter jurisdiction
before judgment enforced in other state, etc.

State Suit Against U.S. -

must have U.S. consent

Inter-Goverment Immunity U.S. Suit Against State - no

consent needed

State v. State - no consent and original jurisdiction in Supreme Court

Interstate Compact Clause: Contracts between states must have congressional approval

Congress can tax or regulate states if law applies to both public

and private sectors
FEDERALISM ISSUES:
No commandeering state o!ces to enforce federal laws
STATE VS. FEDS
Federal Taxation or Regulation of States Clearly stated
Congress may indirectly regulate states by spending
Tenth Amendment Limits Relate to the purpose of the program
power conditions
Not unduly coercive

Congress may restrict state activities that violate civil liberties

Furthers an important non-economic state interest

with no reasonable non-discriminator alternatives or

Limits Intentional Discrimination against out-of-state interests State is acting as a market

participant or
State Regulation of IC
Congressional permission

Dormant Commerce Clause balance burden on interstate commerce with benefit to

No non-discriminatory undue burdens unless
legitimate local interest

No discriminatory taxes against out-of-state interests unless congressional authorization

Substantial nexus to taxing state

State Taxation of IC
Non-discriminatory taxes permissible if Fairly apportioned to activity

Fair relationship to service or state benefits provided

No direct taxes without

congressional consent
State Taxation or Regulation of
Indirect taxes if nondiscriminatory and no unreasonable burden
Federal Government
No state regulation of federal government or o!cers while
performing federal functions

FEDERALISM ISSUES: STATE VS. FEDS - 2/23/20 - Mindjet

 Significant Government Involvement
State Action
Private Entity Taking on Traditional Government Activities

Importance of individual interest

Is there a deprivation of life,
liberty (significant loss of Value of procedural safeguards
Procedural Due Process Limits? freedom), or property Notice and Opportunity to be Heard
(reasonable expectation of Government interest in
entitlement)? fiscal and administra-
tive e!ciency

Prohibits intentional discrimination against out-of-state citizens (not corporations or non-citizens) of

P&I Limits? Article IV P&I fundamental rights (civil liberties or important commercial activities)

Valid if substantial justification with no less restrictive means

Some use "CAMPER" for fundamen-

tal rights: Contraceptives, Abortion,
INDIVIDUAL RIGHTS ISSUES: Marriage, Privacy/Procreation,
Education (right of parents to send
STATE ACTION - PDP - P&I - SDP
children to private schools), and
family relations

Government burden
Substantive Due Process
(SDP) Limits? Necessary to achieve (least restrictive means narrowly tailored)
Fundamental Rights Intentional Deprivations
(interstate travel, voting, privacy, First Compelling government interest
Amendment rights)
Pre-viability: no undue burden
Abortion
Post-viability: may prescribe unless health or safety
• Under Dobbs - abortion not a fundamental right
Challenger burden

Not rationally related

All other Deprivations/Limits
Not legitimate govern-
ment interest

INDIVIDUAL RIGHTS ISSUES: STATE ACTION - PDP - P&I - SDP - 2/23/20 - Scott Johns
 Note: Must show intentional discrimination for DCC, P&I Clauses, SDP, and EP
claims (among others claims too): Intent means either (1) facial discrimination on
face of statute or (2) disparate impact + legislative motive to discriminate

RAN = Race, Alienage,

National Origin Intentional
Discrimination

Note: States can discriminate based on alienage using only RB review if based
on essential self-government interests (ex. police o!cers and probation
o!cers) and Federal Government can discriminate against aliens using only
RB review if related to federal immigration plenary powers.

Government burden
Fundamental Rights Classifications
Necessary to achieve (least restrictive means narrowly tailored)
or Suspect Classification (RAN)
Compelling government interest
EQUAL PROTECTION CLAIMS

Government burden

Quasi-suspect (gender/illegitimacy) Substantially related

Important government interest (exceedingly persuasive justification)

Challenger burden

Not rationally related

All other classifications
Not legitimate government
interest (any conceivable
plausible justification)

EQUAL PROTECTION CLAIMS Scott Johns © 2020

 No exemptions required from generally applicable neutral laws unless employment benefits or Amish educational choice
Free Exercise of Religion
Intentional - strict scrutiny

Sect preference - strict scrutiny • Lemon Test no longer valid - look for coercion of religion
• Crux: Government Coercion of Religion
Secular purpose

Establishment Clause No sect preference permissible if Primary e!ect neither to advance nor inhibit religion

No excessive government entanglement with religion

Note: Back-up Marsh Test = de minimus historical traditional practice

Over-broad - regulates substantial amount of protected speech

Vague - fails to provide reasonable notice

Unfettered discretion - lack of defined standards

collateral bar doctrine prohibits

violating even invalid injunction
Facial challenges unless no available remedy thru
normal administrative/court
processes

Prior restraint - invalid unless required national security interests or su"cient

procedural safeguards meeting strict scrutiny

CB Regulations means that law intentional discriminates based on subject matter of speech

Clear and present danger if likely to incite to imminent illegal conduct with speaker intent to incite

Fighting words if likely to incite reasonable person to immediate physical retaliation

appeals to prurient interest - community standards

patently o!ensive - community standards

Obscenity
lacks serious value - national standard

can't punish home possession

Content- Child pornography: can punish home possession
based Reg-
ulations Common law elements: defamatory statement, of or
use Strict concerning plainti!, publication to one other person, and Note: private person in public
Scrutiny damages (damages presumed with libel (written or concern can just show negligence
unless permanent) or slander per se (oral about crime, loathsome standard without actual malice
disease, unchastity, or business a!airs) but must prove but then must always show actual
actual damages for slander (oral statements). damages if no actual malice

Defamatory speech of public o"cial (substantial authority in government a!airs), public figure (voluntarily injects in
public controversy or fame), or private person in public concern (matter of public interest) unless fault (actual malice
= knowledge or reckless disregard for falsity) and falsity (plainti! must prove speech was not true)
FIRST
Free Speech
AMENDMENT Commercial speech unless unlawful or misleading or serves
substantial government interest, directly advances interest, and
narrowly tailored (not strict scrutiny standard)

Public Forum = government property traditional

available for speech purposes

Limited/Designated Public Forum = government property not

traditionally available for speech purposes but government
a"rmatively opens up to speech or to particular subjects of speech
(decision to open up forum for particular subjects must be rational
and viewpoint neutral)

Non-Public Forum = government property not available for speech purposes

(Ex. schools/prisons/courtrooms)
CN means law does not
intentional discriminate
based on subject matter

Content-neutral Regulations

Public forums - content-neutral regulations if narrowly tailored to serve significant

government interest and leaves open alternative channels of communication

RTMP ON GOV PROPERTY Limited/Designated Public Forum - content-neutral regulations if narrowly tailored to serve
significant government interest and leaves open alternative channels of communication

Non-public forum - view-point neutral and reasonable related to legitimate government purpose

Conduct means that regulation not intentionally designed to suppress speech but speaker reasonably intends to
communicate through actions and conduct

Important interested unrelated to

Conduct restrictions on symbolic speech suppression of speech

Impact on speech no greater than necessary

Generally no greater rights than public

Press Both Public and Press access to trials unless outweighed by overriding interest in articulated judicial findings

Cannot punish truthful information lawfully obtained unless narrowly tailored to further an interest of the highest order

Illegal group purpose

Punish group membership if individual knows illegal activity

Association
individual intends illegal activity

Disclosure of membership - strict scrutiny

FIRST AMENDMENT - Scott Johns © 2020

 Important and legitimate government interest
Private Contracts
Contracts Clause Reasonable and narrowly tailored

Public Contracts Stricter scrutiny if reduces contractual burdens of state

Ex-Post Facto Clause: no retroactive changes in criminal consequences

CATCH- Bills of Attainder Clause: no bills (legislative acts) that inflict punishment on
ALL particular people without judicial trial
CLAIMS
Public use must be rationally related to a legitimate
public purpose
Takings
Actual or physical invasion

Regulatory restrictions denying all economic viable value

Guns = individual right to bear arms

CATCH-ALL CLAIMS - 2/23/20 - SCOTT JOHNS

Criminal Law & Procedure
 intent to kill
unlawful killing + malice intent to inflict GBI
Common Law Murder
aforethought reckless indifference/depraved heart
Common Law Homicides felony murder
Note: Organize by Defendants: unlawful killing + adequate
Voluntary Manslaughter
State v. Defendant 1 provocation
unlawful killing + reckless (gross negligence) or during
Involuntary Manslaughter
unenumerated felony/misdemeanor
unlawful killing with specific
Homicide First Degree Murder
intent to kill
intent to kill
unlawful killing + malice intent to inflict GBI
Second Degree Murder
Person Crimes? aforethought reckless indifference/depraved heart
Statutory Homicides
felony murder
unlawful killing + adequate
Voluntary Manslaughter
provocation
unlawful killing + reckless (gross negligence) or during
Involuntary Manslaughter
unenumerated felony/misdemeanor
Battery
Assault
False Imprisonment
Step 1: Any crimes? Non-Homicide Kidnapping
Rape
Statutory Rape
Miscellaneous Crimes (Mayhem, Adultery, Incest, Seduction, Bigamy)
Burglary
Habitation Crimes
Arson
Larceny
"Intent to Permanently Deprive" Thefts Robbery
Receipt of Stolen Property
False Pretenses
Property Crimes?
Embezzlement
Personal Property Crimes "Intent to Defraud" Thefts
Forgery
Uttering
Extortion
Miscellaneous Malicious Mischief
Criminal Possession Offenses
Law "Big Solicitation
Picture" Preparatory Crimes? Conspiracy
Preview Attempt
Perjury, Subornation, Bribery, Compounding of a Crime, Misprision of a Felony
Judicial Crimes?
Accessory after the fact
General Intent Crimes?
Specific Intent Crimes?
Common Law MS
Malice Crimes?
Strict Liability Crimes?
Always Analyze for (1) Act + (2) Mental State [and, if at issue, (3) causation and (4) concurrence] Purposefully?
Knowingly?
Major Statutory MS Recklessly?
Negligently?
Strict Liability?
Intoxication
Responsibility Defenses? Insanity
Infancy
Self-Defense
Defense of Others
Defense of Property
Justification Defenses? Use of Force to Arrest
Use of Force by Citizen to Resist Arrest
Step 2: Any defenses?
Use of Force to Prevent Crime
Domestic Authority
Necessity
Duress
Consent
Excuse Defenses?
Entrapment
Mistake of Fact or Mistake of Law
Abandonment/Withdrawal
Accomplice Liability?
Enterprise Liability?
Vicarious Liability?
Step 3: Any special considerations? Motive?
Interpretation Issues?
Jurisdiction?
Merger?

Criminal Law Issue Spotter S2018.mmap - 6/6/18 - Scott Johns © 2018

 Step 1: Brainstorm all possible
stops; detention; searches, arrest, questioning, identifications/line-ups, trial, post-trial, etc.
triggers of government action?

State Action
reasonable expectation of privacy
Standing
subjective expectation of privacy
Warrant

Fourth Amendment Protection Against Terry Stop

Unreasonable Searches and Seizures Terry Frisk
by Government Actors SILA
Warrantless Exceptions Automobile Exception
Plain View
Exigent Circumstances
Consent
Custodial Interrogation?
Confessions? Miranda Warning
Fifth Amendment Waiver
Step 2: Did the Govern- Double Jeopardy
ment Comply with Consti- Compelled Self-Incrimination
Criminal Pro tutional Rights?
Big Picture Pretrial ID Right to Counsel
Right to Counsel at all Critical Stages
Ineffective Assistance to Counsel
Confrontation Right
Grand Jury
Sixth Amendment
Guilty Plea
Jury Trial Right
Speedy Trial Right
Public Trial Right
Compulsory Process Right
Bail
Eighth Amendment
Cruel and Unusual Punishment
Due Process Rights - Voluntary
Fourteenth & Fifth Amendment
Equal Protection Rights
Callout: Don't forget to analyze Fourteenth Amendment (for state actions) & Fifth Due Process Rights - Voluntary
for possible due process or
equal protection violations! Amendment (for federal government actions) Equal Protection Rights

