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212 Cards in this Set

  • Front
  • Back
Statute
1. Contracts
2. Crim
3. Crim Pro
4. Property
5. Torts
6. NY Pract
7. Wills
8. Corporations
9.Domestic Relations
10. Commercial Paper
11. Mortgages
12.Trusts
13. Agency
14.Partnership
15. Professional Responsibility
1. Common law, NYGOL , UCC
2.NY PENAL
3.Crim Pro Law
4.NYGOL, common law, NYRPL, Uniform Vendor and Purchaser Risk Act
5. Art. 16 CPLR, Common, NYGOL, Gen. Muni Law
6.CPLR
7. EPTL
8.BCL
9. NYDRL
10. Art 3 UCC
11. Common and NYRPL
12.EPTL
13. Common, NYRPL, NYGOL
14. NY Partnershiplaw
15. NYRPC
Equitable remedies
injunction[2]
specific performance
account of profits
rescission
declaratory relief
rectification
equitable estoppel
certain proprietary remedies, such as constructive trusts[3]
subrogation
in very specific circumstances, an equitable lien
equitable compensation
NY PRACT

Provisional Remedies (5)

TRIP RAP
Temporary Receivership
Injunction (Preliminary)
Replevin
Attachment
Pendency (Notice of)
Tortfeasors less than 50% are not joint & several liability for non-econnomic damages unless P's injury is related to
WARM DIPS
WORKER'S COMP where P’s employer’s impleaded by D to share (contribution) in employee’s grave injury
AUTOMOBILE use, ownership or operation by D (Except Municipal Fire trucks & Police Cars )
RECKLESS (Gross neg) Conduct caused
D’s MORE than 50% responsible for P’s injury

Wrongful DEATH judgments (b/c this is economic)
INTENTIONAL Tortfeasors remain 100% liable
PROPERTY damage
S Party released Hazardous SUBSTANCE
NY PRACT

Pre-answer Grounds to Dismiss (8)

DOWNFALL
Documentary evidence
Other action pending
Want of capacity
Non-joinder of necessary parties
Failure to state cause of action
Affirmative defenses (9)
Lack of personal jurisdiction
Lack of subject matter jurisdiction
There’s a BAN on interrogatories
B BILL OF PARTICULARS& INTERROGATORIES can’t both be demanded (except in matrimonial actions)
A P can’t demand interrogatories from D until after D’s time to ANSWER has expired.
N Where NEG is sole basis of P’s claim interrogatories or EBT’s can be demanded but not both.
Civil Procedure
Reasons Why An Arbitration Award May Be Vacated

The arbitrator was BLAMED so his judgment was vacated.
BIAS of arbitrator
award LACKED rational basis
procedure violated ARTICLES of governing statute
MISCONDUCT, fraud or corruption
arbitrator EXCEEDED scope of authority or issued opinion contrary to public policy
DEMAND OF ARBITRATION was not properly served so losing party did not get to participate
Bill of Pendancy is demanded only for LAP
L LIMITS proof that can be offered at trial
A AMPLIFIES pleading
P PREVENTS surprise at trial
Civil Procedure - Venue

Venue is chosen with TLC, but if WASP MEN are on your land, you have to file locally.

TLC - types of action that determine venue

WASP MEN - claims involving property rights generally must be filed locally
TLC:
TRANSITORY action
LOCAL action
action to recover CHATTEL (replevin)

WASP MEN:
action for tort of WASTE
ACTION involving leasehold
SPECIFIC performance sought in real estate contract
PARTITION of concurrent estates
MORTGAGE foreclosure
EJECTMENT action
NUISANCE action
Use a COMB for promissory estoppel in NY
C CHARITABLE Pledges
O To avoid OUTRAGEOUSLY Unconscionable Results
M Oral MARRIAGE Contracts
B Promises by Gratuitous BAILEES to obtain insurance on bailed goods
NY PRACT

Provisional Remedies

a LIAR will FIND CJ if he tells a LIE to the COP or if LP is a SLOB.
LIAR - the four provisional remedies

FIND CJ - extraordinary circumstances needed to get order of attachment

LIE - reasons to grant preliminary injunction

COP - procedural requirements

LP- lis pendens

SLOB - lis pendens requirements
EQUITY

equitable defenses

U are Hot, Too Bad I am Far from Single
1. Unclean Hands,
2. Time Bar,
3. Impossibility,
4. Freedom of Speech
NY PRACT

Affirmative Defenses

SPARERIBS
Statute of limitations
Payments
Arbitration Award
Release
Estoppel (Collateral)
Res judicata
Infancy of defendant
Bankruptcy discharge
Statute of frauds
The claim WAS time-barred but plaintiff LOPED into court anyway.
WRITTEN acknowledgment by D of a time-barred valid debt
AMENDMENT of pleading to add a time-barred claim
SOLDIER and SAILOR relief act

parties agree to LENGTHEN the timeframe
OBTAINING personal jurisdiction over an out-of-state D who would not consent to service of process
partial PAYMENT by D of a time-barred valid debt
EQUITABLE estoppel
DISABILITY or DEATH of P
NY PRACTICE

LIAR (provisional remedies)

a LIAR will FIND CJ if he tells a LIE to the COP or if LP is a SLOB..
LIS pendens
preliminary INJUNCTION
order of ATTACHMENT
appointment of RECEIVER (harsh, requires bond)
No equitable damages if

U LAPSE

equity will not apply if/to
UNCLEAN hands - P's unclean conduct related to subject matter of suit and D is injured by it
LACHES - equity aids the vigilant, not those who knowingly sit on rights waiting for a defendant to detrimentally change position
interfere with the internal management of an ASSOCIATION (exception: where property right is embedded in association membership)
enjoin PROSECUTION of a crime (exception: where criminal statute has been declared unconstitutional)
enjoin SPEECH (exception: national security at stake, sometimes trade libel)
equity will not ENJOIN crime (exception: public nuisance if criminal prosecution is an inadequate remedy)
NY PRACTICE

LIE (reasons to grant prelim. injunct)

COP - procedural requirements

a LIAR will FIND CJ if he tells a LIE to the COP or if LP is a SLOB.
LIKELIHOOD of plaintiff's success
IRREPARABLE injury ($ does not suffice)
EQUITABLE balance of hardships

CLEAR & CONVINCING evidence of extraordinary circumstances and that plaintiff will succeed
ORDER must be entered to be enforceable
POST-seizure hearing required immediately afterwards if order was entered ex-parte
Defense to permanent injunction

LUNCH
laches
unconstitutional
not possible
criminal acr
hands unclean
NY PRACT

FIND CJ - extraordinary circumstances needed to get order of attachment

a LIAR will FIND CJ if he tells a LIE to the COP or if LP is a SLOB.
FOREIGN corporation
INTENT to defraud creditors or frustrate enforcement of judgment
NON-DOMICILIARY defendant
DILIGENT efforts are not enough to serve domiciliary or resident
CRIME victims are entitled to order of attachment when suing felon (Son of Sam law)
cause of action is based upon default JUDGMENT from another jurisdiction that is entitled to full faith & credit
NY PRACT

SLOB (lis pendens/order of pendency requirements)

a LIAR will FIND CJ if he tells a LIE to the COP or if LP is a SLOB.
SHERIFF is not involved
LIKELIHOOD of plaintiff's success not considered by court
ORDER by court not required
BOND does not need to be posted
Summary Judgement
L Motion can be decided as matter of LAW
I There are no factual ISSUES of material fact that have to be litigated
P Ct. can grant PARTIAL summary judgment
S Ct. can SEARCH the record, but only on issues or claims raised in motion papers
NY PRACT

long arm jurisdiction (tort act outside NY)

DEER SSS
D DERIVES substantial revenues from goods used or consumed or services rendered in NY
E ENGAGES in some persistent course of conduct w/in NY
E EXPECTS or should reasonably expect its tortuous acts would have consequence in NY & D derives substantial revenues from interstate or international business
R REGULARLY does or solicits business in NY
+ SSS → conduct purposely directed at NY

S - SOLICITING of NY Business
S - SALES in NY
S - Performing SERVICES in NY
NY PRACT

AL-RAN can serve a summons outside New York
A ATTORNEY in that jurisdiction
L LAW of that jurisdiction
R RESIDENT of NY
A ADULT
N NON-PARTY
I FACED SIR, sidesteps an in terrorem clause
INFANT can always object to will w/o violating NCC.
F establish the will as FORGERY, if based on PC
A Demanding an ACCOUNTING or qu the conduct of fiduciary.
C Petition for a CONSTRUCTION of will provision to determine Testator’s intent.
E Surviving spouse exercising Right of ELECTION
D Pre-Trial DISCOVERY of the SWEPT W’s, the person who prepared the will, and/or the executor, prior to filing a TIE objection.

