Bar Prep;legal Approaches By Subject Matter

Front 1

CONTRACTS

Back 1

1. Is there a K?
a. Offer
b. Acceptance
c. Consideration
2. Do any defenses bar the K?
3. Is the duty to perform subject to conditions, and if yes, have the conditions been satisfied or excused?
a. Is there a condition in K and is it express or implied?
b. Is yes, has it been fulfilled OR excused:
i. Anticipatory repudiation
ii. Disablement
iii. Estoppel
iv. Impossibility
v. Prevention of Performance
vi. Waiver
c. If condition has not been fulfilled to excused, then what is the effect of non-occurrence of the condition on the duty to perform?
Answer depends on if condition precedent or subsequent)

4. Has the duty to perform been discharged?
a. Frustration of purpose
b. Impossibility
c. Impracticality
d. Occurrence of a condition subsequent
e. Subsequent agreement by the parties
5. Has the duty to perform been breached? (if one fails to perform, it can be a material or minor breach)
6. Are there any 3d pty beneficiary (who is the 3d pty bene, did the K’ing ptys intend him to benefit, what is the effect of the K, e.g., can 3d pty sue?) assignment or delegation issues?
7. What is the remedy?

Front 2

CONTRACT REMEDIES ?

Back 2

1. Is injured party entitled to damages?
• K damages usually measured by mkt price – K price
• Consider consequential. Incidental, nominal and punitive and any limitation on these
2. Is injured pty entitled to restitution, rescission, or reformation?
3. May the injured party obtain specific performance?
• Service K: no specific perf
• Usually obtainable when there has been unjust enrichment, fraud or mistake affects K
• Legal remedy is inadequate
• Terms of K are def and certain
• Feasible for ct to supervise and enforce K
• Mutuality of performance exists
• No defenses
4. Are any miscellaneous issues raised as to land sale K’s , Construction K’s or personal service K’s

Front 3

CONSTITUTIONAL LAW

Back 3

1. What power is being exercised? Judicial power (then ask standing) State’s power, exec power, commerce power
2. Are there any limits on the exercise of that power?
d. State Acton Limitation?
e. Constitutional limitations? (EP, SDP, Takings, COMMERCE CLAUSE violation, privilege and immunities?), Etc.
3. What std of review applies?

Front 4

EVIDENCE
Five Prescription Exercises Can Increase Prostate Health

Back 4

1. Form Problems (objections/leading)
2. Is the Evidence Relevant?
a. Is the evidence logically relevant?
b. Legally Relevant/ aka excluded by Judicial discretion? (probative value outweighs prejudicial effect)
c. Special relevance questions
3. Is the evidence reliable?
a. Is the evidence authenticated (evi is what proponent claims it to be)?
i. Real/demonstrative evidence (gun, blood test): Object must be id’d as what proponent says it is by (a) Testimony OR (evidence of substantially unbroken chain of custody)
ii. Documents: a writing or 2d evi of contents: (a) admitted in pleadings or stips (b) eyewitness who saw it executed or acknowledged(c) some handwriting verifications; (d) ancient doc (20 Fed/30 CA) (e) reply letter; (e) photos with witness ID or proper ops of camera (f) xray – machine working and proper operator and chain of custody
iii. Oral statements of a person: testimony re: voice ID/ rules re: telephone conversations (unique knowledge/ called number and person answered as that number)
iv. Self authenticating docs: cert public recds, newspapers, trade inscriptions, notarized docs, cert biz records, commercial paper


b. Does Fed Best Evidence or CA Secondary Evidence rule apply?
i. To prove the terms or of a writing (doc, photo, xray) the orig (or exact duplicate) must be produced if terms are material. 2d evidence of writing (oral testimony about the terms) admissible only if orig unavailable.
ii. Applies when writing is legally operative doc, e.g., will, deed OR witness’s knowledge about fact results from having read it or seen it on a doc)?
iii. Does not apply to: fact to be proved exists indpt from writing (mag article describing event); writing of minor impt; summaries of voluminous records; cert public docs

4. Evidence Barred by Extrinsic policies?
a. Liability insurance
b. Subsequent remedial measures
c. Settlements, offer to settle & plea bargains + related admissions of fact or liability
d. Payment or offers to pay medical expenses CA: admissions of fact accompanying payment or offers inadmissible.
5. Admissible to show character?
6. Admissible to impeach?
7. Barred by Privilege?
8. Barred by HS?