Exclusionary Rule
Step 2: What are the Remedies?
Exceptions to Exclusionary Rule

Criminal Pro Big Picture - 6/6/18 - Scott Johns © 2018

 Unlawful killing of another human being with malice aforethought (MA = intent to kill, intent to inflict GBI, reckless indifference (depraved heart), or felony murder)
Intent to Kill Use of deadly weapon permits inference of intent to kill
Intent to Inflict Great Bodily Injury
Common Law Murder
Malice Aforethought Reckless Indifference
Scope - furtherance and foreseeable before reading temporary place of safety
Felony Murder Inherently dangerous felonies (BARRK)
Redline - no liability for co-felon death based on by resisting police or victim
sudden and intense reasonable provocation
Common Law Homicides
defendant actually provoked
Adequate Provocation
insufficient reasonable cooling off time
Voluntary Manslaughter Unlawful killing of another human being distinguishable from murder due to mitigating factor
defendant did not cool off
Imperfect Self-Defense
Unreasonable Mistake
Homicide Unlawful killing of another human being caused by criminal negligence (great deviation from reasonable person standard) or during an unlawful act
Involuntary Manslaughter
(misdemeanor malum per se or unenumerated felony) Note: Some states expand IM to a reckless mental state too
Unlawful killing of another human being with premeditation and deliberation (decision to kill in cool and dispassionate manner and defendant
First Degree Murder
actually reflected on idea of killing), during commission of enumerated felonies, or by poison, torture, or lying in wait (specific intent crime)
Second Degree Murder Unlawful killing of another human being with malice aforethought (MA = intent to kill, intent to inflict GBI, reckless indifference (depraved heart), or felony murder)
sudden and intense reasonable provocation
Adequate Provocation defendant actually provoked
Statutory Homicides insufficient reasonable cooling off time
Voluntary Manslaughter Unlawful killing of another human being distinguishable from murder due to mitigating factors
Person Crimes? defendant did not cool off
Imperfect Self-Defense
Unreasonable Mistake
Unlawful killing of another human being caused by criminal negligence (great deviation from reasonable person standard) or during an unlawful act
Involuntary Manslaughter
(misdemeanor malum per se or unenumerated felony) NOTE: Some states expand IM to a reckless mental state too
Unlawful application of force to another person resulting in bodily injury or offensive touching
Battery
Aggravated battery = battery with deadly weapon, or resulting in serious bodily injury, or against child, woman, or police officer
Attempted battery (specific intent version)
Assault Creation of reasonable apprehension in another person of imminent bodily harm (general intent version)
Aggravated assault = with deadly weapon or with intent to rape or maim)
False Imprisonment Unlawful confinement of another person without valid consent
Kidnapping Unlawful confinement of another person without valid consent with some movement
Non-Homicide Felony unlawful carnal knowledge with a woman without effective consent
Rape
No consent if: actual force, bodily threats, incapable of consent, fraudulent inducement of belief not intercourse
Statutory Rape Carnal knowledge of a female under age of consent
Mayhem
Adultery
Miscellaneous Seduction
Incest
Bigamy
Breaking and entering a dwelling of another at nighttime with intent to commit a felony
breaking = creating or enlarging an opening by minimal force, fraud, or intimidation
Burglary
entering = placing any portion of body or instrument used to commit crime into structure
Habitation Crimes
nighttime = cannot discern face in natural light
Malicious burning of a dwelling of another
Arson
requires damage to structure by at least charring (destruction of fibers)
Trespassory taking and carrying away of tangible personal property of another with intent to permanently deprive
By Trick - use of fraud to gain possession by not title
Larceny
taking - obtaining control
carrying = slight asportation
"Intent to Permanently Deprive" Thefts
Trespassory taking and carrying away of personal property of another from other person' presence or person by force or threats of force/intimidation
Robbery
with intent to permanently deprive
Receiving possession and control of stolen personal property known to have been obtained in manner constituting criminal offense by another
Receipt of Stolen Property
Step 1: Any crimes? person with intent to permanently deprive
Property Crimes?
causing title to transfer = victim actually relied on statement
Obtaining title to property of material = statement of fact not opinion/puffery that a reasonable person would rely on making a decision
another by a knowingly
False Pretenses false representation of past Minority Rule: requires intentionally
Personal Property Crimes or existing material facts knowingly = should have known or aware of high likelihood that statement is false making false statement = conscious
with intent to defraud object to cause prohibited result
"Intent to Defraud" Thefts specific intent = specific goal to obtain title through fraud
Fraudulent conversion of property of another by person in lawful possession with intent to defraud
Embezzlement
embezzlement requires possession (control) vs. larceny occurs if defendant just has custody
Forgery Making or altering a false writing with intent to defraud
Uttering Offering as genuine an instrument that may be the subject of forgery and is false with intent to defraud
Obtaining property of another by future threats to do harm or disclose information
Extortion
Differs from robbery due to future threats
Miscellaneous
Malicious Mischief Malicious destruction or damage to personal property of another
Possession Offenses
Complete when asked
Solicitation Incite, counsel, aid, encourage, urge, induce, advise, or command another to commit a felony with intent that the other person commit the crime Merges into completed crime
No withdrawal defense available
Minority requires agreement plus slight overt act
Liable for all crimes committed by co-conspirators in furtherance if foreseeable
No merger into completed crime
Conspiracy Agreement between two or more persons to accomplish unlawful objective with intent to agree and intent to achieve objective Wharton Rule: no conspiracy if crime requires agreement between necessary parties
Preparatory Crimes? Withdrawal: only defense to subsequent crimes if affirmative act that notifies all + sufficient time for members to abandon
Spoke vs. chain liability

Criminal Law "Ace" Terminates on completion of wrongful act

Proximate Theory - dangerously close
Problem-Solving Modern Theory - substantial step beyond mere preparation that strongly corroborates criminal purposes
Analysis Chart Attempt Act that falls short of completed crime with intent to complete crime Factual Impossibility - no defense
Impossibility
Legal Impossibility - valid defense
Abandonment is no defense
Perjury Intentional false oath of material fact
Subornation Procuring or inducing another to commit perjury
Bribery Corrupt payment or receipt of value for official action
Judicial Crimes?
Compounding Agreeing for valuable consideration not to prosecute felony or conceal commission of felony or location of felon
Misprision Failure to disclose knowledge of a felony or prevent commission of felony
Accessory after the fact Person who who aids another to escape knowing that he has committed a felony
any volitional bodily movement; not reflexive or convulsive act; not unconscious
Volitional Act or Affirmative Duty
Omission if statute, contract, special relationship, voluntary assumption of risk, or creation of peril
Strict Liability - no intent (no awareness required for all elements of crime); administrative/regulatory/moral crimes + no adverbs
General Intent - awareness of existence/high likelihood of all the factors constituting crime Commission of act permits inference of intent to do act
Common Law MS
Specific Intent - specific goal to accomplish objective of crime
Malice - at least reckless disregard of obvious high risk that particular result with occur
Mental State Purposefully - conscious object to engage in conduct or cause result
Knowingly - aware that conduct is of particular nature or circumstances exist or conduct will necessarily or very likely cause result
Any general prima facie concerns? MPC MS Recklessly - conscious disregard of substantial and unjustifiable risk that constitutes a gross deviation from standard of care
Negligently - failure to be aware of substantial and unjustifiable risk that constitutes a substantial deviation from standard of care
Strict Liability - no intent (no awareness required for all elements of crime)
Actual Cause - but for
Causation
Proximate Cause - result is natural and probable consequence of act (one year and one day rule for homicide)
Concurrence Concurrence = intent must actuate act
Conduct occurred (omission = where duty to act arose)
Jurisdiction?
Result Occurred
Merger? Solicitation and Attempt Merge into Completed Crime

Self-inducted taking substance known to be intoxicating without duress

Voluntary Intoxication Defense to specific intent crimes only if negates ms
Intoxication Not available if defendant becomes intoxicated to avoid criminal liability
Taking intoxicating substance without knowledge or under duress
Involuntary Intoxication
Treated as mental illness
M'N - lacked ability to know wrongfulness or nature and quality of acts
Responsibility Defenses?
II - lacked capacity for self-control and free exercise to conform conduct to law
Insanity
Durham - product of mental illness (disease)}
MPC - lacked substantial capacity to conform conduct to requirement of law or appreciate wrongfulness of act
Under 7 - no criminal liability
Infancy Under 14 - rebuttable presumption no criminal liability
Over 14 - presumed capable of criminal liability
Deadly force - without fault can use deadly force if reasonably belief necessary to confront unlawful force of imminent death or great bodily injury
(Majority: no retreat duty)
Self-Defense
Non-deadly force - without fault such force as reasonably appears necessary to protect from imminent use of unlawful force upon self (no retreat required)
Aggressor - only if withdraws and communicates to regain defense
Defense of Others Reasonable belief that person assisted had legal right to use force in own defense
Use of non-deadly force to defend property in possession against unlawful interference if reasonably appears necessary (need request to refrain if
Step 2: Any defenses? Defense of Property
reasonable/no deadly force)
non-deadly force = if reasonably necessary to effectuate arrest
Justification Defenses? police officers
deadly force = only if reasonably necessary to prevent escape of dangerous felon
Use of Force to Arrest
non-deadly force = if crime in fact committed and reasonable grounds to believe arrestee committed crime
citizens
deadly force = only to prevent escape of person who actually committed felony and threatens human life
non-deadly force = if arrest improper even if know police officer
Use of Force by Citizen to Resist Arrest
deadly force = only if improper arrest and defendant does not know arrestor is police officer
non-deadly force = reasonably appears necessary to prevent felony or serious breach of peace
Use of Force to Prevent Crime
deadly force = only to prevent or end felony risking human life
Domestic Authority
Necessity Reasonable belief that pressure from natural forces makes conduct necessary to avoid greater harm to society (never deadly force)
Duress Excused in performance act other than homicide under threat of imminent infliction of death or great bodily harm if reasonable belief
Consent No defense unless element of crime or minor crime and must be voluntarily given, legally capable, and not procured by fraud
Excuse Defenses? Entrapment Criminal design originated with law enforcement and defendant not predisposed to crime
specific intent crimes = any mistake, reasonable or unreasonable if negates mental state
Mistake of Fact
Mistake all other crimes - reasonable mistake only if negates mental state
Mistake of Law no defense unless justifiable reliance on official interpretation or negates required culpable mental state

Liable for crime itself and all foreseeable crimes

Not mere presence - active
Accomplice Liability? Aids, counsels, or encourages principal before or during crime with intent that crime be committed Withdrawal if before crimes becomes unstoppable; for encouragement requires repudiation; beyond encouragement requires attempt to neutralize
(such as notification of police)
Members of protected class and necessary parties not provided for liability by statute are excluded from accomplice liability
Enterprise Liability? Corporation acts of agent within scope or high corporate official such that acts reflect official corporate policy

Step 3: Any special considerations? Vicarious Liability? Limited to regulatory crimes

Transferred Intent? Applies to homicide, battery, and arson
Motive? Motive - reason or explanation for crime is irrelevant to intent
Due Process prohibits enforcement of vague statutes (reasonable person of ordinary intelligence unable to ascertain meaning) and arbitrary and
discriminatory enforcement
Interpretation
No Bill of Attainders
Interpret strictly in favor of defendants
Scott Johns © 2020
 Step 1: Brainstorm: What are all possible triggers for each government encounter? Detention, Search, Seizure, Arrest, Interrogation, Guilty Plea, Trial, etc.

Step 2: Did the government comply with each constitutional claim or is compliance excused?

The Fourth Amendment protects against unreasonable searches and seizures by government actors and is applicable to the states via incorporation under the Fourteenth Amendment.
1. State Action?

Subject Expectation of Privacy

2. Standing?
Reasonable Expectation of Privacy

Detention?
Search?
3. Definitional Issues?
Arrest?
Seizure?

Valid and Properly Executed?

Neutral and Detached Magistrate?

Probable Cause? trustworthy facts for reasonable person to believe suspect committed crime
4. Warrant?
Particularity?

Good Faith Reliance on a Defective Search Warrant?

Can go behind warrant if false statement by affiant with intent or recklessness and material to finding of probable cause
Terry Stop?

RS? Articulable Facts? Criminal Activity Afoot?

Terry Frisk?
4th Amendment RS? Articulable Facts? Armed and Dangerous? Manipulation?

SILA?

Person? Lawful arrest + contemporaneous + wingspan/protective frisk

Car Arrest Limit? SILA limited once arrested suspect is secured and cannot access the interior of the vehicle unless
reasonable belief evidence relevant to crime of arrest might be found in car
Inventory Search?

Automobile Exception?
5. Any No Warrant Exceptions? Probable cause auto contains contraband?
Search whole car + trunk + containers reasonably containing item

Plain View?

Legitimate right on premises? evidence in plain view? probable cause immediately apparent?

Exigent Circumstances?

Hot pursuit? Emergency?

Consent?

Apparent authority? V and I only required

Catchalls?

School Searches? Border Searches? Administrative Searches? Special Needs? DUI Checkpoints? Wiretapping? Etc.?

Confessions: The Fifth Amendment protects against compelled testimonial incrimination by government actors
and is applicable to the states via incorporation pursuant to the Fourteenth Amendment.
Does right attach? Custodial interrogation?

Custody? Reasonable person not free to leave or terminate police encounter

Interrogation? Words or conduct likely to elicit incriminating statements

Warnings Given?
Valid Waiver? Must be VIK: waiver implied if suspect does not unambiguously assert right - mere silence not sufficient to assert right

Asserts attorney? complete waiver and defendant must reinitiate

Asserts silence? partial waiver and police can reinitiate if given knew warning and scrupulously honored
Public Safety Exception?
Miranda? protects against custodial interrogation Other claims?

14th Amendment?

voluntary under totality of circumstances...doesn't overpower will

Fifth Amendment
6th Amendment?

All critical stages after formal charges

all felonies and sentences resulting in loss of liberty
Effect of Miranda violation?

Criminal impeachment permissible

Procedure Attaches? jury trial or first witness

Same O!ense?
Double Jeopardy
"ACE" Can't retry absent manifest necessity
Exceptions?
Analysis Testimonial Incrimination only

Chart CSI
Testimonial? Factual assertion
Incriminating? Likely to lead to chain of crime
Immunity if provided waiver

right to counsel at all post-charge lineups for serious crimes

Exceptions?

independent source?
Pre-trial ID Ample opportunity to observe?
14th Amendment Claim?

unnecessarily suggestive?
substantial likelihood of misidentification?

Attaches? all felonies and any sentence resulting in loss of liberty after formal charges lodged
O!ense specific
all critical stages of litigation
Right to Counsel Waiver? KVI
Ine!ective Assistance of Counsel?

Deficient performance?
Prejudice

Confrontation
V and K
On Record?
Sixth Amendment Limited attack after plea
Pleas Ineffective assistance of counsel
prosecutor failed to keep bargain
involuntary
lack of jurisdiction
Attaches? only if > 6 months possible
cross-section of community
Jury Trial
at least 6 (unanimous) or 12 (9/3)
EP- racial preemptory challenges
Attaches? time of arrest or formal charges
TOC?

length of delay?
Speedy Trial
reason for delay?
assertion of right?
prejudice?