S An objection to SMJ or objection to Ct’s jurisdiction over the will
I Judicially declared INCOMPETENT can object to will w/o violating NCC
R The will offered for probate was REVOKED by a later will, based on PC
NY PRACT

1 yr statute of limitations

A DIMPLE FIB’s
A ARBITRATION award must be judicially confirmed
D Unlawful State DISCRIMINATION complaint must be filed w/ NY state Division of Human Rights
I Recover excess INTEREST paid on loan that has usurious rate (NY - 16%+ annually)
M MALICIOUS Prosecution
P Invasion of PRIVACY
L LIBEL & Slander
E Retaliatory EVICTION

F FALSE Imprisonment or False Arrest
I INTENTIONAL Infliction of Emotional Harm
B BATTERY
PAID MAID for pre-trial discovery
P PHYSICAL Exam
A Request for ADMISSIONS
I Written INTERROGATORIES
D DEPOSITIONS (aka EBT’s ‘examination before trial’)
M MENTAL Exam
A Demand for ADDRESSES
I INSPECTION of Evidence
D DISCOVERY of Evidence (“Discovery & Inspection”)
LEAP DAD’S CAT if SOL expired
L Parties LENGHTEN the SOL
E EQUITABLE ESTOPPEL
A Written ACKNOWLEDGMENT of an old / existing debt
P PART PAYMENT of an old debt

D DISABILITYI of the P
A AMENDING a pleading to add a time barred claim
D DEATH of a party
S SOLDIER"S and sailor’s relief act

C Time barred related CC’s
A Claim’s ARISING outside NY where IPJ can’t be obtained over  in NY ct.
T TERMINATION of action, then recommencing after SOL has expired
To vacate default judgment, bring a REAM of papers w/in 1 yr of being served w/ copy of judgment
RE Reasonable Excuse for D’s default
AM D must offer Affidavit of Merit setting forth meritorious defense to D’s claim & that D won’t be prejudiced by opening default judgment
SCARF CRIME lasts 6 years
S SPECIFIC Performance of Contract
C CONTRACT Actions to recover $ that don’t involve sale of goods
A ACTIONS recognized at common law, but where leg. hasn’t prescribed SOL
R REFORMATION of Contract
F FRAUD , Deceit or D Misrepresentation

C CORP. Derivative Actions
R RESCISSION & Restitution c/a
I INDEMNIFICATION or Contribution
M MORTGAGE Foreclosures
E EQUITABLE Claims
Civil Procedure - elements of Collateral Estoppel

if I PAWN something, I am precluded from taking issue if it gets sold.
IDENTICAL issue
PARTY to the first proceeding (BUT mutuality considered)
ACTUALLY litigated in first proceeding
WAIVED assertion rights by failing to litigate in prior proceeding (with full and fair opportunity)
NECESSARY to the outcome
SOFT RAIN for 3 years
S STRICT Products liability (DIM)
O Misappropriation of corp or OPPORTNITY
F Breach of FIDUCIARY Duty in which only $ damages are sought
T Damages for TRESPASS or claim for nuisance

R REPLEVIN or Conversion
A ANNULMENT of a marriage on the ground of fraud
I Tortuous INTERFERENCE w/ another persons k rights (KID)
--K D KNEW of enforceable k
--I INTENTIONALLY Procured it’s breach; AND
--D Proximately caused D's $ DAMAGES
N NEG or Malpractice by professional
NY PRACT

Can get in personum jurisdiction

DIAL DC
D D is a DOMICILE of NY
I IN state service on a non-domicile D (not if voluntarily visiting court)
A Serving an AGENT designated by the D to accept service
L LONG Arm (LA) jurisdiction over a non-domiciliary
D D is DOING business in NY
C D CONSENTS to NY jurisdiction
J.P. MD doesn’t get an extra 6 months to recommence dismissed suit
J Lack of JURISDICTION (MOP)
P D’s neglect to PROSECUTE 1st action
M Dismissal on MERITS (Sum Jud)
D Voluntary DISCONTINUANCE by P
Minimum Contacts, Fair Play & Substantial Justice

minimal contact with PELICANS does not make you Best Friends
PURPOSEFUL availment - Hanson v. Denckla
EVIDENCE – location of witnesses and evidence
LAW - choice of law (forum shopping?)
INITIATION - did D initiate contact with forum state?
CAUSE of action - where did cause of action arise?
ALTERNATIVE forum available? fair & convenient?
NATURE & quality of activities - systematic vs. sporadic, direct vs. indirect, dangerous activity?
STATE's interest in providing a forum for its residents and protecting health & safety concerns

BURDEN of parties - economic cost, risk of multiplicity of suits, relative burden on defendant
FORESEEABILITY - WW Volkswagen (likely they'd be “haled into court”)
EQUITY

Equity will only HEAL your problems in the absence of the following:
Unclean HANDS
ESTOPPAL
ACQUIESCENCE
LACHES
Even if no minimum contacts or not served properly,  may consent to NY jurisdiction by SCAAMS
S STIPULATING in open ct., pleading, k, or letter
C Asserting unrelated CC in answer
A Serving an ANSWER & failing to raise jurisdictional objection
A ASSERTING improper service in answer, but failing to move for Sum Jud on issue w/in 60 days from when answer was served
M 3211 MOTION to dismiss, but failing to raise MOP jurisdictional objection
S Moving for SUM Jud on related CC, seeking affirmative relief from NY ct.
Only a MAN can make a proper appearance in a pending lawsuit
M MAKE pre-answer Motion, extending ’s time to answer
A Serve an ANSWER
N Serve a NOTICE of appearance in response to summons served w/o complaint
Service of process is made by SAD MIC
S Delivered to person of SUITABLE age & discretion, mail copy, then file
A AGENT Service
D DUE DILIGENCE - Nail, Mail & File

M MAILING Process to D who must then consent to such service
I IN HAND personal delivery to the D
C Ct. invented service
PROPERTY

Three kinds of notice (recording statutes; equitable servitudes)
AIR
Actual Notice
Inquiry Notice – lay of the land/character of the neighborhood
Record Notice
PROPERTY

Negative Easements – types LASS
Light
Air
Support
Streamwater (artificial flow)
PROPERTY

Requirements for deed to pass legal title at closing
LEAD
LAWFULLY
EXECUTED
AND
DELIVERED
PROPERTY

Elements of /Adverse Possession

COAH
CONTINUOUS use for statutory period;
OPEN and notorious
ACTUAL use
HOSTILE use
PROPERTY

Termination of Easements

END CRAMP
Estoppel
Necessity
Destruction of servient land
Condemnation of servient estate by eminent domain
Release
Abandonment
Merger doctrine (unity of ownership)
Prescription
PROPERTY

Covenant – does benefit run with the land?
WITHN
(i) Promise between A & B in WRITING
(ii) INTENT for original promise to run by both A & B
(iii) TOUCH AND CONCERN the land
(iv) HORIZONTAL and vertical privity
(v) NOTICE (actual, inquiry, or record)
PROPERTY

Covenant – burden runs with the land?
WITV
(i) WIT are the same as above
(ii) VERTICAL PRIVITY between B and B1
PROPERTY

When life tenant may exploit natural resources of estate

PURGE
Prior Use,
Reasonable repairs,
Granted the right,
or land is suitable only to Exploit
PROPERTY

Elements of constructive eviction

SING
Substantial Interference due to actions/omissions
Notice from T of problem, and L fails to correct
Goodbye – T vacates within reasonable time after L failure to fix
Fee simple determinable

Frank Sinatra Didnt Prefer Orville Redenbacher
Fee
Simple
Determinable
Possibility
Of
Reverter
Landlord-Tenant, exceptions to “caveat lessee” re defects
CLAPS
COMMON areas
LATENT defects – duty to warn T
ASSUMPTION of repairs –complete w/reasonable care
PUBLIC use rule – L liable for defects if length of lease is such he knows T won’t make repairs
SHORT term lease of furnished dwelling – L liable for defects that harm
Affirmative Easements – methods of creation
P-I-N-G
P – PRESCRIPTION
I – IMPLICATION
N – NECESSITY
G – GRANT
PROPERTY

formation of Joint Tenancy
TTIPS
took interests at same:
TIME
TITLE
IDENTICAL SHARES
POSSES the whole
PROPERTY

termination of joint tenancy

SPAM
SALE
PARTICIAN
AND
MORTAGE (not in lien jurisdictions)
Landlord's remedies for tenant breach

SIR
SURRENDER lease
IGNORE and just charge rent
RE-LET and hold liable for any deficit
tenant remedy to breach of warrant of habitability
MR3
MOVE
REPAIR
REDUCE
REMAIN
Real Property - Covenants of Title under Warranty Deed

The buyer CEASED worrying when seller delivered a warranty deed.
right to CONVEY
ENCUMBRANCEs have been disclosed
further ASSURANCES that seller will provide cooperation and assistance to the other party in executing their duties under the contract
SEISIN (immediate possession)
quiet ENJOYMENT
warrant to DEFEND title against DEFECTS
Real Property - Non-Possessory Interests In Land

Let me C NIPPLES and I'll let you use my land.
COVENANT running with the land (writing, intent, touch & concern, privity of estate)

easement by NECESSITY (landlocked)
easement by IMPLICATION (conveyance with retention by owner of part of property; must be reasonably necessary)
PROFIT that complies with SoF to extract something therefrom
easement by PRESCRIPTION (adverse, open/notorious, continuous for statutory period - does not need to be exclusive)
revocable LICENSE that grants permission to enter without being a trespasser
EXPRESS easement by deed or will
SERVITUDE equitably enforceable by another lot owner
Real Property - Landlord's Obligations to Tenant

