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379 Cards in this Set

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What are the ways to achieve federal subject matter jurisdiction?
diversity (between citizens of different states - none of which may be from same state) and amount in controversy greater than 75k, OR federal question (arises from fed. Right)
Evidence is relevant if it has:
any tendency to make a material fact more probable or less probable than would be the case w/o the evidence
All evidence is admissible unless:
Specific exclusionary rule OR ct makes discretionary determination based on 6 pragmatic considerations.
6 pragmatic considerations:
Danger of unfair prejud, confusion of issue; misleading jury; undue delay; waste of time; unduly cumulative
P's accident history is inadmissible unless:
The cause of P's injuries in in issue (e.g. shoulder injury from prior accident versus instant accident)
Other accidents involving D are inadmissible unless:
Accident occurred under substantially similar circumstances to show (1) existence of dangerous cond; (2) causation of accident; or (3) prior notice to D of dangerous cond.
When is prior similar conduct of a person admissible?
To raise inference of person's intent on a later occasion (e.g. gender discrimination, D hired no women over several years).
What evidence is admissible to show property value?
Comparable sales
When is habit (person or business) admissible?
(1) Frequency of conduct and (2) Particularity of conduct. Distinguish from mere general carelessness.
When is industrial custom admissible?
As evidence of the appropriate standard of care.
When is the existence of liability insurance, or the lack thereof, inadmissible?
For the purpose of fault (or absence of thereof).
When is evidence of insurance admissible?
proof of ownership/control of instrumentality/location IF that issue of ownership is controverted by D, OR to impeach a W on ground of bias (e.g. ins adjustment employee)
When are subsequent remedial measures admissible?
Admissible for proof of ownership/control or feasibility of a safer condition, IF either is controverted by D.
When are subsequent remedial measures inadmissible?
Subsequent remedial measures are inadmissible for purpose of proving negligence, culpable conduct, product defect, need for warning, or in products liability premised on SL, to show existence of defect at time of accident.
When is settlement evidence inadmissible?
In the event of a disputed claim, the settlement, offer to settle, and statement of fact made during the settlement discussion are inadmissible for the purpose of showing liability.
When is settlement evidence admissible?
Impeaching W on ground of bias and factual statements made during settlement discussion in civil litigation with a gov regulatory agency.
Evidence of plea bargaining in criminal cases - What are inadmissible and admissible types?
Inadmissible: Offer to plead guilty, withdrawn guilty plea; plea of nolo contendere (admissible in VA); statements of fact made during any of these plea discussions. BUT, guilty plea admissible in later litigation is same facts (under rule of party admissions)
Are offers to pay medical expenses admissible?
Inadmissible to prove liability. But, if offer is accompanied with other statements (e.g. I ran the stop light), statement is admissible.
Explain mechanics of evidence of a D's character in criminal cases.
Inadmissible during prosecution's case in chief. D can introduce through a character witness ONLY through (1) reputation and/or (2) opinion. (no specific acts). BUT, if D opens the door, prosecution can rebut (x-exam "Did you know" questions; and/or calling its own Ws).
How can D introduce evidence of V's character in self-defense cases?
Character W may testify to V's reputation for violence and give opinion. Open door for prosecution's rebuttal (V's peacefulness and/or prove D's character for violence.) For homicide, D's offering of evidence that V was first aggressor allows prosecution to introduce evidence of V's peacefulness.
What is a separate rule of relevance in self defense cases?
If D was aware of V's violent reputation/prior acts of violence, awareness may be proven to show D's state of mind (fear -- acted reasonably).
Under "rape shield law", what evidence is ordinarily inadmissible?
Opinion/reputation evidence about V's sexual propensity, OR evidence of specific sexual behavior of V.
What are exceptions to "rape shield law"?
(1) specific sexual behavior of V to prove that someone other than D was source of semen or injury to V; (2) V's sexual activity with D is defense of consent is asserted; (3) Love-triangle defense (to show V's motive to claim rape).
When is evidence of person's character admissible in civil actions to prove conduct in conformity?
(1) tort action alleging negligent hiring; (2) defamation; (3) child custody. Character is essential element of claim or defense in these situations and provable using reputation, opinion and specific acts.
When can the prosecution use other-crimes evidence as part of its case-in-chief?
MIMIC - motive, intent, mistake or accident or the absence thereof, identity, common scheme or plan.
What is the method of proof for MIMIC-purpose crimes?
By conviction, OR by evidence (Ws) that proves the crime occurred. Conditional relevancy standard - prosecution need only produce sufficient evidence from which reasonable juror could conclude that D committed other crime.
Can MIMIC be used in civil cases?
If relevant, can be used in civil cases like tort actions for fraud or assault.
When is D's prior specific sexual misconduct admissible?
Cases alleging sexual assault or child molestation, to show D's propensity for sex crimes.
When a writing appears on the exam, what are 3 potential issues (aside from relevance)?
Authentication, best evidence rule, hearsay
What are some general methods of authenticating a writing?
(1) W's personal knowledge (saw X sign document); (2) proof of handwriting (law-person opinion, expert comparison, jury comparison); (3) Ancient document rule; (4) Solicited reply doctrine.
What is the ancient document rule?
Authenticity of document can be inferred if (1) >= 20 yrs old (30 in VA for real estate deed); (2) facially free of suspicion (no white-out); (3) found in place of natural custody
What is the solicited reply doctrine?
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
List some self-authenticating documents.
Official publications, newspapers, document acknowledged by notary public.
How can photos be authenticated?
W testifies that on basis of personal knowledge, photo is a fair and accurate representation of the people or objects portrayed.
What is the best evidence rule?
Party who seeks to prove contents of a writing must either produce the original, or provide an acceptable excuse for its absence. If excuse found acceptable, party may use secondary evidence (oral testimony or a copy.) Writing includes sound recordings, x-rays and films.
What are two principle situations in which the best evidence rule applies?
(1) Writing is legally operative (patent, deed, written K) and (2) W is testifying to facts that she learned solely from reading about them in a writing.
When does best evidence rule not apply?
When a W with personal knowledge testifies to a fact that exists independently of a writing that records the fact.
What qualifies as an original writing?
Whatever parties intended as original, any counterpart, photocopy (unless fuzzy). A handwritten copy is neither an original nor duplicate.
What are excuses for non-production of an original writing?
(1) lost or cant be found with due diligence; (2) destroyed w/o bad faith; (3) cannot be obtained with legal process. Preponderance of evidence standard.
What are some "escapes" from the requirement that a writing be the original writing?
(1) Voluminous (can use chart); (2) certified copies of public records; (3) collateral documents (means not very important to case.)
For W competency, what is personal knowledge and oath?
W saw with own eyes/heard with own ears; W must be willing to swear under oath.
What is a "Dead Man's Statute," is it part of FRE and how does it work in VA?
No such rule in FRE. If question says there is such a statute, then: In a civil action, an interested W is incompetent to testify in support of her own interest against estate of a decedent concerning transaction between the interested W and the decedent. In VA, testimony must be corroborated.
When are leading questions generally not allowed, and generally allowed, respectively?
Direct examination of W, X-exam of W
When are leading questions allowed on direct examination?
(1) for introductory matters; (2) questioning a youthful or forgetful W; (3) Hostile W; (4) Questioning adverse party (or under their control e.g. Doctor and Nurse situation.)
What is the rule on writings in aid of oral testimony?
W may not read from prepared memo; must testify on basis of current recollection. BUT, if W's memory fails him, may be shown a memo to job his memory. Still, adversary has safeguards (inspect, use on x-exam, introduce into evidence).
What is the hearsay exception for past recollection recorded?
When a W is shown a memo and still doesn't recollect, attorney can read the list into evidence if: (1) showing writing to W fails to jog memory; (2) W had personal knowledge at former time; (3) writing was either made by witness, or adopted by witness (cop's inventory); (4) making or adoption occurred while event fresh; (5) W can vouch for accuracy of writing when made or adopted.
When is lay opinion admissible?
(1) Rationally based on W's perception (personal knowledge) and (2) Opinion is helpful to jury in deciding a fact. Examples: drunk/sober, speed of car, emotions of another, sanity
What are the qualifications of an expert W and what is proper subject matter?
Qualifications are education and/or experience; proper subject matter is scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact.
What is the appropriate basis of an expert's opinion?
Reasonable degree of probability or reasonable certainty.
What data sources may an expert draw upon?
Expert may draw upon (1) personal knowledge (treating physician); (2) other evidence admitted @ trial (testimony of other Ws, medical reports, things made known to expert by hypo question); (3) facts outside the record if this outside material is of a type reasonably relied on by experts in the particular field, informing opinions.
Is it proper for an expert to testify by reading to the court the contents of an interview summary and the contends of another doctor's report? If not, why?
No. An expert may only state in general terms what he relied on out of ct and not actual contents of out of ct material.
What is the standard for admissibility of expert opinions?
To be admissible, expert opinion must be relevant to the issue at hand and sufficiently reliable.
What factors will a court use to determine reliability of principles/methods used by expert to reach opinion?
TRAP: (1) Testimony of principals/methods used by experts; (2) Rate of error; (3) Acceptance by other experts is same field (general acceptance is not required); (4) Peer review and publication
What is the hearsay exception for learned treatise in aid of expert testimony?
(1) On direct examination of party's own expert, relevant portions may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority; (2) On X-exam of opponent's expert, to impeach (comes in as substantive evidence); (3) BUT learned treatise may not be introduced as exhibit.
May opinion testimony (expert of lay) address an ultimate issue in the case?
Yes, it may address ultimate issue in case (In DWI, layperson testified that X seemed drunk). BUT, the opinion must be helpful, (no legal jargon for ultimate issues, jury cant understand jargon).
May a party be denied opportunity to X-examine an opposing W who testified at trial and what is proper subject matter?
Party has the right to x-exam. Proper subject matter is (a) matters w/in scope of direct exam, and (b) matters that test W's credibility.
When may one's own W be bolstered?
No bolstering W until after W's credibility has been attacked.
What is the exception to inadmissible prior consistent statements?
Whereas a prior consistent statement (e.g. after W testifies that he say D run the light, W testifies that "I told coworkers that I saw D run light) is inadmissible, W's prior ID of a person (e.g. W testifies that she recognizes D (in ct) as perpetrator, then testifies that she picked him from lineup) comes in as substantive evidence BUT W who made prior ID must testify at trial.
What is the rule on impeachment of one's own W?
Permitted to impeach own W without limitation.
What are the 7 impeachment methods and for which of them may the impeaching fact be proven with extrinsic evidence?
(1) Prior inconsistent statements; (2) Bias/interest/motive to misrep; (3) Sensory defects;
(4) Bad reputation/opinion of W's character for truthfulness;
(5) Criminal convictions;
(6) Bad acts w/o conviction;
(7) Contradiction.
Extrinsic evidence for all except (6) and part of (7).
What are 2 ways to use impeachment methods?
(1) Ask W with aim of getting an admission ("confronting W"); (2) Prove impeaching fact with extrinsic evidence.
Must a W be asked about an impeaching fact before introducing extrinsic evidence?
No, except as to Bias.
What is a prior inconsistent statement and when is it admissible?
Material statement (orally or written) that is inconsistent with trial testimony. Admissible only for impeachment.
When can a prior inconsistent statement be admitted both to impeach and as substantive evidence (i.e. what is the hearsay exclusion)?
If statement was made (a) orally under oath and (b) as part of formal hearing proceeding in trial or depo.
Must W be confronted with prior inconsistent statement while still on the stand, and what is the exception?
Confrontation timing is flexible and W must be allowed to return to stand to explain or deny BUT no opportunity needs to be given if W is the opposing party, (prior inconsistent statement of opposing party is a party admission that can be used as substantive evidence.)
Must a W be confronted with alleged bias while on the stand?
Yes and if confrontation prerequisite is met, bias may be proven by extrinsic evidence.
What is a sensory deficiency, also explain confrontation and extrinsic evidence.
Anything that could affect W's perception/memory (e.g. vision, hearing, consuming a drink/smoking J at time of event or while on stand). Purpose is to suggest mistake. Confrontation not required. Extrinsic evidence allowed.
What types of Ws can be impeached for bad reputation/opinion of W's character for truthfulness, explain confrontation and extrinsic evidence.
Any W. Confrontation not required. Extrinsic evidence allowed.
What criminal convictions may be used to impeach W and what is the time limit?
Any crime in which prosecution had to prove false statement as an element of the crime (any truth-telling crime e.g. fraud). If conviction did not require false statement, it must be a felony and ct may exclude in its discretion. Within 10 years of trial unless the proponent shows that the probative value on issue of credibility is sustained.
When is inquiry about W's bad acts (w/o conviction) allowed and what is rule and/or exam tip regarding extrinsic evidence?
Only permitted procedure is confrontation on X-exam. No extrinsic evidence. BUT, proof with extrinsic evidence may be allowed if bad act is relevant for some purpose other than bad character for truthfulness (e.g. bad act showed bias.)
What is contradiction and what is the rule on extrinsic evidence?
In X-exam, may try to get W's admission that she made mistake or lied. If she sticks to her story, extrinsic evidence is NOT allowed for contradiction IF the fact at issue is collateral.
When and how is rehabilitation to show W's good character permitted?
Only when W has been impeached on grounds of bad reputation/opinion of W's character for truthfulness, criminal convictions and bad acts (w/o convictions), if impeachment clearly suggested W was lying (vs. being mistaken.) Bring character W to show impeached W has good character.
When is a W's prior consistent statement admissible to rebut a charge of recent fabrication?
If W's trial testimony is charged as a recent fabrication (or product of improper influence, Brad, Jen and Angelina example), prior consistent statement admissible to rebut the charge if it was made before the motive to fabricate arose.
In Evidence, what to we need to remember about Erie?
In federal ct based on diversity, federal ct must apply the privilege law of the state whose substantive law is applicable.
What are the elements of atty-client privilege, how does it work as between joint clients and what is not a privileged, with respect to communications?
Privilege applies to confidential communications between L and C (or reps), made during professional legal consultation, unless waived or an exception applies. If joint clients later have dispute, privilege doesnt apply as between them. Privilege doesnt apply to underlying info, pre-existing documents, or physical evidence.
What is subject matter waiver of privilege?
When a voluntary waiver as to some communications also waives privilege to other communications (1) intentional partial disclosure; (2) same subject matter; (3) fairness
When will an inadvertent disclosure not waive privilege?
When privilege holder took reasonable steps to prevent disclosure and takes reasonable steps to correct the error.
What are the 3 exceptions to atty-client privilege?
(1) Future crime/fraud; (2) C puts legal advice in issue (e.g. in tax fraud case, D defends on reliance of atty); (3) dispute between L and C (unpaid fee, malpractice.)
What is physician-patient privilege, what is the federal law distinction and what is the general exception? VA?
Privilege applies to confidential communications for the purpose of diagnosis/treatment; applies to psychotherapists; in Federal applies ONLY to psychotherapy; general exception when P is suing for PI, or D asserts insanity (puts it in issue). In VA, only for civil cases NEVER in criminal cases.
What are the Husband-Wife Privileges?
(1) Spousal immunity in criminal cases only (cant compel S to testify, S may voluntarily testify); (2) Confidential communications in ANY case (both S hold, cannot be waived unless both agree).
What are the exceptions to the Husband-Wife Privileges?
communications/acts in furtherance of jointly-perpetuated future crime or fraud; spousal/child abuse; litigation between spouses themselves (breach of K).
What is hearsay?
(1) Out of ct statement of a person (oral or written), (2) offered to prove truth of matter asserted in statement.
What are the principal categories of non-hearsay purposes?
(1) Verbal act (W testifies to hearing legally operative words e.g. K acceptance); (2) To show effect on person who heard or read the statement (broken salsa jar; note found on D showed motive); (3) Circumstantial evidence of speaker's state of mind.
Generally, W's own prior statement, if offered to prove truth of matter asserted in statement, (e.g. It didnt do it. I told cops I didnt do it.) is hearsay and inadmissible. What are the 3 exceptions?
3 W-statement exclusions from hearsay: (1) Prior statement of ID of a person; (2) prior inconsistent statement IF oral, under oath, formal hearing; (3) prior consistent statement IF being now used to rebut a charge of recent fabrication, improper motive or influence.
When is a VA interlocutory appeal granted?
Ct must find there is substantial ground for difference of opinion, no clear VA appellate precedent, determination of issue will be dispositive of a material aspect of case, and court and parties agree it is the best route
What is a party admission and what is a vicarious admission?
Party admission: Any statement made by a party (including adoption, express or implied) is admissible if offered against the party. Vicarious admission: Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of employment and made during employment relationship.
What is the implication of D's 6th A rt of confrontation on hearsay?
Prosecution may not use a hearsay statement against the criminal D (even if it falls within a hearsay exception) if: (1) statement is testimonial; (2) declarant is unavailable; and (3) D has had no opportunity for x-exam.
In Evidence, what is and is not "testimonial"?
Grand jury testimony is testimonial; Statements in response to police interrogation are testimonial if primary purpose is to prove past events potentially relevant to a later criminal prosecution. Non-testimonial if primary purpose is to enable police assistance to meet an ongoing emergency (includes a situation where crime ended within past hour and perpetrator lose and dangerous). Affidavits, police reports for prosecutorial purposes, are testimonial but business records arent.
What is the "Forfeiture Exception"?
Declarant unavailable due to D's wrongdoing. Hearsay admissible if ct finds (1) By preponderance of evidence, (2) that D's conduct was designed to prevent W from testifying
What are the grounds of unavailability for the hearsay exceptions?
"PAILS" (1) Privilege; (2) Absence from juris (diligently search, didnt find, outside subpoena pwr of juris); (3); Illness or death; (4) lack of memory; (5) Stubborn refusal to testify.
What are the hearsay exceptions?
(1) forfeiture by wrongdoing; (2) former testimony; (3) statement against the interest; (4) dying dec; (5) Excited utterance; (6) present sense impression; (7) present state of mind; (8) declaration of intent; (9) present physical cond; (10) statement for purpose of medical treatment/diag; (11) business records; (12) public records; (13) past recollection recorded; (14) learned treatises
What are the relevant interests for hearsay exception of statement against the interest?
pecuniary, proprietary, penal
In what ways is the hearsay exception for statement against the interest different from a party admission?
Statement against interest (1) must be against interest when made; (2) any person (not merely a party) can make statement against interest; (3) personal knowledge is required; (4) declarant must be unavailable.
What can dying declarations be used for in civil cases and criminal cases?
Criminal - homicide prosecutions only. Civil - all civil cases.
Is unavailability required for the hearsay exception of excited utterance and what is this exception?
Unavailability not required. Statement concerning startling event, made under stress of excitement, suspends ability to fabricate. Factors include nature of event, passage of time, visual clues ("!", excitement verb, exclamatory phrase.)
What is the present sense impression exception to hearsay?
Description of event made while it is occurring or immediately thereafter, no time to fabricate (phonecall, son tells mom Hannibal stopped by.)
What is the present state of mind exception to hearsay?
Contemporaneous statement concerning declarant's present state of mind, feelings. (Probate of Wanda's will, pet shop to which estate was left offers testimony that a few days before execution of will, Wanda told friend "I dont love my family.")
What is the declaration of intent exception to hearsay?
Statement of declarant's intent to do something in future. (Insurance company, suicide, introduces a note in which dead person says "next week, im ending it.")
What is the "statement made for purpose of obtaining medical treatment/diag" exception to hearsay?
Statement made to anyone (usually medical personnel) concerning declarant's (1) present symptoms; or (2) past symp; or (3) general cause of declarant's cond BUT NOT including statements about fault or identify of tortfeasor, provided that statement for purpose of med treatment.
What are the elements of the business records exception to hearsay?
(1) Records of business of any type; (2) made in the regular course of business; (3) business regularly keeps such records; (4) made contemporaneously; (5) contents consist of info observed by employees of business OR statement that falls within an independent hearsay exception.
What are public records, under the hearsay exception, and what does it exclude?
Records of a public office or agency but excludes police reports prepared for prosecutorial purposes (not admissible against D in criminal case, nor under theory of business records.)
What is the VA rule on default jmts in divorces/annulments?
No default or waiver of procedural rts. Evidentiary submissions must still be made by P so proper record of grounds of divorce can be given to trial judge. Even defaulting D entitled to notice before depos are taken.
In VA, is there a constitutional right to jury trial of equitable claims and how are mixed cases (law and equity) decided?
No constitutional right* on any claim for equitable relief or claims based on cause of action that was traditionally equitable.

