Va Bar Infiniti

Front 1

What are the ways to achieve federal subject matter jurisdiction?

Back 1

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)

Front 2

Evidence is relevant if it has:

Back 2

any tendency to make a material fact more probable or less probable than would be the case w/o the evidence

Front 3

All evidence is admissible unless:

Back 3

Specific exclusionary rule OR ct makes discretionary determination based on 6 pragmatic considerations.

Front 4

6 pragmatic considerations:

Back 4

Danger of unfair prejud, confusion of issue; misleading jury; undue delay; waste of time; unduly cumulative

Front 5

P's accident history is inadmissible unless:

Back 5

The cause of P's injuries in in issue (e.g. shoulder injury from prior accident versus instant accident)

Front 6

Other accidents involving D are inadmissible unless:

Back 6

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.

Front 7

When is prior similar conduct of a person admissible?

Back 7

To raise inference of person's intent on a later occasion (e.g. gender discrimination, D hired no women over several years).

Front 8

What evidence is admissible to show property value?

Back 8

Comparable sales

Front 9

When is habit (person or business) admissible?

Back 9

(1) Frequency of conduct and (2) Particularity of conduct. Distinguish from mere general carelessness.

Front 10

When is industrial custom admissible?

Back 10

As evidence of the appropriate standard of care.

Front 11

When is the existence of liability insurance, or the lack thereof, inadmissible?

Back 11

For the purpose of fault (or absence of thereof).

Front 12

When is evidence of insurance admissible?

Back 12

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)

Front 13

When are subsequent remedial measures admissible?

Back 13

Admissible for proof of ownership/control or feasibility of a safer condition, IF either is controverted by D.

Front 14

When are subsequent remedial measures inadmissible?

Back 14

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.

Front 15

When is settlement evidence inadmissible?

Back 15

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.

Front 16

When is settlement evidence admissible?

Back 16

Impeaching W on ground of bias and factual statements made during settlement discussion in civil litigation with a gov regulatory agency.

Front 17

Evidence of plea bargaining in criminal cases - What are inadmissible and admissible types?

Back 17

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)

Front 18

Are offers to pay medical expenses admissible?

Back 18

Inadmissible to prove liability. But, if offer is accompanied with other statements (e.g. I ran the stop light), statement is admissible.

Front 19

Explain mechanics of evidence of a D's character in criminal cases.

Back 19

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).

Front 20

How can D introduce evidence of V's character in self-defense cases?

Back 20

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.

Front 21

What is a separate rule of relevance in self defense cases?

Back 21

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).

Front 22

Under "rape shield law", what evidence is ordinarily inadmissible?

Back 22

Opinion/reputation evidence about V's sexual propensity, OR evidence of specific sexual behavior of V.

Front 23

What are exceptions to "rape shield law"?

Back 23

(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).

Front 24

When is evidence of person's character admissible in civil actions to prove conduct in conformity?

Back 24

(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.

Front 25

When can the prosecution use other-crimes evidence as part of its case-in-chief?

Back 25

MIMIC - motive, intent, mistake or accident or the absence thereof, identity, common scheme or plan.

Front 26

What is the method of proof for MIMIC-purpose crimes?

Back 26

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.

Front 27

Can MIMIC be used in civil cases?

Back 27

If relevant, can be used in civil cases like tort actions for fraud or assault.

Front 28

When is D's prior specific sexual misconduct admissible?

Back 28

Cases alleging sexual assault or child molestation, to show D's propensity for sex crimes.

Front 29

When a writing appears on the exam, what are 3 potential issues (aside from relevance)?

Back 29

Authentication, best evidence rule, hearsay

Front 30

What are some general methods of authenticating a writing?

Back 30

(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.

Front 31

What is the ancient document rule?

Back 31

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

Front 32

What is the solicited reply doctrine?

Back 32

Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Front 33

List some self-authenticating documents.

Back 33

Official publications, newspapers, document acknowledged by notary public.

Front 34

How can photos be authenticated?

Back 34

W testifies that on basis of personal knowledge, photo is a fair and accurate representation of the people or objects portrayed.

Front 35

What is the best evidence rule?

Back 35

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.

Front 36

What are two principle situations in which the best evidence rule applies?

Back 36

(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.

Front 37

When does best evidence rule not apply?

Back 37

When a W with personal knowledge testifies to a fact that exists independently of a writing that records the fact.

Front 38

What qualifies as an original writing?

Back 38

Whatever parties intended as original, any counterpart, photocopy (unless fuzzy). A handwritten copy is neither an original nor duplicate.

Front 39

What are excuses for non-production of an original writing?

Back 39

(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.

Front 40

What are some "escapes" from the requirement that a writing be the original writing?

Back 40

(1) Voluminous (can use chart); (2) certified copies of public records; (3) collateral documents (means not very important to case.)

Front 41

For W competency, what is personal knowledge and oath?

Back 41

W saw with own eyes/heard with own ears; W must be willing to swear under oath.

Front 42

What is a "Dead Man's Statute," is it part of FRE and how does it work in VA?

Back 42

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.

Front 43

When are leading questions generally not allowed, and generally allowed, respectively?

Back 43

Direct examination of W, X-exam of W

Front 44

When are leading questions allowed on direct examination?

Back 44

(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.)

Front 45

What is the rule on writings in aid of oral testimony?

Back 45

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).

Front 46

What is the hearsay exception for past recollection recorded?

Back 46

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.

Front 47

When is lay opinion admissible?

Back 47

(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

Front 48

What are the qualifications of an expert W and what is proper subject matter?

Back 48

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.

Front 49

What is the appropriate basis of an expert's opinion?