Compulsory Process?
Competency Due Process Requirement?
Miscellaneous
Public Trial?

Overriding government interest + articulated judicial findings

Bail no excessive bail

Cruel - intent to cause pain unrelated to punishment

Cruel and Unusual Punishment
Eight Amendment Unusual - extreme compared to other jurisdictions

Minors? Mental Retardation?

Death Penalty
No automatic sentences

Method shocks conscience?

Duty to disclose exculpatory evidence
Due Process Claim Excessive pretrial publicity/Right to fair trial
Burdens of production and proof
Voluntary?
Fourteenth-Fifth Amendment
Preemptory challenges

inference?
Equal Protection Claim
rebuttal with race-neutral explanation
judge determines if sincere

Exclusion Rule/Remedy Fruit of the Poisonous Tree

Inevitable Discovery
Step 3: What are the remedies for each constitutional violation?
Exceptions to Exclusionary Rule Dissipation of Taint
Independent Source

Scott Johns © 2018

FED CIVIL PRO
 Federal Civil Procedure Winning Game Plan Fed Civil Pro Issue Spotter
no diversity if any plaintiff citizen of same state as any defendant
natural person = domicile (physical presence + intent to remain permanently)
Complete Diversity?
corporations = place of incorporation + principal place of business
association = citizenship of all members
Diversity?
good faith allegation unless clear to legal certainty
aggregate claims if one plaintiff versus defendant
< $75,000
joint claims based on value of total claim without regard to number of parties
injunction = plaintiff's benefit of relief or defendant's cost to comply

Federal Question? arise under federal law based on well-pled complaint, i.e., enforcing federal right?
Subject Matter Jurisdiction claim must share common nucleus of operative facts with proper claim (arise from same transaction or occurrence)
Supplemental Jurisdiction? exception in diversity cases: plaintiff can use supplemental jurisdiction to overcome diversity of citizenship limits only (not amount of controversy limits); any other party can use SJ
Court has discretion if federal question dismissed early, state law claim predominates, or state law claim complex

allows removal by defendant to state trial court to federal trial court; federal court can remand if not eligible
can remove if federal court could hear case (DJ or FQJ); all defendants must agree
Where? only to federal district embracing state court where filed
Removal Jurisdiction When? no later than 30 days after service of document that first makes case removable; not later than 1 year from filing if diversity
Is it the Right Court? What? notice with pleadings attached
plaintiff can never remove
diversity exception: no removal if any defendant is a citizen of the forum state

Long-Arm Statute
Traditional Bases: citizen of state, voluntary present in state, consent

Specific JX (isolated and sporadic with claim related)

Minimum Contacts?
General JX (systematic and continuous with claim unrelated)

Personal Jurisdiction? Due Process requires minimum contacts such as not to offend traditional purposeful availment of benefits of forum state
Tradition Notions of Substantial Justice? Measure contacts for fair warning
notions of fair play and substantial justice reasonably foresee hailed into forum state

relatedness between contact and claim (arise from contact) (not needed if substantial ties with
forum- general jurisdiction): continuous and systematic
Traditional Notions of Fair Play? Fairness Factors
convenience - unless at severe disadvantage of litigation (not a good forum guaranteed by due process)
state interest

Judicial district where any defendant resides if all reside in same state
Venue? Judicial district where substantial part of claim located
If none of the above then district which any defendant subject to personal jurisdiction

Notice = reasonably calculated to apprise of case

Service? Service by 18+ & non-party
Waiver if requested
Complaint: notice pleading = short and plaint statement of claim showing entitled to relief
particularity required for fraud, etc.
Pleadings?
Defendant's answer/response within 21 days
Compulsory Counterclaims, Permissive Counterclaims, & Cross-claims
Answer
Amendment once as of right if same & liberally allowed if no prejudice; if same T/O relates back to original filing date for statute of limitations
What's the Case About? Rulle 11: attorney must sign + 21 day safe harbor to correct
Compulsory = party must be joined if SMJ & needed for complete relief
Permissive = same T/O + common question of law and fact
Class actions = Notice + numerosity/commonity/typicallity/adequacy
Intervention as of Right
Joinder of Parties Intervention = "let me in" because interest in decision
Permissive Intervention
Rule 22: need normal DJ
Interpleader = stakeholders hold assets and ask court to decide which parties get assets
statutory: just $500 + only minimum diversity
Impleader = join by pleading party that will indemnity such as insurance company in car accident case

Rule 12 Motion to Dismiss for failure to state claim for relief, etc.
Default = failure to defend
Pretrial Issues? Summary Judgment = no genuine issue of material fact & moving party entitled to judgment as matter of alw
Temporary Restraining Order
Preliminary Injunction

Conferences?
Trial Issues?
relevant + not unreasonably cumulative or burdensom + not priviledge + proportional
Discovery Issues?
attorney W/P protected unless substantial need

Trial? Jury trial if required in 1791

Applicable Law? Erie? apply state substantive law and federal procedural law; if no federal law on point and conflict look to see if state law is outcome determinative to avoid forum shopping
JML = directed verdict before submission to jury
Motions?
RJML (JNOV) renewal of JML after jury verdict

Final Judgement Rule

Interlocutory Appeals
Appeal Issues? Facts = clearly erronous

Appeal and Preclusion Review? Law = de novo

Judge = abuse of disretion
Claim Preclusion (Res Judicata)? claim precluded between same parties or successors + if same T/O + final JX on merits
Preclusion Issues?
Issue Preclusion (Collateral Estoppel)? issue precluded if fully and fairly litigated with opportunity to litigate

Civil Pro Big Picture Spring 2017.mmap - 4/14/17 - Scott Johns

 UPDATED 2023

Federal Civil Pro

Federal courts are courts of limited jurisdiction
Article III No diversity if any plaintiff is citizen of same state as any defendant
Physical present
Natural person - domicile
intent to remain - no present intent to go elsewhere
Complete diversity
Corporation - every place of incorporation and its principal place of business (nerve center)
Diversity Jurisdiction Association. Partners, LLC - citizenship of all members/partners//members
1332 LPR Alien - citizen of a state domiciled in

Good faith allegation - dismiss only if clear to legal certainty not met
< $75,000 Claims may be aggregated against individual defendant - joint defendant's not an aggregate issue
injunction - plaintiffs benefit of relief or defendant's cost to comply

Federal question Arise under federal law (US Constitution, federal law, or treaties) based on plaintiff's well-pled complaint, i.e., enforcing a federal right
1331 Claim must share common nucleus of operative facts with proper claim (arise from same transaction or occurrence) (CNOF)
Subject Matter Jurisdiction
Plaintiff cannot use supplemental jurisdiction to avoid complete diversity requirement
Diversity
Can aggregate multiple claims against defendant to give > $75K
Supplemental jurisdiction
Federal question dismissed early
1367
Court discretion to hear SMJ claim State law claim predominates
State law claim complex

allows removal by defendant to state trial court to federal trial court; federal court can remand if not eligible
Defendant can remove only if federal court could hear case (DJ or FQJ)
All defendants must agree
Removal jurisdiction
Only to federal district embracing state court where filed
1441
File notice in federal court with pleadings attached no later than 30 days after service of first document that makes case removable (and no later than 1 year if DJ case)
1446, 1447
diversity JX exception: no removal in diversity cases if any defendant is a citizen of the forum state
Cannot waive SMJ
Rule 4: Statutory Authority: Use state long arm statutue or 100 mile
Statute to constitutional limits bubble rule for impleader and necessary parties or federal statute
Step 1: Statute Long-arm
statute limited to specific actions, e.g., contracts or torts committed in state
Right Court? SMJ, PJ, Venue Consent or waived (failing to assert in first responsive pleading - MTD or Answer)
Callout Traditional Bases Physically Present + Served
Domiciled in State
Tagged Specific jurisdiction - isolated and sporadic contacts with claim related to contacts
Callout Relatedness between contacts and claim
General jurisdiction - systematic and continuous contacts with claim unrelated to contacts

Personal minimum contacts such as not to offend traditional notions of fair play and substantial justice corporations = PPB and POC such that essentiiall at home
Jurisdiction Contacts Analysis purposefully avail of benefits of forum state
Contacts
reasonable foresee hailed into forum state
Step 2: Due Process 3 step analysis
Relatedness (arise out of or substantial relationship) Plaintiff's interest
Fairness Factors: Traditional notions of fair play and substantial justice Convenience to defendant - requires severe disadvantage of litigation
State's interest + federalism efficiency + shared interstate social policies

Notice reasonable calculated to reach the defendant and afford the opportunity to respond
Notice
Must comport with service of process

Can waive/consent

Judicial district where any defendant resides if all reside in same state
Venue Rule Judicial district where substantial part of claim located i.e, substantial historical predicate
1391 If none of the above then district which any defendant subject to personal jurisdiction
Individuals - determined by person's domicile
Private
Residence Corporation - any district in which it is subject to personal jurisdiction Public
Factors (P’s
Factors
Unincorporated Associations - where it does business i.e, subject to PJ choice, D’s
(familiarity
Venue "anywhere action might have been brought"
choice,
with law,
where claim
relative court
in the interest of justice arose,
congenstion,
Factors convience of
Transfer Convenience to parties and witnesses locate
parties,
1404 interests in
Proper venue - law of state of transferor court conveience
Applicable law on transfer deciding
Improper venue - law of state of transferee court
of witnesses,
local
ease of
controversie
May be waived access to
s
evidence)
Dismissal: 1406 (dismiss or transfer in interests of justice
FNC: dismiss if much better adequate and available foreign forum

Right Court? SMJ, PJ, Venue - 4/3/17 - Scott Johns

 Only need enough detail to allow other side to be on notice and make a meaningful response
Must plead facts supporting a plausible claim (based on court’s experience and common senses
Short and plain statement of claim showing entitled to relief fraud
Formal Particularity requirement examples: mistake
R8 R9 special damages
SPS
Grounds for SMJ condition precedent
Demand for relief sought

Must give notice to defendant of complaint

Complaint
Who by any nonparty 18 or older

What summons and a copy of the complaint

Service of Process by personal service on defendant anywhere

R4 defendant's usual abode
Where by substituted service
someone of suitable age/discretion who resides there
by delivery to agent if receiving service is within scope of agency (appointed by contract), or corporation's registered agent, managing agent, or officer
Waiver mail process and waiver form to defendant (provides 60 days to answer)

motion for a more definite statement - pleadings so vague can't frame a response i.e., so vague or ambioguls reasonable person can’t respond 12(e)
motion to strike - aimed at immaterial requests (demand for jury when no right exists) Insufficient defense, or redundant, immaterial, impertinent, or scalndelous materials
12(f)
Lack of subject matter jurisdiction
Lack of personal jurisdiction
Improper venue
Motions
Insufficiency of process (problem with papers)
R12 Rule 12b Defenses - Raised in motion or answer
Insufficient service of process
Failure to state a claim 12(b)(6) - Two step process: Strike conclusory allegations; evaluate whether claim is factually and legally sufficient based on
Failure to join indispensable party plausible facts (using common sense & experience)

Note-2,3,4,5 are waivable if not put in first response

Timing respond by motion or answer within 21 days after service of process or risk default

admit
respond to allegations of complaint by deny - failure to deny can constitute an admission on any matter except damages
Pleadings lack sufficient info to admit or deny or knowledge
Response
SOL
raise affirmative defenses must plead affirmative defenses or they are waive examples SOF
Answer self-defense

R8 Claim compulsory if it arises from the same T/O as plaintiff's claim

compulsory
Claim against an opposing party 2 Types Must be filed in answer in pending case or it is waived
Counterclaim
permissive Claim permissive if it not arise from the same T/O as plaintiff's claim.
R13
SMJ or SJ required
o

e
it

s
Default - entered by clerk
f

Failure to respond
Default judgment - determined by judge

claim against a co-party that must arise from the same T/O as the underlying action
Cross-claim Notice pleading - only need enough detail to allow other side to be on notice and make a meaningful response
R13 SMJ or SJ required

plaintiff has right to amend once before defendant serves his answer or within 21 days of responsive pleading
Right to Amend- Factors such as undue
Defendant has right to amend once within 21 days of serving his answer delay, dilatory tactics,
undue preparation
Amended Pleadings Leave of Court If there is no right to amend a party may seek leave of court to amend and liberally granted if justice so requires
prejudice, reason for
R15 Variance when the evidence at trial does not match what was pleaded to conform to trial evidence amendment, futility, etc
aid merits and no undue prejudiice
After SOL - Relation Back amended pleadings relate back if they concern the same conduct bases on same T/O as the original pleading
amend parties to relate back if same C,T,O + new party had notice in 90 days + knew party knew or should have known of mistake
Attorney/pro se party must sign pleadings, motions, and papers
paper not for improper purpose
Signature certifies that to best of knowledge and belief after reasonable inquiry legal contentions are warranted by law or good faith extension based on non-frivoulous argument
factual contentions/denials have evidentiary support
Rule 11 certification effective every time position is presented to court
to deter repeat of bad conduct not to punish
can be non-monetary sanctions
Sanctions
monetary sanctions paid to court
safe harbor - must give parties 21 days to withdraw/correct before filing motion

