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678 Cards in this Set

  • Front
  • Back
What are the ways to achieve federal subject matter jurisdiction?
diversity (between citizens of different states - none of which may be from same state) and amount in controversy greater than 75k, OR federal question (arises from fed. Right)
How can an additional claim be added to a federal case that doesn’t have subject matter jurisdiction?
supplemental jurisdiction - claim must share common nucleus of operative fact with other claim and arise from same transaction or occurrence
limitation on supplemental jurisdiction
can't be used in diversity case where it would violate 'complete diversity'
how to move from state court up to federal court
removal - only by all D's in agreement, must be within 30 days after service of first doc, no removal if D is citizen of forum state
eerie doctrine defined
federal court must apply state substantive law in diversity cases
options for choice of federal venue
local action if re land, otherwise, where all Ds reside, for corporations anywhere where there would be personal jurisdiction, or where a substantial part of the claim arose
concept for moving to a more convenient forum in federal case
forum non conveniens - let P sue D in a more convenient forum where transfer is impossible b/c of a different judicial system
federal service of process - who, steps
any 18 yr old nonparty, can either give personal service in forum state, substituted service at D's usual abode to person of suitable age and discretion who lives there, to D's agent, or waiver by mail
Is there immunity from federal service if visiting to be a witness or in another civil case?
requirements for a federal pleading
notice pleading; need only include enough detail to allow the other side to be on notice and make a reasonable response
what governs attorney signatures in federal actions?
Rule 11 - atty must sign attesting to the best of the knowledge and belief, after reasonable inquiry document is not for improper purpose, legal contentions are warranted by law, factual contentions are warranted by evidence
what federal sanctions are available against improper pleadings?
rule 11 sanctions - move for sanctions and offending party has 21 day safe harbor to amend and fix problems
what FRCP sets forth defendant's possible MOTIONS in response to a complaint and what are the WAIVABLE defenses? What are the other defenses
FRCP 12(b) - WAIVABLE includes lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process ---- NONWAIVABLE includes lack of subject matter jurisdiction, failure to state a claim, failure to join indispensable party
what must D's answer in a federal response include
raise any affirmative defenses, e.g., statute of limitations, and also admit/deny/lack sufficient knowledge to all claims
is a federal counterclaim compulsory or permissive?
BOTH - if from same T/O, must be filed now or is waived. If not from same T/O, permissive.
is a federal crossclaim compulsory or permissive?
what are the rules for amending federal complaints?
P can do it once before D's answer, D can do it once within 20 days of serving answer
How can a party be forced to bring documents to a subpoena?
subpoena duces tecum
What federal discovery tools are available against nonparties?
depositions (but nonparties must be subpoenaed) and requests to produce
What is the federal standard for what is discoverable?
anything reasonably calculated to lead to a discovery of admissible evidence (broader than admissible)
What is work product and is it discoverable?
something prepared in anticipation of litigation. Not discoverable, BUT if it is otherwise not available and a substantial need exists, may be overcome. Includes work generated by nonlawyers
What federal sanctions are available against a party who fails to respond to discovery?
If partial, gets a chance to comply, then sanctions. If complete failure, straight to sanctions. Sanctions include establish facts as true, strike pleadings, dismiss case, enter default judgment.
Who may be a federal co-party?
parties whose claims arose from same T/O and have at least one common question
Must jointfeasors be joined in federal action?
What is it called when you join a third party D in a federal suit and what are the requirements?
Impleader - must be same T/O and have subject matter jurisdiction
What is it called when you force all potential claimants into a single lawsuit? What does it require?
interpleader - must meet diversity test OR statutory where only one claimant is diverse and amount in controversy > 500
What are the requirements for a class action suit?
NO CASH TO ANSWER RAGE - Numerosity , Commonality, Typicality, Adequate Representation
What are the consequences for voluntary dismissal in a federal suit?
P allowed to dismiss by filing written notice. First time, no prejudice. Second time, with prejudice
What are the limits on damages in a federal default judgment?
the amount awarded cannot exceed what was demanded in the complaint
For what is their a federal right to a jury trial?
Matters of law, not equity. If mixed, jury hears facts underlying damages (law) claim
What is federal process for selecting jurors from juror pool?
Voir dire - each side has unlimited strikes for cause, and 3 peremptory strikes without cause. Must be race/gender neutral.
How can a party in federal court move to have an issue decided based on the evidence that has been presented so far? Can it be done after a jury has decided?
Motion for Judgment as a Matter of Law (JMOL) - other party has insufficient evidence to reasonably support its case. Can do a Renewed JMOL to set aside a jury decision BUT they must have done a JMOL earlier.
What is a final judgment and how long is there to appeal it in federal court?
final judgment means the trial judge has nothing left to do on the merits of the case; can appeal within 30 days after entry of final judgment
What are the two major elements that must be satisfied to attain personal jurisdiction?
Satisfy a statute and Satisfy the constitution
How may the Statutory element of personal jurisdiction be satisfied?
long arm statute or residence in the state. long arm statute includes transacting any business within the state of VA or automobile accidents occurring instate.
What types of 'experts does the FRCP recognize and what consequence does that have on discovery?
Consulting experts vs Testifying experts - can't depose consulting experts unless exceptional circumstances and impractical to obtain facts by other means. OK to depose testifying experts
What are two major steps to finding personal jurisdiction in VA?
Satisfy a statute and also satisfy the constitution
How can general personal jurisdiction be satisfied for VA?
Allows you to sue anyone here for claims arising anywhere, need to serve D with process instate or D resides here
how can specific personal jurisdiction be satisified for VA?
must do an enumerated item, including causing tortious injury instate by act or omission anywhere, transact ANY business in VA, VA realty, domestic relations, or non-resident motorist Act
What is the constitutional standard for personal jurisdiction?
My Parents Frequently Forgot to Read Children's Stories: Minimum contacts, Purposeful Availament, Foreseeability, Fair play and substantial justice, Relatedness between claim and forum, Convenience, and the State's interests
What courts in VA have subject matter over what levels of damages?
General District Courts must hear matters <$4,500, but may hear up to $15,000. Circuit Courts may hear any matter > $4,500.
When and how may you appeal from General District Court to Circuit Court in VA?
Absolute right if amount involved is more than $50 (amount you could win if your appeal was succesful). Process - file notice with GDC clerk within 10 days of judgment, post bond and pay writ tax in GDC within 30 days, CC hears case de novo and OK to increase claim amount
What are the two categories of Venue in VA?
Category A are set by law and include land actions, wills, writs, and injunctions. Category B are everything else, may choose where D resides or is employed, where cause of action arose, or where D has agent/office/business. May also use P's venue if all D's are nonresident.
May venue be objected to in VA?
Yes, but MUST be filed within 21 days after service of process unless court extends time.
What is the order of service of process in VA?
personal (actual), then substituted (D's abode to D's family member who is at least 16 and not a temporary guest, tell them about purpose), then posted service (nail and mail - post copy on door and 10 days before default, certify to clerk that mailing took place). Can fix this process with curing statute unless for divorce/annulment
Is there immunity from VA service if visiting to be a witness or in another civil case?
What is it called in VA when a party requests that the other side attach missing documents to their pleading?
Motion Craving Oyer
What is the VA magic time period number of days for many responses?
21 days
Can you plead facts in the alternative in a VA pleading?
Yes, if they arose from the same transaction or occurrence
When can you object to venue in VA GDC? In VA CC?
GDC - anytime before day of trial; CC - must file a motion stating why venue is improper and what places would be proper. Must file within 21 days of service of process.
Describe how relief is requested in a VA circuit court complaint?
A prayer for relief is requested that seeks ad damnum (monetary damages) and, if requested, a separate paragraph requesting punitive damages.
In VA, what must be true for P to join unrelated claims?
claims must have arose from the same transaction or occurrence
What are the requirements for challenging personal jurisdiction in VA?
D MUST make a special appearance FIRST AND BY ITSELF to challenege personal jurisdiction or else it is waived
What is the VA motion called that tests the sufficiency of the pleading (claim would fail as a matter of law regardless of the evidence presented)?
What does VA call the use of an affirmative defense?
a special plea
What does VA call an equitable defense to a legal action that reduces P's claim?
Common law Recoupment
Can you amend your complaint in VA?
No right to amend. Must petition the court for leave to amend. Court will generally grant unless it will cause prejudice or delay.
Is there discovery in GDC?
P files claim in VA. P dies. What happens to claim?
Claims survive death in VA
Describe counterclaims in VA court
Never compulsory AND need NOT be from same transaction or occurrence. HOWEVER, must be against P or ALL P JOINTLY - can't pick and choose.
What is it called when you add a 3rd party to your lawsuit for indemnity or contribution?
Does VA allow impleading joint tortfeasors?
Yes - D can implead anybody who may owe him indemnity or contribution, BUT cannot implead a tortfeasor that the P couldn't recover against
Does VA have necessary parties? Indispensable parties?
Yes BUT VA has no indispensable parties in that it won't dismiss a suit for nonjoinder
What types of damages can be recovered in a VA wrongful death action?
Sorrow, anguish, and lost companionship; services and income of decedent; medical and funeral expenses; punitive damages for wanton or willful misconduct
What ways will a CC in VA split up property?
Partition in Realty where the court will split amont persons with a division in kind OR partition by allotment by giving one the land and paying others OR partition by sale
What is a VA action to recover personal property or its value and damages for detention?
What must be shown to secure a pretrial seizure of personal property in VA?
P describes property showing right to it and risk it will be damaged or hidden, plus post a bound of double the value of the property
From when does the statute of limitations run in VA?
time starts on the DATE OF INJURY OR BREACH and NOT when P actually or reasonably would have been injured. EXCEPTIONS: Fraud/mistake/undue influence, malicious prosecution (when case ends), contribution (when one pays more than their fair share), and malpractice (when there has been continuous treatment)
What has a 1 year statututory time limit for bringing action in VA?
What has a 2 year statututory time limit for bringing action in VA?
personal injuries, nonphysical personal torts, fraud, wrongful death
What has a 3 year statututory time limit for bringing action in VA?
unwritten contracts, unlawful detainer
What has a 4 year statututory time limit for bringing action in VA?
property damages for sales covered by UCC breach of warranty
What has a 5 year statututory time limit for bringing action in VA?
written contracts and property damage
What is it called when you stop the statute of limitations from running? When does a person's age affect running of statute (and what is the exception)?
toll a statute to stop it running; minors toll statute until they turn 18. HOWEVER, if medical malpractice, children under 8 toll the statute until they turn age 10
When can P drop a VA case without prejudice?
only once, and must meet either: Jury is deliberating, nonjury case is submitted for decision, motion to strike evidence is granted, OR demurrer or special plea is fully argued and awaiting decision
What can a plaintiff do in VA after default judgment has been entered?
the party waives notice to further proceedings, however, they can come to a damages hearing (if one is held) and argue damages (but NOT underlying liability)
What VA courts can you request a jury and how big is it?
CC only, must file demand with 10 day sof service of last pleading raising a jury-triable issue, 7 members if >15k otherwise just 5
When should you raise objections to jury instructions in VA?
MUST raise before jury is charged or else waived
What is the term for a witness testifying orally?
ore tenus
What is a judgment as a matter of law called in VA?
a Motion to Strike the Evidence
How is a jury constrained in determining damages in a VA court?
Jurors must agree on damages amount, must reach unanimous verdict, and the amounts in the original complaint set a cap on the award
How long can a court modify a decision in VA? What is this time period called?
21 days after entry of final judgment court can suspend, vacate or modify. Called in the breast of the court - if court doesn't act, loses jurisdiction
How can a judge modify a VA final judgment after the decision?
Can do remittitur - take less or face new trial or additur - take more or face new trial.
When is a VA interlocutory appeal granted?
Ct must find there is substantial ground for difference of opinion, no clear VA appellate precedent, determination of issue will be dispositive of a material aspect of case, and court and parties agree it is the best route
What are the requirements for appeal from GDC to CC in VA?
Absolute right if >$50 involved; file within 10 days of entry of judgment and CC hears case de novo
When can an appeal be made from CC to VA court of appeals?
absolute right in domestic relations cases, otherwise, discretionary
What are the requirements for appeal from CC to VA supreme court?
>$500 on appeal, discretionary, must have objected with reasonable certainty at time of ruling, must bring to court attention adverse authority, must file petition no later than 3 months after appealable judgment
Describe the procedural VA appeal process from CC
file notice of appeal within 30 days of judgment that states whether transcript or statement of indicidents at trial will be filed, appeal bond, contact for opposing counsel, give a copy to other party and clerk, and later file the appeal brief
What must be done to prevent paying damages on a lower court decision in VA while awaiting an appeal?
post a supersedeas bond of the damage amount of lower court
What is required for claim preclusion in VA? What is it called?
res judicata - same P against same D, case 1 ended in valid final judgment on merits, case 1 and 2 have same cause of action (NOTE - if personal injuries and property damage arise from same T/O they are different causes of action)
What is required for issue preclusion in VA? What is it called?
Collateral estoppel - case 1 ended in valid judgment on merits where the present issue was actually litigated and determined, the issue was essential to judgment in case 1, and can be asserted ONLY by one who was party to case 1 (federal, however, lets anyone do it)
What is the rule that sets bounds on the powers of local government's in VA? What is it called?