Legal/jury claims decided 1st and judge bound by any fact jury makes.

*Exception: (i) quiet title actions or (ii) when D files a plea to an equitable claim
What are the two situations in which there is a statutory right to jury hearings and is the verdict binding on the judge?
(1) Quiet title actions and
(2) Where D files plea in equity (defensive pleading with single set of dispositive facts, which, if proved, would exonerate D, e.g. illegality, res judicata, infancy) P can never set up such a plea. Binding on judge.
What is an advisory jury, and what is the standard of deference by judge?
In equitable claim, discretionary jury to hear hotly debated factual issues. (Either P requests, D, or sua sponte.) Not binding on judge BUT judge has to make indep dec and may not merely accept jury decision.
What are 3 ways to review VA decrees on equitable claims and for each method, state the mechanics?
(1) Motion to suspend, modify or vacate, (must be signed by court in a written order w/in 21 days after judgment is entered. Motion based on new evidence or any error of law/fact. Legal or equitable).
(2) Bill of review (equitable: filed w/in 6 months of entry of decree, based on newly discovered decisive evidence, or an error law appearing on FACE of record (e.g. will or K was misconstrued)
(3) Appeal (Notice of app filed in trial ct w/in 30 days from date of decree, matter of RIGHT in domestic relations and will be heard by ct of appeals, all other cases appeal only to SC and ONLY discretionary. Petition SC to grant leave for appeal. w/in 3 calender months of notice of appeal asking SC to grant appeal.)
What are the two threshold general requirements for equitable relief in VA?
Remember, equitable relief is always discretionary. ANYTIME you are considering equitable relief, start with:
(1) The legal remedy is inadequate and
(2) The equitable remedy feasible. Then move on to specific form of relief.
Factors for determining inadequacy of legal remedy for VA equitable relief?
(URSMII) Unique subject matter, Real estate (any), Speculative damages, Multiple lawsuits would be needed, Insolvency of the D, Irreparable harm would occur
Factors for determining if an equitable remedy is feasible and criteria for denying injunctive relief in VA?
(1) Person who would be ordered to act OR property that is the subject of suit MUST be in the forum state;
(2) Court may deny if:
(i) enforcement would require extensive supervision (complex, long-term) OR
(ii) court would lack standards to measure compliance (special training).
What situations are injunctions normally available for in VA?
1. Continuous or repeated trespass to land,
2. Conversion of unique chattel (a painting), or
3. Stop unfair competition.
What situations are injunctions sometimes available for in VA?
(1) Eliminating a private nuisance (physically affects P) but not a public nuisance (everyone affected equally);
(2) Preventing waste to property (but not for ameliorative waste).
What situations are injunctions usually not available for in VA?
(1) Defamation,
(2) Commercial defamation (Trade libel),
(3) Invasion of privacy torts (not recognized in VA, unless, involves unauthorized use of a person's name or picture)
(4) Pending criminal proceedings, rarely enjoin threatened criminal proceedings.
What are the factors for VA temp injunctive relief?
(1) Substantial likelihood moving party will win lawsuit;
(2) Irreparable harm unless status quo maintained;
(3) Harm to the moving party outweighs the hardship to restrained party, and
(4) Public interest will not be adversely affected by injunction.

Ct will ALWAYS balance hardships. Hearing on both sides and usually injunction bond required.
What are the VA requirements for SP of a K?
(1) Valid K including offer and acceptance with certainty of material terms;
(2) All K conditions are met (strict enforcement of time of essence unless slight delay, no injury, extreme hardship, waiver; if title not marketable still SP if minor (reduce price) or if waived (e.g. buyer sues for SP));
(3) Mutuality of remedies: both parties able to perform and both can be bound (e.g. jurisdiction)
What are the two aspects of equitable relief for unlawful competition in VA?
(1) Tort aspect (injunction); (2) K aspect, (SP).
What situations give rise to a violation of the tort aspect of a claim for unlawful competition?
(1) Passing off products as those of someone else,
(2) Interference with existing business relationships,
(3) Misappropriation of trade secrets (confidential info, not otherwise available that gives the owner any competitive advantage)
For the K aspect of unlawful competition in VA, explain elements considered for equitable relief in deciding if a covenant not to compete (CNC) is reasonable.
Specific performance of a CNC will be granted if the CNC is reasonable as to:
(a) The employer's interest;
(b) The employee's right to make living (geographic restraints reasonable, not broader than needed and of a reasonable duration);
(c) Public policy.
In VA, what are reqs for rescission?
(1) Mutual mistake as to a material fact OR
(2) Unilateral mistake coupled with (i) any misrepresentation (even innocent) or (ii) some form of inequitable conduct (duress, undue influence, lack of capacity may also work).

Rescission makes a contract voidable.
In VA, what are reqs for reformation?
In a VALID K:
(1) Any mutual mistake or
(2) unilateral mistake with knowing misrepresentation (e.g. fraud)

-Clear & Convincing standard, S.O.F. will not block reformation if grounds for reforming are shown
- Can use parol evidence to show agreement terms
In VA, what are reqs for restitution for unjust enrichment and what is the corresponding legal theory?
If P can show that D:
(1) Obtained benefit from P, and;
(2) Upon request of D or in circumstances showing that D should have known that P expected recompense (not a gift/gratuitous service)

Legal Theory: Can sue instead under legal theory of quasi-K.
Are equitable remedies available against the Commonwealth?
No, Commonwealth is immune from suit for equitable causes of action. However, can be sued for breach of K and tort under VTCA.
What are four possible remedies for a successful claim of restitution?
(1) Dollar awards;
(2) Constructive trusts (wrongfully obtained property can be traced to some asset the D has; declares P beneficial owner);
(3) Equitable lien (P's money has gone into D's prop; intent to lien must be in writing);
(4) Specific restitution (specific return of property).
Can an equitable defense be raised against VA governmental bodies?
No.
List the VA equitable defenses.
(FUUTIE) Fraud, Unclean hands, Unconscionability, Time bar (laches), Impossibility/hardship, Equitable Estoppel
In a VA equitable defense of unclean hands, must be P's conduct have been illegal?
No, P's conduct need not be illegal for unclean hands defense; overreaching is sufficient.
What are the requirements of a time bar (laches) defense in VA?
(1) Adult P waited an unreasonably long time after obtaining knowledge of the wrong and
(2) Delay was prejudicial to D.

While laches may bar a claim in a shorter time than the legal claim's SOL, laches can NEVER extend a SOL.
When will a VA equity ct accept the defenses of impossibility/hardship?
Must be within the capacity of the person being ordered to something and ct will consider whether the relief places a burden on D that is disproportionate to P's gains.
How is fraud shown in VA?
Allege a knowing misrepresentation of a present fact (not opinion, promise or statement about a future event)