Pleadings - 6/8/15 - Scott Johns ç 2023

 OVERVIEW OF JOINDER
The court must join parties who are necessary and indispensable.
Claims (Rule 18)
Permissive Party Joinder (Rule 20)
Counterclaims (Rule 13) Should party be joined? Is party necessary?
Cross-claims (Rule 13)
3 step process Feasible to join party? Would joining party destroy diversity or venue
Impleader (Rule 14)
Compulsory Joinder – Required Party(Rule 19) Must party be joined? Is party indispensable?
Interpleader (Rule 22 & 1335)
Class Actions (Rule 23)
without party can't accord complete relief (worried about multiple suits)
Necessary party non-party's interest may be harmed if not joined (practical harm)
non-party claims an interest which subjects a party to a risk of multiple obligations
Compulsory Joinder (Necessary &
is there personal jurisdiction over non-party
Indispensable Parties)
Feasible to Join Is there SMJ - will joining A destroy diversity
R19
Is the venue proper
If non-party can't be joined then court will decide to proceed without non-party or dismiss the case; dismissal means non-
party is an indispensable party
Prejudice to present and absent party
Indispensable Party
judgment shaped to avoid prejudice
Factors
judgment adequate without absent party
plaintiff deprived an adequate remedy if case dismissed

Permissive Joinder Parties may be joined if their claims arise from same T/O and common question of law and fact
R20

defendant wants to bring in someone new (TPD) because based on indemnity or contribution
Impleader
claims between plaintiff and TPD are permitted if claim arises from the same T/O as the underlying case
R14

claim interest in subject matter of case

Intervention as of Right Absent party's interest may be harmed if not joined and
Party Joinder Intervention when an absentee wants to join a pending suit as a plaintiff or defendant
interest is not adequately represented now
R24
Permissive Intervention - at least one common question + no delay or prejudice

Rule 22: need normal DJ

Interpleader = stakeholder holds assets for court to decide which parties get assets
statutory: just $500 + only minimum diversity
R22 & 1335

Numerosity - too many class members for practicable joinder

Commonality - some questions of law or fact in common to class
Requirements
Typicality - representative's claims/defenses typical of those of class; and
Adequate Representation - class rep will fairly and adequately represent class

1. Risk of Prejudice - risk of inconsistent results or would impair the interest other absent members
2. Common Need for Injunction/Dec Judgment - a defendant has acted or refused to act on grounds applicable to the class
Must Show Type
and injunctive or declaratory relief is appropriate
3. Common questions predominate over individual questions and class action is the superior to alternative adjudication methods

Court must determine at an early practicable time whether to certify class

Class Action
certification If certified, court must define the class and the class claims, issues, or defenses, and appoint class counsel
R23 & CAFA
Class counsel must adequately represent class

Procedure In type 3 court must notify all class members, usually by mail
notice
Notice: can opt out, will be bound if not, and can enter a separate appearance thru counsel, binding nature of judgment if no opt out
Parties can settle or dismiss case only with court approval
settlement
All members bound by judgment except those that opted out

No SMJ if more than 2/3d's of members are citizens of state, defendant with significant
SMJ if any class member diverse from any defendant, aggregate amount
CAFA liability for the relief is defendant of state, principle injuries occurred in state, and no similar
in controversy greater than $5 million, at least 100 members
class action within 3 years

Party Joinder - Scott Johns ç 2023

 Use proportionality test (limited to matters that are proportional to the needs of the case based on importance of
issues, amount in controversy, relative access, resources, importance, and if burden outweighs likely benefit)

can discover anything relevant to claim or defense that is not privileged - reasonably calculated to lead to the discovery of admissible evidence
Scope = non-privildged matter + relevant to claims/defenses + proportional
trial prep materials prepared in anticipation of litigation are protected from discovery
Scope
discoverable if substantial need and not otherwise available
work product
mental impressions, opinions, conclusions, and legal theories are absolutely protected
can be generated by a lawyer, party, or rep of party
Party may take a deposition of any expert whose opinions may be presented at trial
experts
consulting expert - retained in anticipation of litigation but will not testify at trial-discovery if impracticable to obtain facts/opinions by other means

must file within 14 days of the rule 26f conference unless court order or stipulation
initial disclosures
must ID persons, electronic storage, and docs likely to have discoverable info that the disclosing party may use to support its claims or defenses, computation of damages, and insurance
Required Disclosures
expert disclosures must ID experts who may be used at trial and produce written report containing opinions, data used, qualifications, compensation, etc.

pretrial <= 30 days before trial, must give detailed info on trial evidence including docs and ID of witnesses to testify

parties no subpoena: notice of deposition properly served compels attendance

can depose nonparties by subpoena

nonparties
nonparty can't be compelled to travel more than 100 miles from residence or place of business
Depositions can't take more than 10 depositions or depose the same person twice without court approval
can't exceed 7 hours unless court orders or parties stipulate
generally
subpoena duces tecum - requires deponent to bring materials
recorded by sound or video/sound stenographically-transcript made

questions propounded in writing to another party to be answered in writing under oath

Discovery no more than 25 without court order or stipulation
Interrogatories can only say you don't know answer after reasonable investigation
responses Burdensome business records - can allow propounder access to those records
Tools must respond with answers or objections within 30 days

May request documents, entry on property

Request for production
must respond within 30 days of service stating that material will be produced or stating an objection

May request a party admit the truth of any discoverable matters

must respond within 30 days of service
Request For Admission
must admit or deny, can indicate lack of info only if indicate you have made a reasonable inquiry
failure to deny = admission

only available thru court order on showing that party's (or person in party's control) health is in actual controversy and good cause.
Physical or Mental Exam
person examined may obtain copy of the report without making this showing, but by doing so-waives the doctor-patient privilege

Duty to Supplement if a party learns its response to a required disclosure, interrogatory, RFP, or RFA is incomplete or incorrect, it must supplement its response

Signature of Discovery every discovery request and response is signed by counsel certifying that it is warranted, not interposed for improper purpose, and not unduly burdensome

Establish facts as true

Disallow evidence supporting the disobedient party as to issues
Court may impose sanctions where a party does not comply with discovery Strike pleadings as to issues
Dismiss plaintiff's case if bad faith shown
Enter default judgment against defendant if bad faith shown
Enforcement
party seeking sanctions must certify that tried in good faith to get info without court involvement
certification
get an order compelling to answer unanswered questions plus costs of bringing motions

protective order receiving party seeks protective order because request is over-burdensome, involves electronic info not reasonably accessible, or trade secrets, and want an order limiting disclosure to litigation
Defense Must confer and show good cause for protective order
ESI if party fails to produce because lost in good faith as a part of a routine operation of an electronic info system - then only sanctions in exceptional circumstances

2023
Discovery - 6/8/15 - Scott Johns
 Motion to Dismiss for Failure to State a Claim for which relief maybe granted R12(b)(6)
Motion for judgment on the pleadings - same motion made after defendant has answered R12(c)
Pretrial motions
moving party must show no genuine issue as to material issue of fact and that she is entitled to judgment as a matter of law
Summary Judgment
R56
court views the evidence in the light most favorable to the nonmoving party

at least 21 days before scheduling conference parties discuss claims, defenses, and settlement.
Rule 26 Conference
must form discovery plan and present to court in writing within 14 days
Conferences
& Meetings Scheduling Order court enters an order scheduling cut offs for discovery, joinder, amendment, motions, etc.
can be amended for good cause
Final Pretrial Conference final pretrial conference determines issues to be tried and evidence to be proffered - no surprises at trial
can only be amended to prevent manifest injustice

Applicable Law - Erie Doctrine if federal procedural rule on point, apply federal rule and apply state substantive law; if not use federal procedure law unless federal rule would be outcome determinative

Twin aims of Erie (prevent forum

7th Amendment-preserves the right to a jury trial in federal court in civil actions at law shopping & inequitable
administration of justice0
no jury trial for equity suits (analogize claim and relief to determine if legal claim based on common law of England in 1791)
if both legal and equitable relief is sought, jury decides facts underlying damages claim, but not the equity claim, with jury trial issues first
Jury Trial must be a demand for a jury in writing not later than 14 days after service of the last pleading raising a jury triable issue
strikes for cause - unlimited (bias, prejudice, related to a party) Baton challenge: Step 1: Prima facie case of race/gender
discrimination
voir dire
peremptory strikes - three strikes: must be used in a race and gender neutral way Step 2: Opposing party must offer neutral explanation
Step 3: Show pretextual

can be brought after the other side has been heard

Motion for judgment as matter of law (JML) A reasonable jury would not have a legally sufficient basis for finding for the party on the issue
Trial Issues
R50 View evidence in light most favorable to non moving party and without consideration of credibility of the witness

after verdict and judgment entered - losing party can move within 28 days after entry of judgment
Renewed motion for judgment as matter of law (RJML) same standard as JML - legally sufficient basis/light most favorable
R50 Limited to issue raised in JML

Judgment entered, but serious error(s) at trial require new trial

Must move within 28 days after judgment
Trial, Judgment & Post-Trial Motions
prejudicial error - at trial makes judgment unfair
Motion for new trial new evidence - that could not have been obtained with due diligence for original trial
R59
Grounds prejudicial misconduct - of party, attorney, third party, to juror
Judgment is against weight of evidence
Excessive verdict remittitur but no additttur in federal court

to preserve status quo until hearing if affidavit or verified complaint of irreparable injury without TRO + certified efforts made to notify and reasons why notice should not be required + security
Irreparable Harm
TRO Likely to Success on the Merits
TRO Factors
Balance of Harms
Interest of the Public

to preserve status quote with notice + opportunity to be heard by opposing party

Irreparable Harm
Preliminary Injunction Likely to Success on the Merits
R65 PI factors
Balance of Harms
Interest of Public

Note: Motion for Relief from Judgment (R60)

- anytime if clerical mistakes
- within 1 year if excusable mistake, fraud, or newly-discovered evidence
- within reasonable time if void or other grounds

2023
Trial Issues - 6/8/15 - Scott Johns
 General Rule- - can appeal only from final judgments - resolves all claims between all parties
Final Judgment
Must file notice in trial court within 30 days after entry of final judgment i.e.,1291 - ends litigaton on merits (leaves nothing to do except execute judgment)
Must be preserved in lower court (unless plain error), presented to appellate court, and prejudiced party (not a harmless error, i.e., impacted substantive rights)
interlocutory orders reviewable as of right - orders re injunctions, receivers, possession of
property, and findings of patent infringement where only an accounting is left See 1292(a)

Interlocutory Appeals Act - allows appeal of nonfinal order if trial judge certifies that it
involves a controlling issue of law as to which there is substantial ground for difference & materially advances litigaton
of opinion and the court of appeals agrees to hear it See 1292(b) (only 10 days to
make application for appeal) CO Reqs:
1. collateral = issue unrelated
Collateral Order Exception - discretion re issue that is distinct from merits of case, involves
and important legal question, and is essentially unreviewable if parties must await final to merits
judgment (e.g. 11th amendment immunity) 2. important = serious/unsettled
3. conclusive = effectively
Multiple Claims/Parties - court may direct entry of final judgment as to one or unreviewable later
Interlocutory Appeals
more of them if no just reason for delay Rule 54 4. conclusive = final decision in
trial court on issue
original proceeding in appellate court to compel judge to
Extraordinary Writ make or vacate a particular order - available only to
enforce a clear legal duty + some special risk of irreparable harm. 1651
Appeal and Preclusion Class Action Certifications orders granting/denying class actions within 14 days of order
Facts = clearly erroneous = reverse only if definitive and firm conviction of mistake — not just a different decision
Law = de novo = of new or from scratch
Review? Judge = abuse of discretion = great deference (key: rule says “may”)
Harmless error = not really a standard of review but whether appellate court should remand
case due to trial court error See Rule 52(a)(6) for jury instructions & R61 for harmless error = must
show harmed substantial rights
barred from retrying claim if same T/O previous litigated with final judgement
same claimant against the same defendant (mutuality) or successors in interest
Claim Preclusion (Res Judicata)
Requirements valid final judgment on the merits
NOTE: Full Faith & Credit a claim is any right to relief arising from a T/O - must be same claim
1. Final Judgement
2. On Merits Precludes re-litigation of a particular issue litigated and determined before
Preclusion Issues
3. By CT with JX valid final judgment on the merits
same issue actually litigated and determined with full and fair opportunity to litigate
Issue Preclusion (Collateral Estoppel)
Requirements same issue essential to the judgment
mutuality-can only be asserted by one who was a party in previous case (some courts
allow nonmutual assertion by one not a party in prior case if not unfair or inequitable

Appeal and Preclusion - 2023

6/8/15 - Scott Johns
Evidence
 Evidence "ACE" Winning Game Plan
Evidence Big Picture "RECIPE" Steps
Relevance/Competence?
Extrinsic Policy Concerns?
Character Evidence?
Impeachment Evidence?
Privileges?
"Ear-say" Hearsay?
Adapted from Je! Adachi, the Bar Exam
Survival Kit (2008)

Evidence Ace Game Plan.mmap - 5/27/17 - Scott Johns

 Evidence Issus Spotter
401 Logical Relevance
403 Legal Relevance
Competency = evidence purports to be what proponent claims

Real Evidence
Documentary

Ancient Documents
Responsive Reply Letter
Authenticated Photographs
Handwriting Identification
Responsive Telephone Answer
Voice Identification
Relevance and Competence?
Best Evidence Rule (a.k.a. original document rule)
Self-authenticating Documents prove themselves = certified records; newspapers, etc.
Judicial Notice?
Form of Testimonial Evidence?

Witnesses Questions
Witness Memory?

Refreshing Recollection
Recorded Recollection
Objections for misleading, compound, argumentative, unduly harassing, cumulative, etc.
Expert Opinion
Lay Opinion

Definition: casting adverse reflection on veracity of witness

Prior Inconsistent Statement
Bias or Interest
CIMT Conviction
Criminal Convictions?
Impeachment Methods? Felony Conviction
Bad Acts
Opinion/Reputation
Sensory Deficiencies
Prior Consistent Statement to rebut charge of recent fabrication or motive

Settlement O!ers/Withdrawn Guilty Pleas

Medical O!ers
Extrinsic Policies
Subsequent Remedial Measures
Liability Insurance

Evidence Issue
Spotter ("Recipe" Character Evidence?
adapted from Jeff Admissible if ultimate issue, e.g., defamation
Adachi: Bar Exam Admissible if habit evidence (regular response to certain circumstances) to prove conduct in conformity with habit
Survival Kit) Circumstantial Propensity Evidence?