Dillon's Rule - localities can only exercise powers granted expressly by statute or charter and no other powers unless necessarily implied in or incident to the powers expressly granted
What are the limits on localities incurring debt?
Must have ballot vote or special hearing before bonds may be issued; 10% limit rule where localities may not issue general obligation bonds in excess of 10% of assessed valuation of local real estate that is subject to taxation. Exception if the project pays for itself in 5 years or less or anticipated tax revenue will be higher
What are the requirements for creating a local ordinance?
prior published notice worded to alert residents who will be affected, a majority vote of governing body at public meeting, and must be reasonably certain in application (not vague)
What is the basic plan that must be created for zoning localities?
a comprehensive plan comprising a zoning ordinance and map with growth areas that must be updated every 5 years
Who decides locality zoning ordinance issues?
Board of zoning appeals - hear and decide appeals from zoning orders and ordinances. Notice of appeal must be given within 30 days after decision being appealed
Can someone have an exception to a zoning ordinance? What is it called and what is the standard?
a variance - authorized if strict enforcement would result in undue hardship to the landowner that is not shared by other properties AND granting the variance will not be substantially detrimental to adjacent properties
How do new zoning ordinances affect existing properties?
lawful noncomforming use - allowed to grandfather in existing structures and uses. However, if abandoned for two years or making future improvements, have to conform
What doctrine governs the ability of localities to enter into contracts?
ultra vires doctrine - a contract beyond the scope of a locality's power is unenforceable. Localities may use this as a defense, and agents may not bind localities to contracts. County administrators may not contract when only the governing body, by ordinance, could do something.
What is the tort liability for towns, counties, and the Commonwealth in VA?
counties - immune, towns - immune if governmental function, commonwealth - immune beyond certain dollar limits
When is a government official in a locality in VA acting in a governmental function for the purpose of liability to lawsuits?
government function IF exercise of political, discretionary, or legislative authority, e.g., operation of police, fire dept., public education, garbage, DESIGN of roads. Non-governmental proprietary function if maintenance of roads, housing authorities, provision of public utilities, etc. If it is a mixture, then gov. function.
How does the seniority of a local government official affect liability for lawsuits?
top level people are immune. Lower level ones are immune if it is a public function performed with a great degree of gov. interest and involvement, where they exercised significant control and discretion in the task. EXCEPTIONS - school bus drivers (up to insurance limit), doctors if they can't choose patients, emergency personnel rushing to scene or chasing lawbreakers.
What is an alternative method to sue a locality if they are immune from tort liability? what are the elements of this theory?
nuisiance - any dangerous hazard or condition that was unauthorized by law (or negligent manner shown if authorized). City must have actual or constructive knowledge of problem.
When can a locality take private property from an individual? What is the process called?
eminent domain - may exercise power if public purpose which must be declared in resolution AND a good faith offer to purchase was unable to be reached with the owner. Public purpose does NOT include improvements to the tax base, creation of jobs, or other means that benefits primarily private parties.
What is equitable relief appropriate in VA?
Where the subject matter is unique or rare, D is insolvent, or multiple lawsuits would be required or the harm is irreparable
What factors are balanced in determining whether a court should proceed with an equitable remedy?
Must be both present in forum state, and within the capacity of the court. E.g., would enforcement require extensive supervision or would standards of compliance be unclear? IMPORTANT - equitable relief is always discretionary
When will a court of equity in VA treat a contract as never made and what is that called?
Recission - voidable contract if mutual mistake of material fact OR unilateral mistake coupled with any form of misrepresentation
When can a court of equity find an implied contract existed?
when P can show that D obtained a benefit from P and P expected recompense and D should have known that
How does VA determine contributions among joint tortfeasors?
VA has NO comparative negligence. Joint tortfeasors SPLIT EQUALLY. E.g., 2 would split 50/50.
What is income realized for tax purposes, when it is recognized?
realization is when you sell or dispose of property, while recognition is when you report a gain or loss on your tax return
How do you calculate gain or loss for tax purposes? (formula)
amount realized minus adjusted basis = gain or loss
What is the basic intestate succession involving a spouse and children in VA?
If no descendents, spouse takes entire estate. If some descendents, spouse still takes entire estate. However, if any descendents are not the surviving spouse's children, then the wife gets ONE THIRD and the children get TWO THIRDs of the estate.
If a spouse deserts the other, what effect?
Willful desertion bars taking under intestate succession, right to serve as administrator, elective share, family allowance, and rights to exempt property. Cannot be for cause (e.g., abuse)
What are the guaranteed rights of a surviving spouse, beyond statutory and elective share?
REFH - Residence (can live in family residence until rights are determined), Exempt personal property (up to 15k of personal effects), Family allowance (up to 18k allowance to support family), Homestead allowance (of 15k - in lieu of property passing by will , also, not avail if taking elective share)
How is intestate distribution split among heirs?
Per capita with Representation - split evenly among first horizontal line with survivor, then below them splits their share if they are dead.
What is the order of intestate succession in VA?
Parents, then brothers and sisters, then grandparents (split half to each side), then move to great-grandparents (laughing heirs), then previous spouse, then escheat to state
Is there an inheritance difference for half-bloods?
Half-bloods inherit half as much as whole bloods.
What intestate rights available for children who have been adopted by a stepparent? What rights for one who is adopted by a stranger?
stepchild adoption retains inheritance rights from both stepparent and biological parent. Only from biological parent for stranger adoption.
Non-marital children have what inheritance rights?
Full from mother, father if Proven.
How is paternity proven in VA?
MAC - Marriage, Adjudicated to be father in proceeding, Clear and convincing evidence via BAD CAT; Birth Certificate, Admits in court, DNA test, Allowed child to use name, Tax return or gov. doc
How are simultaneous deaths handled in VA re: inheritance?
Uniform Simultaneous Death Act - beneficiary must survive by at least 120 hours / 5 Days, otherwise, rights do not trigger
How can lifetime gifts affect decedent's intestate estate?
Doctrine of Advancement - applies to all intestate descendents, any gift of value presumed to be an advancement and put into a hotchpot before determining estate distribution
What does VA require to treat a gift as adeemed by satisfaction when probating a will?
To presume gift was in satisfaction of the bequest, VA requires that the donor declared it in writing at time of bequest AND donee acknowledged it in writing AND the will acknowledges that lifetime gifts are to be treated that way
What does VA require to disclaim an inheritance?
In writing, signed, delivered to representative of estate, have NINE MONTHS to escape federal tax consequences.
What effect does murder have on inheritances?
If a person is convicted of murder / voluntary manslaughter of decedent in criminal OR civil court, then may not inherit from decedent
What are the recent 07 changes to the VA Wills statute?
Relaxed formalities within one year of death - may use clear and convicing evidence to show decedent intended a document to be a will, a revocation, codicil, modification, etc. Anything BUT signature
What are the VA requirements for a proper Will?
testator over 18, signed by testator (or proxy at his discretion in his presence) - with witnesses in his presence (but witnesses need not be in each other's presence), needs TWO witnesses
Can witnesses who are beneficiaries take under a Will?
Yes, not disqualified in VA
What are the VA requirements for a holographic will?
Wholly handwritten and signed by testator, must be proven by at least two disinterested witnesses, document must contain indication that it is intended to be a will
How many witnesses must testify to probate a will? To probate a holographic will?
Will - one, holographic - two, ALSO may have a self-proved will, which is one that was signed by witnesses in front of a notary
What are the statute of limitations in VA for actions concerning probate? (include options for both equity and at law)
Six months to appeal to CC, 1 year to file a bill in equity to impeach or establish the will filed
What happens if a descedent beneficiary dies before a Will bequest to them triggers?
VA anti-lapse statute - unless contrary intention appears in will, the descendents of the devisee take in their place per stirpes
What happens if some members of a class gift in a Will are dead?
surviving members take more or less depending on what happened
What happens if a testator marries after executing a will?
VA allows omitted spouse to claim intestate elective share, UNLESS will provides otherwise, prenup, simultaneous death, or a new will was made after marriage
What happens if a testator is divorced after the will is executed?
Revokes any disposition or appointment of property to former spouse. Remarriage revives. Also applies to all death benefits and joint tenancy with right of survivorship.
What happens if a child is born after a will is executed? What are they called?
pretermitted child takes intestate share IF no other children. Otherwise, child takes the LESSER of intestate share or largest bequest to other children. NOTE: if child dies before 18 unmarried and without kids, share reverts to other descendents.
How can a VA will be revoked?
physical acts that TOUCH the writing, valid subsequent will that expressly or implied revokes previous will, divorce or annulment (to the relevant parts)
Can another person revoke a will for a testator?
Yes, but must be in their presence at their request
If a will can't be found, what is presumed about it?
That testator revoked by physical act. May be rebutted by clear and convincing evidence.
How can a revoked Will be revived?
Make a new will, OR revoke it followed by re-executing by new will or codicil, OR dependent relative revocation
What is available if a will is revoked, mistakenly thinking that another will would still take effect?
Dependent relative revocation - cancels the revocation of a will if testator mistakenly thought that it would revive an earlier will
What happens if someone modifies a few lines of a will and initials them?
Treated as a partial revocation of that part of the will-- even though they are obviously trying to add/modify it
What order do debtors take from regarding those who are inheriting under a will?
Intestate succession, valid will, then out of non-probate transfers
When paying debts from a will, in what order are the devises reduced?
moves from: residuary, general (payable from estate), demonstrative (payable from specific source), specific (specific item)
If property isn't available for a will bequest, what happens?
adeemed by extinction and has no effect. UNLESS insurance award - devisee gets that in addition to what property is left, or if the guardian tries to sell it - devisee gets the proceeds
What happens to a mortage or lien on a piece of property passing by will?
it passes with the property
Can documents be incorporated into VA wills?
yes, must be in existence when will was executed, the will must show an intent to incorporate and describe the doc with reasonable certainty
How can a list of personal property be incorporated into a will?
Will must be valid and refer to list, may only include tangible personal property described with reasonable certainty, and the list must be signed by testator
If a term has a plain meaning in a will, can it be changed?
If a term is ambiguous in a will or a clear mistake exists, can it be fixed?
Yes but only with evidence of facts and circumstances or testator's declarations of intent
Are attorneys liable to beneficiaries for negligence in Will drafting?
No. No privity of contract exists.
What does an elective share entitle a spouse to?
One half of the estate if there are no children. If decedent left children or descedents of deceased children, then only one third.
What can a surviving spouse do if a descendent transfers all of his property before death and leaves her out of the will?
Can take elective share against will as omitted spouse. Transfers before death will be augmented back into estate to determine share calculation.
What rights does a surviving spouse have if taking an elective share, other than a claim to a portion of the estate?
REF - residence until rights determined, Exempt 15k personal property, Family allowance up to 18k -- no homestead allowance
What is the procedure for a spouse to take an elective share?
Six months limit after will is probated. If spouse dies, share disappears. All existing beneficiaries contribute equally.
How is the augmented estate calculated for determining a spouse's elective share taking under a will? What is EXCLUDED?
Combine all probate and lifetime transfers, except for STRINGY LEGS: Strings-attached lifetime transfers to third parties, life insurance paid to third party, employee death benefits, gifts over 10k, survivorship estates, ALSO JOG - joinder (transfers with spouse's consent), old transfers before 1991, and Gifts to deceased spouse maintained separately
What is the test for testamentary capacity?
Are Estates Often Incapacitated? AEOI - understand nature of Acts performed, Extent of wealth known, know natural Objects of bounty, Interrelate the three
What is required to show undue influence in executing a will?
Suspicious circumstances, including a confidential relationship, with conduct on the part of a beneficiary demonstrating a desire to overcome the testator's will.
No contest in terrorem will clauses - are they enforced?
Generally yes, BUT can't be triggered by omitted spouse / pretermitted heir
What is the jurisdiction for probating a will?
County where decedent domiciled at death. If nursing home, use home prior to entering.
How is an executor of an estate chosen? (include priority)
must take an oath and post bond equal to value of estate. Priority (30 days after death) given to spouse or child who is SOLE distributee, else must have consent of all competent children
What is required to create a trust in the Commonwealth of Virginia?
Settlor and trustee both over 18, must be trust property (pour over OK), may be a nonresident if VA resident serves process (BUT no nonresident banks), must be an ascertainable beneficary (unless a charity)
How does VA treat the Rule against perpetuities?
first, common law test - no future interest good unless it must vest, and if it does, may not be later than 21 years after some life in being at the creation of the interest, OR second, wait and see what happens 90 years after creation
If a trust states that the Rule against Perpetuities does not apply, what effect?
Valid--does not apply
Are oral trusts valid?
Yes, if shown by clear and convincing evidence
Are inter vivos trusts revocable by default?
Yes, after 2006. Prior to that, default irrevocable.
What are the time restrictions on challenging the validity of a trust?
May be challenged, if revocable, within two years after settlor's death OR six month after trustee sends the person a copy of the trust instrument, name and address, and notice of time left
What are the purposes must a charitable trust have?
poverty, advancement of education/religion, promotion of health/government, or benefit community
Can a charitable purpose be reformed?