A landlord's day is MIRED with responsibilities to his tenants.
MAINTAIN

IMPLIED warranty of habitability

REPAIR

warrant quiet ENJOYMENT

DELIVER possession
Real Property - Tenant's Duties to Landlord

WE R UP to date with rent payments.
abstain from committing WASTE
refrain from interfering with quiet ENJOYMENT of other tenants
pay RENT
USE premises for legal activities only
fulfill PROMISES made to repair
Real Property - Landlord's Remedies for Breach by Tenant

Pay the rent or you're DEAD.
withhold DEPOSIT

EVICTION

ACCELERATION clause

DAMAGES for holdover
Future Interests - Allowed Restraints on Alienation

U F See fighters are good at restraining aliens.
USE restrictions (with reversionary interest) - "To A but if not used for church purposes, the land shall revert to me."

right of FIRST REFUSAL - allows holder to match a third party's offer (if accepted) to buy the property within a reasonable time

"wait and SEE" doctrine - imposed by statute where operation of trust continues until last possible relevant time under the RAP (or 90 years) to see if the trust will survive.
Corporations - Piercing The Corporate Veil

TWIST the knife to pierce the corporate veil.
TEN largest shareholders of private company are personally liable for unpaid wages/benefits
WORKER's compensation insurance must be obtained. If not, officers are criminally, strictly liable to injured employee.
ILLEGAL conduct by shareholders.
SALES or corporate income tax not paid renders directors & officers (D&O) responsible to taxing authority.
TORTIOUS conduct of D&O, employees and shareholders cannot use corporate veil to hide from personal liability.
CORPORATIONS

issues in certificate of incorporation

PAP D QUAC
Preemptive rights
Alienation restirctions
Par value

Dissolution (decreasing s/h needed)

Quorum
Unique shareholder Agreements
Cumulative voting
Corporations - Contents of Articles of Incorporation.

It's A PAIN to write the articles of incorporation.
AUTHORIZED shares

PURPOSE

AGENT authorized to receive service of process

INCORPORATORS

NAME and address of corporation
A PEACE proxy is irrevocable
P PLEDGED shares (for loan)
E Person ENTITLED to shares because she’s contracted to buy them or now owns them, but who wasn’t owner of record on corp. books.
A AGREEMENT btwn shareholders to vote in particular way & execute irrevocable proxies for that purpose.
C CREDITOR of corp who receives irrevocable proxy for extending new credit or continuing credit to corp.
E EMPLOYEE
Corporations -
Actions of Directors that cannot be indemnified

Directors can't be indemnified for RIBALD Gains.
REDEMPTION of shares when not permitted (no surplus)
INTENTIONAL misconduct or knowing violation of law
BAD faith conduct
ASSETS distributed to shareholders before paying creditors
LOAN granted improperly to fellow director without dissent
declaration of improper DIVIDEND (no surplus)
GAINS personally derived due to misconduct
CORPORATIONS

Shareholder permission needed for:

A DAMN SALAD
AMENDMENT of certificate of incorporation that changes quorum, maxi/super majority, preemptive or cumulative voting rights, and/or corporate purpose
DISSOLUTION (voluntary)
ASSET sale, lease or exchange (>75% of assets)
MERGER or consolidation
NAME change
SURETY interests in debt not acquired for corporate purposes
change of AGENT for service of process
change of LOCATION of corporate office
ABOLISHING or limiting directors’ liability for negligence
DIRECTOR loans
Corporations - Appraisal Right Valuation

The court will AIM for fair value in determining appraisal rights.
net ASSET value - where company holds substantial tangible assets (e.g. real estate investment holding co's, retail and wholesale co's)

INVESTMENT value - earning power of corporate stock

MARKET value of stock (court considers arms-length similar sales in same community or marketplace)
Corporations - Contents of Articles of Incorporation.

It's A PAIN to write the articles of incorporation.
AUTHORIZED shares

PURPOSE

AGENT authorized to receive service of process

INCORPORATORS

NAME and address of corporation
Corporations - Duties of Directors & Officers

Directors & Officers who get SUED For being OLD can fire a FLARE.

SUED - types of conflict of interest

FOLD - usurpation of corporate opportunity tests

FLARE - defenses to usurping corporate opportunity
SELF-dealing
USURPATION
EXECUTIVE compensation unreasonable
DIRECT conflict of interest

FITNESS & fairness of transaction
OPPORTUNITY was available to corporation
LINE of business was same as corporation's
DISCLOSURE was not proper

FINANCIAL incapacity of corporation to enter K
LEGAL incapacity of corporation to enter K
ABANDONED (purposeful failure to deal)
REJECTED (purposefully declining to transact)
EXPLICIT approval by uninterested BoD or SH
Corporations - Appraisal Rights of Shareholders

if PAM C dissents, she gets appraisal rights.
PREEMPTIVE, redemptive or other share of ownership rights affected

ASSET sale, lease or exchange (>75% of corp assets)

MERGER or consolidation into another entity

CUMULATIVE voting rights affected

CUMULATIVE
Corporations - Shares With No Preemptive Rights

If your shares have a STAMP, you don't have preemptive rights
STOCK incentives used to retain and attract corporate talent

TREASURY stock

AUTHORIZED in certificate of incorporation and sold within 1st 2 years (no preemptive rights for 2 years)

MERGER or consolidation caused shares to be created

PURCHASE of shares occurred without cash
Directors Meetings "Can Please Quite Many Needs"
C - CONCURRENCE presumed in board action unless dissent/abstention noted
P - no PROXY voting
Q - QUORUM of majority of directors needed
M - MAJORITY vote of directors needed to pass a resolution
N - NOTICE to be given as provided in bylaws.
If a dissenting sh goes to CAMP she gets Appraisal Rights
C Abolish CUMULATIVE Voting
A Sell, Lease or Exchange Substantially all of Corp’s ASSETES.
M Consolidate or MERGE corp. into Another Corp.
P Abolish PR’s, redemptive rights or other stock rights
Corporations - Elements of 10b-5
Stock Transfer Liability

In the MIDST of the STORM, it feels like a category 10b-5.
MATERIAL fact – is the information important?

INSTRUMENTALITY of interstate commerce used in connection with transaction (mail)

DAMAGES – civil, regulatory, criminal
Civil: expectation damages or rescission
Regulatory: SEC can impose treble damages (triple profits) and order injunction
Criminal: Federal DOJ can impose criminal fines and imprisonment

STANDING – purchaser/seller who purchased/sold stock in connection with alleged fraud

TIP liability – inside tip given for improper purpose where tipper breached duty and tippee knew of the breach
Corporations
Valid Reasons For Judicial or Voluntary Dissolution

To dissolve a corporation, just I.D. the WOLF in the boardroom.
ILLEGAL conduct

DIVERSION of corporate assets to directors/officers

WASTE (including that which results from deadlock)

OPPRESSION of minority shareholders

LOOTING

FRAUD
DAUBERT TEST FOR SCIENTIFIC EXPERTS
PETA
Publication/peer review
Error rate
Tested and can be retested
Acceptance (level of)
Hearsay Exception - declarant unavailable. "USF-PD"
"USF-PD" Unavailability caused by defendant Statement against interest Former testimony Personal/Family History Dying Declaration
Non-Hearsay (Exemptions) "Nice Pic BD"
"Nice Pic BD" Non-assertive conduct (Prior) Inconsistent statement (Prior) Consistent statement Effect on listener Party admission Identification (statement of) Contract cases Belief Defamation cases
Evidence - Rule 403
Exclusion of Relevant Evidence

the UMP doesn't have to let the evidence IN
UNDUE delay

MISLEAD the jury

PREJUDICIAL effect on jury

confusion of ISSUES

NEEDLESS presentation of cumulative evidence
EVIDENCE

Character evidence is admissible for (specific act):

MIMIC
M-motive
I-identity
M-mistake (not)
I-intent
C-common scheme
Evidence - Non-Hearsay Requiring Testimony

The "4 Priors" aren't hearsay provided the declarant testifies.
1. prior recorded recollection

2. prior out of court identification

3. prior consistent statement

4. prior inconsistent statement given under oath and subject to perjury
Hearsay Exception - availability immaterial. "BOPPPED"
"BOPPPED" Business Record Official Record Present Sense Impression Prior Recorded Recollection Present state of mind Excited Utterance Declaration regarding health
Evidence - Non-Hearsay Regardless of Testimony

SANE evidence is not hearsay so it's admissible.
STATE of mind

ADMISSION by party opponent

NONASSERTIVE conduct

EFFECT on listener
Evidence - Inadmissible Relevant Evidence

I like PORN but it's still inadmissible.
INSURANCE introduced to prove fault or deep pockets

PRIVILEGED evidence

OFFERS of compromise or settlement (except in conjunction with offer to pay medical expenses)

subsequent REMEDIAL repairs (ok for manufacture defect)