Back 49

Reasonable degree of probability or reasonable certainty.

Front 50

What data sources may an expert draw upon?

Back 50

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.

Front 51

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?

Back 51

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.

Front 52

What is the standard for admissibility of expert opinions?

Back 52

To be admissible, expert opinion must be relevant to the issue at hand and sufficiently reliable.

Front 53

What factors will a court use to determine reliability of principles/methods used by expert to reach opinion?

Back 53

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

Front 54

What is the hearsay exception for learned treatise in aid of expert testimony?

Back 54

(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.

Front 55

May opinion testimony (expert of lay) address an ultimate issue in the case?

Back 55

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).

Front 56

May a party be denied opportunity to X-examine an opposing W who testified at trial and what is proper subject matter?

Back 56

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.

Front 57

When may one's own W be bolstered?

Back 57

No bolstering W until after W's credibility has been attacked.

Front 58

What is the exception to inadmissible prior consistent statements?

Back 58

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.

Front 59

What is the rule on impeachment of one's own W?

Back 59

Permitted to impeach own W without limitation.

Front 60

What are the 7 impeachment methods and for which of them may the impeaching fact be proven with extrinsic evidence?

Back 60

(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).

Front 61

What are 2 ways to use impeachment methods?

Back 61

(1) Ask W with aim of getting an admission ("confronting W"); (2) Prove impeaching fact with extrinsic evidence.

Front 62

Must a W be asked about an impeaching fact before introducing extrinsic evidence?

Back 62

No, except as to Bias.

Front 63

What is a prior inconsistent statement and when is it admissible?

Back 63

Material statement (orally or written) that is inconsistent with trial testimony. Admissible only for impeachment.

Front 64

When can a prior inconsistent statement be admitted both to impeach and as substantive evidence (i.e. what is the hearsay exclusion)?

Back 64

If statement was made (a) orally under oath and (b) as part of formal hearing proceeding in trial or depo.

Front 65

Must W be confronted with prior inconsistent statement while still on the stand, and what is the exception?

Back 65

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.)

Front 66

Must a W be confronted with alleged bias while on the stand?

Back 66

Yes and if confrontation prerequisite is met, bias may be proven by extrinsic evidence.

Front 67

What is a sensory deficiency, also explain confrontation and extrinsic evidence.

Back 67

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.

Front 68

What types of Ws can be impeached for bad reputation/opinion of W's character for truthfulness, explain confrontation and extrinsic evidence.

Back 68

Any W. Confrontation not required. Extrinsic evidence allowed.

Front 69

What criminal convictions may be used to impeach W and what is the time limit?

Back 69

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.

Front 70

When is inquiry about W's bad acts (w/o conviction) allowed and what is rule and/or exam tip regarding extrinsic evidence?

Back 70

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.)

Front 71

What is contradiction and what is the rule on extrinsic evidence?

Back 71

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.

Front 72

When and how is rehabilitation to show W's good character permitted?

Back 72

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.

Front 73

When is a W's prior consistent statement admissible to rebut a charge of recent fabrication?

Back 73

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.

Front 74

In Evidence, what to we need to remember about Erie?

Back 74

In federal ct based on diversity, federal ct must apply the privilege law of the state whose substantive law is applicable.

Front 75

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?

Back 75

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.

Front 76

What is subject matter waiver of privilege?

Back 76

When a voluntary waiver as to some communications also waives privilege to other communications (1) intentional partial disclosure; (2) same subject matter; (3) fairness

Front 77

When will an inadvertent disclosure not waive privilege?

Back 77

When privilege holder took reasonable steps to prevent disclosure and takes reasonable steps to correct the error.

Front 78

What are the 3 exceptions to atty-client privilege?

Back 78

(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.)

Front 79

What is physician-patient privilege, what is the federal law distinction and what is the general exception? VA?

Back 79

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.

Front 80

What are the Husband-Wife Privileges?

Back 80

(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).

Front 81

What are the exceptions to the Husband-Wife Privileges?

Back 81

communications/acts in furtherance of jointly-perpetuated future crime or fraud; spousal/child abuse; litigation between spouses themselves (breach of K).

Front 82

What is hearsay?

Back 82

(1) Out of ct statement of a person (oral or written), (2) offered to prove truth of matter asserted in statement.

Front 83

What are the principal categories of non-hearsay purposes?

Back 83

(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.

Front 84

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?

Back 84

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.

Front 85

When is a VA interlocutory appeal granted?

Back 85

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

Front 86

What is a party admission and what is a vicarious admission?

Back 86

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.

Front 87

What is the implication of D's 6th A rt of confrontation on hearsay?

Back 87

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.

Front 88

In Evidence, what is and is not "testimonial"?

Back 88

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.

Front 89

What is the "Forfeiture Exception"?

Back 89

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

Front 90

What are the grounds of unavailability for the hearsay exceptions?

Back 90

"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.

Front 91

What are the hearsay exceptions?

Back 91

(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

Front 92

What are the relevant interests for hearsay exception of statement against the interest?

Back 92

pecuniary, proprietary, penal

Front 93

In what ways is the hearsay exception for statement against the interest different from a party admission?

Back 93

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.

Front 94

What can dying declarations be used for in civil cases and criminal cases?

Back 94

Criminal - homicide prosecutions only. Civil - all civil cases.

Front 95

Is unavailability required for the hearsay exception of excited utterance and what is this exception?

Back 95

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.)

Front 96

What is the present sense impression exception to hearsay?

Back 96

Description of event made while it is occurring or immediately thereafter, no time to fabricate (phonecall, son tells mom Hannibal stopped by.)

