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212 Cards in this Set
- Front
- Back
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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 |
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Equitable remedies
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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 |
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NY PRACT
Provisional Remedies (5) TRIP RAP |
Temporary Receivership
Injunction (Preliminary) Replevin Attachment Pendency (Notice of) |
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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 |
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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 |
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There’s a BAN on interrogatories
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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. |
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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 |
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Bill of Pendancy is demanded only for LAP
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L LIMITS proof that can be offered at trial
A AMPLIFIES pleading P PREVENTS surprise at trial |
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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 |
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Use a COMB for promissory estoppel in NY
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C CHARITABLE Pledges
O To avoid OUTRAGEOUSLY Unconscionable Results M Oral MARRIAGE Contracts B Promises by Gratuitous BAILEES to obtain insurance on bailed goods |
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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 |
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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 |
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NY PRACT
Affirmative Defenses SPARERIBS |
Statute of limitations
Payments Arbitration Award Release Estoppel (Collateral) Res judicata Infancy of defendant Bankruptcy discharge Statute of frauds |
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The claim WAS time-barred but plaintiff LOPED into court anyway.
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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 |
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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) |
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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) |
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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 |
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Defense to permanent injunction
LUNCH |
laches
unconstitutional not possible criminal acr hands unclean |
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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 |
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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 |
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Summary Judgement
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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 |
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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 |
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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 |
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I FACED SIR, sidesteps an in terrorem clause
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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 |
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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 |
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PAID MAID for pre-trial discovery
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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”) |
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LEAP DAD’S CAT if SOL expired
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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 |
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To vacate default judgment, bring a REAM of papers w/in 1 yr of being served w/ copy of judgment
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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 |
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SCARF CRIME lasts 6 years
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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 |
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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 |
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SOFT RAIN for 3 years
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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 |
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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 |
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J.P. MD doesn’t get an extra 6 months to recommence dismissed suit
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J Lack of JURISDICTION (MOP)
P D’s neglect to PROSECUTE 1st action M Dismissal on MERITS (Sum Jud) D Voluntary DISCONTINUANCE by P |
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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”) |
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EQUITY
Equity will only HEAL your problems in the absence of the following: |
Unclean HANDS
ESTOPPAL ACQUIESCENCE LACHES |
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Even if no minimum contacts or not served properly, may consent to NY jurisdiction by SCAAMS
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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. |
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Only a MAN can make a proper appearance in a pending lawsuit
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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 |
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Service of process is made by SAD MIC
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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 |
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PROPERTY
Three kinds of notice (recording statutes; equitable servitudes) AIR |
Actual Notice
Inquiry Notice – lay of the land/character of the neighborhood Record Notice |
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PROPERTY
Negative Easements – types LASS |
Light
Air Support Streamwater (artificial flow) |
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PROPERTY
Requirements for deed to pass legal title at closing LEAD |
LAWFULLY
EXECUTED AND DELIVERED |
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PROPERTY
Elements of /Adverse Possession COAH |
CONTINUOUS use for statutory period;
OPEN and notorious ACTUAL use HOSTILE use |
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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 |
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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) |
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PROPERTY
Covenant – burden runs with the land? WITV |
(i) WIT are the same as above
(ii) VERTICAL PRIVITY between B and B1 |
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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 |
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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 |
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Fee simple determinable
Frank Sinatra Didnt Prefer Orville Redenbacher |
Fee
Simple Determinable Possibility Of Reverter |
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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 |
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Affirmative Easements – methods of creation
P-I-N-G |
P – PRESCRIPTION
I – IMPLICATION N – NECESSITY G – GRANT |
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PROPERTY
formation of Joint Tenancy TTIPS |
took interests at same:
TIME TITLE IDENTICAL SHARES POSSES the whole |
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PROPERTY
termination of joint tenancy SPAM |
SALE
PARTICIAN AND MORTAGE (not in lien jurisdictions) |
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Landlord's remedies for tenant breach
SIR |
SURRENDER lease
IGNORE and just charge rent RE-LET and hold liable for any deficit |
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tenant remedy to breach of warrant of habitability
MR3 |
MOVE
REPAIR REDUCE REMAIN |
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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 |
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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 |
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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 |
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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 |
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Real Property - Landlord's Remedies for Breach by Tenant
Pay the rent or you're DEAD. |
withhold DEPOSIT
EVICTION ACCELERATION clause DAMAGES for holdover |
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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. |
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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. |
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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 |
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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 |
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A PEACE proxy is irrevocable
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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 |
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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 |
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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 |
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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) |
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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 |
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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 |
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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 |
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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 |
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Directors Meetings "Can Please Quite Many Needs"
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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. |
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If a dissenting sh goes to CAMP she gets Appraisal Rights
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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 |
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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 |