Front 5

CIVIL PROCEDURE

Back 5

1. Does the court have PJ over the Defendant (s), SMJ and are Notice and Venue requirements met? What law applies?
2. Are parties or claims properly pled by both parties?
a. Fact and Notice Pleading
b. Complaint reqts
c. Challenges to Complaint
d. Answer
e. Amendments
3. Are the parties or claims properly joined for trial?
a. Class action
b. Intervention
c. Interpleader
d. Impleader
4. Any Pretrial Issues presented?
a. Written of oral depos
b. Admissions of fact
c. Docs and other items
d. Interrogatories
e. Mental or physical exams
f. Subpoena duces tecum
g. Limits on discovery
h. Sanctions for non compliance
5. What trial issues are presented?
a. Jury trial
b. Jury selection
c. Verdicts
d. Misconduct
e. Trial motions (Nonsuit; Directed verdict)
6. Are any post-trial issues presented?
a. Post-trial motions
i. Renewed Motion for Judgment as a Matter of law
ii. Motion for New Trial
iii. Motion for Relief from Judgment
b. Finality of judgment issues
i. Appeals
ii. Res Judicata
iii. Collateral Estoppel
iv. Full Faith and Credit

Front 6

TORTS

Back 6

1. What COA action exists (elements/prima facia case met)?
a. Intentional Torts (“LBC Café”)
i. Trespass to Land
ii. Battery
iii. Trespass to Chattel
iv. Conversion
v. Assault
vi. False Imprisonment
vii. Intentional Infliction of Emotional Distress

b. Negligence
i. Duty (included Standard of Care )
ii. Breach
iii. Causation
iv. Damages
c. Strict Liability
i. Animals
ii. Hazardous Activities
d. Products Liability
i. Misrepresentation
ii. Strict Liability
iii. Negligence
iv. Express Warranty
v. Implied Warranty
e. Defamation
i. Defamatory matter
ii. Of and concerning P
iii. Published to 3d pty
iv. Economic damages (no req if slander per se)
f. Privacy Torts
g. Miscellaneous Torts
i. Economic Torts
1. Fraud
2. Misrepresentation
3. Interference with advantage
4. Intentional Interference with Contract Relation
ii. Nuisance
1. Public
2. Private
iii. Malicious Prosecution
iv. Abuse of Process
2. Defenses?
a. Defenses to Intentional Torts (“ND COPPRS)
i. Necessity (public and private)
ii. Consent
iii. Defense (Self/Others/Property)
iv. Discipline
v. Privilege (shopkeeper)
vi. Recovery of Property
b. Defenses to Negligence:
i. Contributory/comparative
ii. Assumption of Risk
c. Strict Liability Defenses:
i. Assumption of Risk
ii. Comparative Negligence
d. Defenses to Defamation:
i. Absolute Defenses
ii. Qualified Defenses
iii. Effect of Retraction
e. Products Liability Defenses (depend on theory)
i. Assumption of Risk
ii. Misuse of Product
iii. Failure to follow Instructions
iv. Failure to Give Notice
v. “State of the Art” Defense
f. Invasion of Privacy Tort Defenses
g. Economic Tort Defenses
h. Defenses to Miscellaneous Torts
3. Do any general considerations apply?
a. Vicarious Liability
b. Immunity
c. Recovery for Injury to Another
d. Multiple D problems
e. Statute of Limitations

Front 7

TORTS REMEDIES

Back 7

1. Is the injured party entitled to damages?
a. General: Foreseeable losses
b. Special: not necessarily foreseeable
2. Is the injured party entitled to restitution?
a. Replevin, ejectment, quasi-contract, constructive trust, equitable lien
3. May the injured party obtain an injunction?
a. Legal remedy inadequate
b. Property rt
c. Feasibility
d. Balancing hardships
e. Defenses to injunction (laches, unclean hands, etc)