Use as a defense to SP, or as a basis for reformation and rescission.
Must show by clear and convincing evidence.
What is equitable estoppel?
A party makes a rep that foreseeably induces someone to act in reasonably reliance, to his detriment; bars the party making representation.
What are the forms of surety relationships and how do they affect enforceability?
(1) Compensated - consideration, writing unless main purpose, enforceable; (2) Current Gratuitous, promise is consideration, inducement, writing unless main purpose, enforceable; (3) Article 3 NI, signature is the only writing, enforceable; (4) Non-current gratuitous, unenforceable unless surety signs NI.
What are the three levels of Surety liability?
Primary - signs on front, unconditional obligation to pay; Guarantor of payment - signs on back (indorses), pays only if debtor defaults; Guarantor of collectibility - signs on either side and writes this term, pays only if both debtor defaults and creditor sues but cant collect on debtor (last resort)
How does the statute of frauds apply to Surety contracts? What is the exception?
ALL surety contracts must be in writing, regardless of value; main purpose exception if the surety's commitment is primarily for his own benefit
What are the surety defenses (use debtor's defenses)?
Fraud and Duress; things like infancy, insanity, or bankruptcy are never a defense because those are the reasons a surety relationship is undertaken
What surety defenses for modifications (variation of risk)?
If a gratuitous surety, always discharged. If a compensated surety, they are bound to the extent they suffer a loss from the change. Thus, If variation reduces liability, still bound for original amount. BUT VA does not discharge for impairment of collateral (creditor fails to perfect sec interest).
When can a mechanics lien be formed?
After repairing personal property at the request of the owner or the person in lawful possession of the property
How does whether an owner or a non-owner makes a request to repair personal property create limits on a mechanics lien?
if at owner's request, limited to just and reasonable charges. If at request of non-owner in lawful possession, limited to $800
What are the options, depending on the value of the personal property, for enforcing a mechanic's lien on personal property?
<$5,000, can sell at public auction if not paid within 10 days. If more than $5,000 but <$15K may petition GDC to have sheriff sell the property after giving debtor notice (although if greater than 15k, petition CC instead)
When can a mechanics and materialmen's lien on real property be formed?
After performing labor or furnishing materials for construction, removal, repair, or improvement of any building or permanent structure.
How can a mechanics and materialmen's lien be perfected?
General contractor must file a memorandum within 90 days of completion setting forth owners, verified amount of claim, intent to claim lien, and description of property. Same deal for subcontractor but they must also give notice to owner and gen. contractor, and are limited by what is owed to the gen. contractor.
What is the statute of limitations on a mechanics and materialmen's lien?
6 months from recording the memorandum that perfected the interest or 60 days from work completion, whichever is LATER
What is the priority hierarchy among mechanics and materialmen's liens?
Manual laborers have priority over people working for subcontractors, who have priority over subcontractors themselves, who have priority over general contractors (ASSUMING that they filed their own lien separately)
What property cannot be subject to a mechanic's and materialmen's lien?
Leased property where the leasee orders repairs or improvements and public buildings
How can a P obtain prejudgment help from the court to obtain a lien on defendant's property so that property will be available to satisfy any later judgment in that suit?
Prejudgment Attachment of specific property, debts or breach of K or tort. Once obtained, P becomes creditor and can follow the process for obtaining a judgment lien that gives him priority over other claimants. However, D must be a nonresident of VA or about to fraudulently transfer or conceal property with intent to hinder or delay creditors
How does the process of attachment proceed for creditors with an interest in real or personal property?
File a writ of attachment, post a bond (if cash, FMV, if for property, double FMV), judge makes ex parte determination, then if valid, directs sheriff to levy property by serving a copy of the attachment
How can a person get judicial relief if they are a creditor who doesn't have a lien? What is the duration for relief?
Become a judgment creditor by suing. Enforceable for 20 years from date judgment is rendered in CC, or 10 years for GDC (unless GDC judgment is docketed in CC,which is then 20 years).
Judgment extinguishes original right and acts as new debt. Can extend 20 year term for a new period by suing based on the original judgment.
What does a judgment lien enable a creditor to do?
Sell the property to satisfy the judgment amount and it also gives him priority over competing claims on the property
What is the process called for creating a judgment lien on real estate?
Docketing
A has a judgment lien on debtor B's real property. B sells the property. What can A do?
Purchaser takes it subject to the lien. Creditor may use a notice of lis pendens to enforce the lien against the purchaser, but must do so within 10 years (no extensions).
A has a judgment lien on debtor B's real property. If A enforces the lien, what is the process called?
a creditor's suit in equity
A has a judgment lien on debtor B's real property. The property generates income. If A enforces the judgment lien, what effect could the generated income have for B?
If the rents or income could pay the judgment amount within 5 years, then A can't sell it and the rents/profits are retained for creditor A's benefit. Otherwise, NO RIGHT TO REDEEM for B.
What happens to junior and senior interests in a piece of real property after sale via a judgment lien?
Junior interests are extinguished while senior interests encumber the property, so long as they were recorded prior to the sale
What is the document called that executes a judgment lien on tangible or intangible personal property?
Writ of fieri facias (writ of execution)
How is priority determined among competing claimants for judgment liens on tangible personal property?
first in time
What is the document called that executes a judgment lien on intangible personal property on a third party? What is that party called thereafter?
writ of garnishment; garnishee
What are a garnishee's options when appearing in court after having a judgment lien on intangible personal property executed against them?
admit liability or fail to appear, which enters the judgment against them. Or, they can assert any defenses which would be applicable against the debtor.
What exemptions are available for debtors that are having judgment liens executed against them?
(1) Homestead: $5,000 plus $500 for each dependent, real or personal property, homestead deed must be filed; exception for purchase money mortgage or security interest, intentional tort claims
(2) Poor Debtor's: clothes, household furnishings, sentimental items, tools of the trade except for security interest, motor vehicle except for security interest, burial plot
(3) Wages: lessor of 25% of wages or amount 30x Min Wage
(4) Personal Injury cause of action or proceeds
What can an exemption NOT be taken for when a debtor is having a judgment lien executed against them?
child/spousal support obligations, purchase money security interests (PMSI) in property, intentional tort damages
What is the limitation on garnishing a person's wages?
Limited to LESSER of 25% of disposable earnings (take home pay) OR 30 times the federal minimum hourly rate
When is a conveyance by a VA debtor presumed to be fraudulent?
When it is intrafamillial, between husband and wife, or renunciation of a gift under a will by a debtor
How can a creditor discover the nature, location, and condition of a debtor's assets? What is the procedure and prerequisites?
Creditor's bill and interrogatories.
Examine debtor under oath using post-judgment interrogatories. Creditor needs to show that a valid judgment was returned unsatisfied (nulla bona).
What is a fraudulent transfer, who can upset a fraudulent transfer and what is the exception?
Prop transfer intended to avoid levy. Present and future creditors can upset. Exception for transfer to a BFP for FMV.
What is a voluntary transfer and who can upset a voluntary transfer?
Prop transfer for less than FMV. Only present creditors can avoid the transfer.
What is the procedure to set aside fraudulent and voluntary conveyances for judgement creditors? For general creditors?
Judgement creditor: motion in equity
General creditor: bill in equity & notice of lis pendens
What are the possible surety rights against creditors and which one is valid?
(1) Rt to Notice of debtor default (No); (2) Rt to compel action (force creditor to sue debtor before surety) (Yes in VA, No on MBE); (3) Rt of application of security (force creditor to use collateral before suing surety) (No); (4) Rt of application of funds (force creditor to apply debtor's payment to loan that surety guaranteed) (No.)
What are the surety rights against debtors and for which rights must a surety be out of pocket?
(1) Exoneration (compel debtor to pay), no surety payment required; (2) Reimbursement/Indemnification, some payment required; (3) Subrogation (rt to use creditor's rts), total payment required.
What surety rights are always available against co-sureties?
Exoneration; Contribution, Subrogation
VA: 2 step process for PJ
(1) satisfy statute (e.g long arm); (2) satisfy constitution.
VA: 2 ways to get in personam juris over D personally (not prop)
(1) served in-state; (2) resides in VA.
VA: Long Arm, specific juris for nonresidents, describe main elements.
tortious injury instate by acts or omissions instate; K to supply services or things in VA, interest in, uses or possesses realty in VA, transacts any business in VA (single transaction state).
State constitutional standard for juris over D
My parents frequently forget reading children's stories
VA: How to get SMJ in CC?
CC hears any civil action (unless if exclusively vested in another ct) except money claims or claims to specific personal property of $4.5 which are exclusively heard in GDC.
VA: SMJ in GDC?
Actions at law in tort or K or detinue but ONLY if $25k or less.
BUT, "unlawful entry or detainer" (to oust D from real property), disputes over leases and guarantees of leases can go over $25k.
GDC has exclusive jurisdiction if seeking to monetary recovery or claim to specific personal property of $4.5k or less.
Injunctions cannot be granted at GDC.
State differences between CC and GDC.
GDC - ct not of record, no formal pleadings, no discovery, no jury trials
Can you appeal from GDC to CC and if so, state the steps.
Abs right if "amount involved" > 50; Steps for appealing from GDC to CC: (1) file written notice of appeal with clerk of GDC w/in 10 days of jmt; (2) post bond and pay writ tax in GDC w/in 30 days of jmt (10 days if unlawful detainer). Seeking rehearing at GDC DOES NOT increase these time reqs. CC hears de novo.
VA: If D appeals a jmt from GDC to CC, may P amend and increase his claim?
Yes, P must seek leave to amend.
Do VA cts enforce forum selection clauses?
Yes; if fair and reasonable.
VA: Distinguish Cat A and B Venue:
Local actions (land), wills (location of probate), writs, injunctions (location) are all Cat A. Cat B: where D resides or principal place of employment, where cause of action (any part) arose (For K, entered or breached), where D has registered office, regularly conducts substantial business (not just chairperson for charity), if recovering personal prop (location of prop), fiduciary (place of qualification).
VA: When may venue be objected to in CC?
Must FILE w/in 21 days after service of process unless Ct extends time to file a responsive pleading.
VA: When may venue be objected to in GDC?
Okay to object on or before trial day.
VA: If D timely objected to venue and was right, will ct dismiss case?
No. Ct will transfer to a proper venue unless good cause to keep case.
VA: Where can P lay venue if all Ds are nonresidents?
Where P resides. But, if VA co-D, venue must be proper as to her.
VA: When may ct transfer from PROPER venue?
On motion of any party if there exists good cause (FNC transfer). Considers factors including if other ct was center of gravity (risk abuse of discretion if fail to transfer to center of g).
VA: What is a summons called in GDC and CC?
GDC: summons is a warrant OR notice of motion of jmt. CC: summons.
VA: What are mechanics of service of process?
First, personal service must be tried and be unavailable. Second, substituted service (serve D at usual place of abode, member of D's family >= 16, not guest; must tell her of contents.) Only if personal or substituted are not possible, post copy of process on D's front door and, at least 10 days before taking default jmt, mail process to D and certify to clerk that mailing took place, in CC, P, in mailing copy of pleading to D, should state that upon default and after 10 days from mailing, default jmt may be sought. Curing statute if D actually and timely received except divorce/annulment cases. P can request by mail that D waive formal service (2 copies, waiver, SASE).
VA: If D is here to be W in another civil case, is she immune from service?
No. But discretionary immunity for grand jury or criminal summons.
VA: Regarding SOL, what are mechanics for timeliness of service?
Filing within SOL tolls it BUT P must serve process w/in 12 months or else he cannot win jmt unless he shows diligence. Ct must hold a hearing, and give P 30 days' notice before dismissing on that gnd.
VA: Distinguish Cat A and B Venue:
Local actions (land), wills (location of probate), writs, injunctions (location) are all Cat A. Cat B: where D resides or principal place of employment, where cause of action (any part) arose (For K, entered or breached), where D has registered office, regularly conducts substantial business (not just chairperson for charity), if recovering personal prop (location of prop), fiduciary (place of qualification).
VA: When may venue be objected to in CC?
Must FILE w/in 21 days after service of process unless Ct extends time to file a responsive pleading.
VA: When may venue be objected to in GDC?
Okay to object on or before trial day.
VA: If D timely objected to venue and was right, will ct dismiss case?
No. Ct will transfer to a proper venue unless good cause to keep case.
VA: Where can P lay venue if all Ds are nonresidents?
Where P resides. But, if VA co-D, venue must be proper as to her.
VA: When may ct transfer from PROPER venue?
On motion of any party if there exists good cause (FNC transfer). Considers factors including if other ct was center of gravity (risk abuse of discretion if fail to transfer to center of g).
VA: What is a summons called in GDC and CC?
GDC: summons is a warrant OR notice of motion of jmt. CC: summons.
VA: What are mechanics of service of process?
First, personal service must be tried and be unavailable. Second, substituted service (serve D at usual place of abode, member of D's family >= 16, not guest; must tell her of contents.) Only if personal or substituted are not possible, post copy of process on D's front door and, at least 10 days before taking default jmt, mail process to D and certify to clerk that mailing took place, in CC, P, in mailing copy of pleading to D, should state that upon default and after 10 days from mailing, default jmt may be sought. Curing statute if D actually and timely received except divorce/annulment cases. P can request by mail that D waive formal service (2 copies, waiver, SASE).
VA: If D is here to be W in another civil case, is she immune from service?
No. But discretionary immunity for grand jury or criminal summons.
VA: Regarding SOL, what are mechanics for timeliness of service?
Filing within SOL tolls it BUT P must serve process w/in 12 months or else he cannot win jmt unless he shows diligence. Ct must hold a hearing, and give P 30 days' notice before dismissing on that gnd.