NEGOTIATED admissions made by criminal defendant during unsuccessful plea bargaining
Evidence - Introduction of Character Evidence at
Civil Trials

Character evidence can be introduced in a civil trial after Chopping WEEDS.
CHILD custody cases

WRONGFUL death
ENTRAPMENT
negligent ENTRUSTMENT
DEFAMATION
SELF-DEFENSE
Evidence - Hearsay Exceptions
Admissibility of Business Records

Business records feature the sound of DRUMS.
written statement made DURING or near time of matter in issue

ROUTINE, systematic practice
of maintaining/storing this type of record

UNTRUSTWORTHY. admissible unless circumstances indicate lack of trustworthiness

MADE in ordinary course of business

SOURCE of business record has personal knowledge of matter recorded
EVIDENCE

Opinion Testimony- qualifying your expert witness

SKEET
Opinion Testimony- qualifying your expert witness: SKEET
Skills
Knowledge
Experience
Education
Training
CON LAW

President power

VETS CAPS
V VETO Power over Congressional Acts
E EXECUTIVE Power to “take care” that laws of the US are faithfully executed
T TREATY Power
S STATE of the Union recommendation to Congress for proposed legislation

C COMMANDER in Chief of the Armed Forces
A APPOINTMENT Power over ambassadors, Judges of the sup. Ct. and other superior officers of the USP
P PARDON Power over Fed. crimes
S The Pres. can also call a SPECIAL SESSION of Congress
CON. LAW

Limitations on Judicial Power

a federal judge cannot SMAC or RAPE.
STANDING
MOOTNESS
ABSTENTION for independent state grounds
Case in CONTROVERSY

RIPENESS
ADVISORY opinion
POLITICAL questions (republican form of government)
ELEVENTH Amendment
STAR VP - six fundamental freedoms

CAMPER - privacy rights
STAR VP:
freedom of SPEECH
right to TRAVEL
freedom of ASSOCIATION
freedom of RELIGION
right to VOTE
right to PRIVACY

CAMPER:
Contraception
Abortion ("undue influence" branches w/intermediate scrutiny)
Marriage (including dissolution)
Procreation
Education of children outside public schools
Related persons' right to live together
A defamer is privileged when she has JET LEG
J Defamatory Statements in course of JUDICIAL proceeding
E Confidential Defamatory Communications Spoken Between Spouses who are deemed 1 ENTITY when a spouse is sued for defamation
T TRUTH

L Statements by LEGISLATORS made in leg. chamber
E EXECUTIVES of state, local or Fed. gov’tal or admin agencies making defamatory statements in furtherance of their official duties
G Statements made to the Bar Association GRIEVANCE Committees
Obscenity

LAPS POPS PAW
L LACKS LITERARY,
A ARTISTIC,
P POLITICAL,
S SCIENTIFIC value, which has replaced the old standard of requiring some socially redeeming value in the material (a nation wide standard)

P PATENTLY,
O OFFENSIVE,
P PORTRAYAL of
S SEX

P PRURIENT Interest Appeal. That is, material that has a tendency to excite lewd, lascivious, and lustful thoughts.
A AVERAGE Sensitivity
W The WHOLE Material must be weighed.
Constitutional Law
Limits to Exercise of Power by Government


You must SPECIFICLE state how the government violated your constitutional rights.
Substantive due process
Procedural due process
Equal protection
Civil rights
Immunities granted to all citizens with regard to livelihood, employment, transfer of property, federally protected interests
First amendment
Irrebuttable presumptions of fact regarding constitutionally protected rights
Contracts clause
Legislation that is retroactive
Economic taking w/o just compensation
Contracts - Termination of Options

three ways options can DIE
DESTRUCTION of subject matter of option

INTERVENING illegality

EXPIRATION of stated option time
TORTS

actions related to product liability

PENIS
PUBLIC MISREPRESENTATION under restatement 402(B)

EXPRESS warranty under UCC 2-313

NEGLIGENCE

IMPLIED warranty under UCC 2-314 to 2-318
merchantability
fitness for a particular purpose
remote purchasers covered

STRICT products liability - known as "Absolute Liability in Tort" under Restatement 402(A)
COMMERCIAL PAPER

material defenses

MAD FIFI4

(WOSSUP, if WE FUN it's MADFIFI4)
Material
Alteration
Duress
Fraud
In
Factum
Infancy
Illegality
Insanity
Insolvency
CONTRACTS

defense to formation

IF I C SCUM
ILLEGALITY
FRAUD - in inducement or execution
(I) love contracts
COERCION - lack of consent or duress
STATUTE of frauds
CAPACITY - minors, mental
UNCONSCIONABLE k - gross disparity, against public policy
MISTAKE - generally only allowed with mutually grave error while contract is still executory
COMMERCIAL PAPER

personal defenses

WE FUC
Waiver
Estoppel
Fraud in inducement
Unconscionably
Consideration lacking
Remedies
Damages, Restitution, Equity

Get back at a tortfeasor by Playing CLARINET
PUNITIVE damages for intentional torts
COMPENSATORY damages for past, present and foreseeable future loss or injury (unforeseeable special damages must be specifically pleaded)
equitable LIEN on D's property to secure payment of debt owed to P
ASSUMPSIT (quasi-contract) suit to recover reasonable value of a benefit unjustly retained by D (P must waive tort liability)
REPLEVIN to recover possession of specific personal property wrongfully taken
INJUNCTION if there is inadequate remedy at law, threat of multiplicity of suits, damages are speculative or too small, and P will suffer from irreparable injury
NOMINAL damages recoverable where no injury sustained
EJECTMENT to restore possession of real property from which P was wrongfully ousted, PLUS mesne damages (rental value during that period)
constructive TRUST - equitable creation of a "trust" to compel D to reconvey title to property unjustly retained
CONTRACTS

elements needed for offer

QTIP
quantity
time
identity
party
subject matter
CONTRACTS

Defenses to K Formation:

AIDS FLU
Ambiguity/Mutual Mistake
Incapacity
Duress
Statute of Frauds
Fraud
Legality
Unconscionably
D is liable only for certain damages

FUCC
FORESEEABLE - damage/injury must be foreseeable at the time duty is breached (proximate cause)

UNAVOIDABLE - no recovery for losses which reasonably could have been avoided or mitigated

damages must be CAUSED by defendant's breach ("but for" causation)

sufficiently CERTAIN - damages cannot be speculative
TORTS

Intentional Torts

FAT BITCH
False imprisonment
Trespass to Chatte

Battery
IIED
Trespass to land
Conversion
huh
TRUST

Trustie's duties

DADS LIE
D- DELEGATE
A - Duty to ACCOUNT
D - DUE Care
S - SEGREGATE

L - Duty of LOYALTY
I - Duty to INVEST
E- EARMARK
1. comparative negligene

2. contributory negligence

3. NO comparative negligence in strict liability
1. Can still recover even if P is part neg.

2. Sucks to be you.

3. recovery isNOT reduced by P's fault if is reasonable etc.
Commercial Paper (Priority):

Big Poppa Loves Naked Ass Groupies
BIOC - Buyer in Ordinary Course
PAC - Perfected Attached Creditor
LC - Lien Creditor
NOCie - Not in Ordinary Course
AUPie - Attached Unperfected Creditor (if you don't perfect you're an "ass")
GUC - General Unsecured Creditor
Economic Torts
causing FAMINE is an economic tort.
FRAUD - misrepresentation of a past or present material fact
ABUSE of process - initiation of civil or criminal proceedings against plaintiff with malicious intent
MALICIOUS prosecution - initiation of civil or ciminal proceeding against P with no probable cause that P is liable or guilty, malicious intent (prior action MUST have terminated in favor of present P)
INJURIOUS falsehood (disparagement) - recklessly or intentionally published false assertion of fact leading to pecuniary injury caused by 3rd party's response
NEGLIGENT misrepresentation - neg misstatement of material fact in business of supplying information to others justifiably relied upon by plaintiff
interference with prospective ECONOMIC advantage, including contractual relations
Family Law - Requirements of Prenuptial Agreements

Prenups are enforceable if the spouses SPIED on each other.
SUPPORT - must be fair at time of enforcement

PROPERTY - must be fair at time of execution

IN WRITING - court does not bind on issues involving children

ENTERED voluntarily into by both parties with knowing consent

DISCLOSURE - full and fair
Parent liable for a SICK kid
S In an employment relationship where a child commits a tort, while acting as a SERVANT or Agent of the parent.
I Where the parent entrusts or knowingly leaves in the child’s possession, an INSTRUMENTALITY which in light of the child’s age, intelligence, disposition and prior experience creates an unknown risk of harm to others.
• C Parent knows of Child’s Tortuous CONDUCT and directs, approves or CONSENTS to it.
• K Where parent has the ability to control the child, but fails to exercise that control even though the parent KNEW of the infant’s violent tendencies that could endanger a 3P.
Family Law - Right to Late Spouse's Benefits

A widow can drink all the VINOS she wants.
VETERAN's pensions

INDEMNITY compensation for service-connected deaths

NURSING home and medical care

OTHER survivor benefits (i.e. contractual rights, insurance benefits)