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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 |
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DAUBERT TEST FOR SCIENTIFIC EXPERTS
PETA |
Publication/peer review
Error rate Tested and can be retested Acceptance (level of) |
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Hearsay Exception - declarant unavailable. "USF-PD"
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"USF-PD" Unavailability caused by defendant Statement against interest Former testimony Personal/Family History Dying Declaration
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Non-Hearsay (Exemptions) "Nice Pic BD"
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"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
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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 |
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EVIDENCE
Character evidence is admissible for (specific act): MIMIC |
M-motive
I-identity M-mistake (not) I-intent C-common scheme |
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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 |
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Hearsay Exception - availability immaterial. "BOPPPED"
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"BOPPPED" Business Record Official Record Present Sense Impression Prior Recorded Recollection Present state of mind Excited Utterance Declaration regarding health
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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 |
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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 |
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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 |
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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 |
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EVIDENCE
Opinion Testimony- qualifying your expert witness SKEET |
Opinion Testimony- qualifying your expert witness: SKEET
Skills Knowledge Experience Education Training |
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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 |
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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 |
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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 |
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A defamer is privileged when she has JET LEG
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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 |
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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. |
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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 |
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Contracts - Termination of Options
three ways options can DIE |
DESTRUCTION of subject matter of option
INTERVENING illegality EXPIRATION of stated option time |
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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) |
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COMMERCIAL PAPER
material defenses MAD FIFI4 (WOSSUP, if WE FUN it's MADFIFI4) |
Material
Alteration Duress Fraud In Factum Infancy Illegality Insanity Insolvency |
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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 |
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COMMERCIAL PAPER
personal defenses WE FUC |
Waiver
Estoppel Fraud in inducement Unconscionably Consideration lacking |
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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 |
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CONTRACTS
elements needed for offer QTIP |
quantity
time identity party subject matter |
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CONTRACTS
Defenses to K Formation: AIDS FLU |
Ambiguity/Mutual Mistake
Incapacity Duress Statute of Frauds Fraud Legality Unconscionably |
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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 |
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TORTS
Intentional Torts FAT BITCH |
False imprisonment
Trespass to Chatte Battery IIED Trespass to land Conversion huh |
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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 |
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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. |
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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 |
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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 |
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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 |
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Parent liable for a SICK kid
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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. |
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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 |
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CONTRACTS
Statute of Frauds MY LEGS |
M-MARRIAGE
Y- YEAR+ contract L-LAND transfer E-EXECUTOR G-GUARANTOR/surety S- SALE goods $500+ |
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defamation
LAPPED |
Language
About Plaintiff Published caused Economic Damages |
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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. |
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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 |
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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 |
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A CLIP invades privacy
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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. |
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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) |
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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 |
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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 |
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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 |
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CRIM PRO
exception to warrant ESCAPIST |
Exigent Circumstances
Search Incident to Arrest Consent Automobile Plain View Inventory Special Needs Terry Stop & Frisk |
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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 |
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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 |
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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 |
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Liability is vicarious to a POPE
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P Principal
O Owner of NY Vehicle P Partner E Employer |
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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 |
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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. |
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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. |
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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 |
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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 |
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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 |
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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 |
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AGENCY
Principal-agent relationship requires? ABS |
A-assent
B- benefit C- control |
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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 |
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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 |
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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 |
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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 |
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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) |
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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 |
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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 |
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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 |
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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) |
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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 |
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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 |
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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 |
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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 |
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A will contest can TIE the executor’s hands
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T Lack of TESTAMENTARY Capacity
I Undue INFLUENCE E Improper EXECUTION (improperly SWEPT) |
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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) |
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MAD CAR CLAW can alter an existing will
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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 |
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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 |
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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 |
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WILLS
formation of will SWEPT |
signed
Writing signature at End Published that is his will Two witneses sign w/in 30 days |
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AGENCY
"Rude Employees Are Idiots" Principal is liable for agent's contracts if: |
R = ratification
E = express authority A = apparent authority I = implied authority |
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SECURED TRANSACTION
how creditor attaches VCR |
Value
Control of Collatteral Right in Property |
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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 |
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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. |
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MPT
brief (persuasive document for judge) |
heading
stmt facts argument conclusion |
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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.