Yes by doctrine of cy pres if the original purpose can no longer be accompolished
What can a trust benefit other than a human?
Yes - pets until they die or things left at cemetaries
How can a trust's assets be protected against debtors?
Spendthrift trust - settlor adds clause that restricts beneficiary from reaching assets or appointing to himself or others.
When can a debtor reach spendthrift trust assets?
Child support obligations, legal services to protect beneficiary, claims of government, ALSO if a mandatory income distribution occurs that is reachable
When is the latest that action can be taken against a bad trustee?
1 year after notice of accounting showing problem OR five years after trustee removal / termination of beneficiary interest / termination of trust
What notice must trustees give to beneficiaries?
annual report, keep adequate records, must keep beneficiaries informed
How must trustees generally allocate between income / principal growth?
10 percent to income, rest to principal. May split fees equally against the two. May pay ordinary expenses from income and capital expenditures from principal.
Can a trustee delegate, and if so, can they be liable for delegatee actions?
Yes. Not liable IF trustee exercised reasonable care in agent selection, established terms of delegation, and periodically reviewed their work
Can a trustee be liable for contractual obligations?
No, SO LONG AS the party had notice that they were dealing with a trustee
Can a trust be modified after settlor's death?
If all beneficiaries consent and change is not inconsistent with material purpose
Can a trust be modified after settlor's death without the consent of all the beneficiaries?
Yes, but only for unanticipated circumstances, tax advantages, if no trust purpose left, or trust is too small to justify cost (must be under 100k)
When do you NOT have a duty to report the ethical violations of other VA attorneys?
If it is privileged information, the other atty is in a substance abuse program, or a client reveals misconduct but won't consent to its report
Is malpractice dealt with by the VA Bar?
No, ethics violations only. Malpractice is a separate matter for the civil courts.
When can fees be split with non-attorneys?
If paid to the widow of a deceased atty or may include non-lawyers in firm profit-sharing or retirement plan
What are the requirements for advertising your services as an attorney?
Must be accurate, not misleading, and must keep copy of video and audio ads for one year and they must be clearly labeled advertisements
What forms of solicitation are allowed for attorneys seeking new clients?
Face to face telephone solicitation is permitted but limited. Can't solicit in-person in a personal injury or wrongful death claim unless the atty has a prior professional or family relationship with the prospective client
when are contingency fees not appropriate? What happens if a contingency case is settled or terminated?
Not appropriate if no risk of losing the case. If early termination of case, pay on quantum meruit basis for work actually done.
When can a client's funds be commingled with another account?
Never. Violation occurs even if no harm was done.
Can an attorney represent both partners of a partnership?
Yes, until a conflict between partners develops.
When may an attorney disregard the duty of client confidentiality?
Consent (reveal what clients want revealed), court order, fraud on third parties, intention to commit a crime, fraud on tribunal (first try to get client to reveal), perjury by criminal D but ONLY if D refuses to admit truth and withdrawal is not possible
When MUST an attorney withdraw? When MAY an attorney withdraw?
MUST if about to break law, you are physically or mentally unable, your client fires you. MAY if done without material prejudice to client, client is breaking law, client is not following your advice, client is placing unreasonable financial burden on you
What are the two primary forms of surety relationships and how do they affect enforceability?
Compensated - paid money, enforceable; gratuitous - ONLY enforceable if signed at the same time the debtor signs note (current) or if signed later on, must be on a Negotiable instrument
What are the three levels of Surety liability?
Primary - signs on front, unconditional obligation to pay; Guarantor of payment - signs on back (indorses), pays only if debtor defaults; Guarantor of collectibility - signs on either side and writes this term, pays only if both debtor defaults and creditor sues but cant collect on debtor (last resort)
How does the statute of frauds apply to Surety contracts? What is the exception?
ALL surety contracts must be in writing, regardless of value; exception if the surety's commitment is primarily for his own benefit
What defenses are available for debtor's in a surety relationship?
Fraud and Duress; things like infancy, insanity, or bankruptcy are never a defense because those are the reasons a surety relationship is undertaken
What contract modifications bind a surety ? (variations at risk)
If a gratuitous surety, always discharged. If a compensated surety, they are bound to the extent they suffer a loss from the change BUT VA always discharges unless creditor failed to file a security interest under article 9
When can a mechanics lien be formed?
After repairing personal property at the request of the owner or the person in lawful possession of the property
How does whether an owner or a non-owner makes a request to repair personal property create limits on a mechanics lien?
if at owner's request, limited to just and reasonable charges. If at request of non-owner in lawful possession, limited to $625
What are the options, depending on the value of the personal property, for enforcing a mechanic's lien on personal property?
Under 5k, can sell at public auction if not paid within 10 days. If more, may petition GDC to have sheriff sell the property after giving debtor notice (although if greater than 15k, petition CC instead)
When can a mechanics and materialmen's lien on real property be formed?
After performing labor or furnishing materials for construction, removal, repair, or improvement of any building or permanent structure.
How can a mechanics and materialmen's lien be perfected?
General contractor must file a memorandum within 90 days of completion setting forth owners, verified amount of claim, intent to claim lien, and description of property. Same deal for subcontractor but they must also give notice to owner and gen. contractor, and are limited by what is owed to the gen. contractor.
What is the statute of limitations on a mechanics and materialmen's lien?
6 months from recording the memorandum that perfected the interest or 60 days from work completion, whichever is LATER
What is the priority hierarchy among mechanics and materialmen's liens?
Manual laborers have priority over people working for subcontractors, who have priority over subcontractors themselves, who have priority over general contractors (ASSUMING that they filed their own lien separately)
What property cannot be subject to a mechanic's and materialmen's lien?
Leased property where the leasee orders repairs or improvements and public buildings
How can a person prevent D from removing his property from the jurisdiction and also obtain priority over other creditors on the property? What qualities must the D possess?
via a pre-judgment attachment. 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 fraudently transfer or conceal property with intent to hinder or delay creditors
How does the process of attachment proceed for creditors with an interest in real or personal property?
file a petition for attachment, post a bond (if cash, FMV, if for property, double FMV), judge makes ex parte determination, then if valid, directs sheriff to levy property by serving a copy of the attachment
How can a person get judicial relief if they are a creditor who doesn't have a lien? What is the duration for relief?
become a judgment creditor by suing. After winning, can enforce money judgment from 20 years from the date of judgment. Judgment extinguishes original right and acts as new debt. Can extend 20 year term for a new period by suing based on the original judgment.
What does a judgment lien enable a creditor to do?
Sell the property to satisfy the judgment amount and it also gives him priority over competing claims on the property
What is the process called for creating a judgment lien on real estate?
A has a judgment lien on debtor B's real property. B sells the property. What can A do?
purchaser takes it subject to the lien. Creditor may use a notice of lis pendens to enforce the lien against the purchaser, but must do so within 10 years (no extensions).
A has a judgment lien on debtor B's real property. If A enforces the lien, what is the process called?
a creditor's suit in equity
A has a judgment lien on debtor B's real property. The property generates income. If A enforces the judgment lien, what effect could the generated income have for B?
If the rents or income could pay the judgment amount within 5 years, then A can't sell it and the rents/profits are retained for creditor A's benefit. Otherwise, NO RIGHT TO REDEEM for B.
What happens to junior and senior interests in a piece of real property after sale via a judgment lien?
junior interests disappear while senior interests encumber the property, so long as they were recorded prior to the sale
What is the document called that executes a judgment lien on tangible or intangible personal property?
writ of fieri facias
How is priority determined among competing claimants for judgment liens on tangible personal property?
first in time
What is the document called that executes a judgment lien on intangible personal property on a third party? What is that party called thereafter?
writ of garnishment; garnishee
What are a garnishee's options when appearing in court after having a judgment lien on intangible personal property executed against them?
admit liability or fail to appear, which enters the judgment against them. Or, they can assert any defenses which would be applicable against the debtor.
What exemptions are available for debtors that are having judgment liens executed against them?
VA residents can claim 5k plus 500 per additional family member as a homestead exemption. Can also claim clothing up to 1k, furniture up to 5k, cars up to 2k, tools of trade up to 10k, heirlooms up to 5k. May also, without limit, cover sentimental items, wedding and engagement rings, and pets.
What can an exemption NOT be taken for when a debtor is having a judgment lien executed against them?
child/spousal support obligations, purchase money security interests (PMSI) in property, intentional tort damages
What is the limitation on garnishing a person's wages?
Limited to LESSER of 25% of disposable earnings (take home pay) OR 30 times the federal minimum hourly rate
When is a conveyance by a VA debtor presumed to be fraudulent?
When it is intrafamillial, between husband and wife, or renunciation of a gift under a will by a debtor
How can a creditor discover the nature, location, and condition of a debtor's assets? What is the procedure and prerequisites?
creditor's bill and interrogatories; examine debtor under oath using post-judgment interrogatories. Creditor needs to show that a valid judgment was returned unsatisfied (nulla bona).
What are the principal-agent relationship requirements?
(ABC); Assent - an informal agreement between the two, Benefit - the agents conduct must be for principals benefit, and Control - principal must have the right to control the agent by having the power to supervise the manner of the agent's performance
When is an agent merely an independent contractor? What are the exceptions to this rule?
Indepenent contractor if they are in control of their decisions, exceptions are ultra-hazardous activities and when the principal holds out the contractor as if he was an agent
When are intentional torts considered to be within the scope of an agent's duties?
if acts specifically authorized by principal, natural from nature of employment (e.g., bouncer), or motivated by a desire to serve the principal
When is a deviation from a normal activity considered within the scope of an agent's relationship with the principal?
detour - mere departure if intended, even partially, to benefit the principal; frolic - independent journey that is outside scope
Agent enters into a contract for principal, principal dies, what result?
Revocation of contract
What types of authority can be found that would bind a principal to a contract entered into by an agent?
Actual, Implied (agent reasonably believes authority b/c of necessity, custom, or prior dealings), Apparent (third party reasonably relied on it) or later Ratification by the principal (where he knew material facts and accepted it WITHOUT trying to change the terms)
Describe apparent authority for a contract entered into by an agent. If there are secret instructions limiting authority, what effect? If the agent had in fact been terminated, what effect?
the appearance of authority that causes a third party to reasonably rely on the appearance of authority. Both scenarios do NOT have any effect on authority.
If an agent has authority to enter a contract (in any form), who is liable for the contract? What if the agent didn't have authority? What if the identity of the principal is concealed yet the agent is authorized?
If authority present, principal liable. If no authority, solely the agent. If concealed, third party may elect to make the agent liable.
What duties does an agent owe to his principal?
duties to exercise reasonable care, obey lawful instructions, loyalty (no self-dealing, usurping principal opportunities, earning secret profits)
Define a partnership and the requirements to form one
no formal requirements, just need two or more persons carrying on as co-owners of a business for profit. Primary characteristic is the contribution of money or services in return for a share of the profit.
Under what circumstances are outgoing (disassociating) partners liable for subsequent debts?
Liable for debts until actual notice given to creditors or 90 days have passed after giving notice to the VA Corporation Commission
What limited partnership forms are available in VA and how are they formed?
limited partnership - file certificate that includes the names of all the general partners; registered limited liability partnership (RLLP) file certification of registration, annual reports, and maintain sufficient insurance to cover foreseeable liabilities (protected like LLC)
How is partnership property distinguished from personal property?
Look to the person who's money was used to purchase the asset
Is salary due to partners in a partnership?
absent agreement, no salary. However, partners are entitled to salary for helping wind up the partnership's business
Absent an agreement, by default how are profits shared in a partnership? How are losses shared?
profits shared EQUALLY. Losses shared JUST LIKE PROFITS.
How is a partnership terminated? What is the process?
absent agreement, notice from any one general partner automatically causes end. Process called dissolution followed by winding up then actual termination
When a partnership ends, what is the priority of distribution for payments due?
first, all loans paid both external and internal. Next, repay all partners for capital contributions minus an equal share of loss. Last, equally share remaining profits and surplus.
When does a corporation become liable on a promoter's preincorporation contract?
when there is an express board of directors resolution or there is implied acceptance throguh knowledge of the contract plus acceptance of its benefits
What is a person called who makes a written offer to buy stock from a corporation that is not yet formed? Are these offers revocable?
subscribers; preincorporation offers to buy stock are irrevocable for 6 months
What are the VA requirements to form a corporation?
file articles of incorporation with state corporation commission that are A PAIN - Authorized shares max, Preferences of stock, Agent, Incorporators, and Name of corporation
Are there any requirements in making a name for a VA corporation?
must include some indicia of corporate status in the name
May corporations incorporated outside of VA (foreign corporations) transact business in the state?
Yes but they must Qualify by getting a certificate of authority from the state corporation commission. This is the same info as necessary to create a corporation; if they fail to do this, they can't sue others (but can BE sued) and there is a fine
What MUST a corporation receive in return for selling stock? What exceptions?
par value, unless no par stock is specified. If treasury stock (reacquired by corp), may sell for any price.
what consequence if a corporation fails to sell stock for par value?
