Prior MPT Analysis

The MPT has been tested on the New York bar exam since July 2001. Followin is
a breakdown o! the writin !ormats on the MPT com"onent o! the New York bar
exam since July 2001#
Type All Exams
% of
Appearan
ce
Feb Exam
% of
Appearan
ce
July Exam
Persuasive Brief $ 2%& ' ((&
Objective Memorandum ' 1)& 2 1$&
Persuasive Memorandum ( 12& 1 %&
Case Planning Memorandum 1 '& 0 0&
Letter Brief 1 '& 0 0&
Letter to Opposing Counsel 1 '& 1 %&
Memorandum/Cause of Action 1 '& 0 0&
Opinion Letter 1 '& 1 %&
Argument section of the Brief 1 '& 0 0&
Leave Behind (Persuasive Memorandum) 1 '& 1 %&
Brief Objective Memorandum Closing
Argument
1 '& 1 %&
Memorandum of Contract !edraft 1 '& 0 0&
Persuasive Letter 1 '& 1 %&
"#o$Part Memorandum 1 '& 0 0&
"otal 25 12
*ntil February 200+, N-./ created three di!!erent MPT 0uestions !or each
administration. 1ince July 200+, N-./ only creates two di!!erent MPT 0uestions
!or each administration. Followin is a breakdown o! the MPT !ormat chosen by NY
.23/ !or each New York bar exam com"ared to the MPT !ormats not chosen.
Click Here to view the breakdown of the MPT formats chosen and not
chosen by NY !"#

Exam MPT Format Chosen MPT Format Not Chosen MPT Format Not Chosen
July 201
Memorand$m of Contract
%edraft
4rument section o! a "ersuasi5e
brie!

Feb 201 Pers$asive rief 2"inion 3etter
July 2012 Ar&$ment section of the rief Memorandum
Feb 2012
"eave ehind Pers$asive
Memorand$m
3etter
July 2011 Pers$asive Memorand$m 2b6ecti5e memorandum
Feb 2011
rief !b'ective Memorand$m(
Closin& Ar&$ment
2b6ecti5e memorandum
July 2010 Pers$asive rief 2b6ecti5e memorandum
Feb 2010 Pers$asive rief
7ra!t "art o! a 7is"ute 8esolution
statement

July 200! !b'ective Memorand$m 8es"onse to a 7emand 3etter
Feb 200! Pers$asive Memorand$m 2b6ecti5e memorandum
July 200" Memorand$m)Ca$se of Action 2b6ecti5e memorandum
Feb 200" !b'ective Memorand$m Memorandum93iability :ai5er
July 200# Pers$asive rief 2b6ecti5e memorandum
Feb 200# Pers$asive "etter 2b6ecti5e memorandum
July 200$ !b'ective Memorand$m 4rument in o""osition
Feb 200$ Pers$asive rief 2b6ecti5e memorandum
July 200% "etter rief 2"inion 3etter
Feb 200% !b'ective Memorand$m 3etter to 2""osin -ounsel Memorandum
July 200& Case Plannin& Memorand$m 3etter to 2""osin -ounsel Persuasi5e .rie!
Feb 200& Pers$asive rief Memorandum Memorandum
July 200 Two*Part Memorand$m Persuasi5e brie! 2b6ecti5e memorandum
Feb 200 "etter to !++osin& Co$nsel 2b6ecti5e memorandum
.rie! in su""ort o! summary
6udment motion.
July 2002 Pers$asive Memorand$m 7ra!tin will clauses 2"inion 3etter
Feb 2002 !+inion "etter 3etter to attorney
:rite closin arument on
motion !or a "reliminary
in6unction.
July 2001 Pers$asive rief Memorandum
7ra!t the leal arument
"ortion o! a "etition

.ased on the abo5e, when choosin the MPT !ormat, NY .23/ enerally "re!ers
persuasive !ormats o5er ob6ecti5e !ormats. For exam"le, o! the % times there
was a choice between an ob6ecti5e MPT and a "ersuasi5e MPT, NY .23/ chose the
"ersuasi5e MPT ) o! the % times. ;n addition, NY .23/ seems to "re!er Briefs
o5er Memorandums. <owe5er, while NY .23/ chose "re5iously tested !ormats in
the "ast, it a""ears NY .23/ has increased the 5ariety o! the MPT !ormats,
re0uirin examinees to closely !ollow instructions to "roduce a document in the
s"eci!ic !ormat re0uested. Followin is a breakdown o! the di!!erent MPT themes
tested on the NY .ar /xam !rom July 2001 to "resent.
Click Here to view the breakdown of the MPT Themes tested on the New
York ar #,am
MPT Themes Tested on the New York ar #,am
Exam Theme
July 201
7ra!t a memorandum identi!yin contract "ro5isions that need to be redra!ted to meet the client=s wishes
and to com"ly with the law.
Feb 201 Pre"are a "ersuasi5e brie! in su""ort o! a motion to trans!er a case to ;ndian Tribal -ourt.
July
2012
7ra!t the arument section o! the brie! in su""ort o! a "reliminary
in6unction
-eb 2.12
7ra!t the >lea5e?behind@Aa "ersuasi5e document that will con5ince
leislators to 5ote in !a5or o! the resale royalties leislation.
/$ly 2.11
-eb 2.11
7ra!t a brie! ob6ecti5e memorandum as to whether a marriae was
leal and then "re"are a closin arument in which they "ersuasi5ely
July 2010
7ra!t the aruments in su""ort o! a motion to su""ress e5idence and to dismiss under double 6eo"ardy.
Jul 200! 7ra!t an ob6ecti5e memorandum analyBin a statute and identi!y "ossible leal aruments in o""osition.
Feb 200! 7ra!t a dra!t a "ersuasi5e memorandum that a "olice o!!icer did not ha5e a basis !or a 5ehicle sto".
Jul 200" 7ra!t a memorandum and a cause o! action in reards to !raudulent statements.
Feb 200" 7ra!t a memorandum analyBin whether a "erson meets the statutor de!inition o! a Cre"orterC
July 200# 7ra!t the arument section o! a brie! in su""ort o! a motion.
Feb 200# 7ra!t a !ollow?u" letter "ersuasi5ely settin !orth the basis !or claims under a Federal 3aw.
July 200$ 7ra!t an ob6ecti5e memorandum discussin disclosure re0uirements and analyBe com"liance.
Feb 200$ :rite a "ersuasi5e brie! in o""osition to the Motion to Duash.
July 200% 3etter brie! to the E.4 in su""ort o! "etition !or a use 5ariance.
Feb 200% 7ra!t a memorandum !or the su"er5isin "artner analyBin 8ules o! Pro!essional -onduct.
July 200& 7ra!t a case "lannin memo that identi!ies and e5aluates claims and de!enses in an e5iction action.
Feb 200& /5identiary .rie! !or the 1tate o! New York.