A pleading states in numbered paras the facts relied on and the facts clearly inform opposing party of claim. A law firm names signs the pleading. Is this sufficient?
No. A L must also be set forth and sign.
Suppose a doc that should be annexed to a pleading is not. What can other party do?
Motion craving oyer.
What is the VA corollary to Rule 11 and what must be included?
Signed and certified that it has been read, after reasonably inquiry it is grounded in law or fact, not for harassment or delay. Sanctions for costs/atty fees. Refusal to sign means doc can be striken.
When in VA are alternative pleadings okay?
Alternative facts as to alternative parties may be pled if same T/O (1 - husband not neg; 2 - husband drunk but overserved.)
When can a VA ct not do when considering an extension of time?
Cannot condition extension on party posting a bond.
For what motion can VA ct never extend time?
Venue, unless ct extends time to file responsive pleading.
How does P initiate a case in VA GDC and what are the mechanics/timing?
Either obtain civil warrant (printed form with blanks) or draft a tailored motion for jmt (complaint), explaining how a trial date will be set, how D can object to venue, and effect of failing to appear. Sheriff serves warrant/motion for jmt on D, return date cant be more than 60 days or fewer than 5 days from service of process. D generally doesnt file responsive pleading, parties shown up on return date.
In VA GDC, how can P or D learn more about each other's case?
D can move for bill of particulars and P can move for grounds of defense. If party fails to file, ct can enter SJ.
Does a trial in VA GDC always have to go forward on return date?
No, party can move for continuance, discretionary. If fail to move before return date, motion denied unless party shows that its in best interests of justice.
How does P initiate case in VA CC and what are the mechanics?
P files complaint (called petition if for mandamus, prohibition or cert). Must contain name of ct, names/address of parties, L's sig, statement of facts in num paras, clearly inform D. P doesnt have to allege juris, venue but must make a statement of relief (prayer, eg ad damnum for damages.)
VA: What must be addressed separately in prayer for relief?
Punitive damages must be in a separate paragraph.
What can be alleged generally in VA CC?
Neg and proximate cause. (Still need to allege all elements of neg e.g. duty, etc.)
What claims can be joined in VA CC?
Those arising from same T/O. Joining unrelated claims is called misjoinder.
How long does D have in VA CC to respond to a complaint?
Within 21 days of service of process.
How can D in VA CC object to venue and what are the timing requirements?
Motion objecting to venue stating (1) why venue is improper and (2) what places would be proper. Must be timely. Filed (writing) within 21 days of service of process unless ct extends the time to file a responsive pleading.
If D files a defective motion objecting to venue in VA CC, can the ct still transfer?
Yes
How can D challenge PJ in VA CC?
D must make a special appearance to assert that ct lacks PJ (or that service of process was never made.). Must be raised first and by itself, or else the defense is waived. If joined with another response, (e.g. pleading asserting merits or defenses; bill of particulars, it becomes a general appearance and waives PJ.
How can D in VA CC argue that service was improper (or that there was a problem with issuance of process or with the return)?
By filing a motion to quash process. OK to file concurrent with a pleading responding to the merits.
VA: What is demurrer, what can it be used for, what can it not be used for and may it allege new facts?
Demurrer tests sufficiency of pleading that seeks affirmative relief. Must state specifics (not just "P's pleading insuff as matter of law). Used for misjoinder, lack of SMJ (not PJ), failure to state cause of action (in neg action P fails to allege duty.) May not allege new facts. (Cant raise SOL. Also, if P's complaint failed to annex an arbitration clause, D must make motion craving oyer.) Usually, if Demurrer sustained, it is w/o prejudice and sets a time for amendment.
VA: When can D file demurrer?
Demurrer can be filed before the answer or at the same time. Thus, if D files answer before demurrer, cannot demur unless ct allows.
VA: What is a special plea, when can it be raised?
Similar to affirmative defenses in fed ct. May be raised separately, as a motion to dismiss, or stated like affirmative defenses in answer. Risk waiver if not raised.
How may D in VA respond to allegations in a complaint?
Admit, deny, state lack of knowledge.
VA: What is common law recoupment and what can the court not order under a statute allowing damages in excess of P's claim?
When D pleads equitable defenses to legal action, they can diminish P's claim. Ct cannot reform or rescind a K or compel land conveyance under such a statute allowing damages in excess of P's claim.
What is the big difference between amending pleadings in VA vs fed?
Never a right to amend in VA. Must get leave to amend (and leave must be granted before SOL runs, not merely sought.)
Can party in VA seek discovery of the other sides' insurance coverage even though it may not be admitted at trial?
Yes. Discovery is broader than admissibility.
If P in VA seeks punitive damages is D's net worth/gross earnings discoverable?
Yes, it is relevant b/c seeking to punish D.
What must a VA party do when responding to an interrogatory by referring the requesting party to documents in which answers can be found?
Must be done with suff detail.
VA: Can 3rd party beneficiaries sue despite not being mentioned in the K?
Yes, 3rd party beneficiary can sue in his own right, even if not mentioned in K.
How can a minor sue or be sued in VA?
Sue in her own name "by whomever, her next friend." If minor is D, sue minor in her own name but ask for ct to appoint guardian ad litem. If none is appointed, but minor is represented by L, jmt valid except that a guardian ad litem is required in a suit to encumber minor's land.
When can disabled persons sue or be sued in VA?
Formal incompetency proceedings if substantial estate. Fiduciary (eg committee) appointed. Fiduciary sues. If suing disabled person, apply same process as for suing minors.
P sues D in VA and while case is pending, P dies. What result?
Claim survives but P's executor will make a motion to substitute himself as the P. (other changes in civil status result in the case having to be revived in reps name.)
Timing - when must D in VA file a counterclaim in CC? GDC?
CC- D must file counterclaim within 21 days of service of process. In GDC, anytime before trial (must be within SMJ).
When is a counterclaim compulsory? In VA, must a counterclaim relate to same T/O?
Never compulsory in VA, even if same T/O. In fact, D can counterclaim with any claim under any theory.
When must a VA counterclaim be against all Ps jointly?
Counterclaim must be against all Ps jointly if they are joint holders. (i.e. A and B are joint holders, sue D on NI. Demurrer on D's counterclaim against A alone for PI sustained; counterclaim must be against all Ps jointly.)
When can a counterclaim for damages not be asserted in a GDC case?
If counterclaim for damages in GDC exceeds 15K, cannot be asserted in GDC.
What is a VA crossclaim?
Offensive claim against co-party. Mostly same as fed crossclaim.
What is it called in VA when D wants to add 3rd party from who he will seek indemnity/contribution?
Impleader. D's pleading is called a 3rd party complaint. Rt no later than 21 days after D serves first responsive pleading, after that, need leave of ct. GDC -within 10 days after service or up until trial date, whichever sooner. Process must be served on 3rd party (summons & 3rd party complaint.)
When can VA tortfeasor seek contribution from joint tortfeasor if the tort is negligence?
When it involves no moral turpitude.
When can a D never implead a joint tortfeasor?
Cannot implead joint tortfeasor against whom P cant recover. (P works for company doing job for city and is hurt. P sues city. City cannot implead company because P cant sue company due to workman's comp.)
In VA, is there dismissal for nonjoinder?
No. Do not dismiss for nonjoinder. Thus, there is not such thing as indispensible in VA.
What damages can be recovered for wrongful death in VA and what is the order of beneficiaries?
(1) sorrow, anguish, lost comp; (2) services/income provided by decedent; (3) medical/funeral costs; (4) punitive for wanton; (3)/(4) must be separately stated in verdict. Beneficiary order is (1) SS, kids, grandk, (2) SS & parents if no kids/grandk; (3) If no SS, kids/grandk, parents and siblings.
What if V brings PI case before he dies, then dies from same injuries; what can beneficiaries recover and what if D dies before jmt?
Cannot recover pain and suffering of decedent. Can recover punitive for wanton. But no punitive from D's estate, if D dies before jmt.
In which VA ct are declaratory jmts availabe
CC only.
What are the methods of partition of realty?
Comes up when co-owner, TIC, JT wants to be free of other owner or when creditor has lien on co-owner's interest in land. (1) div in kind (ct divides prop amonst interested persons); (2) part by allottment (ct lets one or more co-owners have land and orders them to pay off others; (3) Only if other methods are not feasible will the ct order partition by sale (co-ownrs split proceeds.) Not favored. Doesnt matter that land is more valuable if kept as single tract. Thuys, if div in kind is feasible, no part by sale.
What is detinue, which VA cts is it available in?
For recovering money or personal prop. GDC if <= 25K or in CC. Exclusive GDC if <=4500.
What is pretrial seizure in VA, what does it apply to, how can D get his prop back?
Detinue. P can get immediate possession ex parte by verified petition (1) describing prop and showing rt to it and (2) risk that prop will be damaged/hidden/destroyed and posting bond of 2X prop value. D can get prop back by posting bond of 2X prop value and giving notice to P.
VA: What is unlawful detainer, where is it available?
CC. GDC if amt <=15K OR any amt if premises used for business, comm, agri. Cat A venue. Used for landlord to oust tenant and recover posession of realty and back rent/damages.
VA: When does SOL start to run?
From the date of injury or breach ("accrual" of cause of action). NOT from the time P discovered harm (or reasonable person would have discovered it).
What some some exceptions to the general rule in VA that SOL starts to run from "accrual" of cause of action?
Fraud, mistake, undue influence (from when P discovered or reasonable person would have); Malicious prosec (when case ends); Contribution (when one pays more than his share); Special rule (malpractice through continous treatment).
VA: SOL for PI, prop damage, prop damage for sales covered by UCC, wrongful death, fraud, written K, unwritten K, unlawful detainer? State the SOL for each.
PI - 2;
Prop dam - 5;
Prop dam for UCC sales - 4
Wrongful death - 2
Fraud - 2
Written K - 5
Unwritten K - 3
Unlawful detainer - 3
What can toll a VA statute?
Minority (unless emancipated), being of unsound mind can toll. Special rule for minorities in medical malpractice ; If >= 8 when claim arose, 2 years. If < 8 when claim arose, sue until 10th b-day.
VA: P's filing tolls statute for his own claim and what other claims?
Cross-claims arising from same T/O as P's claim.
When does a VA P have a right to take a nonsuit? What if D had filed a claim? What if P wants to refile after taking nonsuit?
Once w/o prejudice unless any of the following: (1) Jury is retired from bar (but if jury then deadlocks resulting in mistrial, nonsuit); (2) Non-jury case is submitted to ct for decision; (3) A motion to strike the evidence is granted (vs ct indicating it would grant); (4) Demurrer or special plea is fully argued and awaiting decision. Also, if D had filed a claim, P can nonsuit only if D agrees or D's claim can be adjudicated independently. If P wants to refile, must be within 6 months or limitations period, whichever longer (must file in same court unless juris lacking or unless good cause is shown to litigate elsewhere.) 1 nonsuit as matter of right.
VA: When is a pary in default, what does a defaulting party waive, what must a P do, what can a defaulting party who shows up at the hearings still do?
Party defaults if they fail to respond to a claim within the allowed time. Waives notice of further proceedings (still given to counsel if he exists.) P then moves for entry of default jmt. If damages liquidated, jmt entered. If unliquated, P moves for damages hearing. D can appear and litigate damages (not liability) and D retains rules of evidence.
What are four differences from VA SJ compared to Fed SJ?
(1) Not in divorce/annulments; (2) No using affidavits; (3) Depos only if all parties agree; (4)** pleaading a fact (pleadings differ) can create a triable issue. SJ rare.
What is the timing for requesting a jury trial in VA?
Remember, never in GDC. File written demand within 10 days after service of the last pleading raising a jury triable issue. Note that leave to amend doesnt extend this unless ct said so when granting leave to amend.
VA: What jury size if case involves > 15K and <= 15K.
>15K - 7 jurors
<=15K - 5 jurors.
If parties consent, 3 jurors.
VA: Jury selection: How many challenges for cause and peremptory challenges is each side allowed?
Each side gets unlimited challenges for cause. 3 Peremptory challenges. (Each side != each party). Since jury selection is state action, peremptory challenges must be and race and gender neutral.
Trial of equitable claims in VA CC: there is usually no live testimony. (Evidence by depos). However, in what situation must evidence be presented orally, and what is oral presentation of testimony called?
Oral testimony anytime the ct uses jury. Oral testimony is called Ore Tenus.
VA: When can commissioners in equity/chancery be used? After the commissioner files report, how long do parties have to file objects? Is commissioner's report binding? When do commissioners come up on the bar?
Only if (1) all parties agree; or (2) ct finds good cause. Objections must be filed within 10 days of commissioner's filing of report. Not binding. Comes up in cases to partition land.
What is the VA functional equivalent of a fed JMOL? What is one procedural difference concerning Summary Judgment?
Motion to strike the evidence. State judge can grant the motion and enter Summary Judgment, if standard is met.
Is a VA P's recovery constrained by the damages sought in the complaint?
Yes. If P asks for 40K in the complaint, she gets at most 40K at trial. Cf, in fed ct, you recover whatever the evidence supports at trial.
VA: Can a verdict be impeached for impropriety by juror?
Yes but w/ great caution b/c you can never ask about subjective process.
VA: What is the deadline for seeking rehearing in GDC?
30 days after entry of jmt. Court must rule on motion no later than 45 days of the entry of jmt (not date of motion)
VA: In CC, how long after entry of judgment can the ct suspend, vacate or modify?
21 days after entry (breast of ct.) For example, if jmt on June 8, day 1 is June 9. Last day for ct to rule is Day 21, June 29 (unless holiday). Unless fraud, then 2 years.
VA: In CC, must a party seeking to "motion to set aside verdict as contrary to the evidece" must have moved to strike the evidence first?
No. This is VA difference from fed RJMOL.
VA: In CC, what are the grounds for Motion for New Trial, state the timing, state the standard for determining adequacy of damages, state wen a judge can order a new trial on all issues.
Motion for new trial 21 days after entry of jmt, ct must rule w/in 21 days unless it suspends jmt. Grounds include erroneous jury instructions, misconduct of party including juror, decisive new evidence, excess or inadequate damages. If motion based on new evidence, must explain that you were diligent. Test for adequacy of damages is "shock the conscience." Judge may order new trial on all issues (if damages are not separabel from liability) or a new trial on just damages if liability well established.
Does VA recognize remittitur and additur?
Yes, VA recognizes both.
If a VA judge orders remittutur, what are P's options?
Accept w/o protest;
Accept with protest and try to appeal order to remit; or
Reject and go through new trial.