Directors are liable for amount under what was authorized, and buying shareholders are liable to pay full consideration
What are preemptive rights? Are they presumed?
right of an existing shareholders to maintain a percentage ownership in stock; no longer presumed
What shields corporate directors from liability during normal business activities?
the business judgment rule shields them from decisions that are made in good faith and in the best interests of the corporation
When can a company director or officer that is sued recover reimbursement for attorney's fees, costs, fines, a judgement, or settlement from his corporation?
Never against his corporation, but always against another party. If merely settles against another party, needs approval of independent directors or recommendation of special legal counsel.
What are the requirements and process for initiating a shareholder derivative lawsuit against a corporation?
shareholder must have at least one share when claim arose and throughout litigation; make demand on directors and be rejected or ignored (90 days)
What shareholders may vote at a meeting? What deadline is involved?
Only the person shown as owner of the stock in corporate records as of the record date which was set NO MORE than 70 DAYS before the meeting
What is a voting proxy and how long is it valid?
written authorization for another shareholder to vote in a shareholder's place, valid for 11 months
What notice must be given for a shareholder meeting?
notice of time, place, and special purpose IF it is a special meeting
What are the voting requirements to have a shareholder meeting? What are the requirements to get something done at that meeting?
need majority of outstanding shares present to have the meeting, but only need more votes for than against to accomplish something
What is a voting trust? Is it limited?
Voting trust is a formal delegation, in writing, controlling how shares will be voted; shareholders retain all other rights, and 10 year limit.
How are dividends paid (priority and amount) among preferred, participating preferred, cumulative preferred, and common shares of stock?
if preferred, pay them their preferred amount first. If participating, ALSO pay them common dividend amount (paid twice). If cumulative, increase their preferred amount payout to factor in previous years they weren't paid. Finally, pay the common shares equal dividends last.
What are the restrictions on paying out corporate dividends?
can't pay out of if insolvent or doing so would make insolvent
What are the characteristics of a limited liability company in VA?
Limited life - must specify an event of dissolution in articles of organization, limited liquidity - need unanimous consent before transferring full ownership interest, limited management - managers must retain management power
What is a fundamental corporate change?
Merger, consolidation, share exchange, dissolution, amendment of articles of incorporation, or sale of substantially all assets
What is required to implement a fundamental corporate change?
resolution at valid board meeting, must have 25-60 days advance notice of meeting and need TWO THIRDS of ALL shares entitled to vote approval. Must also file with state corporation commisison
If a corporation undertakes a fundamental change, what rights does a dissenting shareholder have?
May force corporation to buy his shares at fair value, by filing written notice of objection and demand, vote against (or abstain) on proposed change, and make a demand to be bought out
When is property abandoned?
if the owner has given up possession with the intent to give up title and control
When is property lost? When is property mislaid?
lost if the owner took no voluntary act in placing the property where it was found; mislaid if the owner took an affirmative act in placing it down (e.g., placing wallet down on counter)
If property is lost on an owners land and a finder finds it, who wins?
finder prevails over owner, unless finder is a trespasser or it was found in a highly private place
If property is mislaid on an owners land a finder finds it, who wins?
owner prevails over finder
What are the requirements for an inter vivos gift?
donative intent, valid delivery (may be constructive) and valid acceptance (implied by silence)
When is a gift of a promissory note a valid donative gift?
when the note is paid, unless it was a third party check in which case it is valid when received
When a gift is transferred through an intermediary, when does delivery occur?
when the DONOR hands the intermediary the gift, it is valid when it is handed over to the donee. However, if the intermediary was acting on behalf of the donee, it is valid as soon as the intermediary gets it.
When is a gift made in contemplation of death valid? What is it called?
gifts causa mortis - valid if peril faced has a fair degree of certainty or likelihood of death that is imminent and likely to occur. May be revoked at anytime before death OR if the donee predeceases donor
What is required to form or find a bailment?
when an alleged bailee has taken over custody of a chattel with the intent to serve as bailee
What is a bailee liable for? What does it hinge on?
if bailment for benefit of the bailor, then liable only for gross negligence. If for benefit of bailee (holder), then liable for even slightest amount of negligence. If mutual, ordinary negligence.
What is the liability of a bailee if they make an unauthorized use of the chattel?
they are strictly liable if anything happens to it
What are the requirements to find a common carrier? What legal effect of finding one?
must hold out to perform service for all who apply, must be paid, must be for transport business not other service; as a result, liable for any damage or loss to goods, unless damaged by circumstances outside of their control
How is domicile determined?
physical presence AND intent to remain there fore the foreseeable future (if conflict between acts and words, acts determine - if child, may have domicile determined by law)
What portion of the constitution limits choice of law? What is the test for both requirements?
limited by due process clause and full faith & credit clause; the state chosen must have significant contact with the parties of the subject matter of the litigation which give it a legitimate interest
What are the two most common situations where choice of one state's laws over another state's will fail to meet a constitutional test?
if someone moves to a new state after the event and that is the only contact with the new state; also, if the state only has contact b/c a suit was brought there
The law of what place is applied for a Tort action?
Place where injury occurred, unless there was a rule regulating conduct (e.g., speed limit) in which case use that area's place
The law of what place is applied for a Contract action?
apply the place of acceptance (last place of making) if it concerns the contract itself. If it concerns performance, apply the place of performance.
When are choice of law terms in a contract upheld? When are they not upheld?
upheld if the action concerns matters of construction; if it concerns matters of validity, there must be a reasonable relationship to the parties or transaction that does not offend public policy or was produced under duress
The law of what place is applied for an action concerning personal property?
place where property is located, unless intestate succession (state of death) or UCC secured transaction (debtor's residence)
What determines whether a state will apply the law of another state?
will only apply if the law is substantive (e.g., contributory negligence, irrebuttable presumptions, damages) and not procedural (burden of proof, statute of limitations, rebuttable presumptions, etc)
When does Article 9 of the UCC apply (scope) ?
consensual security interests in tangible and intangible goods, but not realty or liens
What types of tangible goods does UCC Article 9 cover?
Consumer goods, Equipment, Inventory, Farm products, and Fixtures
What does UCC article 9 NOT cover?
What are the elements needed to create an enforceable article 9 security interest? What is it called?
attachment created by VCR - Value given by creditor, Contract evidencing the secured trasnaction unless the party has taken possession, and Rights in the collateral
What is a security interest called that enables the debtor to purchase goods?
a Purchase Money Security Interest
What is perfection with respect to UCC Article 9 security interest? How is it obtained?
interest is perfected when the world is put on notice that the person has an interest; can be attained through possession of the collateral, filing notice in public records, or automatic if it is a purchase money security interest (PMSI)
What is the order of priority for UCC article 9 security interest creditor claimaints?
buyer in the ordinary course of business, perfected attached creditors, lien creditors (unsecured w/ judicial lien in court), non-ordinary course buyer, attached yet unperfected creditor, general unsecured creditor (always loses)
What is primary disadvantage for failing to perfect a UCC article 9 security interest?
they lose, in terms of priority, to buyers in the ordinary course, perfected interests, lien creditors, and non-ordinary course buyers
How does a purchase money security interest perfect their interest?
do nothing, because it is automatic
A purchase money security interest and an after-acquired collateral financer are both forms of perfected, attached UCC article 9 creditors. Who wins, in terms of priority, between the two and under what circumstances?
normally first in time. However, if for equipment, PMSI wins. If inventory, PMSI also wins if they filed earlier before the after-acquired financier took possession.
Can a UCC article 9 creditor use self-help in acquiring the attached collateral? Where can they never go?
Yes, unless they "breach the peace" (likely to cause violence, and even the absolute smallest protest counts). Also can't go in debtor's home to get it.
What is strict foreclose for UCC article 9 creditors? When is it not allowed?
Secured party gets to retain the collateral to satisfy the debt. Not allowed IF EITHER any party objects within 20 days after notice OR a debtor has paid of %60 or more of consumer goods collateral (However, in this case, creditor may sell the property)
What rights does a debtor have to redeem and when are they cut off?
May redeem by paying interest and creditor's reasonable expenses, however, may not redeem after secured party has resold or completed a strict foreclosure (get to keep it)
What are the two types of UCC article 3 negotiable instruments? Describe
promissory note - maker creates an affirmative offer to pay a payee (promise to pay); draft - drawer gives an order for a drawee to pay the beneficiary payee (order or command)
What are the requirements for a property negotiable instrument under UCC article 3?
WOSSUPP - Writing, Order or bearer (payable to), Signed by maker, Sum certain, Unconditional promise, Payable on demand or at set time, Payable in currency (can't even be mixed with goods)
Check is payable to john - Valid?
NO, must use the words "order" or "assigns", unless it is payable "to bearer" or "to cash"
How can you disclaim liability when indorsing a draft or note?
sign it and mark without recourse
When does transfer liability attach for selling a negotiable instrument? Who may be held liable to an indorsed check? An unindorsed check?
any person can be liable for selling an instrument so long as they did not donate it; holder may also sue original person who indorsed it. If not indorsed, may only sue the last person to transfer it.
What is it called when a negotiable instrument has been properly transferred?
a Holder in Due Course is created
How is a holder in Due Course created for a payable to order instrument? For a payable to bearer instrument?
to order - negotiated by delivery to payee, but any further transfers must be indorsed by payee. To bearer - just delivery
What are the requirements to be a holder in due course?
holder must take for value, in good faith, and without notice of problems (overdue or subject to claim or defense against enforcement)
A is a holder in due course. He transfers to B who has notice that the instrument is invalid. What status for B?
B is a holder in due course because of the shelter rule - he acquires whatever rights the transferor had
What is the benefit of being a holder in due course?
holder in due course takes free of personal defenses, but subject to real defenses
What are the real defenses? What are some examples of personal ones?
real defenses are MAD FIFI - Material Alteration, Duress, Fraud In the Factum (lie about the instrument), Incapacity, Illegality, Infancy, or Insolvency. personal defenses would include lack of consideration, estoppel, etc.
What must bank due if it finds out that it honored a forged check?
it must recredit the drawer's account, SO LONG AS the drawer was not negligent.
When is a check indorser considered to be negligent?
if an imposter induces drawer to write a check, the drawer is negligent. Also if the drawer leaves blanks or spaces on the instrument or otherwise fails to follow internal procedures to avoid forgery.
What is the VA bank statement rule?
customers must report wrongdoing to bank within 30 days of receiving a bank statement that shows a problem
Employer A gives a blank check to employee B who is entrusted with handling checks. He forges a check to C. Is A liable?
What are the limitations and characteristics on issuing a stop payment on a check to a bank?
effective for 14 days if oral, 60 days if written. Must give bank a reasonable time to stop payment.
What are the requirements for a valid pre-marital agreement?
must be in writing (statute of frauds), must have actually gotten married, and must be voluntary with no evidence of duress
What are the VA requirements for a marriage ceremony?
Must get a marriage licenses, have an officiant empowered to administer an oath, at least one witness present, and some kind of exchange of promises (note: minor defects such as an improper license do not invalidate the marriage)
What is the difference between a void marriage and a voidable marriage?
Cannot waive dissolution of a void marriage - it never existed; third parties with a valid legal interest can also argue that a marriage is void (but not voidable)
What are the grounds to find a marriage void (annulment)?
bigamy, incest (first cousins ok but no legal siblings or one generation blood relatives), underage
What are the age requirements in VA to marry?
18 years old, or 16 with one parent consent, or under 16 if pregnant female with consent of parent and marrying the father
What are the grounds to find a marrriage voidable (annulment)?
Mental incapacity, duress (must be physical violence threat), fraud going to an ESSENTIAL aspect of the marriage (e.g., felony convinction, pregnancy or impregnated others, previously a prostitute, religion, procreation, incurably inability to have sex)
What is required for subject matter and personal jurisdiction in a divorce action?
SMJ - one spouse must be domiciled in VA for at least 6 months preceding action; PJ - presence or long arm, including conceiving children in VA or executing a support agreement for child in VA
What are the two primary types of divorce actions?
divorce a mensa et thoro and divorce a vinculo matrimonii
What is divorce a mensa et thoro?
proceeding to live apart while marriage is still intact that stems from cruelty or abandonment, may return to court one year later and use as grounds to obtain a divorce a vinculo matrimonii
What are the grounds for a fault-based divorce?
adulery (clear and convincing evidence), conviction of felony with sentence over 1yr, cruelty or abandonment (longer than 1yr)
What are the defenses to a fault-based divorce?
condonation (forgiveness for adultery and resumption of sex), connivance (P spouse induced behavior complained of), or recrimination (P is doing same thing)
What are the requirements for a no-fault divorce?
must enter into separation agreement (may be unilaterally filed). If mutual, live apart for 6 months. If unilateral, live apart for 1 year. No sex allowed during this period.
What property qualifies as separate marital property, and is therefore not included in a divorce settlement agreement?
property owned prior to marriage maintained as separate, gifts received during marriage in only one spouse's name, property acquired after separation (but prior to divorce), tort recoveries for pain and suffering, passive appreciation on property.
How is spousal support (alimony) taxed? How is child support taxed?
alimony is income for the recipient. Child support is not.