July 200 Memo 4bout an /m"loyer=s 3iability !or 4lleedly Tortious 4cts by ;ts /m"loyee.
Feb 200 3etter to 2""osin -ounsel 4bout /n!orcin a 3ease.
July 2002 Memo From an 4ssistant 7istrict 4ttorney.
Feb 2002 2"inion 3etter !or Joint Fenture.
July 2001 .rie! 1u""ortin a Motion to Duash a 1ub"oena.
Feb 2001 No MPT ? NY had six essay 0uestions instead.

Followin is a more in?de"th ex"lanation o! each MPT that has a""eared on the NY
.ar /xam !rom July 2001 to "resent based on N-./=s MPT 1ummaries#
Click Here to e,+and the table to view the com+lete res$lts
2.10
Palindrome %ecordin& Contract 1/$ly 2.102 MPT*23 /xamineesG law !irm
re"resents the !our members o! the rock band Palindrome, who ha5e retained it to
neotiate a recordin contract with Poly"hon, an inde"endent recordin label.
Poly"hon has "resented the band with a detailed contract, and examinees are
asked to redra!t certain "ro5isions o! that contract to com"ort with the bandGs
contractual demands and ob6ecti5es. ;n "articular, the band is concerned about
artistic control o! its recordins, licensin o! the bandGs trademark, and use o! the
bandGs imaes and trademark !or marketin "ur"oses. /xaminees are asked not
only to redra!t those contract "ro5isions but also to ex"lain why chanes are bein
made to each, and to analyBe leal as"ects or com"lications in5ol5ed with each
"ro5ision, i! there are any. The File contains the instructional memorandum, a
transcri"t o! an inter5iew by the assinin "artner with the leader o! the band, an
areement amon the band members concernin the di5ision o! income, and
selected "ro5isions o! the recordin contract. The 3ibrary contains a Franklin
statute concernin contracts !or "ersonal ser5ices and two cases discussin the
assinment and licensin o! trademarks.
4n re 5$ardianshi+ of 6ill -o, 1-ebr$ary 2.102 MPT*23 /xamineesG law !irm
re"resents .etty Fox, a member o! the .lackhawk Tribe, who has "etitioned !or
uardianshi" o! her minor randson, :ill. :illGs mother died when he was born,
and his !ather, .ettyGs son, has been in a coma !or se5eral months as a result o! a
car accident. .etty is "etitionin !or uardianshi" in the .lackhawk Tribal -ourt in
res"onse to a "etition !or uardianshi" in Franklin state court !iled by :illGs
maternal rand"arents, the 3odens, who are not members o! the tribe. ;n
addition, the law !irm has !iled on .ettyGs behal! a motion to trans!er the 3odensG
state court action to the tribal court. /xaminees are asked to "re"are a brie! in
su""ort o! the motion to trans!er, !ollowin the !irmGs !ormat !or "ersuasi5e brie!s,
and antici"atin those aruments likely to be raised by the 3odens aainst the
trans!er. The File includes the instructional memo !rom the su"er5isin attorney, a
!ormat memo !or "ersuasi5e brie!s, the com"etin "etitions !or uardianshi" !iled
in state and tribal court, the motion to trans!er, a letter !rom the tribal court, an
email !rom .ettyGs son, and an excer"t !rom the Journal o! Nati5e 4merican 3aw.
The 3ibrary contains excer"ts !rom the ;ndian -hild :el!are 4ct o! 1H$%,
uidelines !rom the .ureau o! ;ndian 4!!airs !or ;ndian child custody "roceedins,
and a case !rom the Franklin 1u"reme -ourt bearin on the sub6ect.
2.12
Ashton v. Indigo Construction Co. 1/$ly 2.122 MPT*23 /xamineesG law !irm
re"resents Mararet 4shton, a homeowner, in her dis"ute with ;ndio -onstruction
-o. 4 !ew months ao, ;ndio bouht a 5acant lot behind 4shtonGs home and
bean storin dirt on the lot to use later in its construction and landsca"in
business. 4lthouh ;ndioGs use o! the 5acant lot is in com"liance with the rele5ant
Bonin ordinances, its acti5ities ha5e neati5ely a!!ected Mrs. 4shtonAshe is
disturbed by noise !rom the trucks oin to and !rom the 5acant lot, and the hue
dirt "ile has caused substantial amounts o! dust and mud to accumulate in her
yard. /xaminees are asked to dra!t the arument section o! the brie! in su""ort o!
a "reliminary in6unction aainst ;ndio. The File contains a memorandum !rom a
!irm "artner askin the examinee to "re"are the leal arument, a >!ormat
memo@ that lays out the !ormat !or "ersuasi5e writin o! trial brie!s, two a!!ida5its
I!rom Mararet 4shton and !rom a !irm in5estiatorJ, and an article about the dirt
"ile !rom a local news"a"er. The 3ibrary contains two cases !rom the Franklin
1u"reme -ourt# Parker v. Blue Ridge Farms, Inc. Idealin with the elements o!
the common law action o! "ri5ate nuisanceJ and Timo Corp. v. Josies Disco Inc.
Idealin with the standards !or rantin in6uncti5e relie! !or a "ri5ate nuisanceJ.
Franklin Resale Royalties Legislation 1-ebr$ary 2.122 MPT*13 ;n this
"er!ormance test, examinees are em"loyed by the law !irm that re"resents the
Franklin 4rtists -oalition. The -oalition su""orts enactment o! leislation which
would re0uire a !i5e "ercent royalty to be "aid to artists or their heirs on the
resale o! their 5isual artworks. To this end, the -oalition has asked the law !irm to
"re"are a document which can be handed out to leislators and which will set
!orth the need !or and bene!its o! the leislation, es"ecially in liht o! the !act that
similar leislation was introduced but not ado"ted in the neihborin state o!
2lym"ia. /xamineesG task is to dra!t the >lea5e?behind@Aa "ersuasi5e document
that will con5ince leislators to 5ote in !a5or o! the resale royalties leislation. ;n
doin so, examinees must set out the aruments in !a5or o! the leislation,
res"ond to the ob6ections to the leislation, and address the leal issue o! whether
the leislation is "reem"ted by the 1H$) !ederal -o"yriht 4ct. The File contains
the instructional memorandum !rom the su"er5isin attorney, a letter !rom the
client, a tem"late !or the >lea5e?behind,@ and testimony by three witnesses be!ore
the 2lym"ia 1tate 1enate reardin the similar leislation in that state. The
3ibrary contains the text o! the "ro"osed leislation, excer"ts !rom the !ederal
-o"yriht 4ct, and two cases bearin on the leal issue o! "reem"tion.