Civil = not admissible unless ultimate issue, e.g. defamation

Criminal - defendant must initiate to introduce good character

Specific Acts?

MIMIC acts
Reputation or Opinion?

Attorney/Client
Spousal Privileges?

Marital Privilege
Privileges? Spousal Immunity
Doctor/Patient
Social Worker/Psychotherapist
Waiver?

Definition

Federal Definition Exclusions

Prior Inconsistent Statement Under Oath

Prior Consistent Statement if offered to rebut charge of lying motive an statement arose before motive to lie arose
Prior statement of identification of a person after perceiving person
Admission by Party Opponent
Major Hearsay Exceptions

Declarant Unavailable

Statement Against Interest When Made

Former Testimony with former party with opportunity to develop, same subject matter, under oath

EAR SAY Hearsay? Dying Declaration

Family or Personal History Statements
Statements offered against party procuring unavailability of declarant
Declarant Availability Immaterial

Present State of Mind; Present Sense Impressions; Present Physical Condition or Past Physical Conditions if made to doctor
Excited Utterance
Past Recollection Recorded
Business Records
Official Records
Felony Convictions
Ancient Documents (20 years old or more)

Catch-All = notice + strict necessity + guarantees of truthfulness

Evidence Issue Spotter ("Recipe" adapted from Jeff Adachi: Bar Exam Survival Kit) - A/C/DE - Scott Johns
 Evidence "ACE" Winning Game Plan

Relevance and Competence?

401 Logical Relevance = any tendency to make a material fact of consequence more or less likely

Must relate to time, event, or person in present litigation unless complicated causation issues, prior false claims, condition
attributable to prior injury, existence of dangerous condition with knowledge that caused present injury, to prove intent/motive,
rebut claim of impossibility, similar property sales, business practice, industry custom, or habit evidence

403 Legal Relevance = judicial discretion to exclude if probative value substantially outweighed by unfair prejudice,
confusion of issues, misleading jury, undue delay, or waste of time

NOT unfair surprise!

Competency = evidence purports to be what proponent claims

Real Evidence (actual physical evidence) = authenticated or substantially unbroken chain in substantially same condition

Documentary: authenticated to show document is what proponent claims

Ancient Documents if at least 20 years old, condition free from suspicion, found in place likely kept
Responsive Reply Letter
Authenticated Photographs
Handwriting Identification by non-litigation lay witness or expert litigation witness or jury comparison
Responsive Telephone Answer
Voice Identification by Litigation or Non-Litigation Witness (lay or expert)
Best Evidence Rule (a.k.a. original document rule)

Must produce original if legally operative document trying to prove contents of writing with witness testifying from knowledge obtained
only by reading document; no original required if unavailable due to no fault or other party admits contents or collateral issue
Summaries of voluminous records permissible if individual documents admissible + records made available
Original = duplicate exact copies unless challenged or unfair
Self-authenticating Documents prove themselves = certified records; newspapers, etc.

Judicial Notice?

indisputable facts if common knowledge or easily capable of verification by resort to easily accessible sources of unquestionable
accuracy
Laws = mandatory for state/federal laws/regulations and persuasive for municipal and international rules
Legislative Facts: judge may take notice of legal reasoning facts at anytime
Effect = conclusive in civil cases only
Form of Testimonial Evidence?

Witness General Qualifications = personal knowledge + declare to testify truthfully

No federal Dead Man's Act
Witnesses Questions

No Leading Questions unless cross-examination, introductory materials, hostile witness, lacks understanding
Cross: limited to scope of direct or impeaching credibility of witness
Witness Memory?

Refreshing Recollection = opposing counsel can view memorandum and introduce relevant portions
Recorded Recollection = witness had personal knowledge + insufficient recollection + writing adopted by witness + timely made + accurate
Objections for misleading, compound, argumentative, unduly harassing, cumulative, etc.

If no timely objection, waive review

Expert Opinion if assist trier of fact, expert qualified, reasonable probability, and proper factual basis
Lay Opinion permissible if rationally based on witness perception, helpful to fact finder, and not based on specialized knowledge
(e.g., intoxication, general appearance, speed, etc.)

Evidence Ace Game Plan.mmap - 5/27/17 - Scott Johns

 Evidence "ACE" Winning Game Plan

Extrinsic Policies

Settlement O!ers/Withdrawn Guilty Pleas if claim disputed as to amount or validity

Medical O!ers = accompanying facts admissions are admissible
Subsequent Remedial Measures unless to show control/ownership or rebut claim of in-feasibility
Liability Insurance not admissible to show negligence or ability to pay

Evidence Ace Game Plan.mmap - 5/27/17 - Scott Johns

 Evidence "ACE" Winning Game Plan
Character Evidence?

Admissible if ultimate issue, e.g., defamation

Admissible if habit evidence (regular response to certain circumstances) to prove conduct in conformity with habit
Circumstantial Propensity Evidence (evidence that person acted in conformity with that person's character trait)?

Civil = not admissible unless ultimate issue, e.g. defamation

Criminal - defendant must initiate to introduce good character

Specific Acts?

MIMIC acts (not to prove propensity or disposition) admissible if sufficient evidence to support jury finding that defendant
committed prior act and probative value not substantially outweighed by danger of unfair prejudice

MIMIC = Motive; Intent, Mistake Absence, Identification, Common Plan or Scheme

Not admissible to show defendant's character to commit crime unless sexual assault

Reputation or Opinion?

Defendant can put good character at issue by offering reputation or opinion witness (not just taking the stand which is a
credibility not character issue)

Prosecutor can rebut: (1) cross-examine defendant's character witness about specific instances (no extrinsic evidence allowed);
or (2) counter with government reputation/opinion witness of defendant's bad character

Defendant can provide R/O evidence of victim's bad character if relevant except in sexual assault cases

Prosecution can counter using R/O evidence of victim's good character or defendant's bad character for same trait

Sexual Assault Victim's

Criminal Cases: victim's sexual behavior admissible to prove some other than defendant source of physical evidence or consent
Civil Cases: Victim's reputation must have been placed in controversy b y victim; victim's sexual behavior admissible only if
probative value substantially outweighs harm to victim and danger of unfair prejudice to any party

Evidence Ace Game Plan S2017.mmap - 5/29/17 - Scott Johns

 Evidence "ACE" Winning Game Plan

Impeachment Methods?

Definition: casting adverse reflection on veracity of witness

Prior Inconsistent Statement

Method: cross-examination or extrinsic evidence if foundation

to prove prior statements inconsistent with present testimony
Must have opportunity to explain or deny either before or after introduction of prior statement
Inadmissible hearsay for purposes of substantive evidence (use limited to impeachment only) unless prior inconsistent
statement under oath
Bias or Interest: motive to lie shown through cross-examination or extrinsic evidence but must first be asked about
facts before introducing extrinsic evidence
Criminal Convictions?

CIMT Conviction = any crime of dishonesty (no judicial discretion)

Felony Conviction if less than 10 years old from date of conviction/release and probative value not outweighed by
prejudicial e!ect to defendant (substantially outweighed if witness)
Bad Acts: only if probative for untruthfulness - judicial discretion; no extrinsic evidence permitted (Note: an arrest is
not considered a bad act)
Opinion/Reputation: poor reputation or opinion for untruthfulness
Sensory Deficiencies
Prior Consistent Statement to rebut charge of recent fabrication or motive
No extrinsic evidence for collateral matters
Rehabilitation: by character witnesses or if motive to lie only by prior consistent statement

Evidence Ace Game Plan.mmap - 5/27/17 - Scott Johns

 Evidence "ACE" Winning Game Plan

Privileges?

Attorney/Client

A/C communication, professional relationship, in confidence (no privilege if crime/fraud or dispute with attorney)
Husband/Wife Privileges?

Marital Privilege = criminal or civil proceedings, available to either spouse, only for confidential statements made during
marriage, claim outlasts marriage
Spousal Immunity = criminal proceedings, witness spouse only, for confidential statements before or during marriage, can claim
only during marriage
Doctor/Patient = not recognized under federal law
Social Worker/Psychotherapist

Waiver?

Voluntary disclosure or failure to assert or contract waiver

No waiver if overheard by eavesdropper if not negligent

Evidence Ace Game Plan.mmap - 5/27/17 - Scott Johns

 Evidence "ACE" Winning Game Plan
Hearsay?

Definition = out of court statement o!ered for the truth of the matter asserted

Not legally operative facts/verbal acts or statements to show effect on listener or what declarant believed to be true
Statement = oral or written assertions or nonverbal conduct intended as assertion

Federal Definition Exclusions

Prior Statements by Parties or Witnesses

Prior Inconsistent Statement Under Oath - made under penalty of perjury + at prior proceeding or deposition + available to testify
Prior Consistent Statement if offered to rebut charge of lying motive an statement arose before motive to lie arose
Prior statement of identification of a person after perceiving person

Admission by Party Opponent - statement by party opponent that amounts to a prior acknowledgment of relevant fact

Adoptive Admissions by Silence

Vicarious Admissions

Major Hearsay Exceptions

Declarant Unavailable

Statement Against Interest When Made - statement of unavailable witness against that person's pecuniary, proprietary, or penal interest when made
Former Testimony with former party with opportunity to develop, same subject matter, under oath
Dying Declaration = imminent belief of death and concerns circumstances/cause
Family or Personal History Statements
Statements offered against party procuring unavailability of declarant
Declarant Availability Immaterial

Present State of Mind; Present Sense Impressions; Present Physical Condition or Past Physical Conditions if made to doctor -
statement as to then-existing mental, emotional, or physical condition
Excited Utterance - startling event + statement made under stress of excitement
Past Recollection Recorded
Business Records: in regular course of business, customary to make entry, with personal knowledge or duty to transmit, entry
made at or neat time of transaction, with authentication
Official Records
Felony Convictions - to prove any fact essential to the judgment whether the judgment arose from trial or upon a plea of guilt
Ancient Documents (20 years old or more)

Catch-All = notice + strict necessity + guarantees of truthfulness

Evidence Ace Game Plan S2017.mmap - 5/29/17 - Scott Johns

Property
 PROPERTY
ACE GAME
PLAN
Ownership Interests?
Landlord/Tenant Issues?
User Interests?
Catch-all Interests?
The Big Land Grab?
PROPERTY ACE GAME PLAN - 6/20/16 - Scott Johns © 2016
 Property ACE Issue Spotter
Fee Simple Absolute (FSA) - potentially indefinite duration
Fee Simple Determinable (FSD) - durational language with estate automatically reverting to grantor upon
happening of stated durational event
Fee Simple Subject to Condition Subsequent (FSCS) - conditional language giving grantor right to re-enter upon occurrence of condition without automatic
termination (requires expressly stated right of reentry in deed)
Present Estates
Fee Simple Subject to Executory Interest (FSEI)- conditional or durational language which reverts to third party rather than grantor
upon occurrence of condition/durational limit
Affirmative Waste (voluntary)?
Life Estate - ownership of land measured by lifetime of owner
Permissive Waste?
or other (pur autre vie)
Ameliorative Waste?
Possibility of Reverter - automati-
cally follows FSD
Grantor's Future Interests
Right of Re-Entry - right of grantor to re-enter land following FSCS (expressly stated in deed)
Reversion
Springing?
Executory Interests?
Shifting?
Step 1: Any Ownership Interests?
Indefeasibly Vested Remainder?
Vested Remainder Subject to Total Divestment?
Future Interests Vested Remainder Subject to Open?
Remainders? Destructibility?
Third Party Future Interests Merger?
Contingent Remainder?
Shelley's Case?
Worthier Title?
Class Gifts - group shares common
Rule of Convenience?
characteristic
Rule Against Perpetuities?
Transferability?
Joint Tenancy? Unities of TTIP
Tenancy by Entirety?
Concurrent Interests
Tenancy in Common?
Rights and Duties of Co-Tenants

Tenancy for Years?