What can bar granting alimony payments at separation?
adultery, unless denial would constitute a manifest injustice
What is the standard for modifying spousal support obligations?
bona fide change in circumstances, which does not include a voluntary move to a lower paying occupation
When does alimony terminate?
automatic at death of either party or remarriage of recipient. Possible if recipient has cohabitated for over a year (lower or terminate)
What is the marital presumption of parentage?
strong rebuttable presumption exists that children born during a marriage are biological children, applies even in void marriage or if the parties marry while pregnant.
After an initial custody determination, what jurisdiction controls modifications or other judicial actions? What is this called?
continuing and exclusive jurisdiction - the state that makes the initial custody determination continues to have jurisdiction so long as at least one parent is living there
How is jurisdiction determined for child custody determinations?
where the child now resides and has been there for at least 6 months with a parent. If they haven't lived there six months yet, go back up to 6 months to find a state they have lived in that satisfies this test.
What must be done for a custodial parent to relocate?
must give 30 days advance notice to the court, court must approve relocation in best interest of child, may change custody instead of approving.
When can a child be emancipated as an adult?
marriage, active duty military, moved out with consent of parents and ability to support self
How can child support payments be enforced?
garnish wages, take property, contempt of court, revoke state licenses, etc. Can send notice to other states to have them enforce the payment order
when can child support payments be modified?
material change in circumstances. Non-custodial parent remarrying does NOT warrant a change, however, a substantial increase in income DOES.
What are the requirements to make an adoption? When can they be waived?
need consent of both biological parents, and if child over 14, consent of child. Can dispense with consent if paternity unknown, father served notice and doesn’t respond in 21 days, parental rights have been terminated or neglect or abuse shown.
What distinguishes between a bilateral and unilateral contract?
Unilateral contracts will expressly require performance as the only possible method of acceptance
When does UCC article 2 apply to a contract?
If the contract is primarily for the sale of tangible, personal property. NEVER real estate
Does an offer have to contain all material terms?
No, unless for real estate in which case it must have price and description of property
Is an advertisement a valid offer?
When is revocation by mail effective?
when received
When is an offer for the sale of goods irrevocable?
UCC firm offer rule - cannot revoke for up to 3 months if signed written promise to keep offer open and done so by a merchant (note - 3 months regardless of actual timeframe)
When is an option to keep an offer available irrevocable?
when supported by payment or other consideration
Can a conditional acceptance be used to accept a common law offer? Can a counteroffer be used to accept a common law offer?
No, both conditional and counteroffer are treated as new offers that reject the original offer.
When is a response to an offer that adds new terms treated as an acceptance? When it is a rejection/new offer?
at common law, rejection+new offer. If UCC and both parties merchants, term is automatically added if offering party doesn't object in 10 days
When is a mailed acceptance considered valid? What is the exception to this rule?
when it is placed in mail, UNLESS rejection sent first (valid when received) or trying to meet an option deadline
Are modifications to an existing contract acceptable?
common law - must be new consideration, while UCC does not require it. Also OK to change if unforeseen difficulties or a third party makes the payment
What is the term for detrimental reliance on a contract and what does it require?
promissory estoppel - requires a promise, reliance that is reasonable, detrimental, and foreseeable, and enforcement is necessary to avoid injustice
A says he will pay B back even though B can no longer legally recover the debt. Enforceable contract?
Yes, if it is a written promise
When will D lack capacity to enter a contract and what are the consequences?
lacks if under 18, mentally incompetent or intoxicated (and other party should have known); consequently may back out of contract. However, implied affirmation of contract if they regain capacity and continue to accept its benefits
What contracts fall within the Statute of Frauds?
surety agreements (including executors), prenups, service contract that can't possibly be performed in under one year, real estate transfers, leases over one year or $1,000 total, sale of goods greater or equal to $500
What, other than a writing, can satisfy the statute of frauds requirements if it is a service contract?
full performance by either party
What performance can satisfy the statute of frauds requirements if it is a sale of goods contract?
ordinary goods - performance satisfies to the extent it has been completed. Specialty goods - as soon as seller makes a substantial beginning on the goods.
What is required to be in a writing in order for it to satisfy the statute of frauds?
name the parties, list goods or services, and must be signed by the party who claims it isn't enforceable. Exception to signature - both parties are merchants, one receives signed writing and doesn’t respond within 10 days
What effect does a requirement that all modifications to a contract must be in writing actually have?
common law - ignore. UCC - effective unless waived
What are the requirements to find a contract unenforceable due to ambiguity?
material term open to multiple interpretations, each party attaches different meaning and neither knew it was open to multiple interpretations
What is parol evidence?
oral or written statements by the parties prior to forming a written contract that is the final agreement
When can parol evidence be used to contradict terms in a writing?
for showing clerical errors in reducing the agreement to writing
When can parol evidence be used to add terms to a contract?
if the writing wasn’t complete or normally a separate document would be used to detail those terms
When can conduct be used to define terms in a contract?
if it is the same people doing the same thing under a similar contract, i.e. prior custom and usage
In a UCC contract, when are the delivery obligations of the seller met?
if shipment contract, done when taken to common carrier and notifies buyer. If destination contract, done only when goods arrive at buyer (usually FOB in a city not located with seller)
Who bears the risk of loss between buyer and seller in a UCC sale of goods contract?
if seller is merchant, risk shifts upon physical receipt by buyer. If they aren't, risk shifts when item is merely made available.
What implied warranty comes with all goods that are bought from a merchant?
implied warranty of merchantibility - goods should be fit for the ordinary purpose for which such goods are intended. However, goods must be of the type normally sold by that merchant
Can merchant warranties for goods be disclaimed and how?
yes, sell as is or with all faults
For a merchant selling UCC goods, can he limit damage remedies for breach of warranty?
Yes, so long as limit is not unconscionable. Usually limited to replacing defective parts. NEVER available to limit personal injury.
Seller ships goods that do not match what the buyer orders - what are the buyers options?
reject - perfect tender rule allows rejection by buyer if not exact; accept - cannot later reject; do nothing - implied acceptance (however, not implied if payment made with no opportunity to inspect)
Can a seller fix an imperfect tender of goods to a buyer with an alternative?
yes, but must have reasonable grounds for believing an improper tender would be acceptable and there must be time remaining for performance
Seller ships installment 1 of 2 to buyer but it is imperfect. Can buyer reject?
no, unless it is a substantial impairment that cannot be later cured
When can acceptance of a delivery be revoked?
noncomformity substantially impairs value of the goods OR revocation within a reasonable time after discovery of noncomformity
When is common law performance satisfied?
after the party substantially performs
When is specific performance not available as a contractual remedy?
sale of land where land has been sold to a third party OR anything involving service (dislikes servitude)
When does a seller have a right to get back goods from a buyer that were not paid for? What is it called? When is this waived?
right of reclamation - buyer must have been insolvent at time of receipt, still have goods, seller must demand within 10 days of receipt. HOWEVER, 10 day rule waived if buyer misrepresented his solvency in writing within 3 months.
Person A leaves goods with a shop B who sells them in the ordinary course of business. Can A reclaim?
No, rights are cut off. Could only reclaim if they were stolen.
What are expection, reliance, and restitution damages?
expectation - amount to get perfomed elsewhere; reliance - amount spent in reliance on contract; restitution - D gives back monetary value of what they received
In a UCC contract, what damages are owed if the seller breaches but the buyer still keeps the goods?
seller owes value difference between what the buyer received and what the value would have been if item was perfect
In a UCC contract, what damages are owed if the seller breaches and the seller still has the goods?
seller owes the buyer the FMV of goods at the time of breach
In a UCC contract, what damages are owed if the buyer breaches and keeps the goods?
buyer owes whatever was due in the original contract
In a UCC contract, what damages are owed if buyer breaches but seller keeps the goods?
buyer must pay whatever seller lost through selling elsewhere, or the market price
If a UCC seller is a volume seller, what can they recover?
They can recover the lost profit they were unable to earn by making that sale. Does not matter if they sold to another at a different price.
When are foreseeable consequential contractual damages recoverable?
if they resulted from circumstances unique to the contract that D had a reason to know would likely result
If a condition was in the writing of a contract and that condition doesn't happen, is the obligation to perform excused?
yes, unless the person enforcing it gave up the right to do so (waiver if after condition, estoppel if before) or they prevented the condition from occuring
What can a party do if there has been an unambiguous statement or conduct that the other party will not perform a contract? What can the other party do later on - can they backtrack?
their nonperformance is excused. However, the other party can retract their repudiation so long as it has not resulted in a material change. At this point, party can await adequate reassurance.
What can a party do if there is uncertainty as to whether the other party will perform their end of a contract?
if they have reasonable grounds for the uncertainty, they may make a written demand for adequate reassurance. While waiting, they may suspend performance IF it is commercially reasonable to do so.
When do the rights of a third party to a contract vest and what result?
rights vest if the third party knows of and has relied on or assented to contract. If so, contract cannot be canceled or modified without consent (unless contract otherwise provides)
Can a third party beneficiary to a contract recover from the person who obtained the promise for their benefit? Can they recover from the person who was supposed to perform the promise?
can't recover from person who set up the promise, but can recover from the person who was supposed to perform it. However, there is an exception if the person who set up the promise had a pre-existing debt owed to the third party
What is the difference between a third party beneficiary and an assignment?
assignment is a later transfer of rights. Third party beneficiary is someone that is named in the contract
What is the difference between a contract that says rights are not assignable and all assignments of rights are void?
if not assignable, the assignor has breached but the third party can still sue to enforce provided they didn’t know of the limitation. If void, the assignment is invalid and assignor has breached.
In what way does the common law automatically restrict contractual assignments?
assignments are barred if they "substantially change" the duty of the obligor. Note - right to payment is never "substantial," but having someone else perform usually is
When can an assignment to a third party be revoked?
if it is gratuitous (no consideration)
If an assignment is for value, what rights does the assignor implicitly give?
implied warranty of assignor that the right to assign existed, was not subject to defenses, assignor won't impair the value of it
When is a gratuitous assignment of a contract to a third party irrevocable?
if the assignee has received some sort of indicia of ownership or the assignee has relied on the assignment in a detrimental way
Who wins if there are multiple assignments that were gratuitous? Who wins if there was consideration?
gratuitous - last assignee wins; gratiutious - first for consideration wins
What is required in order to mutually cancel a contract between two parties? What is it called?
recission - parties may agree to cancel the contract ONLY IF there is still performance remaining to be completed
A and B make a contract. They later make a new agreement for B to do a different performance to satisfy it. B doesn't perform the new agreement. What obligations exist?
original agreement is NOT excused. A may sue based on either the original or the later contract.
A and B make a contract. They later make a new agreement for B to do a different performance to satisfy it. B performs the new agreement. What obligations exist?
original agreement is excused. A may no longer sue or enforce it.
What is the difference between an "accord and satisfaction" and a modification?
"accord and satisfaction" is substituting performance, modification is a new, substitute agreement
A and B make a contract. They later make a new agreement that is intended to replace the earlier contract. What obligations exist? What is it called?
original agreement is extinguished. No obligations.
What is the difference between a novation and a delegation?
Novation requires agreement of both parties and excuses the replaced person from any obligation. Delegation is one-sided and does not excuse.
When does a later, unforeseen event excuse contractual performance obligations?
if it makes performance impossible or commercial impracticable. Examples that DO qualify - specific objects destroyed that are not fungible, laws passed making it illegal, special person unavailable; examples that don’t - death
When is a third party delegatee liable for nonperformance?
if consideration was received
When is delegation of contractual obligations to a third party usually not allowed?
if the contract calls for very special skills or the person to perform the contract has a very special reputation
What jurisdiction if a crime is committed in multiple states?
Court has jurisdiction in every state where a significant portion of the crime occurred.
When can two crimes be merged and what effect?
A lesser offense is merge with a greater offense; D charged for both crimes but can only be punished for one. Can't do it if there are two separate victims.
Are unconscious acts criminally punishable?
No, because they fail to have Actus Reus
Is there a duty to help others?
NO affirmative obligation, unless spouse/child, contractual, or if you already started helping you can't stop
What are the specific intent crimes? (list)
Inchoate offenses of solicitation/attempt/conspiracy, first degree murder, larceny, false pretenses, embezzlement, robbery and burglary, and attempted assault
What crimes involve Malice?
arson and general murder
What crimes involve general intent?
rape, battery, kidnapping
What special defenses are available for specific intent crimes?
voluntary intoxication and mistake of fact
Can intent be transferred to a mistaken criminal target?
Yes, and can also apply in a defense too
When must criminal intent be shown? Before/after/during the crime?
before or during ONLY
What effect if you kill someone accidentally after assuming they were already dead from your other actions?
Legal solution is that the law treats it as if the person was dead when you thought they were
When can a person be charged with assisting in a crime?
If the provided assistance to others in committing the crime and did so intentionally.
What are the elements of solicitation?
Asking or encouraging another to commit a crime. Cannot withdraw statement after it is made and impossibility is no defense.
What are the elements of conspiracy?
Two or more people have a meeting of the minds to commit a crime and the intent to enter into the agreement. Some act must be done in furtherance of the plan (but not in VA). D is liable for all foreseeable crimes in futherance of the conspiracy.
What are the elements of attempt?
A substantial step taken towards completion of a crime (VA distinction - direct act toward completion with intent). Factual impossibility is never a defense.
What are the four standards for insanity criminal defenses?