2.11
In re Social Networking Inuiry 1/$ly 2.112 MPT*23 /xamineesG su"er5isin
"artner is the chairman o! the Franklin 1tate .ar 4ssociation Pro!essional
Kuidance -ommittee. The committee issues ad5isory o"inions in res"onse to
in0uiries !rom Franklin attorneys concernin the ethical "ro"riety o! contem"lated
actions under the Franklin 8ules o! Pro!essional -onduct. The committee has
recei5ed an in0uiry !rom a Franklin attorney askin whether an in5estiation usin
the social networkin "aes Isuch as Facebook or My1"aceJ o! a non"arty,
unre"resented witness in a "ersonal in6ury lawsuit would 5iolate the 8ules. The
su"er5isin "artner has re5iewed the matter and belie5es that the attorneyGs
"ro"osed course o! conduct would be contrary to the 8ules. /xamineesG task is to
"re"are a memorandum analyBin the issue with the ob6ect o! "ersuadin the
other committee members that the "ro"osed course o! conduct would 5iolate the
8ules. This is an issue o! !irst im"ression in Franklin. /xaminees must there!ore
discern the rele5ance o!, and uidance to be deri5ed !rom, the three di!!erin
a""lications o! those 8ules in other states and then a""ly those di!!erin
a""roaches to the "ro"osed course o! conduct. The File contains the instructional
memorandum, the letter !rom the Franklin attorney makin the in0uiry to the
committee, and notes o! the committee meetin. The 3ibrary contains the
a""licable 8ules o! Pro!essional -onduct Iincludin commentary on the 8ulesJ and
two casesAone !rom 2lym"ia and one !rom -olumbiaAbearin on the leal
issues.
Butler v. !ill 1-ebr$ary 2.112 MPT*13 /xamineesG law !irm re"resents Jenni!er
.utler in a di5orce action aainst 8obert <ill. Jenni!er was 1$ and "renant when
the marriae ceremony was "er!ormed in 200(, and 8obert !ored the re0uired
sinatures on the "arental consent !orm. Jenni!er and 8obert li5ed toether as a
married cou"le !or o5er six years, and they ha5e two children. :hen Jenni!er
learned that 8obert had been ha5in an a!!air, she decided to end the marriae.
1hortly therea!ter, she disco5ered that 8obert had been married be!ore, and that
he and his !irst wi!e were di5orced in 200%Athat is, se5eral years a!ter Jenni!er
and 8obertGs marriae ceremony. /xamineesG task is two!old. First, they are asked
to dra!t a brie! ob6ecti5e memorandum !or the su"er5isin "artner analyBin
whether the "artiesG marriae ceremony in 1e"tember 200( had any leal e!!ect
under the Franklin Family -ode. 1econd, examinees are to "re"are a closin
arument in which they "ersuasi5ely set !orth the case !or why the court should
conclude that Jenni!er and 8obert are married under Franklin law and that Jenni!er
should be awarded more than +0 "ercent o! the marital "ro"erty. The File consists
o! the task memorandum, the "artnerGs memorandum to the !ile, a transcri"t o!
an inter5iew with a neihbor, the cou"leGs marriae certi!icate, the di5orce
6udment !or 8obertGs !irst marriae, the deed !or the "artiesG residence, and an
in5itation to their anni5ersary "arty. The 3ibrary contains the rele5ant sections o!
the Franklin Family -ode and three cases relatin to 5oid marriaes, common law
marriaes, and the di5ision o! marital "ro"erty.
2.1.
In re !a""ond 1/$ly 2.1.2 MPT*13 ;n this "er!ormance test, a""licants work
!or a law !irm, which has recei5ed a re0uest !or uidance !rom another attorney,
-arol :alker, related to her re"resentation o! :illiam <ammond. 4 sus"icious !ire
destroyed a buildin that <ammond owned and that housed his business. <e has
souht :alkerGs ad5ice about whether he has any criminal ex"osure related to the
!ire and whether he may !ile an insurance claim !or the loss o! the buildin. :hile
:alker sus"ects that <ammond may ha5e been in5ol5ed in the !ire, <ammond
has not admitted or denied in5ol5ement and :alker has not ex"licitly asked.
:alker wants to know whether she can success!ully mo5e to 0uash a sub"oena
duces tecum com"ellin her to a""ear be!ore a rand 6ury con5ened to in5estiate
the !ire and to testi!y and "roduce materials relatin to her communications with
<ammond. 4""licantsG task is to "re"are the arument section o! a brie! in
su""ort o! the motion to 0uash on the rounds that under the Franklin 8ules o!
Pro!essional -onduct and the Franklin 8ules o! /5idence, :alker may not be
com"elled to i5e the testimony or "roduce materials. The File contains the
instructional memorandum !rom the su"er5isin attorney, a memorandum on
"ersuasi5e brie!s, a letter !rom :alker to the !irm, two memoranda !rom
<ammondGs case !ile, a "olice re"ort, the sub"oena duces tecum, and the motion
to 0uash. The 3ibrary contains "ro5isions o! the Franklin 8ules o! Pro!essional
-onduct, the Franklin 8ules o! /5idence, and the Franklin -riminal -ode, and two
cases !rom other 6urisdictions bearin on a 0uestion, unresol5ed in Franklin,
in5ol5in the attorney?client "ri5ilee and the crime?!raud exce"tion.
State of Franklin v. #cLain 1-ebr$ary 2.1.2 MPT*13 The client, .rian Mc3ain,
has been chared with 5iolatin 5arious sections o! the Franklin -riminal -ode
dealin with metham"hetamine, a controlled substance. The chares are based on
e5idence seiBed !rom Mc3ain a!ter "olice sto""ed him !or in5estiatory "ur"oses,
actin on an anonymous ti" that an indi5idual matchin Mc3ainGs descri"tion had
been seen "urchasin items at a con5enience store that, while entirely leal, are
known inredients o! metham"hetamine "roduction. The o!!icers searched his car,
!indin the oods described in the ti", toether with a small "lastic ba containin
what a""eared to be a mari6uana ciarette. Mc3ain was arrested and booked.
4!ter 0uestionin, Mc3ain directed the "olice to a >meth lab@ where they !ound
chemicals and e0ui"ment used to manu!acture metham"hetamine, as well as the
dru itsel!. Mc3ain was chared with "ossession o! metham"hetamine with intent
to distribute, "ossession o! laboratory e0ui"ment and su""lies with the intent to
manu!acture metham"hetamine, and manu!acture o! metham"hetamine. <e has
mo5ed to su""ress all e5idence seiBed by "olice on the round that the o!!icer
lacked reasonable sus"icion to sto" him. <e has also mo5ed to dismiss the chare
o! "ossession o! e0ui"ment with the intent to manu!acture metham"hetamine on
the round that it is a lesser?included o!!ense o! manu!acture o!
metham"hetamine. 4""licantsG task is to dra!t the aruments in su""ort o! both
motions. The File consists o! a memorandum !rom the su"er5isin attorney
describin the assinment, the criminal com"laint, the motion to su""ress
e5idence and to dismiss -ount 2, the transcri"t o! the anonymous call to the crime
hotline, and excer"ts !rom the transcri"t o! the e5identiary hearin. The 3ibrary
contains the rele5ant Franklin statutes and three casesAtwo relatin to
in5estiatory sto"s and one dealin with lesser?included o!!enses.