To appeal new result, P had to have made exceptions to the order of new trial.
In VA, is entry of nonsuit appealable if D didnt object?
No (since its w/o prejudice). However, if D objected on the grounds that nonsuit was improper, it is an appealable final jmt.
In VA, can you appeal when there are multiple parties and partial final judgments?
Yes. In cases with multiple parties, a partial final jmt as to one may be appealable even though it isnt a final jmt on the whole case.
When is there a rt to appeal from CC to VA ct of appeals and what is the timing?
Right to appeal in domestic relations cases. File notice of appeal in CC withni 30 days after appealable decision.
What cases can be appealed from CC to VA SC? Must the VA SC hear the case? What must the party do in terms of preserving issues and adverse authority?
In general civil cases, appeal from CC to VA SC if >= $500. Discretionary. Must preserve issues by objecting with reasonable certainty at time of ruling (too general to say jmt contrary to law.) Failure to object to jury instructions before the jury is charged waives the objection. Must disclose adverse controlling authority.
What steps to appeal from CC to VA SC?
Steps: (1) File notice of appeal with clerk of CC no later than 30 days after appealable jmt. (Motions for new trial do not extend time for appeal unless ct suspended jmt.). (2) Mail or deliver copy of notice of appeal to other party. Notice must state (a) whether you file a transcript or written summary of trial, (b) If transcript, certify that it has been ordered from ct reporter. (3) transcript must be filed wih clerk of CC no later than 60 days of jmt entry, to be part of record. (4) File petition for appeal with clerk of SC within 3 months of final jmt. If SC denies petition, appellant can request rehearing within 14 days of notice of denial. If petition granted, file appeal bond within 15 days.
What if a party whose petition to appeal from CC to VA SC was granted but the party filed a bond in an improper amt?
The other party may object w/in 21 days of the certificate. If problem isnt fixed, ct may dismiss appeal.
What must be done to prevent paying damages on a lower court decision in VA while awaiting an appeal?
post a supersedeas bond of the damage amount of lower court
What is required for claim preclusion in VA? What is it called?
res judicata - same P against same D, case 1 ended in valid final judgment on merits, case 1 and 2 have same cause of action (NOTE - if personal injuries and property damage arise from same T/O they are different causes of action)
What is required for issue preclusion in VA? What is it called?
Collateral estoppel - case 1 ended in valid judgment on merits where the present issue was actually litigated and determined, the issue was essential to judgment in case 1, and can be asserted ONLY by one who was party to case 1 (federal, however, lets anyone do it)
VA: Procedure for appealing divorce? How to preserve trial ct rulings and when will it be considered basis for reversal?
Matter of Rt. Notice of appeal in CC w/in 30 days. State whether transcript is to be filed. Post appeal bond, filing fee and certificate stating names/add/# of other party/counsel and that copy has been mailed/delivered. Any transcript must be filed within 60 days of jmt.
Trial ct rulings preserved for appeal only if objected to with reasonable certainty at time of ruling.
What are the essential elements of crimes?
act, mental state, causation, concurrence.
What is the standard for proving insanity defense?
D must prove the defense by a preponderance of the evidence.
Distinguish between felony and misdemeanor?
Felony is punishable by > 1 (doesn't matter if sentence was less.)
Misdemeanor has max punishment <= 1 year
What types of movements are not considered "acts"?
Sleepwalking, reflex or convulsion, someone else moves the D.
When can failure to act create criminal liability?
Only if:
(1) legal duty to act (spouse, child, contract, D started to help or D created the peril);
(2) knowledge of the act;
(3) ability to act.
What are the 4 common law mental states?
(SiMGiSl)
Specific intent, malice, general intent and strict liability.