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MPT
Opinion letter to client |
salutation
short intro paragraph body conclusion signature (like Ins. dept) |
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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: |
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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, |
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O-CAN can’t accept PJ STRAW’s additional terms
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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. |
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PJ STRAW Materially Alters offer if it would cause SURPIRSE OR HARDSHIP if offeror wasn’t made aware of its existence:
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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 |
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You don’t need SOF’s in a SWAMP
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S Contracts for SPECIALLY Manufactured Goods
W WAVIER A Judicial ADM ISSION of K M* “MERCHANT MEMO” P PART-PERFORMANCE |
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OF MICE permits parol evidence
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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 |
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SOAL-V and SORE-V effect ROL
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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 |
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Seller’s SPARKLE when B’s breach
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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 |
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CID’S WAR is a buyer’s remedy
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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 |
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M-FEET Warranties are in a sales k
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M* MERCHANTABILITY
F FITNESS for a Particular Purpose E Warranty against ENCUMBRANCES E EXPRESS Warranties T S’s Warranty of TITLE |
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Express warranties are SAD
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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 |
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PINE for defective product liabilities
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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 |
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G. P2ALMS is not for a breach of warranty
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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 |
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A director can’t be indemnified by BIG DR. AL
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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 |
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20% of corp shares can ID-FLOW to a dissolution
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I ILLEGALConduct
D DIVERSION of Corp Assets to those in control F FRAUDULENT Conduct toward the Minority L LOOTING O OPPRESSIVE Actions W WASTE |
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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) |
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Judicial notice is taken of indisputable facts because they are LMN
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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. |
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A judge doesn’t have to admit C-MUPIT evidence
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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 |
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A witness must PURR before she can testify:
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P Witness PERSONALLY PERCEIVED event.
U UNDERSTAND & take oath or affirmation. R Witness can REMEMBERemember event R Witness can RECALL event on stand |
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For NOW, deadman’s statute’s set aside (NY exceptions)
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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 |
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An original document may be replaced by A DOPE
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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 |
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CRIB PIC to impeach a W:
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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 |
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RIP character evidence is admissible when character or trait of character’s essential element in crime, civil claim, or defense
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R REPUTATION
I Specific INSTANCES of Prior Conduct P W’s PERSONAL Opinion |
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BRIBE K, and admit the listener’s state of mind
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B BELIEF
R REASON I INTENT B BIAS E EMOTION K KNOWLEDGE |
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Declarations against interest require a PUMP
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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 |
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DAMS gives you robbery and burglary 1st degree
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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 |
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Common Law Larceny requires a TIP
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T Wrongful TAKING of Prop
I Specific INTENT to Permanently Deprive Owner. P PERSONAL PROP of Another |
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FLEET larceny is to steal
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F FALSE Pretenses
L Common Law LARCENY (TIP) E EMBEZZLEMENT E EXTORTION T Larceny by TRICK |
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CUB can’t commit felony murder
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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 |
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By asserting justification, can RAT on the violent victim
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R Reputation
A Violent Acts T Threats of violence against D |
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Matters of procedure are governed by the forum’s SUPERB law
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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 |
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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 |
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if files motion to dismiss....
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if motion to dismiss is denied then gets 10 days to file answer.
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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 |
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which makes P serve complaint in...
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20 days
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if P serves notice then D must serve answer or motion in...
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20 days
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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) |
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if files motion to dismiss for lack of personal judgement then D must file for Sum Judge in...
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60 days
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if D serves answer how long does each party have to ammend a pleading?
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20 days (no court permission needed)
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after all this is done how much notice is given before filing a motion on notice
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8 days (starts when attorney mails)
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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 |
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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) |
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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) |
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EVADE NICE WASP MICE raise criminal defenses
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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 |
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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) |
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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 |
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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 |
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Never Waive the following 3211 motions
NFL |
non-joinder necessary party
failure to state cause of action lack of subject matter jurisdiction |
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SWAP CAPITAL for DEFICIT
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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 |
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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 |
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EVADE NICE WASP MICE raise criminal defenses
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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 |
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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 |
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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) |