Front 8

CORPORATIONS

Back 8

1. Formation Issues?
a. Was the corporation validly formed?
i. De jure
ii. De Facto
iii. By Estoppel
b. If so, can the corporate veil be pierced?
2. Stock Issues:
a. Did the corporation properly issue stocks/dividends and
i. Stock subscriptions
ii. Requirements for valid issuance of stock and dividends
b. Do the doctrines of preemptive rights , repurchase or redemption apply?
3. *Stock Transfer Liability: Is D liable for common law pr statutory violations of security laws?
a. Common Law liability
b. Rule 10B-5 Securities and Exchange Act
c. Rule 16B of the Securities and Exchange Act
4. Duties & Rights of Promoters, Shareholders, Directors and Officers:
a. Are the promoters, shareholders, directors and officers acting within the corporation’s powers; and
b. Have any duties to the corporation or shareholders been breached?
5. Corporate Merger and Dissolution Issues (Transformation, Death and Termination of the Corporation.

Front 9

CRIMINAL PROCEDURE

Back 9

1. Have the Defendant’s 4th Amendment Rights been violated?
a. Illegal Detention
i. Was the D detained?
ii. Did cops have a reasonable basis for believing that D was in or about to engage in criminal activity?
iii. Was the stop temporary and no longer than necessary?
iv. If D was frisked, did the officer have a reasonable belief that D was armed?
b. Illegal Arrest
c. Illegal Search and Seizure
d. Illegal Electronic Surveillance
2. Have the Defendant’s 5th Amendment Rights been violated?
a. Voluntariness
b. Escobedo
c. Miranda
i. Was D in custody?
ii. Was D subject to interrogation?
iii. If i and ii, was D given Miranda warnings?
iv. If so, did D knowingly and intelligently waive Miranda rights?
v. Are any general considerations or exceptions presented by the facts?
3. Has the Defendant’s 6th Amendment Right to Counsel been violated?
a. Illegal Line-ups
b. Was D deprived of Counsel?
c. Was D’s representation by counsel ineffective or impaired by a conflict of interest?
4. Have the other rights accused been violated?
a. Bail
b. Speedy Trial
c. Discovery
d. Indictment

Front 10

CRIMINAL LAW

Back 10

1. What Crime was Committed? Are the elements met?
a. Specific Intent Crimes (specific intent or objective): FLARE SCAB 2: First Degree premeditated murder, Larceny, Assault (intent to commit a battery) Embezzlement, Solicitation, Conspiracy, Attempt, Burglary, Forgery , False Pretense
b. General Intent: Battery, Assault (creating apprehension) Kidnapping, Rape, False Imprisonment
c. Malice: Common Law Murder (reckless disregard); arson
d. Strict Liability: Statutory Rape; ;liquor to monist , bigamy

2. Do any defenses apply? (MEDIIICS!)
a. Mistake of Fact (to negate intent)
i. General Intent: Reasonable Mistake
ii. Specific Intent :Any mistake
iii. SL: No mistake
b. Entrapment
c. Duress
d. Insanity
e. Intoxication: Voluntary (only to sp. Intent) /Involuntary (form of insanity so def to all)
f. Infancy
g. Consent
h. Self-Defense

Front 11

COMMUNITY PROPERTY

Back 11

1. Does CA Community Property Law apply to this item of property?
a. Putative Spouse issues/ marriage invalid?
b. If living elsewhere when property acquired then quasi- CP applies
2. What is the SOURCE of the item?
a. Earnings
b. Pension rights
c. Disability
d. Worker’s comp
e. Stock Options
f. Severance Pay
g. Business goodwill
h. Federal Benefits
i. PI damages
j. Gifts
k. Real Property
l. Rents, Profits
m. Life Insurance
n. Education/Training
3. Any ACTIONS by the ptys alter the character of the property?
a. Agreements b/w spouses affecting the property
b. Gifts b/w spouses
c. Commingling SP and CP
d. Community services/ labor or funds used to improve SP/ SP business
e. Separation
f. Form of Title (JT, One spouse only, etc)

4. Any statutory PRESUMPTIONS apply?
The presumption that ________will be overcome/rebutted by these facts________ and the property is SP/CP.