2..7
$ackson v. Franklin Sports %a&ette' Inc. 1/$ly 2..72 MPT*13 The client, the
Franklin Sports a!ette, a weekly tabloid s"orts news"a"er, has been sued by
8ichard >4ction@ Jackson, a star baseball "layer, !or an alleed 5iolation o!
JacksonGs riht o! "ublicity under FranklinGs recently enacted riht?o!?"ublicity
statute. The a!ette ran a "hotora"h o! Jackson, only "artially 5isible, slidin
into home "late as "art o! its co5erae o! a baseball ame. JacksonGs com"laint
arises !rom the a!ettes use o! that same "hoto in a "rint ad5ertisement
solicitin subscri"tions. The a!ette seeks the law !irmGs assistance in de!endin
aainst the suit. 4""licantsG task is to dra!t an ob6ecti5e memorandum analyBin
whether there is a cause o! action under FranklinGs riht?o!?"ublicity statute and
identi!yin the a!ettes "ossible leal aruments to o""ose such a cause o!
action. The File contains the instructional memorandum !rom the su"er5isin
attorney, a summary o! the client inter5iew and backround research, an internal
memorandum !rom the a!ette a""ro5in the ad5ertisement, and a co"y o! the
ad5ertisement itsel!. The 3ibrary contains the Franklin 8iht o! Publicity 1tatute,
excer"ts !rom its leislati5e history, and three riht?o!?"ublicity cases decided
under the "re5ious common law in Franklin.
Ronald v. (epart"ent of #otor )ehicles 1-ebr$ary 2..72 MPT*23 ;n this
"er!ormance test, a""licants work !or a sole "ractitioner who re"resents .arbara
8onald in an administrati5e "roceedin be!ore the Franklin 7e"artment o! Motor
Fehicles I7MFJ. The 7MF sus"ended 8onaldGs dri5erGs license !or alleedly
o"eratin a motor 5ehicle with a blood?alcohol le5el o! at least 0.0% "ercent, the
leal limit. 8onald re0uested an administrati5e hearin to challene the
sus"ension. .ecause this is an administrati5e "roceedin, and not a criminal
"rosecution, the 7MF must "ro5e by a "re"onderance o! the e5idence that 8onald
dro5e a motor 5ehicle with a "rohibited blood?alcohol content. The administrati5e
hearin o!!icer has heard the e5idence and has directed the "arties to submit
written brie!s. 4""licantsG task is to dra!t a "ersuasi5e memorandum aruin that
the "olice o!!icer did not ha5e a reasonable sus"icion warrantin the sto" o!
8onaldGs car, that the hearin o!!icer cannot rely solely on the blood test re"ort to
!ind that 8onald was dri5in with a blood?alcohol content o! 0.0% "ercent or more,
and !inally, that in liht o! all the e5idence, the 7MF has not "ro5ed that 8onald
was o"eratin a motor 5ehicle while intoxicated. The File contains the
memorandum !rom the su"er5isin attorney, the administrati5e hearin transcri"t,
the "olice re"ort, and the blood?alcohol test results. The 3ibrary contains a
selection o! Franklin statutes and three cases.
2..8
*illia"s v. A+, Auto"otive Center 1/$ly 2..82 MPT*23 The client, 8obert
:illiams, took his mini5an to 4?1 4utomoti5e -enter I4?1J !or a routine oil
chane. 4!ter bein told by the re"air sho"Gs owner that the mini5anGs
transmission was in imminent daner o! !ailin, :illiams areed to ha5e a rebuilt
transmission installed !or a""roximately L1,$00. :illiams subse0uently !ound out
!rom a local dealershi" that 4?1 had not "er!ormed the areed?u"on work but had
in !act reinstalled the oriinal transmission. <e now wants to !ile suit aainst 4?1.
4""licantsG task is to analyBe se5eral "otentially actionable statements made by 4?
1Gs owner and to determine which statements are actionable and which are not.
Next, a""licants are to dra!t a cause o! action !or !raud based on those statements
determined to be actionable. ;n doin so, a""licants are ex"ected to !ollow the
!irmGs dra!tin uidelines, which "ro5ide an exam"le o! a well?"leaded cause o!
action. The File contains the instructional memorandum !rom the su"er5isin
attorney, the law !irmGs uidelines !or dra!tin causes o! action, client inter5iew
notes, a memorandum !rom the su"er5isin attorney identi!yin !our "otentially
actionable statements, and :illiamsGs recei"t !rom 4?1 !or the alleed re"air. The
3ibrary contains three cases discussin the "leadin re0uirements !or a cause o!
action !or !raud.
In re Lisa -eel 1-ebr$ary 2..82 MPT*23 4""licantGs law !irm re"resents 3isa
Peel, a "ri5ate citiBen who o"erates an ;nternet blo on which she "osts news
stories about local o5ernment, as well as mo5ie re5iews and items about her
!amily acti5ities. Followin her "ost about a local school o!!icial takin L10,000 in
audio5isual e0ui"ment !or "ersonal use, the district attorney sub"oenaed Peel to
testi!y be!ore the rand 6ury and to "roduce all o! her inter5iew notes in an e!!ort
to et her to re5eal the identities o! the sources !or her story. Peel seeks the law
!irmGs ad5ice on whether she can resist the sub"oena. 4""licantsG task is to dra!t a
memorandum analyBin whether Peel would be considered a >re"orter@ under the
Franklin 8e"orter 1hield 4ct and would there!ore be "rotected !rom bein
com"elled to re5eal her con!idential sources. The File contains the instructional
memorandum !rom the su"er5isin "artner, the transcri"t o! the client inter5iew, a
co"y o! PeelGs school?corru"tion "ost, a co"y o! the sub"oena, and a news article
about the de5elo"ment o! blos as the newest !orm o! 6ournalism. The 3ibrary
contains excer"ts !rom the Franklin 8e"orter 1hield 4ct, 5arious dictionary
de!initions, and two cases.