M'Naughten - D did not know actions were illegal due to mental defect; Irresistible impulse - irresistible urge to commit crime; Product rule - product of mental illness; model Penal code - inability to appreciate wrongfulness of act or conform conduct to law
What is the VA version of the insanity criminal defense?
M'naughten (did not know actions illegal) and irresistible impulse; requires 60 days notice prior to trial and must prove to jury's satisfaction
When is intoxication a criminal defense?
involuntary - defense to all crimes if done without the person's will or knowledge. Voluntary - only specific intent crimes. VA only allows voluntary for first degree murder.
When is mistake of fact a criminal defense?
Specific intent crimes can use it. Any kind of mistake (genuine) can be used for larceny, but everything else must be genuine and reasonable.
When can a police officer use deadly force to stop a fleeing felon?
probable cause to believe person committed crime, reasonably necessary to use deadly force, and they posed a risk of danger to others
When can a criminal defense of necessity not be raised?
when it involves the intentional killing of another
What must the government prove to show overcome a defense of Entrapment?
that beyond a reasonable doubt, D was predisposed to commit the crime prior to government contact. Gov. may use prior crimes in evidence (exception to hearsay)
How long must it take for a victim to die from injuries before murder is no longer applicable?
No time limit - may die anytime after injury
What does common law murder require and how can it be shown?
killing of another human with malice; malice can be shown through gross recklessness (depraved heart), intent to kill, intent to inflict great bodily harm, a felony murder
What is required for felony murder?
A violent felony (or in VA - arson, rape, robbery, kidnapping or burglary) AND someone dies, where their death was foreseeable AND caused by anyone (common law; VA says must be a D)
What is manslaughter? what are the types?
killing without malice; voluntary is in heat of passion, involuntary is in connection with a lawful act done recklessly OR in connection with some unlawful act
What is statutory rape?
sexual contact by an adult with a minor. Consent and mistake as to age do NOT MATTER.
What are the elements of larceny?
Taking and carrying away, against the owner's will, personal property, with intent to permanently deprive
What is the VA larceny presumption?
one in unexplained and exclusive possession of recently stolen property can be rebuttably presumed guilty
What are the elements of embezzlement?
person in possession steals something and title does not pass
What are the elements of false pretenses?
personal property taken and title DOEs pass
What are the elements of Receiving stolen Property?
person must actually receive, personal property of another with knowledge that it has been stolen and have an intent to permanently deprive the owner
What are the elements of robbery?
taking personal property with intent to deprive owner, by force, from another's presence
What can be presumed about criminal possession if the object is within the reach of multiple persons?
all people can be charged with the crime
What are the elements of burglary
breaking and entering (any degree of force) the DWELLING of another at NIGHT with intent to commit a felony inside (modern law says anytime in any building)
What are the elements of arson?
Malicious (intent or foreseeable) burning of the dwelling of another (burning requires at least a flickering flame that does some damage)
What criminal procedure rights of D are non-waivable?
right to appear for trial and failure to state all elements of the charged offense
What three rights are waivable only by affirmative action in a criminal proceding by the D?
right to counsel, miranda, right to jury trial
why are the first 8 amendments applicable to the states concerning criminal procedure?
the 14th amendment due process clause incorporates them
When is an arrest warrant needed?
when person is in their home
If D is arrested at a friend's house with a valid arrest warrant, what effect as to evidence found at the friends house?
evidence not usable unless police had a search warrant for friend's house
When can an officer arrest someone in his presence under VA law?
needs probably cause and felony = crime doesn’t have to occur in presence, misdemeanor=it does
How can a government affidavit be challenged if it presents probable cause on its face?
That there was an intentional lie relating to a material fact.
What protection is afforded a police officer acting on a warrant in good faith?
If reasonably believed an invalid warrant was valid, evidence will not be excluded.
What must an officer do upon entry to a building to execute a warrant?
knock an announce, however, failure will not exclude evidence
When can a police officer search a car without a warrant? Can they look inside containers in the car?
if probable cause to believe car on open road contains evidence, or if doing an inventory at the police station. Can search any container in car if they are performing a valid search of the car in the first place.
Can a third party consent to a search of a premise?
Yes if they reasonably appear to be in authority to consent. However, NO hotel operators, landlords, or spouses if over objection of other spouse
When can a terry stop and frisk be performed?
Need reasonable suspicion that crime may take place. Can ask questions and open-handed pat outside. Can only reach in to take obvious weapons or drugs.
What two major doctrines should be analyzed in confession situations?
Due process clause concerns of coercion or forced confession, followed by Miranda analysis
When is a miranda warning necessary?
Statements are required when there is custodial interrogation. (custodial can be less than arrest - not free to go, and interrogation is by a government agent)
Can questioning resume without redoing a miranda warning?
Yes, if there is only a very brief break in the questioning (e.g., lunch), otherwise need to give a new one. Cannot resume if counsel is requested.
When can an excluded miranda confession be used as evidence?
for the limited purpose of impeachment
When is an illegal pretrial identification followed by a legal in-court identification admissible?
If the identification in-court was independent of the pretrial identification.
When does the 6th amendment right to counsel apply to witness identifications?
d's lawyer must be allowed IF AFTER D has been formally charged.. And only entitled if D is personally confronted by witnesses against him
What must D show as "standing" in order to challenge the admissibility of evidence?
Must show a sufficient privacy interest that was invaded by the search. E.g., being at a friends house not enough while being a dinner guest would be
When does the fruit of the poisonous tree doctrine NEVER apply to a remotely linked piece of evidence?
When there has been an intervening voluntary statement by a third party
When can the right to a fair and speedy trial be brought up? What are the statute of limitations on bringing prosecution?
AFTER the person has been both arrested and formally charged. 5 month limit to formal charge if D in custody, while 9 month limit if D not in custody.
How does sentencing law affect right to jury trial?
If no statutory max, entiteld to jury trial if sentence greater than 6 months imposed. If it does have a max, entitled to jury if the max is greater than 6 months.
What rights are there to a unanimous jury verdict in a criminal case?
VA requires Unanimity, but there is underlying constitutional right to unanimous jury
What VA courts hear what crimes?
DC - no record/no juries/misdemeanors only; CC - trials, appeal from DC de novo; CoA - final misdemeanor appeal with no incarceration; Supreme Ct - gets death penalty cases automatically from CC
What are the rules for challenging criminal jurors in VA?
Unlimited for good cause, 4 preemptory (pool of 20) for felonies, 3 for misdeamnor (pool of 13). Results in jury of 12 for felony, 7 for misdemeanor
Who does the sentencing in VA?
Juries do the sentencing. Unique rule in very few states
What happens if a prosecutor promises a sentence but it the promise is breached?
D can withdraw plea and go to trial. However, if prosecutor merely 'recommends', nothing they can do about it.
Is a no contest plea available for criminal Ds in VA? If so, what effect in civil case? What is the latin term?
Yes. Can be used against you in civil case. Nolo contendere.
When does double jeopardy trigger?
multiple trials for same offense by same jurisdiction. Fed and state are different jurisdictions and both offenses must have some unique element that the other does not
D causes mistrial or requests mistrial. Double jeopardy to prosecute again?
No - no double jeopardy if it was not the government's fault
D gets charged with manslaughter and convincted. Appeals and gets reversed. Can D be charged with murder on same facts?
No - limited to previously charged severity, otherwise double jeopardy
Valid terry stop. Officer asks for Id. Can he compel?
Yes, so long as terry stop is valid
What does NOT qualify as protected by privilege against self-incrimination
lineup and indentification, and anything AFTER D has been granted immunity
where are VA criminal preliminary hearings held?
GDC. If misdemeanor, may try it there. If felony, judge can send to circuit court if probable cause.
When is a grand jury required?
Must have for indictment if there is a felony, unless D waives
Is evidence of a Plaintiff's accident history admissible?
No, tends to merely show P is accident prone, BUT admissible if cause of injury is at issue
Is evidence of a similar accident caused by similar cicumstances admissible?
Yes, if used to show existence of a dangerous condition, causation of the accident, or prior notice to the D.
Is evidence of prior conduct admissible to infer intent?
Yes, if intent is at issue
Is evidence of prior sales admissible to determine value?
Yes, if it concerns the selling price of property of a similar type, in a similar general location, and close in time to the period at issue.
Is habit admissible? Distinguish from character
Yes, requires a Repetive Response to a Particular set of Circumstances; far more specific than character evidence
My past industry acts be used to show a standard of care?
Yes, evidence of others in the same trade or industry may be used to show an appropriate standard of care.
When is evidence of liability insurance allowed or not allowed?
INADMISSIBLE to prove fault or absence of fault, but may be used to show ownership, for impeachment, or if insurance is at issue
Are subsequent remedial measures admissible as evidence?
No, unless used to show ownership or feasibility of a condition (and one of those is disputed)
Are settlements of a disputed civil claim admissible as evidence?
No, unless used to impeach to show bias. Statements of fact made in course of settlement ALWAYS inadmissible, unless gov. doing it in civil claim.
Is plea bargaining in a criminal case admissible as evidence?
No. Includes offers to make plea and nolo contendere. BUT plea can be used as party admission if it was a guilty plea.
Is an offer to pay hospital or medical expenses admissible?
What can character evidence be introduced?
To prove conduct in conformity with character at the time of the litigated event OR to show bad character for truthfulness when impeaching.
How may character be proven?
Reputation or opinion only, no specific acts
What are the rules for using character evidence in a criminal case?
Prosecution can't open with it, but D can open the door thereby allowing prosecution to ask questions about specific acts or bring in their own character witnesses.
What are the rules for using character evidence concerning whether a victim acted in self-defense?
D may use evidence to show victim had violent character, but then prosecution may rebut showing peacefulness. NOTE: even minor mention of victim as aggressor in murder case opens the door in this way
What are the rules for character evidence regarding a victim's sexual acts?
Inadmissible, unless to show someone other than D did the sexual act, showing specific sexual acts with D to show consent, OR where exclusion would violate D's right of due process (e.g., love triangle defense)
What are the rules for character evidence in a civil suit?
Only admissible when character is an essential element of a claim, which arises in negligent hiring tort actions, defamation, and child custody disputes
When are D's other crimes admissible to show something specific about the crime currently charged?
MIMIC - Motive, Intent, Mistake, Identity, Common scheme or plan
What is the special rule concerning prior crimes admitted in Sex Crimes cases?
Can offer any of D's prior sexual misconduct--limitation on prior crimes is totally removed
How may a writing be authenticated for admission into evidence?
by showing witness personal knowledge, proof of handwriting, ancient document rule (20 yrs old, free of facial probs, in natural custody), or solicited reply (author response)
What documents are self-authenticating?
offical publications, certified copies of public records, newspapers/periodicals, trade inscriptions and labels, notary witnessed documents, commercial paper
Can photographs be authenticated?
Yes, by witness testimony that it is a fair and accurate representation of person or object portrayed
When is the best evidence rule applied and what does it require?
A party proving the contents of a writing must show the original or explain why it is unavailable. Important if document is legally operative or witness testify SOLELY from reading about that writing.
When is failing to produce the original document for the best evidence rule excusable?
cannot be found with due diligence, destroyed without bad faith, or exists outside reach of legal process
When may alternatives to the original document be offered under the Best Evidence Rule?
voluminous records presented via summary, certified copies of public records, and for collateral (of secondary importance) documents
What is the general requirement for a competent witness?
Must make oath or affirmation and have personal knowledge
When are leading questions allowed on Direct exam? When on Cross-exam?
NOT ALLOWED for direct unless getting things started, hostile/adverse witness, or forgetful witness. ALLOWED ALWAYS on cross.
Can a writing be used to refresh a witness's memory?
Yes. May not read from it but can use to refresh. Adversary may see it, use it on cross, or introduce into evidence.
What can be done if showing a writing fails to refresh a witnesses memory?
Witness may vouch for accuracy of the writing if the witness made or adopted the writing when the event was still fresh in their memory.
When may lay persons give their opinion as a witness?
If rationally based on their perception and helpful to the jury in deciding a fact
What is the standard for Expert Witness testimony?
TRAP - Testing of principles or methods, Rate of error, Acceptance by other experts in same field, Peer review and publication
When can Treaties or Periodicals be admitted during an Expert Witness's testimony?
If they establish the documents as reliable, they may be read in as substantive evidence, and on cross-exam, those may be used to impeach and contradict experts. May not introduce merely as exhibit.
Can witnesses testify as to the ultimate issue of the case?
Yes, but it won't be considered helpful (and thus admissible) if it is a statement of legal conclusion or legal jargon. Also, can never given opinion on mental state if that is in issue.
When can a party bolster the credibility of their own witness?
Never, unless the witness's credibility has first been attacked. Also, witness cannot testify as to prior consistent statements (unless it was an identification).
When can a party impeach their own witness?
Anytime, without limitation
When impeaching, what methods are available?
Prior inconsistent statements, Bias/motive/interest, sensory deficiencies, bad reputation, criminal convictions, bad acts without conviction reflecting on truthfulness, contradiction
When can prior criminal convictions be used for impeachment?
Must have been a false statement as element of previous crime or felony (if probative value outweighs), must be within last 10 years unless very significant. May ask witness to admit or offer extrinsic evidence.