Periodic Tenancy?
Types
Tenancy at Will?
Tenancy at Sufferance?
Duties and Rights
Step 2: Any Landlord Tenant Issues?
Security Deposits
Fair Housing Act
Assignments/Subleases
Termination
Tort Liability

Easements = right to use land of another for special purpose

Real Covenant = written promise regarding use of land with remedy of damages
Property "Big
Picture" Issue Equitable Servitude = written promise unless negative reciprocal equitable servitude
with remedy of injunction
Licenses = privilege to use land for particular purpose
Profits = right to take resources from land
Step 3: Any User Interests? intent = intended that successor be
bound or benefited
notice = actual, inquiry, or recorded
Definitions notice
horizontal privity = original purchases shared some interest independent of covenant
vertical privity = successor acquired entire durational interest
touch and concern = benefits or burdens in use and enjoyment of land

Lateral Support?
Subjacent Support?
Water
Step 4: Any Catch-All Rights/Interests? Fixture Issues?
Zoning (cumulative v. non-cumulative;
conditions; takings)
Homeowner's Associations

Marketable Title
Contract Issues Statute of Frauds and Part
Performance
Formalities = in writing + signed by grantor + reasonable identification of
parties and land ("good lead")
Deed Issues
Delivery and Acceptance
Types of Deeds
Type

Land Sale! = Contract + Deed Actual

Recording Acts?
BFP/Notice Inquiry/Constructive
Record
Present
Covenants
Step 5: The Big Future
Land Deal! Realtor Duties
Closing Documents
Closing
Defect Notifications
Environmental Reports
Land Grab! Adverse Possession
Land by Will
Type
Transfer
Payment and Discharge
Mortgages Consumer Protection Rights
Redemption Rights
Foreclosure Priorities
Proceeds

Property Issues Map.mmap - 1/16/18 - Scott Johns

 Fee Simple Absolute (FSA) - potentially indefinite duration
Fee Simple Determinable (FSD) - durational language with estate automatically reverting to grantor upon happening of

Ownership Issues stated durational event

Fee Simple Subject to Condition Subsequent (FSCS) - conditional language giving grantor right to re-enter upon occurrence of
condition without automatic termination
Fee Simple Subject to Executory Interest (FSEI)- conditional or durational language which reverts to third party rather than grantor upon
occurrence of condition/durational limit
A!rmative Waste (voluntary) - exploitation of natural resources limited if
necessary for repair or maintenance, land suitable only for exploitative use,
Present Estates or by express or implied permission of grantor (open mines: life tenant can
continue to mine but not open up new mines)
Permissive Waste - fails to protect or preserve land; must preserve land and
Life Estate - ownership of land measured by lifetime of owner or other (pur autre vie): entitled to structures in reasonable state of repair, pay interest on mortgages, pay
ordinary uses and profits of land but cannot injure remainder or reversionary interests ordinary taxes, pay special assessments for public improvements of short
duration (no obligation to insure)
Ameliorative Waste - change that economically benefits land allowed if market
value not diminished and no objection or market value not diminished and
substantial and permanent change in neighborhood deprived land of current
reasonable productiveness or usefulness
Possibility of Reverter - automatically
follows FSD
Grantor's Future Right of Re-Entry - right of grantor to re-enter land
Interests following FSCS
Reversion - estate remaining in grantor when creating a life estate (or
any estate less than a FSA)
Executory Interests - interest in third party that divests estate Springing - follows a gap or cuts short grantor's interest
upon occurrence of specified condition or durational limit Shifting - follows a gap or cuts short third party's interest
Indefeasibly Vested Remainder - remainder in ascertained and existing person that becomes possessory
upon normal termination of preceding estate and is not subject to condition precedent (not subject to
divestment or diminution
Vested Remainder Subject to Total Divestment - remainder subject to condition
subsequent upon occurrence of condition/event
Vested Remainder Subject to Open - remainder created in class of persons that is certain to
become possessory but subject to diminution (e.g., children)
Destructibility - destroys contingent remainder
Ownership Interests if fails to vest before or on termination of
Remainder - interest created in other than grantor that becomes preceding estate - abolished in most states and
Future Interests possessory following natural expiration of prior estate (e.g., life estate) creates executory interest instead
Property Ace Win- Merger - destroys gap of contingent
Contingent Remainder - remainder created in
ning Game Plan remainder if both present and future
unborn or unascertained persons or subject
Third Party Future Contingency Rules/ interests are acquired by same person in
to condition precedent (a condition that must
Interests Doctrines di"erent instruments
be satisfied for remainder person to take
possession Shelley's Case - prevents remainders in grantee's
heirs - abolished by most states
Worthier Title - prevents remainders in grantor's heirs absent specific
intent of grantor - creates vested remainder in grantor for inter vivos
transfers only (not wills)
Transferability - modern law vested remainders, contingent remainders, and executory interests are transferable,
descendible, and devisable unless survival is a condition to taking interest
Class Gifts - group shares common Rule of Convenience - class closes absent contrary intent when some member
characteristic of the class can call for distribution
RAP - no interest in property is valid unless it must vest, if at all, not later than 21 years after some life
in being at the creation of the interest (applies to contingent remainders, executory interests, vested
remainders subject to open, options to purchase, etc.
Rule Against Restraints on Alienation - any restrictions on transferability of legal
interests is generally void
Right of Survivorship Severed by inter vivos conveyance of interest to another, lien when actually sold
Joint Tenancy - requires 4 unities to create (same time, title, interest, and possession + intent
at foreclosure, lien mortgages when sold and title mortgages when executed, contract to convey,
to create right of survivorship) and automatically passes to surviving joint tenant
murder of joint tenant in some states (Note: wills do not sever join tenancy)
Tenancy by Entirety - presumption in any conveyance to husband and wife and only severed by death, divorce, mutual agreement, or execution by joint
creditor; individual spouse cannot convey or encumber
Tenancy in Common - concurrent estate with no right of survivorship with each entitled to possession of whole
right to possess
Concurrent Interests right to retain profits from own use of property but must share
rents/profits from third parties
may encumber own interest unless tenancy by entirety
Rights and Duties of
Co-Tenants right to a remedy of judicial partition
right to contribution for more than share of necessary repairs if notified other tenants of need for repairs; no right to contribution for improvements absent partition; right
to taxes and mortgages unless tenant in sole possession to extent exceeding rental value
duty of fair dealing with co-tenants and confidential/
fiduciary relationship
Property Ace Winning Game Plan.mmap - 6/20/16 - Scott Johns
 Landlord/Tenant Issues
Tenancy for Years - automatic termination with reversion in landlord expressly created with fixed
period of time
Periodic Tenancy - estate for year or less which automatically renews at end of each period, requires one period
notice except requires 6 months notice for one year lease
Types
Tenancy at Will - either party can terminate at will without notice under
common law
Tenancy at Su!erance - created when tenant wrongfully remains in possession and landlord has not elected
eviction or holdover status to new periodic tenancy
Duty to Pay Rent - right to damages only unless unlawful detainer statute to permit eviction
Renter Abandonment - can accept surrender or reject surrender with duty under majority law to mitigate by
trying to relet premises
Not commit waste - modern law allows ameliorative waste (benefits) if long-
term tenant and consistent with neighborhood
Duty to Repair - tenant has common law duty to repair excluding ordinary wear and tear; if landlord assumes duty to repair tenant must notify of needed repairs; if
premises destroyed due to no fault neither must rebuild and common law requires tenant to continue to pay rent
Duties and Rights
Implied Covenant of Quiet Enjoyment - that landlord will not evict;
Implied Warranty of Habitability - determined by housing code; residential tenant can terminate and move out, repair and o!set costs,
abate rent, or remain in possession and sue for damages
Landlord Tenant Issues Deliver Possession - majority to put tenant in actual possession
Holdover - evict or bind to new periodic tenancy; residential tenants with prior notice of rent increase are held to new periodic month-to-
Property Ace Win- month at new rate
ning Game Plan No Retaliatory Eviction - rebuttable presumption if tenant evicted after reporting code violation
Assignor in just
Assignment = complete transfer of entire remaining privity of contract
term Assignee in privity of estate with landlord and can enforce covenants that run with land (promises with intent +
touch and concern land - benefit/burden interest in land)
Assignments/Subleases Sub-Lessor in privity of estate and privity of contract with landlord
Sublease = partial transfer of remaining term Sub-lessee not in privity of estate or contract with landlord but can enforce implied warranty of habitability against landlord;
landlord cannot sue for performance of any covenants unless expressly assumed by sub-lessee
covenants against assignments/subleases are strictly construed against landlord and
held waived if express or implied consent by landlord
landlord must
disclose latent
Tort Liability landlord liable for injuries to public if knows or should know of dangerous condition, reason to believe tenant may admit public, and fails to repair dangerous condition
landlord must undertake repairs with reasonable care and maintain common areas
landlord is liable for any defect for short term furnished rentals

Fair Housing Act

- prohibits discrimination in sales or rentals based on race, color, religion, national origin, sex,
disability, or familial status (except for senior housing).
- exception: owner-occupied rentals with four or fewer units or single-family homes with owner
owning no more than 3 homes
- prohibits discriminatory advertisements by landlords, etc., and newspapers/publishers based on
protected status

Property Ace Winning Game Plan 2016.mmap - 1/10/16 - Scott Johns

 Appurtenant = benefits holder in use and enjoyment of dominant tenant; benefit passes
automatically while burden passes unless BFP without notice
Land Use Issues Gross = easement use unrelated to land ownership; transfers only for economic or commercial interests
Types A!rmative = allows
holder of benefit to
make a!rmative use
Negative = prevents servient estate from impeding air, light, support, or flow of
artificial stream
Express Grant - in writing and signed unless duration limited
under 1 year; must comply with deed requirements
Express Reservation - in writing for grantor only who reserves use
Implied from Existing Use with division of single tract if apparent and
Easements = right to use land of continuous use + reasonably necessary + intent
another for special purpose
Creation Method Implied from Plat - reference to map in subdivision
when lots sold
Implied from Necessity - division of land sale deprives access that
creates easement for access
Prescriptive Easement - open and notorious (discoverable on inspection), adverse
(without permission), continuous and uninterrupted use of easement for
statutory period
Scope - perpetual duration; assumed intended to meet both current and
future needs; if created by division, then cannot unreasonably
overburden servient estate; holder has duty to repair
Termination under stated conditions, merger of ownership, deed of release;
abandonment by physical action + intent; reasonable reliance resulting in estoppel;
User Interests inverse prescription; end of necessity if implied from necessity; condemnation
Terminated by written release;
Property Ace Win- merger, or condemnation
Real Covenant = written promise regarding use of
ning Game Plan Burden runs if intent + notice + horizontal privity + vertical
land with remedy of damages Enforcement by/against privity + touch and concern
Subsequent Owners
Benefit runs if intent + vertical privity + touch and concern
Negative Reciprocal Servitude - implied from common scheme from
developer plan prior to sales of parcels; enforced if notice if not in
deed + intent
Equitable Servitude = written promise unless negative reciprocal equitable
Burden runs if intent +
servitude with remedy of injunction
Enforcement by/against notice + touch and concern
Subsequent Owners Benefit runs if intent
+ touch and concern
Licenses = privilege to use land for particular purpose; revocable at will unless estoppel or coupled
with interest; inalienable; arises often when easement created in violation of statute of frauds
Profits = right to take resources from land; extinguished through surcharge
(misuse that overly burdens)
intent = intended
that successor be
bound or benefited
notice = actual, inquiry, or
Definitions recorded notice
horizontal privity = original purchases shared some interest independent of covenant
vertical privity = successor acquired entire durational interest
touch and concern = benefits or burdens in use and enjoyment of land
Property Ace Winning Game Plan 2016.mmap - 1/10/16 - Scott Johns
 Lateral Support = right to have land supported in natural state by adjoining land; adjoining owner strictly liable for land damages
if excavating and negligently liable if buildings damaged unless land would have collapsed in natural state
Subjacent Support = underground occupants must support existing buildings and negligently liable for new buildings
Zoning:
Riparian = water belongs to border owners of watercourse

Catch-all Land Issues

- Types: cumulative (zoned use or any higher use permitted); noncumulative (only permitted use)
Prior Appropriation = determined by first beneficial use - non-conforming use (permits continued use if existed at time of rezoning but no substantial changes)
- special use permit: often required for special businesses like hospitals
Absolute = owner can take all
- variance - administrative action to grant departure from zoning ordinance
Reasonable use = cannot harm others - exactions for building permits - conditons are takings unless essential nexus between condition and development to legitimate
Groundwater
Correlative = owners own water basin as joint tenants with reasonable uses government interest + roughly proportional
Water Appropriation = determined by priority of beneficial use
Catch-All Rights/Interests natural flow theory = owners cannot alter natural drainage
except for reasonable changes
generally can capture as much water as one
Surface Waters common enemy = owner can take protective measures to get rid of
desires; can divert to any purpose
water except unnecessary damages to others
reasonable use theory = balance utility of use against gravity of harm
Common Ownership - fixture if objective intent determined by nature
of article, manner of attachment, amount of damages to remove, and Seller’s Liability for Defective Property
Fixture Issues = chattel so a!xed to land that it ceases to be adaption to realty or other items not physically attached if uniquely - new construction - implied warranty of fitness/quality of builder sale
personal property and passes with land ownership adapted to realty (e.g., keys) - existing homes - fraud, active concealment, failure to disclose know or reason to know latent serious defects
Divided Ownership - absent agreement chattel must be (disclaimer valid only if specific identification of defect)
removed and damage repaired (e.g., tenant chattel)
Real Estate Brokers
- seller’s agent must disclose material information if actual knowledge
SOF required unless two of three (possession, payment, subsequent performance) - due commission only if sale or fails to close due to fault of seller
Presumption that time is not of essence - must use best efforts to sell
Seller must provide marketable title at closing (free from unreasonable risks of litigation = no defects in title of chain,
no encumbrances, no zoning violations, no adverse possessor); remedy requires notice + reasonable opportunity for
seller to cure
Contract Issues Equitable Conversion if party dies before delivery of deed (buyer is equitable buyer dies - interest passes as real property
owner and seller owns personal property interest in land) seller dies - interest in purchase price passes as constructive trust for heirs
Risk of Loss - majority rule on buyer after contract signed unless Uniform Vendor Act
Defective Property General Disclaimer - ine"ective for misrepresentation, active concealment, failure to disclose serious
defect that would cause reasonable buyer to reconsider
At closing seller no longer liable for contract covenants
presumption that land passes to center of right of way or water boundary;
accretion (slow changes) changes boundary but not avulsion (sudden changes)
Reformation available for mutual mistake, scrivener's error, unilateral
mistake due to misrepresentation
Formalities = in writing + signed by grantor + reasonable identification of parties and land ("good lead")
Void if forged of fraud in
factum, even for BFP
Voidable if lack of capacity, fraud in inducement,
duress, undue influence, etc.
Property Ace Win- intent to make presently e"ective without retaining
ning Game Plan Delivery and Acceptance control or interest
Land Sale! = Contract + Deed acceptance presumed and relates back to time of deed
Deed Issues Seisin = owns both title and possession of estate purporting to convey
Right to Convey = authority to make grant
Covenant Against Encumbrances = no physical or title encumbrances
Warranty Deed Quiet Enjoyment = grantee will not be disturbed by lawful third party claim of title
Warranty = defend against reasonable claims of title by third parties and compensate for superior title losses
Types of Deeds Further Assurances = promise to perform acts reasonably necessary to perfect title
Note: first three covenants are only breached if at all at conveyance
The Big Land Deal! Special Warranty Deed = warrants grantor had not conveyed same estate to anyone else and estate free from encumbrances
by grantor
Quitclaim Deed = releases whatever interest grantor has (still needs marketable title at closing under contract theory)
Estoppel by Deed = subsequent acquisition of estate previously conveyed wrongfully provides grantee with after-acquired title
from grantor unless BFP acquired title from grantor