Front 97

What is the present state of mind exception to hearsay?

Back 97

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.")

Front 98

What is the declaration of intent exception to hearsay?

Back 98

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.")

Front 99

What is the "statement made for purpose of obtaining medical treatment/diag" exception to hearsay?

Back 99

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.

Front 100

What are the elements of the business records exception to hearsay?

Back 100

(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.

Front 101

What are public records, under the hearsay exception, and what does it exclude?

Back 101

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.)

Front 102

What is the VA rule on default jmts in divorces/annulments?

Back 102

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.

Front 103

In VA, is there a constitutional right to jury trial of equitable claims and how are mixed cases (law and equity) decided?

Back 103

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

Front 104

What are the two situations in which there is a statutory right to jury hearings and is the verdict binding on the judge?

Back 104

(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.

Front 105

What is an advisory jury, and what is the standard of deference by judge?

Back 105

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.

Front 106

What are 3 ways to review VA decrees on equitable claims and for each method, state the mechanics?

Back 106

(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.)

Front 107

What are the two threshold general requirements for equitable relief in VA?

Back 107

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.

Front 108

Factors for determining inadequacy of legal remedy for VA equitable relief?

Back 108

(URSMII) Unique subject matter, Real estate (any), Speculative damages, Multiple lawsuits would be needed, Insolvency of the D, Irreparable harm would occur

Front 109

Factors for determining if an equitable remedy is feasible and criteria for denying injunctive relief in VA?

Back 109

(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).

Front 110

What situations are injunctions normally available for in VA?

Back 110

1. Continuous or repeated trespass to land,
2. Conversion of unique chattel (a painting), or
3. Stop unfair competition.

Front 111

What situations are injunctions sometimes available for in VA?

Back 111

(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).

Front 112

What situations are injunctions usually not available for in VA?

Back 112

(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.

Front 113

What are the factors for VA temp injunctive relief?

Back 113

(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.

Front 114

What are the VA requirements for SP of a K?

Back 114

(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)

Front 115

What are the two aspects of equitable relief for unlawful competition in VA?

Back 115

(1) Tort aspect (injunction); (2) K aspect, (SP).

Front 116

What situations give rise to a violation of the tort aspect of a claim for unlawful competition?

Back 116

(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)

Front 117

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.

Back 117

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.

Front 118

In VA, what are reqs for rescission?

Back 118

(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.

Front 119

In VA, what are reqs for reformation?

Back 119

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

Front 120

In VA, what are reqs for restitution for unjust enrichment and what is the corresponding legal theory?

Back 120

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.

Front 121

Are equitable remedies available against the Commonwealth?

Back 121

No, Commonwealth is immune from suit for equitable causes of action. However, can be sued for breach of K and tort under VTCA.

Front 122

What are four possible remedies for a successful claim of restitution?

Back 122

(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).

Front 123

Can an equitable defense be raised against VA governmental bodies?

Back 123

No.

Front 124

List the VA equitable defenses.

Back 124

(FUUTIE) Fraud, Unclean hands, Unconscionability, Time bar (laches), Impossibility/hardship, Equitable Estoppel

Front 125

In a VA equitable defense of unclean hands, must be P's conduct have been illegal?

Back 125

No, P's conduct need not be illegal for unclean hands defense; overreaching is sufficient.

Front 126

What are the requirements of a time bar (laches) defense in VA?

Back 126

(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.

Front 127

When will a VA equity ct accept the defenses of impossibility/hardship?

Back 127

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.

Front 128

How is fraud shown in VA?

Back 128

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.

Front 129

What is equitable estoppel?

Back 129

A party makes a rep that foreseeably induces someone to act in reasonably reliance, to his detriment; bars the party making representation.

Front 130

What are the forms of surety relationships and how do they affect enforceability?

Back 130

(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.

Front 131

What are the three levels of Surety liability?

Back 131

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)

Front 132

How does the statute of frauds apply to Surety contracts? What is the exception?

Back 132

ALL surety contracts must be in writing, regardless of value; main purpose exception if the surety's commitment is primarily for his own benefit

Front 133

What are the surety defenses (use debtor's defenses)?

Back 133

Fraud and Duress; things like infancy, insanity, or bankruptcy are never a defense because those are the reasons a surety relationship is undertaken

Front 134

What surety defenses for modifications (variation of risk)?

Back 134

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).

Front 135

When can a mechanics lien be formed?

Back 135

After repairing personal property at the request of the owner or the person in lawful possession of the property

Front 136

How does whether an owner or a non-owner makes a request to repair personal property create limits on a mechanics lien?

Back 136

if at owner's request, limited to just and reasonable charges. If at request of non-owner in lawful possession, limited to $800

Front 137

What are the options, depending on the value of the personal property, for enforcing a mechanic's lien on personal property?

Back 137

<$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)

Front 138

When can a mechanics and materialmen's lien on real property be formed?

Back 138

After performing labor or furnishing materials for construction, removal, repair, or improvement of any building or permanent structure.

Front 139

How can a mechanics and materialmen's lien be perfected?

Back 139

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.

Front 140

What is the statute of limitations on a mechanics and materialmen's lien?

Back 140

6 months from recording the memorandum that perfected the interest or 60 days from work completion, whichever is LATER

Front 141

What is the priority hierarchy among mechanics and materialmen's liens?

Back 141

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)

Front 142

What property cannot be subject to a mechanic's and materialmen's lien?

Back 142

Leased property where the leasee orders repairs or improvements and public buildings

Front 143

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?

Back 143

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

Front 144

How does the process of attachment proceed for creditors with an interest in real or personal property?