SiMGiSl
State the 11 specific intent crimes:
"B.A.F.F.L.E.-- S.C.A.R.F."
Burglary, Assault, False pretenses, Forgery, Larceny, Embezzlement, -- Solicitation, Conspiracy, Attempt, Robbery, First degree premeditated murder
What is malice and state 2 common law malice crimes?
A D's mental state in which he acts intentionally or with reckless disregard for life.
E.g. Murder, arson.
What is general intent and state 4 examples.
General intent is a mental state. D needs to be generally aware (jury infers simply from the act.) Battery, false imprisonment, kidnapping, forcible rape.
What are some strict liability crimes?
Selling alcohol to minors, statutory rape
What type of mistake of fact is a defense to specific intent crimes?
Any mistake, even unreasonable.
What type of mistake of fact is a defense to general intent crimes?
Only a reasonable mistake.
When is mistake of law a defense?
Not a defense unless,
(i) statute makes knowledge an element (selling gun to known felon), or
(ii) if statute was unpublished or
(iii) if D relies on judicial decision or official interpretation.
State the MPC levels of culpability and their basic elements.
(1) Purposely/Intentionally (conscious object);
(2) Knowingly (D was aware);
(3) Recklessly (D aware of sub risk and consciously disregards);
(4) Negligently (D should have known of sub risk).
Law requires proximate/legal causation, not just "but for". State elements of proximate causation.
D is proximate cause if bad result is natural/probable result of D's conduct. Foreseeability (ordinary medical malpractice is foreseeable) and Fairness.