What impeachment methods cannot use extrinsic evidence?
Prior bad acts without conviction and Contradiction (if collateral)
How can a witness be rehabilitated after impeachement?
Bring out character witness (after an attack) that shows good character. OR may offer prior consistent statements to rebut charge of recent fabrication.
When does the attorney-client privilege apply?
confidential communication between attorney and client (or potential client) during a professional legal consultation
What are some attorney-client privileged communications that are not privileged?
third party listens or told, client waives, future crime or fraud discussions, if legal advice is at issue, or if an attorney-client dispute
What effect if a client partially waives attorney-client privilege to some communications but not others?
If the other communications concern the same meatter, fairness requires it, and the waiver was intentional, then the waiver may extend to the other communications
When does the physician-patient privilege apply?
Confidential communication acquired for purpose of diagnoses or treatment of medical condition. In federal actions, only available for psychotherapy.
What is the husband-wife privilege and when does it apply to testimony?
In criminal cases, a spouse can refuse to make testimony if they are still married. If concerning confidential communication during the marriage, in any type of case either spouse is not required to disclose the information (also lasts after divorce - but not applicable if concerning crime or domestic abuse)
What is hearsay?
an out-of-court statement by a person offered to prove the truth of the matter asserted.
What are the principal categories of non-hearsay purposes?
legally operative language like an offer for contract, to show effect on person who heard or read statement, or to show circumstantial evidence of speakers state of mind
Is a witnesses own prior statement admissible?
No. Hearsay, unless identification of a person, prior inconsistent statement made under oath during formal proceeding, or if being used to rebut recent fabrication charges
What is a party admission? Is it admissible as evidence?
Any statement made by a party is admissible if offered against them. Vicarious admissions by employees/agents also ok if statement concerns matters within scope of employment made during employment.
What are the hearsay exceptions available when a witness is not available?
former testimony, statements against interest, dying declarations, excited utterances, present sense impression, present state of mind, statement for medical treatment or diagnosis, present physical condition, declarations of intent, business/public records, or impeachment of hearsay declarants
When is a criminal D shielded from hearsay used by prosecution?
If statement is testimonial (police interrogation, grand jury, NOT 911 calls), declarant is unavailable, AND D has no opportunity for cross-exam (or didn't back on a prior occasion)
To A and his heirs - type and future interests
fee simple absolute, freely devisable/descendible, alienable, NO future interest
To A and the heirs of his body - type and future interests
fee tail; virtually abolished. Grantor has reversion and third party has a remainder
To A until… - type and future interests
FSDPR Fee Simple Determinable with Possibility of Reverter, devisable/descendible/alienable but ALWAYS subject to the condition
To A, but if X event occurs, grantor reserves right to reenter and retake - type and future interests
Fee simple subject to Condition Subsequent; grantor uses durational language and carves out the a future interest with ability to terminate
To A, but if X event occurs, then to B - type and future interests
Fee Simple subject to Executory Limitation; there is a shifting executory interest to B; if condition broken, automatically forfeited
To A so long as she never attempts to sell or other restriction that is not linked to a reasonable time-limited purpose
Absolute restraints on alienations are void
to A with the hope that he will someday become a lawyer
Words of mere hope, desire, or intent are INSUFFICIENT to create a defeasible fee
to A for life
life estate; A is the life tenant, grantor has a reversion (remainder if it goes to a third party)
A life tenant must not commit Waste that will hurt the future interest holders. Types of waste
Voluntary (deliberate action), permissive (maintain premises on reasonably good repair, pay taxes on land), ameliorative (must not do acts that will ehance the property value w/out future interest holders consent)
A life tenant must not consume natural resources UNLESS
PURGE - Prior use of land for exploitations exists (except can't start new mines), Reasonable maintenance, Grant exists allowing it, Exploitation is the only use for the land
to A for Life, then B what does B have?
vested remainder
remainder to B, provided B lives to age 21, otherwise to C What does B have?
vested remainder subject to complete defeasance
When does a class close when determining a possession of an estate?
rule of convenience - class closes when any one member can demand possession (NOTE - children in the womb do get counted)
What happens if someone creates an interest to A, and upon A's death, to A's heirs
rule in shelley's case - interest gets merged into a fee simple
What happens if A creates a future interest in his own heirs?
Automatically voided by the Doctrine of Worthier Title, unless you specify otherwise
What is a future interest in a third party that takes effect by cutting short a third party's interest?
shifting executory interest
What is a future interest in a third party that takes effect by cutting short a grantor's interest?
springing executory interest
What is the rule against perpetuities?
future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life in being
What does a gift to an open class conditioned on members living beyond age 21 have in common with an executory interest with no time limit on when it must vest?
both are always void under the rule against perpetuities
What is VA's modern view on the Rule Against Perpetuities?
Codifies the common law RAP and also adds a 90 year wait and see vesting period to see what the situation is at the end of the measuring life
What is required to form a joint tenancy?
TTIP - same Time, Title, Identical interests, and right to Possess the whole
when is a joint tenancy severed?
SPAM - Sale allowed but buyer becomes tenant in common, Partition and Mortgage (minority rule)
When is a tenancy by the entirety created? What are benefits?
to husband and wife with right of survivorship - joint tenancy between married couple. Protected from creditors and neither party may unilaterally convey it.
What rights do members of a tenancy in common have?
right to possess the whole. Each owns equal parts and can freely transfer. No right of survivorship.
May co-tenants exclude other tenants?
no, if so they have commited wrongful ouster
Are co-tenants liable to the others for rent?
not liable if other co-tenant is merely absent, however, if leasing to a third party then must pay a portion of the rental income to them
What are co-tenants responsible for paying?
their share of carrying costs such as taxes, mortgage interest payments, etc. Other tenants also have right to contribution for maintenance and repairs
What happens if a co-tenant makes improvements to the property?
no right to contribution, and will claim either the loss or gain to the value of the property when it is sold
How much notice must be given to terminate a periodic tenancy? What is the limit?
at least one full period, but if longer than a year, limit to six months
What are the characteristics of a tenancy at will?
must be express (so as not to find implied periodic tenancy), no fixed duration as long as T desires and may be terminated by either party at any time
Does a Tenant normally have a duty to repair? Are they liable to third parties who are injured?
yes. Must maintain premises and make ordinary repairs, unless lease states otherwise. Must not commit waste. Liable to third parties T invited who are injured.
When can a tenant install something and later remove it? When can he not?
any fixture - a movable chattel with an objective intento to permanently improve the realty - cannot be removed if doing so would cause substantial harm to the property
What are a landlord's options for dealing with a tenant that is holding over without paying?
Lanlord may evict through courts and sue for rent due until T leaves OR continue relationship and sue for rents due. May NOT engage in self-help
What are a landlord's options if a tenant appears to have abandoned the property?
May treat it as a surrender, ignore and hold T responsible for unpaid rent (minority rule), or re-let premise with T responsible for deficiency (majority rule)
What is a landlord's duty to deliver possession?
must delivery physical possession of premise - if holder there landlord has breached and tenant gets damages
What is a tenant's right to quiet use called? When does a landlord breach it explicitly? Implicitly?
implied covenant of quiet enjoyment; explicit - wrongful eviction; implicit - substantial interference thorugh L's actions OR Notice of a problem where L fails to act and T vacates within reasonable time thereafter
What implied warranty comes with every residential lease?
implied warranty of habitability - non-waivable requirement that the premise be fit for basic human habitation. May establish via local housing code, etc
What is a tenant entitled to do if the landlord breaches the implied duty of habitibility for a residential lease?
move out and end lease, repair and deduct cost from rent, release rent until court determines fair value, or remain in possession while paying and later seek money damages
What is the difference between an assignment and a sublease in terms of the relationship between a landlord and a tenant who assigns?
sublease is a partial interest so there is no privity of estate nor contract between L and the sublessee
Can a landlord prohibit assignments of a lease?
Yes, can prohibit without L's written approval. However, after one approval then all future transfers are OK
What is a landlord's duty to maintain a safe premise at common law? What are the exceptions?
no duty, exceptions for common areas, warn of hidden defects, and reasonable care if repairs undertaken. Also, L will be liable for any defects if T leases a public space (museum, convention hall) or a short term lease of a furnished dwelling.
What are the four ways to create an affirmative easements?
prescription - adverse possession; implication - existing use implies it; necessity - complete landlock; grant - but longer than one year must be in writing
What are the four types of negative easements? What is the restriction on negative easements?
can disallow light, air, support, or stream water from an artificial flow. MUST be expressly in writing signed by the grantor
What determines if an easement will pass automatically with the land? What is the exception to this?
if easement appurtenant (benefit is related to land), passes automatically. If easement in gross (not related to land), doesn't transfer. EXCEPTION - bona fide purchaser without notice does not take the easement of a servient estate (bad easement)
How can an easement be terminated?
END CRAMP - Estoppel (material change of position), Necessity (expires when need ends), Destruction of servient land, Condemnation of servient estate by eminent domain, Abandonment by physical action, Merger (holding both servient and dominant estates), Prescription (adverse possession)
What is the legal effect of an oral easement?
creates a freely revocable license. Not subject to statute of frauds if one year or less
What is required for a covenant to run with the land?
WITHN - Writing, Intent, Touch and concern land, Horizontal and vertical privity, Notice (HOWEVER, horizontal privity ONLY required for burdens to run)
What is required for an equitable servitude to run with the land?
WITN - Writing, Intent, Touch and concern land, Notice. (note - Privity is NOT required)
What is the different between a covenant and an equitable servitude?
money vs injunctive relief
when will a common development scheme result in an implied equitable servitude?
if the subdivider had a general scheme of residential development including D's lot and D had notice (actual, inquiry, or record notice)
What defense can be used to prevent enforcement of an implied equitable servitude resulting from finding that a common development scheme for a neighborhood exists?
party must show that area has changed so pervasively that the original terms are no longer appropriate
what are the elements of adverse possession?
COAH, Continuous, Open and notorious, Actual, and Hostile
How can disability of the owner affect a claim for adverse possession?
If at the START of the adverse possession they were disabled, the statute of limitations will not run. If disability occurred after start, no effect.
When is tacking allowed to satisfy the continuous element of an adverse possession claim? What defeats it?
taking ok if nonhostile privity such as blood, contract, will, etc. Outster defeats tacking and breaks continuity.
What are the requirements for a proper contract to convey land?
must be in writing and signed by party to be bound. Must describe land and state some consideration.
Who bears the risk of loss in a land conveyance between buyer and seller?
after contract is signed, seller owns land even though closing is not yet complete
When can an oral contract to convey land be enforceable?
if buyer takes possession, remits even a part of the purchase price, or makes substantial improvements
What promises are implied in all contracts to convey land, regardless of what the contract says or the type of land?
implied promise to provide marketable title free from reasonable double (e.g., no adverse possession claims, no mortgages, no zoning violations, no servitudes). Seller also promises not to make false statements of material fact and to disclose material defects
What is necessary for a proper closing in a land conveyance?
lawful execution of a deed that is signed by grantor that gives a description that is at least definite enough to discern the property location with some research. Also must physically deliver (or via escrow) the deed. Note - express rejection can defeat delivery.
what is a quitclaim deed?
no promises made, other than the implicit promise of marketable title that is included in every contract for land conveyance
What is a general warranty deed?
gives warranty against seisin (grantor owns estate), a right to convey, against encumbrances, quiet enjoyment, protection against claims by others, and that grantor will do whatever is reasonably necessary to perfect title in future
What is a special warranty deed?
grantor promises that he hasn't conveyed the land to anyone other than the grantee and the land is free from encumbrances made by grantor
What is a bona fide purchaser when it comes to recording deeds?
one who purchases for value without notice. Notice can be actual, inquiry, or record.
What is the difference between a notice jurisdiction and a race-notice jurisdiction?
in a notice jurisdiction, a bona fide purchaser wins over those who came earlier if they did not record. If a race-notice jurisdiction, the first to record wins.
Transfer from O to A is not recorded. Later transfer A to B that is properly recorded. What effect on the validity of the recording of the second transfer?
the wild deed - the later transfer cannot give record notice of its existence
A deed is given with the understanding that it is to be collateral for a debt, but nothing is in writing, is it enforceable?
yes - equitable mortgage is found to exist
What is the difference between B assuming and taking subject to a mortgage?
if assumed, B takes on personal liability for original debt in addition to the original debtor. If subject to the mortgage, B has no personal liability.
What happens to senior mortgages when a foreclosure occurs? What happens to junior mortgages?
buyer takes subject to any senior mortages. Junior mortagages disappear so those holders must get a deficiency judgment if they got no surplus or not enough surplus.
What happens to surplus money from a foreclosure sale?
it pays off attorneys expenses (and other fees), then junior liens, then any remainder goes to the debtor
What are the rules for mortgage priority? What are the exceptions?
first in time first in right, UNLESS purchase money security interest (PMSI) mortgage (money loaned to enable debtor to acquire land), which will have superpriority over the others
When can a debtor redeem his land that is subject to a foreclosure?
Can redeem land at any time prior to the foreclosure sale by paying off the missed payments plus interest and costs, unless there was an acceleration clause. Note - even if debtor wanted to, they cannot waive this right to redeem.