SOCIAL security pension - supplemental security income
CONTRACTS

Statute of Frauds

MY LEGS
M-MARRIAGE
Y- YEAR+ contract

L-LAND transfer
E-EXECUTOR
G-GUARANTOR/surety
S- SALE goods $500+
defamation

LAPPED
Language
About
Plaintiff
Published
caused
Economic
Damages
Family Law - Marriage
Grounds for Declaration of Invalidity

The FACTOID about the Resident APE getting married was declared invalid.
FRAUD - essentials of marital agreement based on fraud
AGE - under 18 without parental or court approval
CONSANGUINITY - parties are closer than second cousins
TIMELINESS - either party may petition for declaration of invalidity at any time
OUT of state marriage was void or voidable in contracting state
INCAPACITY - mental, physical, 5-year incurable insanity
DURESS - party induced to enter marriage by force
neither party was a RESIDENT of the court's state
ANNULMENT is the term describing the "symbolic" dissolution of a marriage that "never took place." However, if a marriage is legally declared invalid, the court will enter a Decree of Dissolution.
PRIOR marriage undissolved at time of marriage sought to be declared invalid.
no EFFECT on legitimacy of children despite declaration of invalidity.
COM PAPER

Defenses available to holder of mortgage (mortgager) against creditor (mortgagee) after a note is transferred
MAD FIFI4
Material Alteration
Duress
Fraud in the formation
Incapacity
Illegality
Infancy
Insolvency
Criminal Procedure
Exceptions to the Exclusionary Rule

U SAID G was fruit of the poisonous tree but he's not.
USE for impeachment

independent SOURCE

ATTENUATED chain of causation between tainted evidence and illegal action

INTERVENING act of free will

inevitable DISCOVERY

GOOD faith of police & magistrate in issuing invalid warrant
A CLIP invades privacy
C COMMERCIAL Misappropriation of P’s name, likeness, or voice w/o P’s written permission (& compensation). It’s taking commercial advantage of living person’s reputation, prestige or some other value associated w/ P’s name or likeness w/o compensating for it
L False LIGHT Publicity – that unreasonably places P in highly objectionable false light before the public
I Highly Offensive INTENTIONAL INTRUSION into another’s seclusion or solitude of privacy.
P PUBLIC Disclosure of highly offensive & deeply shocking Private facts that are of no interest to the public.
Family Law - Grounds for Dissolution

IF you hit your spouse like a PIÑATA, the court will probably grant their petition for divorce.
IRRETRIEVABLY BROKEN marriage - "no-fault dissolution" requires no further allegations to be granted
FILE in proper venue (any county where parties or children reside
PERSONAL JURISDICTION needed for court to impose financial obligation upon a party
INCARCERATION or INCAPACITY of spouse for statutory period
NO FAULT CONVERSION divorce after statutory period with valid separation agreement
ADULTERY (defenses are condonation, recrimination, barred by SOL, procurement by petitioner)
TREATMENT that is cruel & inhumane
ABANDONMENT (requires intent to leave without consent/unjustified, lasting more than one year)
COMMERICAL PAPER

Holder in Due Course: "Never Ends up Down Trodden"
N - Negotiable Note
E - Endorsed by named payee
D - delivered to transferee
T - transferee takes in good faith and pays
Professional Responsibility - Duties To Client

When playing 5-Card STUD with a client's money, I must be a responsible professional.
COMMUNICATE with client
act COMPETENTLY
do not reveal CONFIDENCES
avoid CONFLICTS of interest
render CANDID advice

SAFEGUARD client's money & property
TERMINATE atty/client relationship fairly and properly
UNREASONABLE fees should not be charged
act with reasonable DILIGENCE
Professional Responsibility
Withdrawing from Attorney/Client relationship

WE attorneys suffer from MANICURE withdrawal.

*these are procedural requirements of withdrawal
attorney is a WITNESS in the case, resulting in unfair prejudice to client
ETHICAL violation will occur if client is represented

MALICIOUS harassment will be brought upon opposing party with no good faith that claim/defense is warranted under law
ATTORNEY is being employed to commit past crime/fraud
*proper NOTICE of withdrawal must be given to client
INCOMPETENCY of attorney to handle matter
CRIMINAL or fraudulent conduct required
UNREASONABLE financial burden on attorney
*REFUND all papers/property of client, along with unearned fees, upon withdrawal
EXPENSES or fees promised by client are not paid
CRIM PRO

exception to warrant

ESCAPIST
Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry Stop & Frisk
UCC Article 9 Secured Transactions
Classes of Tangible & Intangible Goods

a FAN is a SPECIFIC type of goods covered under UCC Article 9.
FARMING products
ACCOUNT proceeds received upon sale of collateral
NOTES (promissory & drafts)

STOCKS, bonds & mutual funds
PERSONALTY - chattels / movable goods generally
EQUIPMENT
CONSENSUAL security interests only (not statutory or mechanic liens)
INVENTORY
FIXTURES annexed to real estate (lighting fixtures, sprinkler systems, furnaces, etc.)
INTELLECTUAL properties
CONSUMER goods
UCC Article 9 Secured Transactions
Advantages to Purchase Money Security Interest (PMSI) Status

HATS off to PMSI creditors because they get top priority.
a PMSI in HOUSEHOLD goods is effective unlike every other security interest

mere ATTACHMENT perfection

TWENTY day grace period to perfect interest in non-inventory goods through filing

SUPER priority on inventory if creditor provides advance notice to other creditors who have a security interest (e.g. after acquired interest clause) in that same collateral
UCC Article 9 Secured Transactions
Methods of Perfection

Perfection Calls For Many Things (5)
Possession

Control

Filing the financing statement in debtor's state

Mere attachment (consumer goods and PMSI)

Title certificate
Liability is vicarious to a POPE
P Principal
O Owner of NY Vehicle
P Partner
E Employer
TORTS

In NY, Dr's duty to inform patient of risks unless:

DR CEB
patient DECLINES knowledge
RISKS COMMONLY known
EMERGENCY
BEST interest of patient
UCC Article 9 Secured Transactions
Permitted Contents of Security Agreements

The FOCAL Point of a security agreement is the collateral.
FUTURE advances clause - allows further cash advances to be secured by collateral covered in earlier security agreement
OTHER provisions, such as set-off or recoupment rights, debtor duties, circumstances constituting default, remedies, entitlement to costs & attorneys fees, and good faith requirement
COLLATERAL description in reasonable detail - specify collateral's primary use in debtor's hands
AFTER-ACQUIRED property clauses require that future collateral acquired or manufactured by the debtor later (including unmatured commercial tort claims) be covered by the present security agreement
floating LIEN - type of security agreement on retail inventory that turns over frequently (executing new agreements each time not practical)
PROCEEDS include whatever is received by the debtor upon the sale, exchange or other disposition of the primary collateral.
UCC Article 9 Secured Transactions
Repossession Right of Creditor upon Default by Debtor

The repo man SCAR'D the debtor but that's his right.
STRICT foreclosure, where creditor legally retains the collateral and outstanding debt is cancelled

CONSENT, voluntary and contemporaneous, from debtor to enter and take collateral from home or other private property

ACTION by judicial writ authorizing Sheriff to repossess

self-help REPOSSESSION unless it causes breach of peace

DISPOSITION sale. Non-judicial liquidation by creditor (after notifying debtor and other perfected parties). Creditor can obtain deficiency judgment against debtor if collateral brings less than the debt.
Torts - Defenses to Defamation
Privileges

It's bad P.R. to defend FOGIES in defamation cases.
statement occurred during PROCEEDINGS of legislative or judicial branch
REPORTS of public proceedings

FIRST amendment qualified privileges - non-malicious statements about public figures and public controversies, non-negligent statements about a private person
fair comment OPINIONS
official statements of GOVERNMENT officials
statements made in the INTEREST of self, third persons or the public
EQUAL time broadcasts
communication between SPOUSES
Torts - Statements that Constitute Slander Per Se

It's slander per se to call someone SLIM.
SEXUAL misconduct (lack of chastity of a woman)
LOATHSOME, communicable disease
INCOMPETENCE in trade or profession
conduct/crime involving MORAL turpitude
Torts - Defenses to Intentional Torts

Hell hath no fury like A SCORN'D tort victim.
use of reasonable force to effect an ARREST

SHOPKEEPER's privilege to detain suspect for reasonable time using non-deadly force
CONSENT
defense of OTHERS if protected party was entitled to use same amount of force
RECAPTURE of property if entitled to immediate possession
NECESSITY for public purpose or to abate nuisance
DEFENSE of self, land and chattels under protective privilege
Trusts - Elements of a Valid Trust

I know the PARTS of a valid trust.
INTENT to create a trust is manifest by conduct
valid PURPOSE (not contrary to public policy or illegal)
ASCERTAINABLE beneficiaries (directly capable of taking and holding title for their benefit)
RES must be a presently existing, identifiable property interest
named TRUSTEE with active duties who is capable of acquiring, holding and administering the trust res; legal & equitable titles merge if beneficiary and trustee are same person
SETTLOR with capacity to understand extent of property, natural objects of bounty and nature of disposition
AGENCY

Principal-agent relationship requires?