Land Conveyance Issues Notice = subsequent BFP prevails if no notice

Race-Notice = subsequent BFP prevails if no notice + records first
Race = grantee who first records prevails
Note: only BFP's protected under notice and race notice
Recording Acts - generally protect BFP from secret interests previously created
statutes (purchaser for value + without notice)
Actual
Types of Notice Record Notice - within chain of title
Inquiry Notice/Constructive
Requirements = actual (required for entire area of land unless under color of title) + exclusive (not
sharing with owner or public) + open and notorious possession (su!cient to put true owner on notice
Land Grab! Adverse Possession of trespass) + hostile (without owner's permission) + continuous (throughout statutory period
consistent with use; can tack to other's possession without privity)
SOL doesn't run if true owner under disability when cause of action first began
Ademption = specific gift of land fails if no longer owned by testator
Land by Will Exoneration = devisee of specific property entitled to have residuary estate pay liens and mortgages
Anti-lapse statutes?
Transfer of Property with Mortgage - grantee takes subject to mortgage but is not personally liable unless assumed mortgage
Lien Theory = bank has interest and cannot possess until foreclosure
Default
Title Theory = bank owns land interest until paid o" and can possess land before foreclosure
sale required
Mortgages mortgagor may redeem land prior to foreclosure sale or some period after foreclosure in some states
Foreclosure Priorities = determined by time mortgage interest placed on land; foreclosure Priority can be changed by operation of recording statute if prior bank failed to record;
generally destroys junior interests but not senior interests (unless failed to subornation agreement; PMM; modification of senior mortgage; granting of optional future
include junior interest holder) advances with notice to junior liens
Retains deficiency action against mortgagor individually
Property Ace Winning Game Plan 2016.mmap - 1/10/16 - Scott Johns
 Property Law Overvew Poster - Major Issues & Rules

Fee Simple Absolute (FSA) - potentially indefinite duration

Fee Simple Determinable (FSD) - durational language with estate automatically reverting to grantor upon happening of stated durational event
Fee Simple Subject to Condition Subsequent (FSCS) - conditional language giving grantor right to re-enter upon occurrence of condition without automatic termination
Fee Simple Subject to Executory Interest (FSEI)- conditional or durational language which reverts to third party rather than grantor upon occurrence of condition/durational limit
Present Estates Affirmative Waste (voluntary) - exploitation of natural resources limited if necessary for repair or maintenance, land suitable only for
exploitative use, or by express or implied permission of grantor (open mines: life tenant can continue to mine but not open up new mines)
Life Estate - ownership of land measured by lifetime of owner or other (pur autre vie): entitled to ordinary uses Permissive Waste - fails to protect or preserve land; must preserve land and structures in reasonable state of repair, pay interest on mortgages,
and profits of land but cannot injure remainder or reversionary interests pay ordinary taxes, pay special assessments for public improvements of short duration (no obligation to insure)
Ameliorative Waste - change that economically benefits land allowed if market value not diminished and no objection or market value not
diminished and substantial and permanent change in neighborhood deprived land of current reasonable productiveness or usefulness

Possibility of Reverter - automatically follows FSD

Grantor's Future Interests Right of Re-Entry - right of grantor to re-enter land following FSCS
Reversion - estate remaining in grantor when creating a life estate (or any estate less than a FSA)

Springing - follows a gap or cuts short grantor's interest

Executory Interests - interest in third party that divests estate upon occurrence of specified condition or durational limit
Shifting - follows a gap or cuts short third party's interest
Indefeasibly Vested Remainder - remainder in ascertained and existing person that becomes possessory
upon normal termination of preceding estate and is not subject to condition precedent (not subject to
divestment or diminution
Vested Remainder Subject to Total Divestment - remainder subject to condition subsequent upon occurrence of condition/event
Vested Remainder Subject to Open - remainder created in class of persons that is certain to become possessory but subject to diminution (e.g., children)
Destructibility - destroys contingent remainder if fails to vest before or on termination of
Future Interests Remainder - interest created in other than grantor that becomes possessory following natural expiration of prior estate (e.g., life estate)
preceding estate - abolished in most states and creates executory interest instead
Contingent Remainder - remainder
Ownership Interests created in unborn or unascertained Merger - destroys gap of contingent remainder if both present and future interests
Third Party Future Interests are acquired by same person in different instruments
persons or subject to condition precedent Contingency Rules/Doctrines
(a condition that must be satisfied for Shelley's Case - prevents remainders in grantee's heirs - abolished by most states
remainder person to take possession
Worthier Title - prevents remainders in grantor's heirs absent specific intent of grantor - creates vested remainder in grantor for inter vivos
transfers only (not wills)
Transferability - modern law vested remainders, contingent remainders, and executory interests are transferable, descendible, and devisable unless survival is a condition to taking interest
Class Gifts - group shares common characteristic Rule of Convenience - class closes absent contrary intent when some member of the class can call for distribution
RAP - no interest in property is valid unless it must vest, if at all, not later than 21 years after some
life in being at the creation of the interest (applies to contingent remainders, executory interests,
vested remainders subject to open, options to purchase, etc.

Rule Against Restraints on Alienation - any restrictions on transferability of legal interests is generally void

Right of Survivorship Severed by inter vivos conveyance of interest to another, lien when actually sold at foreclosure, lien
Joint Tenancy - requires 4 unities to create (same time, title, interest, and possession + intent to create right of survivorship) and automatically passes to surviving joint tenant mortgages when sold and title mortgages when executed, contract to convey, murder of joint tenant in some states (Note: wills do
not sever join tenancy)
Tenancy by Entirety - presumption in any conveyance to husband and wife and only severed by death, divorce, mutual agreement, or execution by joint creditor; individual spouse cannot convey or encumber
Tenancy in Common - concurrent estate with no right of survivorship with each entitled to possession of whole
right to possess
Concurrent Interests
right to retain profits from own use of property but must share rents/profits from third parties
may encumber own interest unless tenancy by entirety
Rights and Duties of Co-Tenants right to a remedy of judicial partition
right to contribution for more than share of necessary repairs if notified other tenants of need for repairs; no right to contribution for improvements absent partition; right to taxes and mortgages unless tenant
in sole possession to extent exceeding rental value
duty of fair dealing with co-tenants and confidential/fiduciary relationship

Tenancy for Years - automatic termination with reversion in landlord expressly created with fixed period of time
Periodic Tenancy - estate for year or less which automatically renews at end of each period, requires one period notice except requires 6 months notice for one year lease
Types
Tenancy at Will - either party can terminate at will without notice under common law
Tenancy at Sufferance - created when tenant wrongfully remains in possession and landlord has not elected eviction or holdover status to new periodic tenancy

Duty to Pay Rent - right to damages only unless unlawful detainer statute to permit eviction
Renter Abandonment - can accept surrender or reject surrender with duty under majority law to mitigate by trying to relet premises
Not commit waste - modern law allows ameliorative waste (benefits) if long-term tenant and consistent with neighborhood
Duty to Repair - tenant has common law duty to repair excluding ordinary wear and tear; if landlord assumes duty to repair tenant must notify of needed repairs; if premises destroyed due to no fault neither must rebuild and common
law requires tenant to continue to pay rent
Duties and Rights
Implied Covenant of Quiet Enjoyment - that landlord will not evict;
Implied Warranty of Habitability - determined by housing code; residential tenant can terminate and move out, repair and offset costs, abate rent, or remain in possession and sue for damages
Deliver Possession - majority to put tenant in actual possession
Landlord Tenant Issues Holdover - evict or bind to new periodic tenancy; residential tenants with prior notice of rent increase are held to new periodic month-to-month at new rate
No Retaliatory Eviction - rebuttable presumption if tenant evicted after reporting code violation

Assignor in just privity of contract

Assignment = complete transfer of entire remaining term
Assignee in privity of estate with landlord and can enforce covenants that run with land (promises with intent + touch and concern land - benefit/burden interest in land)
Sub-Lessor in privity of estate and privity of contract with landlord
Assignments/Subleases
Sublease = partial transfer of remaining term Sub-lessee not in privity of estate or contract with landlord but can enforce implied warranty of habitability against landlord; landlord cannot sue for performance of any covenants
unless expressly assumed by sub-lessee

covenants against assignments/subleases are strictly construed against landlord and held waived if express or implied consent by landlord

landlord must disclose latent defects

landlord liable for injuries to public if knows or should know of dangerous condition, reason to believe tenant may admit public, and fails to repair dangerous condition
Tort Liability
landlord must undertake repairs with reasonable care and maintain common areas
landlord is liable for any defect for short term furnished rentals

Appurtenant = benefits holder in use and enjoyment of dominant tenant; benefit passes automatically while burden passes unless BFP without notice
Gross = easement use unrelated to land ownership; transfers only for economic or commercial interests
Types
Affirmative = allows holder of benefit to make affirmative use
Negative = prevents servient estate from impeding air, light, support, or flow of artificial stream
Express Grant - in writing and signed unless duration limited under 1 year; must comply with deed requirements
Express Reservation - in writing for grantor only who reserves use
Implied from Existing Use with division of single tract if apparent and continuous use + reasonably necessary + intent
Easements = right to use land of another for special purpose Creation Method
Implied from Plat - reference to map in subdivision when lots sold
Implied from Necessity - division of land sale deprives access that creates easement for access
Prescriptive Easement - open and notorious (discoverable on inspection), adverse (without permission), continuous and uninterrupted use of easement for statutory period
Scope - perpetual duration; assumed intended to meet both current and future needs; if created by division, then cannot unreasonably overburden
Property Ace Win- servient estate; holder has duty to repair
ning Game Plan Termination under stated conditions, merger of ownership, deed of release; abandonment by physical action + intent; reasonable reliance resulting in estoppel; inverse
prescription; end of necessity if implied from necessity; condemnation
User Interests Terminated by written release; merger, or condemnation
Real Covenant = written promise regarding use of land with remedy of damages Burden runs if intent + notice + horizontal privity + vertical privity + touch and concern
Enforcement by/against Subsequent Owners
Benefit runs if intent + vertical privity + touch and concern
Negative Reciprocal Servitude - implied from common scheme from developer plan prior to sales of parcels; enforced if notice if not in deed + intent
Equitable Servitude = written promise unless negative reciprocal equitable servitude with remedy of injunction Burden runs if intent + notice + touch and concern
Enforcement by/against Subsequent Owners
Benefit runs if intent + touch and concern
Licenses = privilege to use land for particular purpose; revocable at will unless estoppel or coupled with interest; inalienable; arises often when easement created in violation of statute of frauds

Profits = right to take resources from land; extinguished through surcharge (misuse that overly burdens)

intent = intended that successor be bound or benefited

notice = actual, inquiry, or recorded notice
Definitions horizontal privity = original purchases shared some interest independent of covenant
vertical privity = successor acquired entire durational interest
touch and concern = benefits or burdens in use and enjoyment of land

Lateral Support = right to have land supported in natural state by adjoining land; adjoining owner strictly liable for land damages if excavating and negligently liable if buildings damaged unless land would
have collapsed in natural state

Subjacent Support = underground occupants must support existing buildings and negligently liable for new buildings
Riparian = water belongs to border owners of watercourse

Prior Appropriation = determined by first beneficial use

Absolute = owner can take all
Reasonable use = cannot harm others
Catch-All Rights/Interests Groundwater
Water Correlative = owners own water basin as joint tenants with reasonable uses
Appropriation = determined by priority of beneficial use
natural flow theory = owners cannot alter natural drainage except for reasonable changes
Surface Waters generally can capture as much water as one desires; can divert to any purpose common enemy = owner can take protective measures to get rid of water except unnecessary damages to others
reasonable use theory = balance utility of use against gravity of harm
Common Ownership - fixture if objective intent determined by nature of article, manner of attachment, amount of damages to remove, and
Fixture Issues = chattel so a!xed to land that it ceases to be personal property and passes with land ownership adaption to realty or other items not physically attached if uniquely adapted to realty (e.g., keys)
Divided Ownership - absent agreement chattel must be removed and damage repaired (e.g., tenant chattel)

SOF required unless two of three (possession, payment, subsequent performance)

Presumption that time is not of essence
Seller must provide marketable title at closing (free from unreasonable risks of litigation = no defects in title of chain, no encumbrances, no zoning violations, no adverse possessor); remedy requires notice + reasonable opportunity for seller to cure
buyer dies - interest passes as real property
Contract Issues Equitable Conversion if party dies before delivery of deed (buyer is equitable owner and seller owns personal property interest in land)
seller dies - interest in purchase price passes as constructive trust for heirs
Risk of Loss - majority rule on buyer after contract signed unless Uniform Vendor Act
Defective Property General Disclaimer - ineffective for misrepresentation, active concealment, failure to disclose serious defect that would cause reasonable buyer to reconsider
At closing seller no longer liable for contract covenants

presumption that land passes to center of right of way or water boundary; accretion (slow changes) changes boundary but not avulsion (sudden changes)
Reformation available for mutual mistake, scrivener's error, unilateral mistake due to misrepresentation
Formalities = in writing + signed by grantor + reasonable identification of parties and land ("good lead")
Void if forged of fraud in factum, even for BFP
Voidable if lack of capacity, fraud in inducement, duress, undue influence, etc.