2..9
Ac"e Resources' Inc. v. Ro.ert Black !awk et al. /$uly 0112' #-3+,4
4""licantsG law !irm re"resents 8obert .lack <awk and other members o! the
.lack /ale Tribe who ha5e sued 4cme 8esources, ;nc., a minin com"any, in
tribal court seekin to reco5er !or damae caused by 4cmeGs minin coal bed
methane !rom under reser5ation land, in addition to an in6unction orderin 4cme
to cease its minin acti5ities. The Tribe members claim that their water wells are
runnin dry, lea5in them without water !or li5estock and cro"s, because 4cmeGs
minin acti5ities are de"letin the water table. 4cmeGs answer to the tribal court
com"laint denies liability !or the alleed harm and also denies that the tribal court
has 6urisdiction in this matter. 1ubse0uently, 4cme !iled suit in !ederal court
re0uestin a declaratory 6udment that the tribal court lacks 6urisdiction o5er
4cme and seekin an in6unction aainst the tribe membersG "rosecution o! the
tribal court action. 4""licants are asked to dra!t the arument section o! a brie! in
su""ort o! a motion !or summary 6udment in the !ederal action or, in the
alternati5e, to dismiss or stay the action on the rounds that the tribal court has
6urisdiction and that 4cme has !ailed to exhaust its tribal court remedies be!ore
"ursuin its com"laint in !ederal court. The File contains an instructional
memorandum, a transcri"t o! a client inter5iew, a co"y o! 4cmeGs com"laint !iled
in *.1. 7istrict -ourt, a dra!t motion !or summary 6udment or, in the alternati5e,
to dismiss or stay, and a!!ida5its !rom a tribe member and a eoloist. The 3ibrary
contains excer"ts !rom the tribeGs constitution and tribal code and one case.
%lick"an v. -hoeni5 Cycles' Inc. 1-ebr$ary 2..92 MPT*23 The client, Keore
Klickman, was demoted !rom his 5ice "resident "osition at Phoenix -ycles, ;nc.
shortly a!ter returnin to work a!ter takin nine weeksG lea5e under the Family and
Medical 3ea5e 4ct IFM34J, 2H *.1.-. M 2)01 et se"., to reco5er !rom a stroke and
to care !or his newly ado"ted baby. Klickman seeks leal ad5ice reardin
whether his em"loyerGs actions 5iolate the rihts accorded under the FM34,
s"eci!ically, the riht to be restored to a "re?lea5e em"loyment or an e0ui5alent
"osition. The su"er5isin "artner has already s"oken to PhoenixGs in?house
counsel in an attem"t to resol5e KlickmanGs claims without resortin to litiation.
4""licantsG task is to dra!t a !ollow?u" letter "ersuasi5ely settin !orth the basis
!or KlickmanGs claims under the FM34, discussin the s"eci!ic FM34 "ro5isions that
Phoenix has 5iolated, ex"lainin why the exce"tions in the 4ct !or key em"loyees
do not a""ly, and settin !orth the !orms o! relie! to which Klickman would be
entitled should the matter "roceed to litiation. The File consists o! the
instructional memorandum, a transcri"t o! an inter5iew with Klickman, a Phoenix
-yclesG "ress release, a letter to Klickman !rom the com"any reardin his FM34
lea5e, and a manaement consultin !irmGs re"ort on Phoenix -ycles. The 3ibrary
contains excer"ts !rom the FM34 and two !ederal cases.
2..:
Larson Real 6state File 1/$ly 2..: MPT*13 4""licants are associates at a law
!irm that re"resents Naren 3arson, who has contracted to sell her home in
.an!ord, Franklin, to Pierre and 3isa Meridien, residents o! the neihborin state
o! -olumbia. :hen they entered into the sales contract, the Meridiens had not
seen 3arsonGs house in "ersonO now, a!ter tra5elin to .an!ord to 5iew the
"ro"erty, they are unha""y about the condition o! the house and ha5e concerns
about the neihborhood. The Meridiens are demandin a L)0,000 reduction in the
"urchase "rice as com"ensation !or the condition o! the house and the en5irons
that 3arson alleedly !ailed to disclose, contrary to Franklin 8eal Pro"erty 3aw M
(+0, which re0uires sellers to disclose >material !acts@ to !uture buyers o!
residential real estate. 1ection (+0 was recently enactedO "re5iously, Franklin was
a strict >buyer beware@ 6urisdiction. Thus, this is a de5elo"in area o! the law in
Franklin. 4""licantsG task is to dra!t an ob6ecti5e memorandum I1J discussin the
disclosure re0uirements im"osed on sellers o! residential real estate by Franklin
8eal Pro"erty 3aw M (+0 and the common lawO I2J analyBin whether, with
res"ect to disclosin the s"eci!ic items listed by the MeridiensG attorney, 3arson
com"lied with M (+0 and the common lawO and, I(J identi!yin what relie!, i! any,
the Meridiens are entitled to. The File contains the task memorandum, the
transcri"t o! the client inter5iew, the letter !rom the MeridiensG attorney, the real
"ro"erty disclosure statement, and an article !rom T#e Ban$ord Courier reardin
a "ro"osed neihborhood rou" home. The 3ibrary contains a .an!ord city
ordinance on historic districts, Franklin 8eal Pro"erty 3aw M (+0, and two cases.
State of Franklin v. Butler 1-ebr$ary 2..:2 MPT*23 The Franklin 1tateGs
4ttorneyGs 2!!ice has sub"oenaed Flora <ernandeB, a mediator, to testi!y in its
!elony case aainst John .utler !or illeally dum"in chemical waste. <ernandeB
"resided at a mediation between .utler and his !ormer business "artner, 3ynn
3on, durin which .utler admitted to dum"in the chemical waste into the Kreen
8i5er. <ernandeB and 3on were the only witnesses to .utlerGs admission, and
3on has since died. <ernandeB has !iled a motion to 0uash the sub"oena, aruin
that her testimony is "rotected by the mediation "ri5ilee o! the Franklin *ni!orm
Mediation 4ct IF*M4J. <owe5er, there are se5eral exce"tions to F*M4Gs mediation
"ri5ilee, and a""licants, assistant stateGs attorneys, are asked to write a brie! in
o""osition to the motion to 0uash. The File contains an instructin memorandum
!rom the 1enior 4ssistant 1tateGs 4ttorney, case notes, notes !rom a "olice
o!!icerGs inter5iew with 3on, a co"y o! the areement to mediate, and a co"y o!
the motion to 0uash. The File also contains instructions !or dra!tin "ersuasi5e
brie!s. The 3ibrary consists o! "ortions o! F*M4 and two rele5ant cases.
2..5
In re Brigha" 1/$ly 2..52 MPT*13 4""licants re"resent 7r. .arbara and 3en
.riham be!ore the .ay -ounty Eonin .oard o! 4d6ustment IE.4J reardin their
"etition !or a use 5ariance to mo5e .arbaraGs dental o!!ice into the .rihamGs
home. 7r. .riham s"ecialiBes in eriatric dentistry, de5otin 20?2+& o! her
"ractice to ser5in pro %ono "atients. 1he will be unable to maintain her "ro bono
commitment and stay in her current o!!ice due to a substantial rent increase. 1he
has 6ust learned that the -ounty 1u"er5isors recently "assed an ordinance
reBonin a "arcel near the .rihamsG home !rom 8?1 to 8?8 Imulti?!amily, caterin
to senior citiBensJ. The .rihams are seekin to mo5e .arbaraGs dental o!!ice into
their home, located in a 8?1 Isinle !amily residentialJ Boned neihborhood. They
ha5e asked a""licantsG law !irm to !ile the letter brie! to the E.4 in su""ort o! their
"etition !or a use 5ariance. The File consists o! the instructin memorandum,
notes !rom the "artnerGs inter5iew with the .rihams, a neihborhood ma", letters
!rom neihbors, and a news"a"er article about the reBonin ordinance "assed by
the -ounty 1u"er5isors. The 3ibrary contains excer"ts !rom a Treatise on Franklin
3and *se Plannin and the .ay -ounty -ode, as well as a case bearin on the
sub6ect.