Liability for eggshell skull victims. However, no proximate cause if unforeseeable intervening event.
What is concurrence and for which crimes does it frequently arise?
D must have the mental state at the same time he acts. Larceny, burglary.
What is CL battery?
Unlawful force resulting in bodily injury or offensive touching. (gen intent).
What is criminal assault at common law?
(1) Attempted Battery (swing and miss)
OR
(2) Intentional creation other than by mere words of reasonable apprehension of imminent bodily harm.

(Both versions are specific intent).
When is an assault or a battery considered aggravated?
An assault or battery is aggravated if and when:
1. A weapon is used;
2. The victim is child/elderly/vulnerable;
3. Intent was to commit robbery or rape.
What is malicious wounding/maiming?
injury with intent to disfigure. There is also an aggravated version.
When must death occur by, for homicide to be a chargeable offense; state the common law rule and VA/maj rule.
CL: Within year-and-a-day of homicide.
VA - anytime.
What is CL murder and how can it be shown?
Killing another with malice aforethough. Malice shown through (1) intent to kill (use of deadly weapon creates inference); (2) intent to inflict great bodily harm; (3) extreme recklessness (malignant heart); (4) Felony-murder
What is the exception to the general rule of transferred intent?
Transferred intent doesnt apply to attempts
How does the majority view distinguish first degree murder from second degree murder?
First degree is a killing committed with premeditation and deliberation. Includes FM for severe felonies. All other murders are second degree.
What is voluntary manslaughter and distinguish from involuntary.
Voluntary: intentional killing (w/o malice) committed during heat of passion after adequate provocation (sudden passion, no cooling off time). Not words alone.

Involuntary: killing committed with criminal negligence OR during a crime if it wasn't felony murder.
What is required for felony murder, explain common law vs VA law.
A violent felony (or in VA - arson, rape, robbery, abduction, burglary, inanimate object sex)
AND
someone dies, where their death was foreseeable/in furtherance, the victim must not be a co-felon, the felony must be SEPARATE from the killing itself AND caused by anyone thus vicariously liable if police shoots victim, (common law; VA says must be a D)
State the VA distinction between capital murder and first degree murder?
Capital murder is willful, deliberate and premeditated killing (14 circumstances.)
First degree is poison, lying in wait, imprisonment, starvation or any willful, deliberate, premeditated that doesn't fall within capital murder.
State the VA presumption for second degree murder.
All murder presumed 2nd degree. Burden on prosec to elevate to cap murder or 1st degree and on defense to downgrade to manslaughter. 2nd degree is all murder that is neither capital nor 1st degree.
State the two statutes for felony homicide in VA
(1) Felony Homicide:Accidental killing, contrary to parties intent, while committing an non-enumerated felonious act. (Need causal connection. e.g. distributing blow and V dies while doing a line.)

(2) Felony Murder: Type of 1st degree murder which can be accidental or intentional; felony murder arises from the commission or attempt to commit arson, rape, forcible sodomy, object sexual penetration, robbery, burglary, or kidnapping.
What are the two types of manslaughter in VA and what are their elements?
Voluntary: unlawful killing w/o malice. (mutual combat).
Involuntary - accidental killing, either during an unlawful non-felonious act, OR improper lawful act involving criminal negligence
What is false imprisonment?
False imprisonment: Unlawful confinement w/o consent (general intent)
What is common law kidnapping?
Common Law Kidnapping: False imprisonment involving either moving of a victim OR concealing the victim in secret.

Can be aggravated if for ransom, robbery, rape OR if victim is a child.
What are the elements of kidnapping in VA; what element of common law kidnapping does not apply in VA?
VA kidnapping/abduction: guilty of kidnapping if
(i) by force, intimidation or deception;
(ii) w/o legal justification or excuse;
(iii) seizes, physically detains, takes, transports, or secretes another person;
(iv) with intent to deprive that person of liberty or withhold him from one entitled to his charge.

Moving victim is not required if all other elements are shown.
What are elements of rape?
Sex without consent accomplished by force, threat of force or when V is unconscious. (general intent.)
What are elements of statutory rape, what is the majority and minority view?
Sex w/ someone under age of consent.
Majority: Strict Liability.
Minority: MPC permits reasonable mistake of age.
In VA, how to prove rape of a spouse?
Prove that spouses were living separately OR D caused serious physical injury.
How does statutory rape work in VA?
Different levels, listed from most serious to least:
1. If child < age of 13, RAPE.
2. Between age or 13 and < 15, carnal knowledge CLASS 4 FELONY.
3. Reduced to CLASS 6 FELONY if:
i. accused is a minor; ii. victim is age 13 or older, but younger than 15; iv. age gap between accused and victim is at least 3 years, and; iv. victim consented
4. CLASS 4 MISDEMEANOR if age gap is less than 3 years

LACK OF KNOWLEDGE OF CHILD'S AGE IS NO DEFENSE
What are the elements of larceny?
Taking and carrying away, against the owner's will, personal property of another, with intent to steal. For personal property, key is who has valid possession. If D, no larceny. Larceny if D takes his own property from someone in valid possession of it. Taking under a claim of right is never larceny.
What is the VA larceny presumption?
one in unexplained and exclusive possession of recently stolen property can be rebuttably presumed guilty
What are the elements of embezzlement?
Person already in possession (vs mere custody e.g. simple bank teller) converts personal prop with intent to defraud. Title doesnt pass.
What are the elements of false pretenses, and what is this offense downgraded to, depending on title passing or not.
Obtaining title to personal property of another by intentional false statement, with the intent to defraud. Title passes.

BUT, if D gets only possession and not title, this is downgraded to Larceny by Trick.
What are the elements of robbery?
Larceny from another's possession or person (V's vicinity, e.g. V inside house), by FORCE or threat of immediate injury (includes future injury and blackmail)