a. General presumption (overcome by: 1. statutory facts (gift, devise, or rent, income from Sp; 2. ptys took title in a way that shows agrees to hold property as otherwise , e.g., JT; ptys agreed it would not be CP; 3. one sp took title in form that evidences gift to other spouse; 4. purchase funds are traced to an SP source( SP estate is owner in proportion to the purchase price; single bank account with not rt of withdrawal of other spouse)
b. Married woman’s presumption (only property acquired b/f 1975)
c. W and 3d Party Tenancy in Common Presumption
d. H & W CP Presumption
e. Jointly held property presumption
f. Family Expense Presumption
5. Any issues raised as to management and control of CP during marriage?
a. Of CP real and personal property
b. Of CP business
c. Debts owed to 3d ptys and between H & W.
6. How should the property be disposed of? Conclude!

Front 12

PROPERTY

Back 12

1. What is the type of ownership interest?
a. Presently owned/possessed land
b. Future Interest
c. Incorporeal Interest
d. Rights in Land/Fixtures
e. Adverse Possession
2. What characteristics are inherent in such ownership and what rights and duties arise from such ownership?
3. Are there any limits on such ownership?
4. Land sale contract issues?

Front 13

TRUSTS

Back 13

1. Are the requirements of the trust met?
a. Beneficiary
b. Trustee
c. Res
d. Intent
e. Purpose
f. Settlor
2. What kind of trust was created? (TRISH STRIPS in DC)
3. Was the trust modified or revoked?
4. Are T’s acts authorized and has he breached any duties? (SAFE AD)
a. Supervise Agents
b. Avoid self dealing
c. Follow instructons
d. Earmark Assets
e. Act with skill
f. Diversify

Front 14

REMEDIES

Back 14

1. Are LEGAL remedies adequate?
a. Damages ($$)
b. Legal Restitution
i. Replevin
ii. Quasi-K ($$ measured by ill-gotten gain)
iii. Ejectment
2. If legal remedies are inadequate, how about EQUITABLE remedies?
a. Equitable Restitution
i. Constructive Trust (D has title)
ii. Equitable Lien
b. Torts (injunction
c. Contracts (specific performance or special remedy – rescission or reformation)

Front 15

PROFESSIONAL RESPONSIBILITY

Back 15

Checklist of Duties Owed to Clients: Mnemonic: “Clients love fierce counsel.”
1. Confidentiality
a. Duty of confidentiality
b. Attorney-client privilege
2. Loyalty
3. Financial Responsibility
a. Conflicts of Interest
b. Attorney Fees
c. Client Trust accounts
4. Competence & other common senses duties
a. Duty of competence
b. Duty of diligence
c. Duty to communicate
d. Duties on withdrawal

B. Checklist of Duties Owed to Other Third Parties: Mnemonic: “Courts feel differently”
1. Candor: owed to the 1) public & 2) to the tribunal
a. Duty of candor owed to the public
i. Advertising
ii. Solicitation
2. Duty of candor owed to the tribunal:
a. Duty to present facts & E truthfully
b. Duty to produce E
c. Duty to uphold the law
3. Fairness: owed to parties & OC
a. Fair dealings w/others
b. Dealings w/press
c. Special duties of prosecutors
4. Dignity/Decorum: owed to profession, third parties
a. Duty to preserve the impartiality & decorum of the tribunal
b. Duty to expedite cases
c. Additional duties to profession & public
5. And other reasonable things: public etc.
a. Duties of subordinate lawyers

Essay Tip: For each individual or entity, including tribunal & third parties match up a duty & note the conflicts of duties that might exist.

Front 16

WILLS

Back 16

WILLS
1. Is there a valid will?
a. Holographic?
b. Formal?
2. What documents make up the will?
a. Integration
b. INcorpoaryipn byu reference
c. Acts of independent legal significance
d. Codicil
3. Are there any defenses to the will?
a. Fraud
b. Mistake
c. Undue influence
4. Has the will been revoked, republished or revived or does the doctrine or indpt relevant revocation apply?
5. How should the property be distributed?