In re Rose 7ingsley 1-ebr$ary 2..52 MPT*13 4""licantsG law !irm re"resents
4ttorney 8ose Ninsley in a !ee dis"ute with 4ttorney Naren 1heats. Ninsley
tem"orarily hired 1heats to assist her in the Moreno case, a com"lex toxic tort
case. The two lawyers entered into a !ee?s"littin areement whereby 1heats
would recei5e (0& o! NinsleyGs !inal !ee !rom the case. 1heats was also to be
"aid L+0 an hour !or her work on the case as an ad5ance on the (0&
continency. 4!ter 1heats had de5oted )00 hours to the case and been "aid
L(0,000 !or her work, she !elt that the case was too time consumin and was not
oin to succeed, so she 0uit. :hen Ninsley reco5ered a L10 million !ee !or
settlin the Moreno case, 1heats demanded (0& o! the L10 million settlement.
4""licants are asked to dra!t a memorandum !or the su"er5isin "artner analyBin
whether, under 8ule 200 o! the Franklin 8ules o! Pro!essional -onduct, 1heats was
NinsleyGs "artner or associate, and whether the corres"ondence between
Ninsley and Moreno com"lied with 8ule 200Gs disclosure re0uirements !or !ee?
s"littin arranements. The File consists o! an instructional memo, a transcri"t o!
an inter5iew with Ninsley, a letter !rom 1heatsGs counsel, the Ninsley?1heats !ee
areement, a letter !rom Ninsley to Janice Moreno, and a memo !rom 1heats.
The 3ibrary contains 8ule 200 o! the Franklin 8ules o! Pro!essional -onduct and
two rele5ant cases.
2..;
%raha" Realty' Inc. v. Brenda Chapin 1/$ly 2..;2 MPT*23 For this item,
a""licants work in the Franklin 3eal 4id 1ociety re"resentin .renda -ha"in, a
tenant in an a"artment buildin owned by Kraham 8ealty, ;nc. IK8;J. K8; has
brouht a summary e5iction "roceedin aainst -ha"in !or !ailin to "ay her rent.
-ha"in has been withholdin her rent !or se5en months because K8; has re!used
to re"air numerous de!ects in her a"artment, notwithstandin her re"eated
re0uests. To success!ully de!end aainst K8;Gs e5iction action, -ha"in will ha5e to
"ro5e that K8; breached the im"lied warranty o! habitability. 4""licantsG task is to
dra!t a case "lannin memo that identi!ies and e5aluates -ha"inGs claims,
counterclaims, de!enses, and9or remedies in the e5iction action. The File consists
o! the 3eal 4id 1ocietyGs intake o!!icer=s inter5iew with -ha"in, a letter !rom
-ha"in to K8;Gs buildin manaer detailin the de!ects in her a"artment, the 3eal
4id 1ocietyGs case "lannin memorandum uidelines and exam"les, a -ity o! 45on
.uildin ;ns"ector Fiolation 8e"ort, and a news"a"er article. The 3ibrary contains
sections o! the Franklin 7istrict -ourt 4ct and the Franklin 8eal Pro"erty -ode, as
well as two cases. State v. #iller /-ebr$ary 2..;2 MPT*14 ;n this item,
a""licants are em"loyed by the 1tateGs 4ttorney and are assistin in the
"rosecution o! the de!endant, Tom Miller, on two counts o! ara5ated assault
in5ol5in domestic 5iolence. Pursuant to the Franklin /5idence -ode, the
"rosecution has i5en notice that it intends to introduce e5idence o! three "rior
acts o! 5iolence committed by the de!endant aainst Jan 4dams and her dauhter,
1ara. Ms. 4dams, 1ara, and the de!endant used to li5e toether. 7e!ense counsel
has ob6ected to the introduction o! this >other acts@ e5idence and the court has
ordered both sides to submit brie!s on the issues raised in de!ense counselGs
ob6ection. The File consists o! the instructional memo !rom the su"er5isin 1tateGs
4ttorney, which sets !orth the three rounds o! de!ense counselGs ob6ection, an
o!!ice memo "rescribin the !ormat and contents o! brie!s, and a transcri"t o! a
"olice inter5iew with Jan 4dams. The 3ibrary contains 5arious sections o! the
Franklin /5idence -ode and the Franklin Penal -ode, as well as two a""ellate
cases.
2..0
4n re Franklin Foru" 1/$ly 2..02 MPT*23 ;n this "er!ormance test, a""licants=
law !irm re"resents the Franklin Forum , a news"a"er that is about to "ublish an
ex"osP on 0uestionable sales "ractices used by se5eral local laser eye surery
com"anies. 1ome o! the in!ormation !or the ex"osP was obtained by three Forum
re"orters who took 6obs with the laser eye surery com"anies as Q"atient
counselorsQ without re5ealin that they were re"orters !or the Forum . The
Forum=s "ublisher has decided to "ublish the ex"osP but has asked a""licants= law
!irm !or an o"inion on the leal "rotections and leal risks associated with
"ublishin the ex"osP. 4""licants= task is to dra!t a two?"art ob6ecti5e
memorandum to the su"er5isin "artner analyBin I1J whether the First
4mendment "rotects the Forum !rom liability !or !raud, breach o! duty o! loyalty,
and tres"ass as a result o! the re"orters= actionsO and I2J whether the First
4mendment "rotects the Forum !rom liability to the laser eye surery com"anies
!or damaes to their re"utations, i.e., "ublication damaes. The File contains the
su"er5isin "artner=s instructin memoO excer"ts o! the "artner=s inter5iew with
the Forum&s "ublisherO and the re"orters= memo to the Forum&s news editor
describin their in5estiation. The 3ibrary consists o! two cases that bear on the
sub6ect. In re Suare& 1-ebr$ary 2..02 MPT*13 ;n this "er!ormance test item,
a""licantsG law !irm re"resents -armen 1uareB, who o"erates a restaurant in a
buildin owned by /liBabeth Mur"hy. 7urin 1uareBGs tenancy, the city ordered
that existin commercial buildins, includin the buildin housin 1uareBGs
restaurant, undero mandatory seismic retro!ittin as "art o! the cityGs earth0uake
haBard reduction "roram. Mur"hy undertook and "aid !or the retro!ittin and is
now is demandin, 5ia a letter !rom her attorney, that 1uareB reimburse her !or
the L(2,000 she "aid to ha5e the retro!ittin done. Mur"hy claims that 1uareB, as
the tenant, is liable !or the costs associated with the city?mandated retro!ittin.