ABS
A-assent
B- benefit
C- control
Criminal Law - Crimes Requiring Specific Intent

It's a specific intent crime to Purposely FLAME CRABS.
false PRETENSES

Forgery
Larceny
Attempt
Murder, first degree
Embezzlement

Conspiracy
Robbery
Assault
Battery (aggravated)
Solicitation
Trusts - Ways a Trust can be Created

it's WICKED smart to create a trust.
created by WILL (testamentary trust)

INTER VIVOS trust created by transfer of property

CONSTRUCTIVE or resulting trust created as a matter of law

creation of trust by K (contract)

creation of trust by EXERCISING the power of appointment

DECLARATION of trust by property owner
Criminal Law - Defenses Available

the prosecutor PACED as his charges against defendant fell like DOMINOS
defense of PROPERTY
AGE (7 to 13 = rebuttable presumption that child doesn't understand)
prevention of CRIME constituting breach of peace (non-deadly) or risking human life (deadly)
ENTRAPMENT
DURESS (mitigates murder to manslaughter)

DRUNKENNESS
OTHER party consented to act
MISTAKE of fact
INSANITY
NECESSITY - avoid a greater evil
defense of OTHERS
SELF-DEFENSE
Trusts - Trustee's Defenses for Breach of Duty

A trustee can KIL a suit against him for breach of duty.
KNOWING consent (or waiver) to breach of trustee's duties by beneficiary (implicitly applied to beneficiaries who benefited from wrongful act)

INSTRUMENT contains exculpatory or "hold harmless" provisions. These are enforceable ONLY if breach was merely negligent and trustee lacked bad faith.

LACHES or statute of limitations - failure by beneficiary to timely assert claims
Trusts - When a "Charging Order" to
Invade a Spendthrift, Support or Discretionary is Permitted

Certain ANTICS let creditors invade the principal of protective trusts.
ALIMONY obligations due a former spouse
NECESSITIES - debts incurred for food, shelter, medical expenses, etc.
TAXES - income necessary to satisfy beneficiary's tax responsibility can usually be attached
INTENTIONAL hindrance, delay or defrauding of creditor's claims by transfering assets into a trust
CHILD support owed to minor children
SELF-settled asset protection trusts where settlor is also the beneficiary (minority rule: permitted if irrevocable and not created to defraud creditors)
Trusts - Ways a Trust can be Terminated

When a trust wants to be terminated, it yells "Pour some ACID on ME!!!"
PETITION to court by beneficiary, spendthrift provision or settlor (if beneficiary is in agreement)

purpose ACCOMPLISHED, illegal or impossible (such as if the sole beneficiary dies without heirs)
CONSOLIDATION by the court where multiple trusts have same purpose, trustees, settlors and beneficiaries
INCOME interest terminates - corpus is distributed to remainder beneficiaries if all income beneficiaries die (doctrine of acceleration)
unilateral DONOR termination permitted if this right is specified in the instrument. This right is called a "grantor trust," so assets are included in grantor's estate for tax purposes.

MERGER of legal and equitable title when beneficiary and trustee are the same person
EXPIRATION of term specified in the trust instrument
Contracts - Termination of Offer

Don't offer IDLE CIDER that's expired.
Incapacity of offeror
Death of offeror
Lapse of time
Express or implied rejection

Counteroffer
Intervening illegality
Destruction of contract’s subject matter
Effective termination under mailbox rule
Revocation communicated to offeror before acceptance effective
CRIM PRO

No expectation of privacy

Patty Achieved a Glorious Victory Over Her Opponent
paint scraping on the outside of car
account records
airspace over home
garbage
voice
odors
handwriting
open fields
Wills - Classification of Legacies and Devises
Acrostic

Some Grantors Die Really Intestate
SPECIFIC devise or bequest - particular items specified in the will
GENERAL legacy - a sum of money to be paid out of any assets of the estate
DEMONSTRATIVE legacy - a sum of money to be paid from a particular account or upon sale of a particular asset
RESIDUARY gift - everything else not mentioned under a will with a residuary clause, distributed to the primary beneficiaries
INTESTATE property - where there is no will, a lapse, disclaimer, no residuary clause, or the only will was successfully challenged

(NOTE: most states disfavor intestacy--the court will interpret parol evidence to save any document that exists and adequately expresses the decedent's intent)
TORTS

A SWAN is strictly liable in Tort
A Abnormally Dangerous Activity
S Strict Products liability
W Worker’s job related injury (Worker’s Comp)
A Injuries caused by wild Animals or vicious domestic animals
N negligence Per Se
Is there fraud? Just think..

"Asshole lied to me on purpose and I believed him and got fucked."
1. D misrepresented a fact
2. Deliberately
3. To induce reliance
4. Actually relied
5. Economic damages
Contracts - UCC Article 2
Implied Terms in Sales Contracts

I CITE the UCC to prove implied terms.
INSPECTION. Buyer usually has a right to inspect tendered goods before acceptance.

CREDIT. Seller is not obligated to extend credit to buyer.

INSURANCE. Risk of loss falls on party in best position to bear loss (usually the one who protected goods by insuring them).

TENDER of delivery is implied at Seller's place of business.

EXCHANGE of performance is usually concurrent.

UNIFORM COMMERCIAL CODE
WILLS

Non-Tsubs

LOG PIT
LIFE INSURANCE, whether payable to surviving spouse or third party
ONE-HALF qualified pension and profit-sharing benefits
GIFTS made within one year of death (within the $12,000 annual exclusion)
PRE-MARRIAGE irrevocable transfers
• A gift to a friend prior to the marriage
IRREVOCABLE transfers made more than one year before death
TRANSFERs in which grantor did not retain power to revoke, invade, consume or dispose of principal
 Transfers (Irrevocable) with retained life estate made before September 1, 1992 AND made during the marriage
 Generally, if the testator does not have an interest, it is NOT a testamentary substitute, except life insurance
A will contest can TIE the executor’s hands
T Lack of TESTAMENTARY Capacity
I Undue INFLUENCE
E Improper EXECUTION (improperly SWEPT)
WILLS

T-Subs

LEG UP
Totten Trust
Survivor ship estates
Lifetime transfers with strings attached
Transfers with a retained power to revoke, invade, consume, or dispose of principal or name new beneficiaries AND irrevocable transfers made during the marriage with retained life estates
Employee pension, profit-sharing, deferred compensation plan
Gifts made within one year before death
US government bonds and other pay-on-death arrangements

Powers of Appointment (Property over which decedent held a presently-exercisable general power of appointment (but not property over which he held a general testamentary power)
MAD CAR CLAW can alter an existing will
M MARRIAGE of the Testator
A AFTER born Children
D DIVORCE

C COMMON Disaster
A ADVANCEMENT of a bequest
R RENUNCIATION by a beneficiary

C Cy Pres of charitable bequests
L LAPSED Legacies (but always consider the Anti-Lapse Statute)
A ADEMPTION or ABATEMENT
W WRONGFULLY Killing the Testator
Undue Influence
Factors to Consider

only a CAD ROBS a rich testator.
CONFIDENTIAL (or fiduciary) relationship exists

ACTIVE participation in will preparation or execution

DISPOSITION to exercise undue influence


unnatural RESULT

OPPORTUNITY to exercise undue influence

undue BENEFIT to alleged wrongdoer

SUSCEPTIBLE testator
COM. PAPER
WOSSUP! (elements that make negotiable)
if WE FUC (personal defenses)
it's MAD FIFI4 (real defenses)
Writing
payable to Order or bearer
Signed by maker
Sum certain
Unconditional promise
Payable on demand/specific time
WILLS

formation of will

SWEPT
signed
Writing
signature at End
Published that is his will
Two witneses sign w/in 30 days
AGENCY
"Rude Employees Are Idiots"

Principal is liable for agent's contracts if:
R = ratification
E = express authority
A = apparent authority
I = implied authority
SECURED TRANSACTION

how creditor attaches

VCR
Value
Control of Collatteral
Right in Property
TORTS

consider in negligence

LARGE C.D2’s
L LAST clear chance
A ASSUMPTION of Risk
R RES ispa Loquitor
G GUEST Statute
E EMERGENCY Doctrine

C COMPARATIVE or Contributory negligent
D DRAM shop act
D DANGERS Invites rescue
MPT

Case planning memo
heading
body
-- no intro paragraph
--make seperate headings for each claim/defense/remedy
---list each element and facts supporting these claims etc.
MPT

brief (persuasive document for judge)
heading
stmt facts
argument
conclusion
MPT

memo guideline
*usually asks to asess client's claims/best argument*
The intro is long and summarizes the body of the Memo and includes a road map.
MPT

Opinion letter to client
salutation
short intro paragraph
body
conclusion signature
(like Ins. dept)
MPT
legal analysis documents

CRACC

*examples and trigger words
conclusion
rule
application
case comparison
conclude

ex. memo to senior attorney, opinion letter to client, brief, letter to opposing counsel

*analyze the issue, make best argument using fact and law,
analyze legal and factual basis of claim:
MPT Legal analysis cue words and formate

CRACC
Conclusion
D's stmt that P's seatbelt as likely to fail was fraudulent.