Picking a pocket is larceny but not a robbery. Snatching a chain is a robbery.
How are the crimes of larceny, embezzlement or false pretenses charged in VA?
As larceny.
What are the types of VA larceny and how does it relate to robbery?
Be aware of grand larceny vs petit larceny. Larceny is a lesser included offense of robbery.
What are the elements of extortion in VA?
Threatening to injure a person or property for a money benefit, or sending a note/email threatening to kill or do great bodily harm to the victim or family.
What are the elements of forgery, uttering and malicious mischief
Forgery - making/altering a writing so its false.
Uttering - offering a forged instrument as genuine.
Malicious mischief - destroying/damaging another's prop. (mental state is intent to defraud for all 3)
What does posession mean, in terms of when a statute criminalizes possession of contraband?
Control, long enough for opportunity to terminate possession. Constructive posession if dominion and control
What are the elements of burglary and how does it work in VA?
Breaking and entering (any degree of force, cracking open window) dwelling of another at night w/ intent to commit a felony inside (VA eliminates the "breaking" "at night" and "dwelling")
What are the elements of arson, how does it work in VA?
Malicious burning of a building. Mere scorching insufficient. VA: Any building, not just dwelling, even your own house. Includes by explosives.
What do we call the person who helps the principal?
Accomplice. Aids/encourages with intent that crime be committed.
What are the 4 categories of parties to a crime and which one of them is actually a crime at common law?
(1) Accessory before fact (not present but provides assistance ahead of time);
(2) Principal in the 1st degree (criminal actor, or through agent);
(3) Principal in the 2nd degree, (not present but encourages OR shares in criminal intent, lookout/driver);
These 3 are NOT crimes in and of themselves.
(4) Accessory after the fact (assists principal who has committed a felony and knowledge and intent to help principal avoid getting caught.). This is a crime!
What crimes is an accomplice guilty of?
All crimes he aided and all other foreseeable crimes committed along with aided crime, (even though parties agreed to rob but not with a gun, if a D uses a gun, everyone is guilty of armed robery).
Can an accomplice be guilty if the principal is unprosecuted?
Yes
What 3 types of persons are not accomplices?
One who is merely present, merely had knowledge or member of protected class (Victim).
How does an accomplice withdraw. State rule for encourages vs aider.
Encourager: Must discourgage crime before its committed.
Aider: Must neutralize his assistance or prevent crime.
How does accomplice liability work in VA?
State the rule and exception, whether a conviction is required and withdrawal.
Felony cases - every principal in 2nd degree and accessory before fact is treated as the principal. Only the murderer gets death penalty unless its murder for hire or terrorism. Conviction of principal not required but must be shown that a crime was committed by the principal.
Withdrawal must be before completion of felony and need acts/words showing extreme disapproval, must prevent crime.
What are the elements of solicitation?
Asking someone to commit crime, with the intent that it be committed.
Crime is in the asking not actual commission.
What are the elements of conspiracy, what element is not needed in VA?
Agreement between two or more to commit a crime, overt act (any preperation. No overt act in VA). Crime is in the agreement, not actual completion.
Can you have a one-person conspiracy at CL, MPC, VA?
CL: Need 2. If all other parties acquitted, the last remaining D cannot be convicted.
VA: 2 plus the intent to commit felony, no conspiracy if only D, cop and informant, if additional D's, conspiracy.
MPC: 1 person. Unilateral approach, doesn't matter if everyone else is acquitted or just pretended.
State the common law rule of vicarious liability for co-conspirators.
D liable for other crimes if they were in furtherance and foreseeable.
In VA, what are the two exceptions to the rule barring an underlying conspiracy conviction following a conviction for the substantive offense?
Conspiracy conviction not barred if, either:
(1) based on acts separate from substantive conviction OR
(2) if convictions occur in a single trial.
What is the VA rule on prosecuting D for a conspiracy after D is acquitted of the underlying felony.
If D is acquitted of the underlying felony, cannot subsequently prosecute for the conspiracy.
Where does hearsay comeup in VA criminal conspiracy law?
statement made in furtherance and during the conspiracy is as if it was made by the co-conspirator.
What are the elements of attempt under CL, VA and MPC?
CL: dangerously close
VA: Direct act done with intent but falls short of completion of crime.
All require specific intent.
MPC/maj: Substantial step and strongly corroborative.
What type of crimes can be "attempted" and state 3 types.
You CANT attempt unintentional crimes. Thus, no attempt versions of reckless crimes, neg crimes or felony murder. BUT, you can attempt malice, gen intent and SL crimes but only if D specifically intends to commit the crime.
What is factual impossibility and is it a defense?
When you claim that it was impossible to complete the crime b/c of some circumstance out of D's control. NOT a defense to attempt crime. (e.g. D wants to sell blow and buys a baggie that he thinks has it. Baggie is baby powder. Thus, D not guilt of distribution but D is guilty of attempted distribution.
What is legal impossibility and is it a defense?
Claim that it was impossible to complete crime because what D tried to do was not illegal.
Yes it IS a defense.
How, if ever, is withdrawal a defense to inchoate offenses, state CL and MPC.
CL: Withdrawal not a defense but it does eliminate vicarious liability for crimes committed by co-conspirators after D withdraws. Note, D still guilty of conspiracy.
MPC: Withdrawal is a defense only if D voluntarily and completely renounced and it was based on a change of heart (vs fear of getting caught.)
What is the rule on merger, when can D be convicted of multiple crimes for the same conduct? Explain the rules for inchoate offenses
Lesser-included offfenses merge with the greater offense. Attempt and solicitation both merge but conspiracy doesnt merge.
Explain requirements for insanity defense and the various tests at CL? MPC?
(1) D must have mental disease/defect; (2) Apply the relevant test.
Tests: (1) M'Naughten (D didnt know act was wrong OR didnt understand nature of act). (2) Irresistable impulse (usually added to M'Naughten, D was unable to control actions OR conform conduct to law).
MPC: If D lacked substantial capacity to appreciate criminality of conduct OR conform to law.
How does insanity defense work in VA? Explain the Test, notice and burden requirements.
VA: D may choose either M'Naughten or Irres Impulse test. D must give written notice to commonwealth's atty at least 60 days before trial, otherwise judge should grant continuance. Defense has burden of proving to the satisfaction of the jury that D was insane.
How is insanity different from incompetency?
Insanity - Issue is if D was insane at time of crime..not guilty.
Incompetency - Issue is whether D insane at time of trial...adjourned until D is competent.
When is intoxication not a defense?
If intoxication is involuntary, it is a defense to any crime, BUT must be totally involuntary.
If voluntary intoxication, defense to specific intent crimes but not a defense to malice, general intent, or strict liability crimes.
How does the intoxication defense work in VA?
Voluntary intoxication is never a defense, even for specific intent crimes unless it has produced permanent insanity.
BUT, it may prevent premeditation for 1st degree or capital murder if the intoxication is extreme.
BUT, mere intoxication from drugs/alcohol is not sufficient by itself to negate premeditation.
What type of crime is always specific intent?
Attempt. (Thus, e.g. intoxication is a defense to an attempted arson)
How does defense of infancy work at CL and in VA?
Basically the same for CL and VA.
<7, not prosec (VA, assumed incapable of forming intent);
<14, rebuttable presumption against prosec (VA, presumption of incapacity, grows weaker as child grows older).
>=14, prosec allowed (VA, presumption of capacity, may be tried as adult if it would have been a felony if by adult.)
When may a D use nondeadly force in self-defense?
If reasonably necessary to protect against imminent use of unlawful force against himself.
When may a D use deadly force in self-defense? State aggresor rule.
Imminent threat of death or serious injury. If initial aggressor, may not use deadly force.
Initial aggressor is able to regain the right if he withdrawals and communicates withdraw to other person OR if victim suddenly escalates a non-deadly fight into a deadly fight.
What is the rule on retreat?
VA/maj - No retreat required before using deadly force in self defense. Minority - retreat required unless D cant retreat in complete safety, D is in his home, D making lawful arrest or D being robbed.
In VA, when can non-deadly force be used?
If reasonable appearance (subjective) that force is justified. No duty to retreat, force used my be reasonable.
In VA, when can deadly force be used?
(1) If defender is w/o fault and shows imminent danger of death/great bodily injury.
(2) Words alone are not enough
(3) Retreat not required unless D at fault, in which case he must retreat as far as safely possible before using deadly force. BUT, if on ones own premises, no duty to retreat but force must be reasonably calculated to repel the intruder.
(4) Right of aggressor may be regained after total abandonment of original attack.
What happens when D is mistaken about need to use self-defense?
(1) Reasonable mistake: Can still claim self-defense
(2) Unreasonable mistake then:
(a) At common law no self defense;
(b) MPC/minority, imperfect self defense (downgrades intentional killing to voluntary manslaughter)
When can nondeadly and deadly force be used to prevent a crime?
Nondeadly force can be used to prevent a crime but deadly force only if preventing a felony risking human life.
What is the majority rule on defense of others? How about VA?
Majority: D may use force and even deadly force, to protect others if he reasonably believes that the victim has a right to use force.
VA/minority - D steps into shoes of person he is defending thus risky b/c person may appear to be in trouble but not facing harm.
When can nondeadly force and deadly force be used to defend a dwelling? Also state VA rule.
Nondeadly for may be used if reasonably believes it's necessary to prevent another's unlawful entry.

Deadly if:
(1) Prevent personal attack on self or another;
(2) D reasonably believes force needed b/c person intends to commit a felony in the dwelling.

VA:
Nondeadly to prevent entry but deadly only when fearing great bodily injury.
When can nondeadly and deadly force be used to defend property. Also state VA rule.
Nondeadly - may be used to defend prop is one's possession from unlawful interference if the need is imminent (a request to desist wouldnt work). Cannot use force to regain possession unless in immediate pursuit of taker.
VA and CL - deadly force may not be used merely to defend prop.
When can nondeadly force be used to resist arrest?
If D knows it's a cop and only if arrest is improper may D use nondeadly force. Better be sure!
When is necessity a defense and when is it never a defense?
If D reasonably believed that the conduct was necessary to prevent greater harm. Necessity is never a defense to homicide.
When is duress a defense and when is it never a defense?
If D was forced to commit crime under threat of death or serious physical injury.
Duress is never a defense to homicide.
What are the elements of entrapment and how does it work in VA, what can the government use against a D?
Criminal design originated with government and D was not predisposed to the crime.

VA: prior crimes can be used to show predisposition if (i) close-in-time; (ii) similar crime; (iii) probative value must outweigh the prejudice.
What is perjury in VA?
Willful false swearing while under oath, or later giving conflicting testimony under oath to same matter. Person cannot hold office under VA Constitution or serve as a juror. Subornation carries same penalty as perjury.
What is bribery in VA?
Corrupt gift with intent to influence official act.
What is a false report in VA?
Knowingly giving false report with intent to mislead police.
What is meant by concealing/compounding offense in VA?
Take money to not prosecute an offense OR destroy evidence with intent to hinder prosecution of D charged with crime against another.
What is the test for domicile and how does domicile for operation of law apply?
Physical presense & intent. If child/incompetant, domicile is parents, if divorced, whoever has custody, retain domicile before becoming incompetent.
What are the 3 full faith and credit reqs?
(1) Valid juris in render state ct over parties and SMJ; (2) Final jmt; (3) Jmt on merits (not SOL but includes default and consent juris)
State valid and invalid defenses to full faith and credit
Valid - Jmt penal, extrinsic fraud. Invalid - violates forum's public policy, mistakes by judge in earlier trial, inconsistent jmts (last in time prevails)
What is the constitutional limit (due process) on choice of law?
State chosen must have sig contacts, giving legit interest.
What choice of law rules approach in VA, what approaches does VA not follow
VA follows vested rts approach. VA doesnt follow most sig relatonship or gov interest approach.
Which juris law governs tort law for purposes of VA choice of law?
Place of the wrong
State the 3-step inquiry used in VA conflicts of law issues in involking Ks.
(1) If parties choose law apply it; If not (2) If covered by UCC, apply law of forum so long as there is some relationship to transaction; (3) If not UCC, place of making determines all issues of K validity BUT if related to K performance, law of place of performance.
What is required if parties incorporate a clause on a state to govern the contract's validity?
Clause can't be contrary to the state's public policy, state must bare a reasonable relationship to parties, and made free from duress (i.e. no contracts of adhesion).
State the erie principle for choice of law.
Fed ct sitting in diversity must apply substantive law of the state in which it sits, along with that state's conflict of law rules.
Shareholders are generally not liable for corporate debts. What is the exception and what sort of remedy is available?
Pierce the Corporate Veil to hold active shareholders personally liable if:
(1) Corporation is undercapitalized
(2) Corporation is operated as the owner's alter ego
(3) Using corporate form to avoid personal obligations, perpetrate a fraud/crime, commit injustice or gain unfair advantage.