4""licants are asked to dra!t a letter to Mur"hyGs attorney ex"lainin why 1uareB
is not liable !or the cost o! the retro!ittin and will not reimburse Mur"hy. The File
contains the "artiesG leaseAa commercial lease !orm entitled >Net 3ease@ to which
the "arties made extensi5e re5isions, so that it di!!ers substantially !rom its
oriinal !orm. The File also includes the cityGs seismic retro!ittin order, a lease
renewal letter, Mur"hyGs attorneyGs demand letter, and a news"a"er article on the
cityGs earth0uake haBard reduction initiati5e. The 3ibrary contains two Franklin
cases on the sub6ect.
2..2
State v. 3weedy 1/$ly 2..22 MPT*13 4""licants, assistant district attorneys,
are asked to dra!t a "ersuasi5e memorandum to the district attorney con5incin
him that there is su!!icient e5idence to seek a !elony indictment aainst James
Tweedy on two counts o! endanerin the wel!are o! a child. 4""licants are also
asked to identi!y additional !acts that would assist in "rosecutin Tweedy !or the
death o! his two youn children in an a"artment !ire. 2n the niht in 0uestion,
Tweedy, a sinle "arent, "ut the children to bed, secured the bedroom door,
locked the a"artment door, and went out with !riends, lea5in the children alone.
:hile Tweedy was out, a !ire started in a de!ecti5e TF set that he had le!t on. 4n
unidenti!ied 5isitor tried to rescue the children, but couldnGt enter the bedroom
because o! the way Tweedy had secured it. Tweedy claims that a neihbor had
areed to watch the children. The neihbor is re"orted at one "lace in the record
to ha5e said she declined TweedyGs re0uest, and in another "lace that Tweedy
ne5er asked her to watch the children on the niht in 0uestion. 4s "art o! their
in5estiation, the "olice learned that there was a small electrical !ire in TweedyGs
same a"artment !our years earlier, which started when TweedyGs late wi!e le!t a
curlin iron on. No one was home at the time o! that !ire. The File contains "olice
and !ire marshal re"orts, a memorandum !rom the -ounty Medical /xaminer
assinin the cause o! death, and a transcri"t o! a "olice inter5iew with Tweedy.
The 3ibrary consists o! excer"ts o! the Franklin CendanerinC statute as well as
excer"ts !rom the Franklin 8ules o! /5idence and two cases.
In re Franklin Construction Co"pany 1-ebr$ary 2..22 MPT*13< 4""licantsG
law !irm has been retained by 8al"h 7irksen, the -/2 o! Franklin -onstruction
-om"any IF--J, !or ad5ice on F--Gs !inancial obliations to its !ormer 6oint
5enturer, M7;. ;nitially, F-- obtained an exclusi5e riht to neotiate with the local
8ede5elo"ment 4ency I4encyJ to "urchase land !or and build a L(+ million
hotel, but F-- was unable to secure the needed !inancin be!ore its exclusi5e
riht was about to ex"ire. F-- then souht M7;Gs ex"ertise to secure !inancin.
The 4ency ranted F-- an extension o! its exclusi5e neotiation riht "ro5ided
that F-- de"osit L(+0,000 with the 4ency. M7; ad5anced F-- the L(+0,000
de"osit in consideration o! an 4ssinment 4reement in which F-- assined its
exclusi5e neotiation riht to M7;. M7; and F-- then sined a Joint Fenture
4reement that detailed how "ro!its would be distributed, but was silent on how
losses would be shared. The F--?M7; 6oint 5enture was unable to secure loans,
thus "rom"tin the 4ency to terminate F--Gs exclusi5e neotiation riht. The
4ency ke"t the L(+0,000 de"osit, claimin it was non?re!undable. M7; then a5e
F-- notice that it was oin to terminate the Joint Fenture 4reement and
demanded that F-- reco5er the L(+0,000 !rom the 4ency and "ay back that
sum. 4""licantsG task is to dra!t an o"inion letter ad5isin 7irksen, a non?lawyer,
what F--Gs obliations are under the Joint Fenture 4reement, the 4ssinment
4reement, and Franklin case law. The File consists o! an instructin memo !rom
the "artner, an excer"t !rom the "artnerGs inter5iew with 7irksen, the 4ssinment
4reement, the Joint Fenture 4reement, and 5arious related documents. The
3ibrary contains "ro5isions o! the Franklin .usiness 4ssociations -ode and two
cases.
4""licantsG law !irm has been retained by 8al"h 7irksen, the -/2 o! Franklin
-onstruction -om"any IF--J, !or ad5ice on F--Gs !inancial obliations to its
!ormer 6oint 5enturer, M7;. ;nitially, F-- obtained an exclusi5e riht to neotiate
with the local 8ede5elo"ment 4ency I4encyJ to "urchase land !or and build a
L(+ million hotel, but F-- was unable to secure the needed !inancin be!ore its
exclusi5e riht was about to ex"ire. F-- then souht M7;Gs ex"ertise to secure
!inancin. The 4ency ranted F-- an extension o! its exclusi5e neotiation riht
"ro5ided that F-- de"osit L(+0,000 with the 4ency. M7; ad5anced F-- the
L(+0,000 de"osit in consideration o! an 4ssinment 4reement in which F--
assined its exclusi5e neotiation riht to M7;. M7; and F-- then sined a Joint
Fenture 4reement that detailed how "ro!its would be distributed, but was silent
on how losses would be shared. The F--?M7; 6oint 5enture was unable to secure
loans, thus "rom"tin the 4ency to terminate F--Gs exclusi5e neotiation riht.
The 4ency ke"t the L(+0,000 de"osit, claimin it was non?re!undable. M7; then
a5e F-- notice that it was oin to terminate the Joint Fenture 4reement and
demanded that F-- reco5er the L(+0,000 !rom the 4ency and "ay back that
sum. 4""licantsG task is to dra!t an o"inion letter ad5isin 7irksen, a non?lawyer,
what F--Gs obliations are under the Joint Fenture 4reement, the 4ssinment
4reement, and Franklin case law. The File consists o! an instructin memo !rom
the "artner, an excer"t !rom the "artnerGs inter5iew with 7irksen, the 4ssinment
4reement, the Joint Fenture 4reement, and 5arious related documents. The
3ibrary contains "ro5isions o! the Franklin .usiness 4ssociations -ode and two
cases.