Rule
In Franklin, a person is liable for fraud when....

Application
Applying the rules in this case, D committed fraud when he knowingly misrepresented..

Case Comparison
Unlike the D in the Bob case, here D knew...

Conclusion
Therefore,
O-CAN can’t accept PJ STRAW’s additional terms
O OFFEROR OBJECTS to additional terms w/in reasonable time
C Offer Expressly CONDITIONS agreement exclusively to terms in offer.
A If ADDITIONAL terms MATERIALLY ALTER offer terms don’t become part of k
N Either or both parties are NON-MERCHANTS.
PJ STRAW Materially Alters offer if it would cause SURPIRSE OR HARDSHIP if offeror wasn’t made aware of its existence:
P PART payment
J Clause bestowing JURISTICTION on particular ct. or requiring offeror to consent to jurisdiction in particular state.
S SHORTENING SOL to sue for non-conforming goods
T Limiting TORT liability
R Altering UCC rules for ROL
A ADDING ARBITRATION clause unless it’s customary practice in trade
W Clause negating M FEET WARRANTIES such as those of merchantability or fitness
You don’t need SOF’s in a SWAMP
S Contracts for SPECIALLY Manufactured Goods
W WAVIER
A Judicial ADM ISSION of K
M* “MERCHANT MEMO”
P PART-PERFORMANCE
OF MICE permits parol evidence
O* Establish ORAL condition precedent to legal effectiveness of k, provided it doesn’t contradict express term of k
F Party can’t invoke PER to shield that party from allegations of FRAUD or Misrepresentation
M MUTUAL MISTAKE or claim for Reformation of k
I ILLEGALITY
C Failure of CONSIDERATION
E EXPLAIN Ambiguous or Missing Terms or Show No Enforceable Agreement was ever intended
SOAL-V and SORE-V effect ROL
Sale On Approval Late Vesting
-Goods held by B are not subject to claims of B’s creditors.
Sale Or Return Early Vesting
-Title & ROL vest immediately in B even though B has right to rescind k
Seller’s SPARKLE when B’s breach
S STOPPING Goods in Transit
P Sue for Entire K PRICE
A Demand ASSURANCES
R RE-SELL goods to another B
K KEEP part of breaching B’s deposit, never more than $500
L Sue for LOST PROFIT
E EXERCISE right to Reclaim Goods Delivered to Insolvent B
CID’S WAR is a buyer’s remedy
C COVER
I INCIDENTAL & Consequential Damages
D DAMAGES for Lost Bargain or for Price Paid
S SPECIFIC Performance of Unique Goods

W Breach of WARRANTY
A ACCEPTANCE Revoked
R REJECT non-conforming goods
M-FEET Warranties are in a sales k
M* MERCHANTABILITY
F FITNESS for a Particular Purpose
E Warranty against ENCUMBRANCES
E EXPRESS Warranties
T S’s Warranty of TITLE
Express warranties are SAD
S SAMPLE or model which is the basis of the bargain
A Written/Oral AFFIRMATION of fact or promise made by S relating to goods
D DESCRIPTION of goods in advertisement, brochure or catalog
PINE for defective product liabilities
P Tort Theory in Strict PRODUCTS liability
I K theory for IMPILIED warranty
N Tort theory of NEGLIGENCE
E K theory for breach of a SAD EXPRESS Warranty
G. P2ALMS is not  for a breach of warranty
G GOV'T Military K Defense
P Lack of PRIVITY of K
P Federal PREEMPTION
A ASSUMPTION of Risk (can be asserted to any PINE claim)
L LACK of Timely Notice to a Seller
M Unforeseen MISUSE of a Product
S SOL
A director can’t be indemnified by BIG DR. AL
B Involved BAD Faith Conduct
I INTENTIONAL Misconduct or Knowing Violation of the Law
G Misconduct Under-Taken for Personal GAIN

D DECLARING an Improper DIVIDEND (no surplus)
R Improper REDEMPTION of Corp. Shares (no surplus)

A ASSETS distributed to Shareholders w/o paying corp. creditors
L Not Dissenting to an improper LOAN to a fellow d
20% of corp shares can ID-FLOW to a dissolution
I ILLEGALConduct
D DIVERSION of Corp Assets to those in control
F FRAUDULENT Conduct toward the Minority
L LOOTING
O OPPRESSIVE Actions
W WASTE
EVIDENCE
The proof must be “highly probable” for C2LAM GA2P2
C CONSTRUCTIVE Trust (T CUP)
C Existence of a CRL
L Proof to establish a LOST Will
A ACTUAL Malice in defamation
M MUTUAL Mistake, Reformation or Fraud

G GIFT (AID)
A ADULTERY
A ADVERSE Possession (EUNUCH)
P PROVISIONAL Remedies (LIAR)
P Terminating PARENTAL Rights (MA & PA)
Judicial notice is taken of indisputable facts because they are LMN
L LEGISLATIVE Facts
M MANIFEST Facts that are easily and quickly verifiable by referring to an indisputably accurate source.
N NOTORIOUS Facts that are so commonly known w/in the ct’s jurisdiction that it would waste the ct’s time to have to prove those facts.
A judge doesn’t have to admit C-MUPIT evidence
C Needless presentation of CUMULATIVE Evidence to prove fact already established
M Evidence that may MISLEAD or Confuse the jury
U UNDUE Delay (too time consuming)
P “Unfair” PREJUDICIAL Effect on the Jury
I Confusion of ISSUES
T An undue expenditure of TIME
A witness must PURR before she can testify:
P Witness PERSONALLY PERCEIVED event.
U UNDERSTAND & take oath or affirmation.
R Witness can REMEMBERemember event
R Witness can RECALL event on stand
For NOW, deadman’s statute’s set aside (NY exceptions)
N in NEG action involving car, boat or plane - general facts & results of accident
O When estate OFFERS evidence or questions interested Witness about transactions or conversations w/ dead person, “Opens the door”
W WAVIER – estate failing to timely object at trial, waives DPS
An original document may be replaced by A DOPE
A Content was judicially ADMITTED by party against whom it’s being offered.
D* DOCUMENT has been Destroyed or Lost.
O ORIGINAL'S OUTSIDE ct’s subpoena jurisdiction
P PUBLIC record
E Original’s under EXCLUSIVE Possession of opposing party
CRIB PIC to impeach a W:
C Impeachment by CONTRADICTION
R W’s bad REPUTATION in community for truthfulness
I W’s prior VIC Acts (Vicious, IMMORAL, or Crim)
B BIAS of W

P PRIOR Inconsistent Statement
I INFLUENCE of Drugs or Alcohol on W
C Prior CRIMINAL CONVICTIONS of W
RIP character evidence is admissible when character or trait of character’s essential element in crime, civil claim, or defense
R REPUTATION
I Specific INSTANCES of Prior Conduct
P W’s PERSONAL Opinion
BRIBE K, and admit the listener’s state of mind
B BELIEF
R REASON
I INTENT
B BIAS
E EMOTION
K KNOWLEDGE
Declarations against interest require a PUMP
P Out of ct. declarant knowingly made statement against declarant ‘s own 3P interest.
 P PENAL Interest
 P PECUNIARY Interest ($)
 P PROPRIETARTY Interest
U Out of ct. declaration was made by person who is now P DORM UNAVAILABLE at trial.
M When declaration was made, declarant had no MOTIVE to misrepresent facts; AND
P Declarant must have had PERSONAL knowledge of facts asserted
DAMS gives you robbery and burglary 1st degree
D DISPLAYED / appeared to be firearm w/ intent of forcibly taking prop
A ARMED w/ deadly weapon
M MENACED victime by using or threatening to immediately use dangerous instrument
S Where D or accomplice caused SERIOUS Physical Injury to non-participant during robbery or in immediate flight from crime scene
Common Law Larceny requires a TIP
T Wrongful TAKING of Prop
I Specific INTENT to Permanently Deprive Owner.
P PERSONAL PROP of Another
FLEET larceny is to steal
F FALSE Pretenses
L Common Law LARCENY (TIP)
E EMBEZZLEMENT
E EXTORTION
T Larceny by TRICK
CUB can’t commit felony murder
C D didn’t Commit, Command, or request homicide
U D was Unarmed; AND
B D had no reason to Believe another co-conspirator was armed or intended to engage in conduct likely to result in death
By asserting justification,  can RAT on the violent victim
R Reputation
A Violent Acts
T Threats of violence against D
Matters of procedure are governed by the forum’s SUPERB law
S Service of Process (SAD MIC)
U Issues of Untimely Claims (SOL), but where the claim arose outside of NY, and the D is a non-domiciliary NY cts borrow the SOL of the state where the c/a arose, if it’s shorter than NY’s SOL.
P Rules of Pleadings
E Rules of Evidence
R Provisional Remedies (LIAR)
B Burdens of Proof
120 days to serve
80 days around the world

time limits for non-personal service
120 days to serve after first filed with Clerk