Back 144

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

Front 145

How can a person get judicial relief if they are a creditor who doesn't have a lien? What is the duration for relief?

Back 145

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.

Front 146

What does a judgment lien enable a creditor to do?

Back 146

Sell the property to satisfy the judgment amount and it also gives him priority over competing claims on the property

Front 147

What is the process called for creating a judgment lien on real estate?

Back 147

Docketing

Front 148

A has a judgment lien on debtor B's real property. B sells the property. What can A do?

Back 148

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).

Front 149

A has a judgment lien on debtor B's real property. If A enforces the lien, what is the process called?

Back 149

a creditor's suit in equity

Front 150

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?

Back 150

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.

Front 151

What happens to junior and senior interests in a piece of real property after sale via a judgment lien?

Back 151

Junior interests are extinguished while senior interests encumber the property, so long as they were recorded prior to the sale

Front 152

What is the document called that executes a judgment lien on tangible or intangible personal property?

Back 152

Writ of fieri facias (writ of execution)

Front 153

How is priority determined among competing claimants for judgment liens on tangible personal property?

Back 153

first in time

Front 154

What is the document called that executes a judgment lien on intangible personal property on a third party? What is that party called thereafter?

Back 154

writ of garnishment; garnishee

Front 155

What are a garnishee's options when appearing in court after having a judgment lien on intangible personal property executed against them?

Back 155

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.

Front 156

What exemptions are available for debtors that are having judgment liens executed against them?

Back 156

(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

Front 157

What can an exemption NOT be taken for when a debtor is having a judgment lien executed against them?

Back 157

child/spousal support obligations, purchase money security interests (PMSI) in property, intentional tort damages

Front 158

What is the limitation on garnishing a person's wages?

Back 158

Limited to LESSER of 25% of disposable earnings (take home pay) OR 30 times the federal minimum hourly rate

Front 159

When is a conveyance by a VA debtor presumed to be fraudulent?

Back 159

When it is intrafamillial, between husband and wife, or renunciation of a gift under a will by a debtor

Front 160

How can a creditor discover the nature, location, and condition of a debtor's assets? What is the procedure and prerequisites?

Back 160

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).

Front 161

What is a fraudulent transfer, who can upset a fraudulent transfer and what is the exception?

Back 161

Prop transfer intended to avoid levy. Present and future creditors can upset. Exception for transfer to a BFP for FMV.

Front 162

What is a voluntary transfer and who can upset a voluntary transfer?

Back 162

Prop transfer for less than FMV. Only present creditors can avoid the transfer.

Front 163

What is the procedure to set aside fraudulent and voluntary conveyances for judgement creditors? For general creditors?

Back 163

Judgement creditor: motion in equity
General creditor: bill in equity & notice of lis pendens

Front 164

What are the possible surety rights against creditors and which one is valid?

Back 164

(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.)

Front 165

What are the surety rights against debtors and for which rights must a surety be out of pocket?

Back 165

(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.

Front 166

What surety rights are always available against co-sureties?

Back 166

Exoneration; Contribution, Subrogation

Front 167

VA: 2 step process for PJ

Back 167

(1) satisfy statute (e.g long arm); (2) satisfy constitution.

Front 168

VA: 2 ways to get in personam juris over D personally (not prop)

Back 168

(1) served in-state; (2) resides in VA.

Front 169

VA: Long Arm, specific juris for nonresidents, describe main elements.

Back 169

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).

Front 170

State constitutional standard for juris over D

Back 170

My parents frequently forget reading children's stories

Front 171

VA: How to get SMJ in CC?

Back 171

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.

Front 172

VA: SMJ in GDC?

Back 172

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.

Front 173

State differences between CC and GDC.

Back 173

GDC - ct not of record, no formal pleadings, no discovery, no jury trials

Front 174

Can you appeal from GDC to CC and if so, state the steps.

Back 174

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.

Front 175

VA: If D appeals a jmt from GDC to CC, may P amend and increase his claim?

Back 175

Yes, P must seek leave to amend.

Front 176

Do VA cts enforce forum selection clauses?

Back 176

Yes; if fair and reasonable.

Front 177

VA: Distinguish Cat A and B Venue:

Back 177

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).

Front 178

VA: When may venue be objected to in CC?

Back 178

Must FILE w/in 21 days after service of process unless Ct extends time to file a responsive pleading.

Front 179

VA: When may venue be objected to in GDC?

Back 179

Okay to object on or before trial day.

Front 180

VA: If D timely objected to venue and was right, will ct dismiss case?

Back 180

No. Ct will transfer to a proper venue unless good cause to keep case.

Front 181

VA: Where can P lay venue if all Ds are nonresidents?

Back 181

Where P resides. But, if VA co-D, venue must be proper as to her.

Front 182

VA: When may ct transfer from PROPER venue?

Back 182

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).

Front 183

VA: What is a summons called in GDC and CC?

Back 183

GDC: summons is a warrant OR notice of motion of jmt. CC: summons.

Front 184

VA: What are mechanics of service of process?

Back 184

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).

Front 185

VA: If D is here to be W in another civil case, is she immune from service?

Back 185

No. But discretionary immunity for grand jury or criminal summons.

Front 186

VA: Regarding SOL, what are mechanics for timeliness of service?

Back 186

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.

Front 187

VA: Distinguish Cat A and B Venue:

Back 187

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).

Front 188

VA: When may venue be objected to in CC?

Back 188

Must FILE w/in 21 days after service of process unless Ct extends time to file a responsive pleading.

Front 189

VA: When may venue be objected to in GDC?

Back 189

Okay to object on or before trial day.