intent to make presently effective without retaining control or interest

Delivery and Acceptance
acceptance presumed and relates back to time of deed

Seisin = owns both title and possession of estate purporting to convey

Land Sale! = Contract + Deed Right to Convey = authority to make grant
Deed Issues
Covenant Against Encumbrances = no physical or title encumbrances
Warranty Deed Quiet Enjoyment = grantee will not be disturbed by lawful third party claim of title
Warranty = defend against reasonable claims of title by third parties and compensate for superior title losses
Types of Deeds
Further Assurances = promise to perform acts reasonably necessary to perfect title
Note: first three covenants are only breached if at all at conveyance
Special Warranty Deed = warrants grantor had not conveyed same estate to anyone else and estate free from encumbrances by grantor
Quitclaim Deed = releases whatever interest grantor has (still needs marketable title at closing under contract theory)
The Big Land Deal!
Estoppel by Deed = subsequent acquisition of estate previously conveyed wrongfully provides grantee with after-acquired title from grantor unless BFP acquired title from grantor

Notice = subsequent BFP prevails if no notice

Race-Notice = subsequent BFP prevails if no notice + records first
Race = grantee who first records prevails
Recording Acts - generally protect BFP from secret interests previously created Note: only BFP's protected under notice and race notice statutes (purchaser for value + without notice)
Actual
Types of Notice Record Notice - within chain of title
Inquiry Notice

Requirements = actual (required for entire area of land unless under color of title) + exclusive (not sharing with owner or public) + open and notorious possession (su!cient to put true
Land Grab! Adverse Possession owner on notice of trespass) + hostile (without owner's permission) + continuous (throughout statutory period consistent with use; can tack to other's possession without privity)
SOL doesn't run if true owner under disability when cause of action first began

Ademption = specific gift of land fails if no longer owned by testator

Land by Will Exoneration = devisee of specific property entitled to have residuary estate pay liens and mortgages
Anti-lapse statutes?

Transfer of Property with Mortgage - grantee takes subject to mortgage but is not personally liable unless assumed mortgage

Lien Theory = bank has interest and cannot possess until foreclosure
Default
Title Theory = bank owns land interest until paid o" and can possess land before foreclosure

Mortgages sale required

mortgagor may redeem land prior to foreclosure sale or some period after foreclosure in some states
Foreclosure Priorities = determined by time mortgage interest placed on land; foreclosure generally destroys junior interests but not senior interests (unless Priority can be changed by operation of recording statute if prior bank failed to record; subornation agreement; PMM; modification of senior mortgage; granting of
failed to include junior interest holder) optional future advances with notice to junior liens
Retains deficiency action against mortgagor individually

Property Ace Winning Game Plan.mmap - 12/31/15 - Scott Johns

Torts
 Any Torts?

Torts "Ace" Winning

Any defenses?
Game Plan

Any special circumstances?

Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns

 Intent = Desire/Purpose or Knowledge to Substantial Certainty
Act = volitional movement
intentional act that causes harmful or Causation = set in force motion
Battery
offensive contact to another person Contact = either direct (actual) or indirect touching (object intimately connected to another person)
Harmful = causing physical pain, injury, or illness
Harmful or Offensive
Offensive = violating a reasonable person's sense of dignity

intentional act that causes reasonable

Assault apprehension of imminent harmful or
offensive contact to another person

People? Acts of Confinement Restraint = use of physical

barriers, physical force, threats of force, invalid use of
authority, but not moral pressure or future threats
intentional act that causes confinement/
False Imprisonment Bounded Area = freedom of movement
Any Torts? Intentional Torts? restraint of another person to a bounded area
limited in all directions with no reasonable
means of escape
plaintiff must be aware or injured b y confinement

intentional or reckless extreme and

Torts "Ace" Winning outrageous conduct that causes severe
Game Plan Intentional Infliction of Emotional Distress emotional distress
Bystander cases: present + close relative
+ defendant knew
intentional act that causes physical
Trespass to Land
invasion of real property
Property?
Trespass to Chattel intentional act that causes interference with right of possession in chattel with damages

Conversion intentional act that causes interference with right of possession in chattel sufficiently serious to warrant full value

Transferred Intent = transfer person-to-person and tort-to-tort if assault-battery-FI-trespass to land-trespass to chattel

Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns

 Prima facie case = duty + breach + causation + damages

generally no affirmative duty to act unless

assumes, creates peril, special relation-
ship, duty to control others, etc.
general rule = RPP under similar
circumstances
child = like age, education, experience,
intelligence unless adult activity
experts = knowledge and skill of member
in good standing in similar communities
(national standard for specialists)
common carriers/innkeepers = high
degree of care
undiscovered = no duty
anticipated/discovered = duty to warn,
make safe known conditions if non-
RPP under similar circumstances obvious and highly dangerous
dangerous artificial condition on land
Trespasser owners knows or should know
children frequent area
children (attractive nuisance)
Duty condition likely to cause injury
Land Occupiers/Owners expense of remedy slight vs. magnitude of
risk

duty to warn/make safe non-obvious

Licensee
dangerous conditions

duty to make reasonable inspections and

Invitee warn or make safe non-obvious
dangerous conditions

duty to warn of existing defects not likely

Lessor
Any Torts? Negligence? discoverable by reasonable inspection

Cardozo: within zone of danger

Foreseeable plaintiffs
Andrews: one for all

Protected Harm?
Torts "Ace" Winning Negligence Per se
Protected Class?
Game Plan
Duty "Shortcuts" Type of accident does not normally occur but for negligence
Res Ipsa Instrumentality in exclusive control of defendant
Plaintiff not at fault

Breach Failure to conform to applicable standard

But for test

Actual Joint causes = substantial factor
Alternative causes = burden shifts to defendants if both defendants negligent

Direct = uninterruptted chain

Causation Intervening versus superseding
(unforeseeable result and unforesee-
Indirect
Proximate = liable for all foreseeable harmful results that are normal incidents and within increased risks of defendant's act Dependent = usually foreseeable versus
independent = usually liable if foreseeable result
Zone of danger
Special Rules
eggshell plaintiff

Damages D = actual injury

threat of physical impact or severe
emotional distress resulting in physical
injuries unless corpse or false report of
Negligent Infliction of Emotional Damages death of relative
bystanders must be in zone of danger
unless close relationship, observed injury,
and present at scene

Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns

 Wild animals dangerous propensities
Wild Animals
domestic animals if know of dangerous propensities
serious risk of harm
can't be performed without risk no matter how much care
Any Torts? Strict Liability? Abnormally Dangerous Activities not commonly engaged in particular community
value of activity
appropriateness of location

Prima facie case = absolute duty to make

safe + breach + causation + damages

Torts "Ace" Winning

Game Plan

Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns

 strict duty by commercial supplier (existence of
defect when left defendant's control)
breach - supplying defective product that
is unreasonably dangerous
causation
Strict Liability
damages
manufacturing
Type of defects design = unreasonably safe + reasonable alternatives or consumer expectation test
failure to warn

commercial supplier with duty

breach = supplying defective product that
Negligence is unreasonable dangerous
causation
damages

battery
Intentional Torts
possible punitive damages
Any Torts? Products Liability?
merchantability = average acceptable
quality and fit for ordinary purposes
fitness for particular purposes = seller
Implied
nows and buyer relies
Torts "Ace" Winning no vertical privity required but requires
Game Plan horizontal privity
Warranty
affirmative of fact/promise that is basis of bargain
fact or promise
Express basis of bargain
causation
damages

statement of material fact

seller intended to induce reliance
Misrepresentation justifiable reliance
causation
damages

Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns

 Substantial and unreasonable interference
Private Nuisance
with use and enjoyment of property
Property Torts
substantial and unreasonable interference with
Public Nuisance
health, safety, property rights of community

Defamatory statement - facts not opinion that

adversely reflects on reputation in community

Of or concerning - reasonable person

understands refers to plaintiff
Publication - communicated to one other
person who understands/liable for
repetition by others if foreseeable
libel - written/permanent
Presumed for libel & slander per se (or for
oral repetitions of libel/SPS SPS - CIMT/loathsome disease/
Damages
unchastity/business affairs
Defamation Defamation? Actual proof for slander - spoken/transitory
Public Official - substantial authority in government affairs
Public Figure - achieved pervasive fame or notoriety or
voluntarily assumes central role in public controversy
Public Concern - significant public interest
Constitutional Free Speech Issues Public official or public figure requires actual malice -
knowledge or reckless disregard for truth or falsity
Fault (entertains serious doubts)
Reputation/Privacy Torts
Private person/public concern requires at least negligence
plus actual damages even if libel or slander per se
Falsity - plaintiff must affirmatively establish statement is not true in prima facie case

attribution of views or actions plaintiff does not

hold
False Light
publicity - widespread communication
highly offensive to reasonable person

public disclosure
private facts
Any Torts? Catch-All Torts? Public Disclosure of Private Facts
highly offensive to reasonable person
Privacy Torts
not of legitimate public concern

unauthorized use of name or likeness for

Appropriation
Torts "Ace" Winning commercial advantage

Game Plan prying or intruding

Intrusion Upon Seclusion private matter
highly offensive to reasonable person

Interference with Contractual Relations

Interference with Prospective Business Relations
Prima facie case = contractional
relationship or business expectation +
defendant has knowledge + intentional
interference + damages
misrepresentation of material fact
scienter = knowledge
intent to induce reliance
Business Torts Fraud/Intentional Misrepresentation
causation
justifiable reliance
Misrepresentation damages

misrepresentation with duty in business or

professional capacity
Negligent Misrepresentation breach
causation = justifiable reliance
damages

institution of criminal proceedings, termination in

Malicious Prosecution plaintiff's favor, lack of probable cause, improper
purpose, and damages
Court Torts
wrongful use of process for ulterior
Abuse of Process purpose with some definite act/threat to
accomplish purpose

Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns

 available using reasonable force if reasonable
belief about to be attacked
duty to retreat if safe
Self-Defense
unless at home
not usually available
if initial aggressor
available if reasonable belief other
Defense of Others has right to defend herself using
reasonable force
must first request desist or leave unless futile; available if using reasonable force
Defense of Property
to protect against commission of property tort but never deadly or SBI force
Misdemeanor: only if breach of peace crime and committed in front
of person; never deadly force
Arrest
Felony: reasonable belief that person arrested has committed felony;
reasonable force using deadly force only if suspect poses threat of serious harm
IT Defenses reasonable belief that theft has occurred using reasonable force for
Shopkeeper's Privilege
investigative purposes only and never using deadly or SBI force
Express: actual unless procured by
fraud/duress to essential matter
Implied: reasonable person inferred from custom,
Consent conduct, or law
Capacity to consent
Scope of consent not
exceeded
Public Necessity: act for public good privileged if reasonably and apparently
necessary to avoid threatened injury and injury is substantially more serious
that invasion to property
Necessity
Private Necessity: act for private good privileged if reasonably and apparently
necessary to avoid threatened injury and injury is substantially more serious
that invasion to property; must pay actual damages
Discipline
Duty
Breach
Causation
Damages
Any defenses? Comparative/Con- Limits? not to intentional torts;
tributory Neg. defendant last clear chance
doctrine, etc.
Negligence Defenses
Torts "Ace" Win- Comp = pro rata share if pure; partial share only
ning Game Plan if plainti! less culpable than defendant
Contributory Neg. =
complete bar
Knows of risk
A/R? Voluntarily proceeds
in face of risk
Assumption of Risk
Strict Liability Comparative Negligence
Defenses Contributory Negligence only if plainti! knew of
danger and caused miscarriage
Comparative Negligence
Assumption of Risk
S/L Products
Contributory Negligence only if plainti! knew of danger
and caused miscarriage
Negligence Comp/Contrib Negl/AR
Assumption of Risk
Products Liability
Contributory Negligence only if plainti! knew
Defenses Warranties
of danger and caused miscarriage
Comparative Negligence
Misrepresentation
Defenses
Intentional Tort
Defenses
A"rmative defense available if common law
Truth?
defamation or false light claim
statements/reports in legitimate
interest of recipient/publisher
Catch-All Defenses Defamation/Privacy Qualified Privilege? within scope of
interest
no malice by speaker
Absolute Privilege?
Consent
Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns
 Actual Damages for personal
Legal or property damage
Punitive Damages if willful
Restitution
Equitable
Inunction
contribution: liability
based on equal shares of
measurable fault
Remedies? Joint and several comparative
liability: 2 or more contribution
acts combine to : liability
cause 1 indivisible based on
injury or two or more relative fault
act in concert (liable indemnity: shifts entire
for entire damages) burden of loss to non-
culpable party
satisfaction and
release
master V/L for torts
within scope of
employment
detour versus frolic
Respondeat Superior (minor in time/geog-
raphy versus large)
Any special circum-
no V/L for intentional torts
stances?
unless force, friction, or in
furtherance
Torts "Ace" Winning principal not liable
Game Plan for torts of agent
Independent Con-
unless inherently
tractors
dangerous activity or
non-delegable duty or estoppel based on apparent authority
Vicarious Liability = imputed no V/L unless knows
negligence derivatively of child's dangerous
Parent-Child
imposed due to existing propensities or child
relationship acts as agent
no V.L unless family
car doctrine or per-
missive use statute,
Automobiles
principal/agent rela-
tionship, or within
scope of employment
agreement + com-
Joint activity mon purpose +
share in control
Always evaluate
principal for possible
negligent
supervision, hiring,
recruitment, etc.

Torts Charts Update W 2017.mmap - 1/2/17 - Scott Johns