20 days to mail after leave w/ suitable person
20 days to file notice of service after mail
10 days until service is complete
30 days to file answer or motion

*only 20 days to respond if personal service
if files motion to dismiss....
if motion to dismiss is denied then gets 10 days to file answer.
if served notice (not compalint) then D may w/in
-personal service
-other forms of service
- within 20 days request complaint or file notice of appearence
-within 30 days request complaint or file notice of appearence
which makes P serve complaint in...
20 days
if P serves notice then D must serve answer or motion in...
20 days
Trusts - Duties of Trustee

The trustee had a duty to make sure the beneficiary wasn't drinking SPOILED CAB.
refrain from SELF-DEALING (duty of loyalty)
PROTECT the corpus of the trust by preserving principal and diversifying the trust portfolio
refrain from usurping OPPORTUNITIES available to trust (duty of loyalty)
INFORM settlor and beneficiaries of transactions involving more than 25% of trust assets and wait for objections prior to executing the transaction
LITIGATE on behalf of the trust when necessary
EXERCISE degree of care, skill and prudence which would be exercised by a reasonably prudent person in managing his/her own property
avoid DELEGATION of duties involving judgment, discretion or power of appointment (proper administration)

COMPLY with terms & duties under trust
detailed ACCOUNTING, including earmarking and segregating trust assets separately from personal assets
refrain from BORROWING funds from the trust (duty of loyalty)
if files motion to dismiss for lack of personal judgement then D must file for Sum Judge in...
60 days
if D serves answer how long does each party have to ammend a pleading?
20 days (no court permission needed)
after all this is done how much notice is given before filing a motion on notice
8 days (starts when attorney mails)
TRUSTS
102 SENATE is not bound by the spendthrift rules
10% of distributed trust income can be seized by the trust beneficiary’s judgment creditor
Trust Income in excess of $10,000 can be assigned away by the beneficiary prior to it’s receipt, but only if assignment was gratuitous (no consideration received) AND assignee’s a close family relative
S SELF-SETTLED Trusts where the settlor and beneficiary are the same person, trust can be attached by creditors for up to 100% of the settlor’s interest. If settlor retained only life estate, his creditors can only seize 100% of life estate, not remainder interest.
E Trust’s EXPRESSLY made non-spendthrift
N NECESSARIES furnished to a beneficiary, allows creditor to recover from trust income the fair value.
A ALIMONY & Child Support Obligations
T Fed. Income TAXES owed by the beneficiary.
E EXCESS Trust Income that’s not reasonably needed for maintenance & education
CON. LAW

Legislative Power

As your congressman, I SWAP CAPITAL for DEFICIT.
INSOLVENCY (Bankruptcy) - shared with states
SPENDING (for general welfare)
WAR declaration - raise/support military, legislate wartime economic/social conditions
AFFAIRS related to Foreign commerce
PROPERTY - rules & regulations on federal lands, including police power in DC

COMMERCE - interstate
ALIENS, naturalization, citizenship
POSTAL Service (limited by 1st & 4th Am.)
INVESTIGATION of facts related to subjects over which Congress may legislate
TAXING to Raise Revenue (general welfare)
ADMIRALTY - navigable waterways
LEGISLATE!!! (rather than execute or adjudicate the law)
Torts - Negligence
Alternative Standards of Care beyond "the reasonable person"

SKIDMART didn't HELP that COUPLE so they'll be held to a different standard of care.
SCHOOL and pupils (special relationship)
K duty (contractual special relationship)
INNKEEPER and guests ("highest" duty)
DRAMSHOP laws impose liability upon drinking establishments
MALPRACTICE standards for professionals
liability to AUTOMOTIVE non-paying guests for reckless driving
RES ipsa loquitur
TRAVELERS aboard a common carrier ("highest" duty)
EVADE NICE WASP MICE raise criminal defenses
E ENTRAPMENT
V VAGUE Criminal Statute
A Bill of ATTAINDER
D DURESS
E EX POST FACTO Criminal Law

N NECESSITY Defense
I INOPERABLE or Unloaded Gun Defense (NY – for burglary & robbery)
C CLAIM of Title or Claim of Right Defense
E EXCESSIVELY Broad Penal Statute
Wills - Ways to Revoke the provisions of a Will

DIVORCE will AMBUSH beneficiaries.
DIVORCE / annulment (property passes as if the former spouse predeceased testator)
post-will ISSUE (revoked as to that child)
VARIANCE of provisions that increases a non-residuary gift or changes a beneficiary
OBLITERATION by cancellation or physical act (burning or tearing)
by RESTRICTION under slayer statute
CY PRES mod of T's bequest by the court to continue charitable purpose when impossible, impractical or wasteful to carry out as stated in the will
EXPRESS revocation by subsequent properly executed instrument (including holographic will)
Wills - Eight Frequently Tested
Problematic "Takers" Under the Will

An executor looks to the LIAR DOCS to decide who takes under the will.
LATER spouse not named in existing valid will usually takes all jointly-owned property and the greater of $50k or 1/2 of the separate property under UPC intestacy succession rules
IRREVOCABLE living trusts where the beneficiary is kin (lineal descendants of testator's grandparent) are covered by antilapse statute, but not devises where survivorship is required--all other lapsed devises are added to the residue of the estate.
ADOPTED, half-blood, acknowledged and paternity suit children are treated as natural issues for inheritance purposes under the UPC and most states (exception: children take by right of representation if intestacy rules apply)
a named beneficiary may REFUSE or disclaim to accept a devise under the will; property is added to residue
orporations - Elements of 10b-5
Stock Transfer Liability

In the MIDST of the STORM, it feels like a category 10b-5.
SCIENTER – defendant had actual knowledge of material misrepresentation regarding material information

TARGETED persons who are already shareholders have standing to sue even if they didn’t buy/sell shares in conjunction with 10b-5 violation

OMISSION or failure to disclose material fact by fiduciary will be treated similarly by the court as material misrepresentation

RELIANCE on misrepresentation resulted in purchase or sale (exception: non-disclosure cases do not require reliance)

MISSTATEMENT of material fact will be treated similarly by the court as material misrepresentation
Never Waive the following 3211 motions

NFL
non-joinder necessary party
failure to state cause of action
lack of subject matter jurisdiction
SWAP CAPITAL for DEFICIT
DELEGATION of legislative authority (Chadha limitation on Pres veto power & bicameral structure)
ELECTIONS
FINANCE - necessary/proper to coin $; create banks, fed reserve, credit system
set INFERIOR federal court jurisdictional limits
CIVIL rights enforcement (13th, 14th, 15th Am.)
INTELLECTUAL Property - patent & copyright
TREATY ratification
Torts - Negligence
Alternative Standards of Care beyond "the reasonable person"

SKIDMART didn't HELP that COUPLE so they'll be held to a different standard of care.
HOSPITAL and patients (special relationship)
EMPLOYER and employees (special relationship)
LANDLORD and tenants (special relationship)
PRISONERS held by law enforcement (special relationship)

CREATION of harm - duty to alleviate conseq of D's act when it creates risk of harm to others, even if act was not negligent
OWNER/OCCUPIER of land - varying duties to invitees, licensees and trespassors
UNDERTAKING to act - may not abandon an attempted rescue if D leaves P in worse condition
negligence PER SE - statute conclusively establishes standard for liability (reasonableness of Dt's actions irrelevant)
LOCAL ordinance violation by D is "evidence of negligence" by D - helps P establish prima facie case
EMERGENCY situation will lower D's standard of care unless defendant's negligence caused the emergency
EVADE NICE WASP MICE raise criminal defenses
W Accomplices’ WITHDRAWAL from crime aka Renunciation
A ALIBI defense
S SELF-DEFENSE (Justification)
P Heat of PASSION

M Legal or Factual MISTAKE
I INSANITY, INFANCY or INTOXICATION
C CUB FM defense
E EXTREME EMOTIONAL Disturbance Defense
Wills - Ways to Revoke the provisions of a Will

DIVORCE will AMBUSH beneficiaries.
ADEMPTION of property devised but not owned at death
post-will MARRIAGE (as to surviving spouse's intestate share)
BEQUEST advancement paid to beneficiary inter vivos (if gift exceeds intestate share, heir gets nothing)
UNIFORM Simultaneous Death Act
SIGNATURE of testator intentionally defaced
HOLOGRAPHIC codicil modifying a holographic will
Wills - Eight Frequently Tested
Problematic "Takers" Under the Will

An executor looks to the LIAR DOCS to decide who takes under the will.
subsequent DIVORCE causes all provisions favoring ex-spouse to be revoked unless stated otherwise in the will or if listed as beneficiary of insurance policy or ERISA benefit
OMITTED surviving children usually qualify for a forced share as if decedent died intestate (unless disinheritance can be proved)
CLASS beneficiaries must be sufficiently identifiable; courts refer to statute, T's intent and applicable rules of construction to determine when class closes
SATISFACTION of testamentary devise cannot be made by including inter vivos transfers of gifts given to beneficiary unless that intent stated in writing (i.e., executor can't deduct $20k gift to beneficiary received while testator was living from a $50k will devise)