Front 190

VA: If D timely objected to venue and was right, will ct dismiss case?

Back 190

No. Ct will transfer to a proper venue unless good cause to keep case.

Front 191

VA: Where can P lay venue if all Ds are nonresidents?

Back 191

Where P resides. But, if VA co-D, venue must be proper as to her.

Front 192

VA: When may ct transfer from PROPER venue?

Back 192

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).

Front 193

VA: What is a summons called in GDC and CC?

Back 193

GDC: summons is a warrant OR notice of motion of jmt. CC: summons.

Front 194

VA: What are mechanics of service of process?

Back 194

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).

Front 195

VA: If D is here to be W in another civil case, is she immune from service?

Back 195

No. But discretionary immunity for grand jury or criminal summons.

Front 196

VA: Regarding SOL, what are mechanics for timeliness of service?

Back 196

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.

Front 197

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?

Back 197

No. A L must also be set forth and sign.

Front 198

Suppose a doc that should be annexed to a pleading is not. What can other party do?

Back 198

Motion craving oyer.

Front 199

What is the VA corollary to Rule 11 and what must be included?

Back 199

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.

Front 200

When in VA are alternative pleadings okay?

Back 200

Alternative facts as to alternative parties may be pled if same T/O (1 - husband not neg; 2 - husband drunk but overserved.)

Front 201

When can a VA ct not do when considering an extension of time?

Back 201

Cannot condition extension on party posting a bond.

Front 202

For what motion can VA ct never extend time?

Back 202

Venue, unless ct extends time to file responsive pleading.

Front 203

How does P initiate a case in VA GDC and what are the mechanics/timing?

Back 203

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.

Front 204

In VA GDC, how can P or D learn more about each other's case?

Back 204

D can move for bill of particulars and P can move for grounds of defense. If party fails to file, ct can enter SJ.

Front 205

Does a trial in VA GDC always have to go forward on return date?

Back 205

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.

Front 206

How does P initiate case in VA CC and what are the mechanics?

Back 206

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.)

Front 207

VA: What must be addressed separately in prayer for relief?

Back 207

Punitive damages must be in a separate paragraph.

Front 208

What can be alleged generally in VA CC?

Back 208

Neg and proximate cause. (Still need to allege all elements of neg e.g. duty, etc.)

Front 209

What claims can be joined in VA CC?

Back 209

Those arising from same T/O. Joining unrelated claims is called misjoinder.

Front 210

How long does D have in VA CC to respond to a complaint?

Back 210

Within 21 days of service of process.

Front 211

How can D in VA CC object to venue and what are the timing requirements?

Back 211

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.

Front 212

If D files a defective motion objecting to venue in VA CC, can the ct still transfer?

Back 212

Yes

Front 213

How can D challenge PJ in VA CC?

Back 213

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.

Front 214

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)?

Back 214

By filing a motion to quash process. OK to file concurrent with a pleading responding to the merits.

Front 215

VA: What is demurrer, what can it be used for, what can it not be used for and may it allege new facts?

Back 215

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.

Front 216

VA: When can D file demurrer?

Back 216

Demurrer can be filed before the answer or at the same time. Thus, if D files answer before demurrer, cannot demur unless ct allows.

Front 217

VA: What is a special plea, when can it be raised?

Back 217

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.

Front 218

How may D in VA respond to allegations in a complaint?

Back 218

Admit, deny, state lack of knowledge.

Front 219

VA: What is common law recoupment and what can the court not order under a statute allowing damages in excess of P's claim?

Back 219

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.

Front 220

What is the big difference between amending pleadings in VA vs fed?

Back 220

Never a right to amend in VA. Must get leave to amend (and leave must be granted before SOL runs, not merely sought.)

Front 221

Can party in VA seek discovery of the other sides' insurance coverage even though it may not be admitted at trial?

Back 221

Yes. Discovery is broader than admissibility.

Front 222

If P in VA seeks punitive damages is D's net worth/gross earnings discoverable?

Back 222

Yes, it is relevant b/c seeking to punish D.

Front 223

What must a VA party do when responding to an interrogatory by referring the requesting party to documents in which answers can be found?

Back 223

Must be done with suff detail.

Front 224

VA: Can 3rd party beneficiaries sue despite not being mentioned in the K?

Back 224

Yes, 3rd party beneficiary can sue in his own right, even if not mentioned in K.

Front 225

How can a minor sue or be sued in VA?

Back 225

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.

Front 226

When can disabled persons sue or be sued in VA?

Back 226

Formal incompetency proceedings if substantial estate. Fiduciary (eg committee) appointed. Fiduciary sues. If suing disabled person, apply same process as for suing minors.

Front 227

P sues D in VA and while case is pending, P dies. What result?

Back 227

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.)

Front 228

Timing - when must D in VA file a counterclaim in CC? GDC?

Back 228

CC- D must file counterclaim within 21 days of service of process. In GDC, anytime before trial (must be within SMJ).

Front 229

When is a counterclaim compulsory? In VA, must a counterclaim relate to same T/O?

Back 229

Never compulsory in VA, even if same T/O. In fact, D can counterclaim with any claim under any theory.

Front 230

When must a VA counterclaim be against all Ps jointly?

Back 230

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.)

Front 231

When can a counterclaim for damages not be asserted in a GDC case?

Back 231

If counterclaim for damages in GDC exceeds 15K, cannot be asserted in GDC.

Front 232

What is a VA crossclaim?

Back 232

Offensive claim against co-party. Mostly same as fed crossclaim.

Front 233

What is it called in VA when D wants to add 3rd party from who he will seek indemnity/contribution?