A improves land and adjacent landowner B conducts some later excavation. This causes A's land to collapse. What must A do to attach strict liability to B's conduct?
A must show that B's excavation would have caused his land to collapse even if he left his land in its natural state (no improvements)
What usually determines a right to divert water?
first in time gives priority of right
How does property law treat surface water with respect to landowners?
surface water is a common enemy, so landowner can combat the flow in any way short of unnecessary harm to land of others
What can pose a nuisance on another's land? What is the definition of nuisance? Do hypersensitive P's matter?
nuisance is substantial and unreasonable interference with another's use and enjoyment of land. Can be odors, noise, or physical object. Hypersensitive plaintiffs will lose.
When is third party standing allowed?
If there is a close relationship with P (e.g., doctor patient), P would unlikely be able to assert his own rights because he can't go to court, or if an organization sues on behalf of its members for a germane reason
When does a citizen have standing to challenge a government expenditure?
when it is challenged as violative of the establishment clause
What are the three ways to have a case reach the supreme court?
writ of certiorari, when a statute provides for it, and for suits between state governments
If A is prohibited by both a state and a federal law, can supreme court review?
No, because independent state law grounds would make success have no effect
Can state governments be sued in federal court? When can they not?
11th amendment bars suits against states in fed. Court, however, can if explicit consent by state, suing under federal statute, or bankruptcy proceedings
Can congress create a cause of action for a private individual to sue a state government in a state court?
What does Congress have police power over?
the military, indian reserves, federal lands, and washington DC
What interstate commerce can be regulated by Congress?
channels of commerce (highways, waterways, internet), people and things that cross state lines, and activities with a substantial effect on interestate commerce (but if non-economic, must show economic activity)
What does the 10th amendment do?
provides all powers not granted to federal government are reserved to people, so congress cannot compel state legislative activity
how may congress induce states to act?
may prohibit harmful state commercial activity or attach strings to grants that contain clear conditions related to the purpose of the underlying federal program
Can congress delegate executive power?
never to itself, only to agencies, and it must include intelligible principles
If a treaty conflicts with a state law, the constitution, or a federal law, when does it win?
state law - win, constitution - lose, federal law - last in time wins
Who can the president NOT pardon from crimes?
state crime convictions or anyone who is impeached (impeachment is not criminal)
when does federal law preempt state law?
if the federal law explicitly says so (or preempts entire field), both can't possibly enforced, or they have directly conflicting objectives
Can states tax federal government agencies or federal employees?
Can't tax agencies, but can tax federal employees so long as those taxes are non-discriminatory
If a state discriminates against out-of-staters with respect to civil liberaties or the ability to earn a livelihood, what does it violate?
the privileges and immunities clause of article IV
If a state restricts a citizens right to travel, what has it violated?
the 14th amendment privileges and immunities clause
When can states discriminate against out of state interests?
if handing out money it can restrict to in-state recipients, when it acts as a buyer or seller of goods, and can prohibit sale of alcohol (but not the transportation of)
What is rational basis review?
the law must be rationally related to a legitimate government purpose. Burden on claimant.
What is intermediate scrutiny?
the law must be substantially related to an important government purpose. Burden of proof on government.
What is strict scrutiny?
the law must be necessary or narrowly tailored to achieve a compelling government purpose. Means must be the least restrictive alternative. Government has the burden of proof.
What fundamental rights trigger strict scrutiny?
marriage and divorce, custody and raising children, procreate and contraceptives, right to travel, free speech and association, exercise of religioin
What rights trigger only rational basis review?
right to trade, physician-assisted suicide, right to education, economic rights such as age, wealth, education
What level of scrutiny does abortion receive?
special undue burden test prior to viability, afterwards, gov. may regulate. Must contain exception to protect life and health of mother.
What suspect classes receive strict scrutiny?
race or ethnicity, alienage, right to travel, voting
Is affirmative action constitutional? Why?
yes, but must be more than a mere racial quota
What suspect classes receive intermediate scrutiny?
legitimacy classifications and gender
What suspect classes are subject to rational basis review?
all economic discrimination, age, handicap, wealth, foreign travel restrictions
When is speech regulation subject to strict scrutiny? When is it subject to intermediate scrutiny?
strict if content-based, intermediate if content-neutral
When is content-based restriction allowable?
incitement, hate speech, obscenity, defamation, commercial advertising
What is the effect on the media reporting information if a source is lawfully or unlawfully obtained?
if lawfully obtained, no liability for truthfully reporting. If unlawfully obtained, only OK if the media did not participate in obtaining it and it involves matters of public concern
What is the effect on speech regulation between free speech on public forums, non-public forums (closed off government property), and private property?
public form requires intermediate scrutiny, non-public forum must be reasonable and neutral, private areas raise no free speech concerns
How are state governments restricted when it comes to interfering with private contracts?
may not interfere with private contracts without meeting intermediate scrutiny. If existing state or local contract, must meet strict scrutiny.
What must the government do when implementing a regulatory taking of a person's private property? What is a regulatory taking?
regulatory taking is when regulation of use of property occurs without physical occupation. Gov. must leave an economically viable use of property and create a benefit to public that is proportional to the harm suffered
Can children be liable for intentional torts?
What is the effect of a hypersensitive person when determining if an intentional tort occurred?
ignore the hypersensitivity
What are the elements of battery?
harmful or offensive conduct upon P's person. Offensive means not permitted by person of ordinary sensitivity and contact must be more than something they are holding.
D has intent to assault but accidentally hits P. P didn't notice attack. What crime?\
D is guilty of battery - intent transfers from assault
What are the elements of assault?
D places P in apprehension of immediate battery (awareness - not necessarily fear. Also, words of warning or future action are not enough)
What are the elements of false imprisonment?
D confines or restrains P to a bounded area (Acts include threats, P must know of confinement, and bounded area means P's ability to move in ALL directions with no reasonable means of escape)
What is the shopkeeper's privilege?
allows detention for a reasonable time after a reasonable suspicion of shoplifting to make an investigation
What are the elements of intentional infliction of emotional distress?
outrageous conduct by D that causes P to suffer severe emotional distress (in VA there is NO requirement of showing physical injury) note - recklessness can satisfy
What types of P will be likely to suffer severe emotional distress from D's outrageous conduct in an intentional infliction of emotional distress claim?
children, elderly, pregnant women or hypersensitive P (but in both of those cases, D must have known). Innkeepers and common carriers are also held to a higher standard
When can a bystander recover for IEED?
must prove either prima facie case herself OR can prove she was either in close proximity or a close relative of injured person
What are the elements of trespass to chattels? What is the measure of damages recoverable?
Act by D that interferes with P's right of possession of chattel. Can recover cost of repair. Usually minor acts such as damage or vandalism.
What are the elements of conversion? What is the measure of damages recoverable?
Act by D that interferes with P's right of possession of chattel that is so serious as to warrant paying for full value of chattel. Can recover full market value of item (D gets to keep) OR can repossess (replevin). Usually major acts.
Can consent be given to intentional torts? How?
yes, but must have legal capacity. Can be express or implied through custom and usage.
What are the three requirements for a valid self-defense claim?
Must be in response to imminent threat, reasonable belief of threat, and must keep responding force to the minimum necessary
What is the difference between a public necessity tort defense and a private necessity tort defense?
Public - absolute defense when invading property to protect group of people. Private - limited defense when D protects own interest, still liable for actual harm inflicted but not normal/punitive damages
Can a force be used to capture chattels that have been stolen?
yes, recapture of chattels tort defense - may only use reasonable force to recapture. However, if possession of owner's chattel began lawfully then must use peaceful means.
When may an officer or private citizen arrest without a warrant? What if a private citizen does so but no crime has actually been committed?
either may do so to prevent a felony being committed in his presence. Private citizen will be liable if he makes a mistake.
What is the classic test for forseeability on negligence claims?
P must have been foreseeable because he was in the zone of danger
What standard of care is owed by children?
under 4, no duty, over 4 but under 18, based on hypothetical child of similar age and intelligence and maturity acting under similar circumstances. UNLESS engaged in adult activity (involves some kind of engine)
What standard of care is owed by professionals?
duty of care is that which average member of that profession practicing in a similar community. Can be large range if a specialist
What standard of care is owed by land owners?
undiscovered trespasser - none, discovered trespasser - warn of dangerous, concealed, man-made traps that are known, licensee (social guest) - duty to protect against known traps, invitee - known traps and duty to reasonably inspect
What are the elements of defamation? How does whether the matter is a public or private concern affect proving it?
defamatory statement that specifically identifies P and is published. Must be an allegation of fact that reflects negatively on a trait of character and must be published to multiple people (unless foreseeable it would be overheard). Public matters require P also show that statement was false and D did not make statement in good faith (intentionally or reckless disregard)
What are the two forms of defamation? When are damages presumed for each?
libel - written and damages always presumed; slander - oral, damages only presumed if statement related to business, crime of moral turpitude, imputing chastity of woman, or loathsome disease
What defenses are available for defamation?
consent, truth, absolute privilege (spouses, officers in official capacity), or qualified privilege (social interest in promoting candor such as talking to police or asking employer for reference)
What if P doesn't know how a duty of care was breached? How can this be proven?
res ipsa loquitur - accident of a type normally associated with negligence that would normally result from D being in control of a particular object. Creates inference of negligence and establishes duty plus breach.
How is factual causation shown for negligence?
may establish "but for" causation, "substantial factor" causation, or may shift burden to D if impossible to ascertain
What are some intervening factors that do NOT break proximate causation?
medical malpractice, negligence of rescuers, protection by third parties, subsequent disease or accident caused by weakened condition
What are the elements for assumption of risk as a defense?
P knew and fully appreciated the risk and voluntarily encountered it
What is the difference between pure and partial negligence?
pure - split recovery by amount at fault, partial - P only recovers if less than 51% at fault
P uses D's name for a commercial purpose. What tort? What circumstances would produce no liability?
appropriation - OK if mere mention of name in a newsworthy situation
What are the elements of the tort of intrusion on seclusion?
invasion of P's seclusion in a way that would be objectionable to a reasonable P. Must have a reasonable expectation of privacy.
What are the elements of the tort of false light?
widespread dissemination of a material falsehood about P that would be objectionalbe to the average person. Need not prove bad faith.
Duty owed to firefighters and police for dangers on owner's land?
not if normal danger inherent to job. Owner does have a duty if he knows of something and has an opportunity to warn
Is there a special duty to warn children of dangers on landowner's property?
yes if it is an attractive nuisance that a child would not be able to appreciate the risk of
When can a statute satisfy the element of whether there was a duty of care?
if P shows he is a member of the class of persons that the statute seeks to protect and was injured by the class of risk the statute was designed to prevent
What is a defense to a claim that a duty of care was breached by violating a statute?
complying with the statute would have been more dangerous or was impossible
when is there a duty to rescue?
close relation (family, common carrier, innkeeper), when D caused the peril, or if D begins rescue voluntarily must continue with it
What are the elements of negligent infliction of emotional distress?
D's conduct caused a threat of physical impact that leads to emotional distress with subsequent physical manifestations. P must be in a zone of danger unless closely related AND P was present and personally observed.
What does VA require for bystanders claiming negligent infliction of emotional distress?
that they were within the zone of danger of the act
What is the biggest difference between intentional and negligent infliction of emotional distress?
must show physical injuries from negligent infliction, unless due to a mishandling of a corpse or misreporting a relative's death
When is there strict liability for animal bites or incidental injuries caused by animals?
if they are wild, strict liability so long as P did nothing to bring about injury voluntarily (BUT not imposed against undiscovered trespassers). If they are domesticated, only liable if D has knowledge of the animal's viscious propensities in the past (one bite rule)
What is required to find an ultra-hazardous activity that imposes strict liability? What types of harm are recoverable?
ultra-hazardous if it poses a severe risk of harm to persons or property even when reasonable care is exercised and is uncommon in the area where it is carried out. Damages must be of the kind to be anticipated from such activity and the P must be foreseeable.
What are the elements to find strict liabililty for defective products?
merchant who routinely deals in goods of the type that hurt P, manufacturing or design defect present, no alteration of product since it left D's hands (presumed if ordinary channels of distribution), must involve the foreseeable use of product by P at time of injury
What is the difference between a manufacturing defect and a design defect when it comes to the tort of defective products?
manufacturing - product departs from its intended design in a way that makes it more dangerous than expected. Design - alternative way product could have been built that is safer, not significantly more expensive, and practical OR no redesign possible yet D failed to provide adequate warnings
what are the elements of the tort of nuisance?
substantial, unreasonable interference with the use of and enjoyment of property
When can a principal be liable for the intentional torts of an agent?
if the job generates tension (repo man), foreseeable aspect of job (bouncer), or misguided intent to serve employer's interest
When can an independent contractor impose liability on the owner of land?
if the owner hires the contractor and he hurts an invitee
Does a family relationship impose liability on the owner of a vehicle for negligent operation?
Not in VA
In VA, to what extent can parents be held liable for the damages caused by their children?
up to $2,500 in damages
What special tort action is available to married couples? What can be recovered?
loss of consortium - includes recover for loss of services, society, and sex