Front 17

CONSTITUTIONAL LAW CHECKLIST

Back 17

I. Steps In Con Law analysis
a. Threshold Issues
i. Standing, mootness, ripeness, state action (abstention)
b. Applicable Amendment
i. Look for issue pairings
ii. If this a property right or an liberty right?
c. Applicable Elements for Claim
i. If element missing, facial challenge
ii. If all elements addressed in statute, as applied challenge
d. Level of Judicial Review
i. Strict scruitiny, intermediate scrutiny, rational basis, or a special test
e. Closing Issues (sometimes)
i. Vagueness, overbreadth, excessive discretion
II. THRESHOLD ISSUES
a. Standing
i. Associational Standing
ii. Third-party standing
iii. zone of interests
iv. Abstention
b. Mootness
c. Ripeness
d. State Action
III. LEVELS OF JUDICIAL REVIEW
a. Rational Basis (RBR)
b. Intermediate Scrutiny (IS)
c. Strict Scrutiny (SS)
IV. PROPERTY RIGHTS GUARANTEES: TAKINGS & CONTRACT CLAUSE
a. Takings: 5th amend (feds) and 14th Amend (states)
b. Contracts Clause
i. Judcial Review
1. private contracts: intermediate scrutiny
2. public contracts: strict scrutiny
V. PROPERTY/LIBERTY RIGHTS: SUBSTANTIVE AND PROCEDURAL DP
a. Substantive DP
i. Abortion
1. Undue Burden Test
ii. Right to Interstate Travel
iii. Fundamental Right to Vote
iv. Economic Activites
b. Procedural DP
i. Property
ii. Liberty
1. intentional govt action req
iii. What process is due?
iv. Use Mathews balancing test for type and timing:
VI. EQUAL PROTECTION (5th and 14th Amends)
a. For all claims, must prove intentional discrimination. Test?
b. Race or National Origin: Suspect
i. Affirmative Action Cases:
c. Alienage: Sometimes suspect
i. Federal vs. State Govt
d. Gender: Quasi-Suspect
e. Illegitimacy: Quasi-suspect
f. Fundamental Rights Restrictions: Suspect
g. Non-Suspect
VII. EXPRESSIVE FREEDOMS: SPEECH, PRESS, ASSOCIATION, RELIGION
a. Analytical Steps
b. Content-based vs. content-neutral
i. Content-based restrictions on subject matter or viewpoint
ii. Content-neutral laws that burden expressive conduct
c. Prior restraints
d. Vague, Overbroad, Unduly Discretionary
VIII. UNPROTECTED/LESS PROTECTED SPEECH
a. Incitement of Illegal Conduct
b. Fighting Words
c. True Threat
d. Obscenity and Sexually-oriented speech
i. Miller test
ii. Child porn
iii. Zoning adult businesses
e. Defamation
f. Commercial Speech
IX. FREEDOM OF SPEECH: TIME, PLACE, MANNER
a. Forum Rules
i. Public or limited forums
ii. Nonpublic forums
iii. Private property
X. OTHER EXPRESSIVE ACTIVITIES
a. Freedom of Press
i. Publication of Unlawfully Obtained Information
b. Freedom of Association
i. Association for political activities is a fundamental right:
ii. Association for Illegal Activities
iii. Anonymous Association
iv. Discriminatory Membership
v. Govt Employees
vi. Loyalty oaths
c. Freedom of Religion
i. Free Exercise Clause
ii. Establishment Clause
1. Lemon test:
XI. FEDERAL EXECUTIVE POWERS; Article II
a. Conflict of laws hierarchy
b. Warmaking Power
c. Appointment and Removal of Officers
d. Impeachment, conviction, removal:
e. Executive Immunity and Privilege
f. Pardon power
XII. FEDERAL LEGISLATIVE POWERS: Article I
a. Enumerated Powers and Necessary and Proper
b. Commerce Power
c. Taxing and Spending Power
d. Civil Rights Enforcement (14th Amend, sec 5)
e. TENTH AMEND
f. ELEVENTH AMEND limits on Congressional Powers
g. Legislative and Line item veto
XIII. PREEMPTION, DORMANT COMMERCE CLAUSE, P&I DOCTRINES
a. Preemption (from Supremacy Clause)
b. Dormant Commerce Clause
c. Privileges & Immunities Clause (Article IV, sec2)