Back 233

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.)

Front 234

When can VA tortfeasor seek contribution from joint tortfeasor if the tort is negligence?

Back 234

When it involves no moral turpitude.

Front 235

When can a D never implead a joint tortfeasor?

Back 235

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.)

Front 236

In VA, is there dismissal for nonjoinder?

Back 236

No. Do not dismiss for nonjoinder. Thus, there is not such thing as indispensible in VA.

Front 237

What damages can be recovered for wrongful death in VA and what is the order of beneficiaries?

Back 237

(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.

Front 238

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?

Back 238

Cannot recover pain and suffering of decedent. Can recover punitive for wanton. But no punitive from D's estate, if D dies before jmt.

Front 239

In which VA ct are declaratory jmts availabe

Back 239

CC only.

Front 240

What are the methods of partition of realty?

Back 240

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.

Front 241

What is detinue, which VA cts is it available in?

Back 241

For recovering money or personal prop. GDC if <= 25K or in CC. Exclusive GDC if <=4500.

Front 242

What is pretrial seizure in VA, what does it apply to, how can D get his prop back?

Back 242

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.

Front 243

VA: What is unlawful detainer, where is it available?

Back 243

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.

Front 244

VA: When does SOL start to run?

Back 244

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).

Front 245

What some some exceptions to the general rule in VA that SOL starts to run from "accrual" of cause of action?

Back 245

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).

Front 246

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.

Back 246

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

Front 247

What can toll a VA statute?

Back 247

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.

Front 248

VA: P's filing tolls statute for his own claim and what other claims?

Back 248

Cross-claims arising from same T/O as P's claim.

Front 249

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?

Back 249

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.

Front 250

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?

Back 250

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.

Front 251

What are four differences from VA SJ compared to Fed SJ?

Back 251

(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.

Front 252

What is the timing for requesting a jury trial in VA?

Back 252

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.

Front 253

VA: What jury size if case involves > 15K and <= 15K.

Back 253

>15K - 7 jurors
<=15K - 5 jurors.
If parties consent, 3 jurors.

Front 254

VA: Jury selection: How many challenges for cause and peremptory challenges is each side allowed?

Back 254

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.

Front 255

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?

Back 255

Oral testimony anytime the ct uses jury. Oral testimony is called Ore Tenus.

Front 256

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?

Back 256

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.

Front 257

What is the VA functional equivalent of a fed JMOL? What is one procedural difference concerning Summary Judgment?

Back 257

Motion to strike the evidence. State judge can grant the motion and enter Summary Judgment, if standard is met.

Front 258

Is a VA P's recovery constrained by the damages sought in the complaint?

Back 258

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.

Front 259

VA: Can a verdict be impeached for impropriety by juror?

Back 259

Yes but w/ great caution b/c you can never ask about subjective process.

Front 260

VA: What is the deadline for seeking rehearing in GDC?

Back 260

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)

Front 261

VA: In CC, how long after entry of judgment can the ct suspend, vacate or modify?

Back 261

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.

Front 262

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?

Back 262

No. This is VA difference from fed RJMOL.

Front 263

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.

Back 263

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.

Front 264

Does VA recognize remittitur and additur?

Back 264

Yes, VA recognizes both.

Front 265

If a VA judge orders remittutur, what are P's options?

Back 265

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.

Front 266

In VA, is entry of nonsuit appealable if D didnt object?

Back 266

No (since its w/o prejudice). However, if D objected on the grounds that nonsuit was improper, it is an appealable final jmt.

Front 267

In VA, can you appeal when there are multiple parties and partial final judgments?

Back 267

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.

Front 268

When is there a rt to appeal from CC to VA ct of appeals and what is the timing?

Back 268

Right to appeal in domestic relations cases. File notice of appeal in CC withni 30 days after appealable decision.

Front 269

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?

Back 269

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.

Front 270

What steps to appeal from CC to VA SC?

Back 270

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.

Front 271

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?

Back 271

The other party may object w/in 21 days of the certificate. If problem isnt fixed, ct may dismiss appeal.

Front 272

What must be done to prevent paying damages on a lower court decision in VA while awaiting an appeal?

Back 272

post a supersedeas bond of the damage amount of lower court

Front 273

What is required for claim preclusion in VA? What is it called?

Back 273

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)

Front 274

What is required for issue preclusion in VA? What is it called?

Back 274

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)

Front 275

VA: Procedure for appealing divorce? How to preserve trial ct rulings and when will it be considered basis for reversal?

Back 275

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.

Front 276

What are the essential elements of crimes?

Back 276

act, mental state, causation, concurrence.

Front 277

What is the standard for proving insanity defense?

Back 277

D must prove the defense by a preponderance of the evidence.

Front 278

Distinguish between felony and misdemeanor?

Back 278

Felony is punishable by > 1 (doesn't matter if sentence was less.)
Misdemeanor has max punishment <= 1 year

Front 279

What types of movements are not considered "acts"?

Back 279

Sleepwalking, reflex or convulsion, someone else moves the D.

Front 280

When can failure to act create criminal liability?

Back 280

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.

Front 281

What are the 4 common law mental states?
(SiMGiSl)

Back 281

Specific intent, malice, general intent and strict liability.

SiMGiSl

Front 282

State the 11 specific intent crimes:

Back 282

"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

Front 283

What is malice and state 2 common law malice crimes?

Back 283

A D's mental state in which he acts intentionally or with reckless disregard for life.
E.g. Murder, arson.

Front 284

What is general intent and state 4 examples.

Back 284

General intent is a mental state. D needs to be generally aware (jury infers simply from the act.) Battery, false imprisonment, kidnapping, forcible rape.

Front 285

What are some strict liability crimes?

Back 285

Selling alcohol to minors, statutory rape

Front 286

What type of mistake of fact is a defense to specific intent crimes?

Back 286

Any mistake, even unreasonable.

Front 287

What type of mistake of fact is a defense to general intent crimes?

Back 287

Only a reasonable mistake.

Front 288

When is mistake of law a defense?

Back 288

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.

Front 289

State the MPC levels of culpability and their basic elements.

Back 289

(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).

Front 290

Law requires proximate/legal causation, not just "but for". State elements of proximate causation.

Back 290

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.

Front 291

What is concurrence and for which crimes does it frequently arise?

Back 291

D must have the mental state at the same time he acts. Larceny, burglary.

Front 292

What is CL battery?

Back 292

Unlawful force resulting in bodily injury or offensive touching. (gen intent).

Front 293

What is criminal assault at common law?

Back 293

(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).

Front 294

When is an assault or a battery considered aggravated?

Back 294

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.

Front 295

What is malicious wounding/maiming?

Back 295

injury with intent to disfigure. There is also an aggravated version.

Front 296

When must death occur by, for homicide to be a chargeable offense; state the common law rule and VA/maj rule.

Back 296

CL: Within year-and-a-day of homicide.
VA - anytime.

Front 297

What is CL murder and how can it be shown?

Back 297

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

Front 298

What is the exception to the general rule of transferred intent?

Back 298

Transferred intent doesnt apply to attempts

Front 299

How does the majority view distinguish first degree murder from second degree murder?

Back 299

First degree is a killing committed with premeditation and deliberation. Includes FM for severe felonies. All other murders are second degree.

Front 300

What is voluntary manslaughter and distinguish from involuntary.

Back 300

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.

Front 301

What is required for felony murder, explain common law vs VA law.

Back 301

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)

Front 302

State the VA distinction between capital murder and first degree murder?

Back 302

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.

Front 303

State the VA presumption for second degree murder.

Back 303

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.

Front 304

State the two statutes for felony homicide in VA

Back 304

(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.

Front 305

What are the two types of manslaughter in VA and what are their elements?

Back 305

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

Front 306

What is false imprisonment?

Back 306

False imprisonment: Unlawful confinement w/o consent (general intent)

Front 307

What is common law kidnapping?

Back 307

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.

Front 308

What are the elements of kidnapping in VA; what element of common law kidnapping does not apply in VA?

Back 308

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.

Front 309

What are elements of rape?

Back 309

Sex without consent accomplished by force, threat of force or when V is unconscious. (general intent.)

Front 310

What are elements of statutory rape, what is the majority and minority view?

Back 310

Sex w/ someone under age of consent.
Majority: Strict Liability.
Minority: MPC permits reasonable mistake of age.

Front 311

In VA, how to prove rape of a spouse?

Back 311

Prove that spouses were living separately OR D caused serious physical injury.

Front 312

How does statutory rape work in VA?

Back 312

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

Front 313

What are the elements of larceny?

Back 313

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.

Front 314

What is the VA larceny presumption?

Back 314

one in unexplained and exclusive possession of recently stolen property can be rebuttably presumed guilty

Front 315

What are the elements of embezzlement?

Back 315

Person already in possession (vs mere custody e.g. simple bank teller) converts personal prop with intent to defraud. Title doesnt pass.

Front 316

What are the elements of false pretenses, and what is this offense downgraded to, depending on title passing or not.

Back 316

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.

Front 317

What are the elements of robbery?

Back 317

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.

Front 318

How are the crimes of larceny, embezzlement or false pretenses charged in VA?

Back 318

As larceny.

Front 319

What are the types of VA larceny and how does it relate to robbery?

Back 319

Be aware of grand larceny vs petit larceny. Larceny is a lesser included offense of robbery.

Front 320

What are the elements of extortion in VA?

Back 320

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.

Front 321

What are the elements of forgery, uttering and malicious mischief

Back 321

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)

Front 322

What does posession mean, in terms of when a statute criminalizes possession of contraband?

Back 322

Control, long enough for opportunity to terminate possession. Constructive posession if dominion and control

Front 323

What are the elements of burglary and how does it work in VA?

Back 323

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")

Front 324

What are the elements of arson, how does it work in VA?

Back 324

Malicious burning of a building. Mere scorching insufficient. VA: Any building, not just dwelling, even your own house. Includes by explosives.

Front 325

What do we call the person who helps the principal?

Back 325

Accomplice. Aids/encourages with intent that crime be committed.

Front 326

What are the 4 categories of parties to a crime and which one of them is actually a crime at common law?

Back 326

(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!

Front 327

What crimes is an accomplice guilty of?

Back 327

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).

Front 328

Can an accomplice be guilty if the principal is unprosecuted?

Back 328

Yes

Front 329

What 3 types of persons are not accomplices?

Back 329

One who is merely present, merely had knowledge or member of protected class (Victim).

Front 330

How does an accomplice withdraw. State rule for encourages vs aider.

Back 330

Encourager: Must discourgage crime before its committed.
Aider: Must neutralize his assistance or prevent crime.

Front 331

How does accomplice liability work in VA?
State the rule and exception, whether a conviction is required and withdrawal.

Back 331

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.

Front 332

What are the elements of solicitation?

Back 332

Asking someone to commit crime, with the intent that it be committed.
Crime is in the asking not actual commission.

Front 333

What are the elements of conspiracy, what element is not needed in VA?

Back 333

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.

Front 334

Can you have a one-person conspiracy at CL, MPC, VA?

Back 334

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.

Front 335

State the common law rule of vicarious liability for co-conspirators.

Back 335

D liable for other crimes if they were in furtherance and foreseeable.

Front 336

In VA, what are the two exceptions to the rule barring an underlying conspiracy conviction following a conviction for the substantive offense?

Back 336

Conspiracy conviction not barred if, either:
(1) based on acts separate from substantive conviction OR
(2) if convictions occur in a single trial.

Front 337

What is the VA rule on prosecuting D for a conspiracy after D is acquitted of the underlying felony.

Back 337

If D is acquitted of the underlying felony, cannot subsequently prosecute for the conspiracy.

Front 338

Where does hearsay comeup in VA criminal conspiracy law?

Back 338

statement made in furtherance and during the conspiracy is as if it was made by the co-conspirator.

Front 339

What are the elements of attempt under CL, VA and MPC?

Back 339

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.

Front 340

What type of crimes can be "attempted" and state 3 types.

Back 340

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.

Front 341

What is factual impossibility and is it a defense?

Back 341

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.

Front 342

What is legal impossibility and is it a defense?

Back 342

Claim that it was impossible to complete crime because what D tried to do was not illegal.
Yes it IS a defense.

Front 343

How, if ever, is withdrawal a defense to inchoate offenses, state CL and MPC.

Back 343

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.)

Front 344

What is the rule on merger, when can D be convicted of multiple crimes for the same conduct? Explain the rules for inchoate offenses

Back 344

Lesser-included offfenses merge with the greater offense. Attempt and solicitation both merge but conspiracy doesnt merge.

Front 345

Explain requirements for insanity defense and the various tests at CL? MPC?

Back 345

(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.

Front 346

How does insanity defense work in VA? Explain the Test, notice and burden requirements.

Back 346

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.

Front 347

How is insanity different from incompetency?

Back 347

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.

Front 348

When is intoxication not a defense?

Back 348

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.

Front 349

How does the intoxication defense work in VA?

Back 349

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.

Front 350

What type of crime is always specific intent?

Back 350

Attempt. (Thus, e.g. intoxication is a defense to an attempted arson)

Front 351

How does defense of infancy work at CL and in VA?

Back 351

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.)

Front 352

When may a D use nondeadly force in self-defense?

Back 352

If reasonably necessary to protect against imminent use of unlawful force against himself.

Front 353

When may a D use deadly force in self-defense? State aggresor rule.

Back 353

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.

Front 354

What is the rule on retreat?

Back 354

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.

Front 355

In VA, when can non-deadly force be used?

Back 355

If reasonable appearance (subjective) that force is justified. No duty to retreat, force used my be reasonable.

Front 356

In VA, when can deadly force be used?

Back 356

(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.

Front 357

What happens when D is mistaken about need to use self-defense?

Back 357

(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)

Front 358

When can nondeadly and deadly force be used to prevent a crime?

Back 358

Nondeadly force can be used to prevent a crime but deadly force only if preventing a felony risking human life.

Front 359

What is the majority rule on defense of others? How about VA?

Back 359

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.

Front 360

When can nondeadly force and deadly force be used to defend a dwelling? Also state VA rule.

Back 360

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.

Front 361

When can nondeadly and deadly force be used to defend property. Also state VA rule.

Back 361

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.

Front 362

When can nondeadly force be used to resist arrest?

Back 362

If D knows it's a cop and only if arrest is improper may D use nondeadly force. Better be sure!

Front 363

When is necessity a defense and when is it never a defense?

Back 363

If D reasonably believed that the conduct was necessary to prevent greater harm. Necessity is never a defense to homicide.

Front 364

When is duress a defense and when is it never a defense?

Back 364

If D was forced to commit crime under threat of death or serious physical injury.
Duress is never a defense to homicide.

Front 365

What are the elements of entrapment and how does it work in VA, what can the government use against a D?

Back 365

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.

Front 366

What is perjury in VA?

Back 366

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.

Front 367

What is bribery in VA?

Back 367

Corrupt gift with intent to influence official act.

Front 368

What is a false report in VA?

Back 368

Knowingly giving false report with intent to mislead police.

Front 369

What is meant by concealing/compounding offense in VA?

Back 369

Take money to not prosecute an offense OR destroy evidence with intent to hinder prosecution of D charged with crime against another.

Front 370

What is the test for domicile and how does domicile for operation of law apply?

Back 370

Physical presense & intent. If child/incompetant, domicile is parents, if divorced, whoever has custody, retain domicile before becoming incompetent.

Front 371

What are the 3 full faith and credit reqs?

Back 371

(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)

Front 372

State valid and invalid defenses to full faith and credit

Back 372

Valid - Jmt penal, extrinsic fraud. Invalid - violates forum's public policy, mistakes by judge in earlier trial, inconsistent jmts (last in time prevails)

Front 373

What is the constitutional limit (due process) on choice of law?

Back 373

State chosen must have sig contacts, giving legit interest.

Front 374

What choice of law rules approach in VA, what approaches does VA not follow

Back 374

VA follows vested rts approach. VA doesnt follow most sig relatonship or gov interest approach.

Front 375

Which juris law governs tort law for purposes of VA choice of law?

Back 375

Place of the wrong

Front 376

State the 3-step inquiry used in VA conflicts of law issues in involking Ks.

Back 376

(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.

Front 377

What is required if parties incorporate a clause on a state to govern the contract's validity?

Back 377

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).

Front 378

State the erie principle for choice of law.

Back 378

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.

Front 379

Shareholders are generally not liable for corporate debts. What is the exception and what sort of remedy is available?

Back 379

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.