2..1
State v. *hite 1/$ly 2..12 MPT*13< 4""licants are attorneys in the Public
7e!ender=s 2!!ice, which re"resents James :hite, who is bein "rosecuted !or
homicide !or killin his brother with a kni!e. 3ess than a year be!ore the homicide,
:hite had attacked the same brother with a kni!e and was chared with
ara5ated assault. The Public 7e!ender=s 2!!ice also re"resents :hite on the
assault chare, which is "endin. 4 Public 7e!ender sta!! social worker inter5iewed
:hite a!ter his arrest !or the assault. 7urin that inter5iew, :hite made
admissions, denials, and related statements about the assault and his !eelins
toward his brother. <e also told the sta!! social worker about his mental health
"roblems and treatment history. The social worker wrote a re"ort based on her
inter5iew and a5e it to :hite=s "ublic de!ender, who relied on the in!ormation in
the re"ort to et :hite released to a treatment !acility. The "rosecutor has now
sub"oenaed the social worker=s re"ort in the ho"e o! usin :hite=s statements
about the assault to su""ort an indictment !or homicide. 4""licants are instructed
to write an in camera brie! in su""ort o! a motion to 0uash the sub"oena aruin
that the communications between :hite and the social worker are "ri5ileed
under the social worker?client and9or attorney?client "ro5isions o! the Franklin
/5idence -ode. The File includes a memorandum on how to write "ersuasi5e
brie!s, the sub"oena, the motion to 0uash, the attorney=s notes, and the social
worker=s re"ort. The 3ibrary contains two cases and "ortions o! the Franklin
/5idence -ode.
The MPT has been tested on the New York bar exam since July 2001. Followin is
a breakdown o! the writin !ormats on the MPT com"onent o! the New York bar
exam since July 2001#
Type
All
Exams
% of
Appearance
Feb
Exam
% of
Appearance
July
Exam
% of
Appearance
Persuasive Brief $ 2%& ' ((& ( 2(&
Objective Memorandum ' 1)& 2 1$& 2 1+&
Persuasive
Memorandum
( 12& 1 %& 2 1+&
Case Planning
Memorandum
1 '& 0 0& 1 %&
Letter Brief 1 '& 0 0& 1 %&
Letter to Opposing
Counsel
1 '& 1 %& 0 0&
Memorandum/Cause of
Action
1 '& 0 0& 1 %&
Opinion Letter 1 '& 1 %& 0 0&
Argument section of the
Brief
1 '& 0 0& 1 %&
Leave Behind
(Persuasive
Memorandum)
1 '& 1 %& 0 0&
Brief Objective
Memorandum Closing
Argument
1 '& 1 %& 0 0&
Memorandum of
Contract !edraft
1 '& 0 0& 1 %&
Persuasive Letter 1 '& 1 %& 0 0&
"#o$Part Memorandum 1 '& 0 0& 1 %&
"otal 25 12 10
4ccordin to N-./, better MPT answers will#R !ollow instructions "recisely Ie.. i!
the assinment is to dra!t an arument, do not "roduce an answer that is
ob6ecti5e in toneJOR write only what is asked Ie.. i! the task is to write only the
arument "ortion o! a brie!, a""licants should not write a se"arate !act sectionJO R
ha5e discrete sections !or each issue with coent descri"ti5e headins "recedin
each o! the issuesO R address rele5ant issues in order Ie.. liability be!ore
damaesJOR make ex"ress statements rather than lea5e statements o"en to
inter"retationOR note where interests are "rimary 5ersus where interests are
secondaryOR reconiBe inconsistencies or i! com"onents are inde"endent and
ex"lain soOR note whether an issue is one o! !irst im"ression in FranklinOR note i!
an obliation is ethical 5ersus lealOR cite the a""licable rules and case lawOR note
which "rior decisions are rele5ant and "recedentialOR identi!y multi?!actor tests
and discuss whether all the elements are "resentOR em"hasiBe the rele5ent
elements o! the laws in 0uestionO R distinuish lower court rulins !rom hiher
court rulins Ie.. a""ellate rulin trum"s trial court rulinJOR reconiBe con!lictin
authorities and !ormulate a res"onse accordinly Ie.. i! a case "re?dates a
statute, state whether the case is still ood lawJOR antici"ate counter?arumentsOR
"resent "rinci"led 6usti!ications !or the conclusion chosen, rooted in the law and
the !acts o! the caseO R end a conclusion with a statement such as >For all the
!oreoin reasons ....CO andR look like one would ex"ect to see "roduced by an
attorney Ino "oor rammar or miss"ellinsJ.
MPT-ONE
MPT - Palindrome Recording Contract
Examinees' law firm represents the four members of the rock band Palindrome, who hae retained it to
negotiate a recording contract with Pol!phon, an independent recording label" Pol!phon has presented the
band with a detailed contract, and examinees are asked to redraft certain proisions of that contract to
comport with the band's contractual demands and ob#ecties" $n particular, the band is concerned about
artistic control of its recordings, licensing of the band's trademark, and use of the band's images and
trademark for marketing purposes" Examinees are asked not onl! to redraft those contract proisions but
also to explain wh! changes are being made to each, and to anal!%e legal aspects or complications
inoled with each proision, if there are an!" The &ile contains the instructional memorandum, a
transcript of an interiew b! the assigning partner with the leader of the band, an agreement among the
band members concerning the diision of income, and selected proisions of the recording contract" The
'ibrar! contains a &ranklin statute concerning contracts for personal serices and two cases discussing the
assignment and licensing of trademarks"
First Answer to MPT
To( 'ei Morris &rom( Examinee
)ate( *ul! +,, -,.+
Re( Palindrome Recording Contract
This memorandum addresses the proposed contract for our client Palindrome, doing business as
Palindrome Partners" The purpose of the memorandum is to identif! the proisions in the contract that
re/uire reision to satisf! the client's wishes as determined in !our recent interiew with 0tto 1m!th" This
memorandum identifies four proisions in the proposed contract that need to be redrafted, proides
suggested language for the contract, and identifies the legal #ustifications for the changed proisions" The
core areas of concern identified in !our interiew and also present in the contract language are( .2
duration of the contract and number of albums that must be produced3 -2 client's rights to control the
artistic production process and release of albums3 +2 client's rights to approe marketing in protection of
the band's public image, and to retain general control oer /ualit! of licensed products bearing that
trademark3 and 42 retention of the Palindrome trademark"
.2 )uration of the Contract(
1ection +",+" This section establishes that Pol!phon has the right to hold Palindrome to the contract for at
least 5 one !ear periods" This ma! in fact be longer if the band does not produce one album per !ear" The
proposed reision follows, and changes hae been underlined(
The initial contract period will begin on the date of this 6greement and will run for one !ear" 7ou hereb!
grant Pol!phon three 8+2 separate options, each to extend the term of this agreement for one additional
Contract Period of one !ear per option 890ption period92" $n the eent that !ou do not fulfill !our
Recording Commitment for the initial Contract Period or an! 0ption Period, that period will continue to
run and the next option Period will not begin until the recording Commitment in /uestion has been
fulfilled" This contract ma! not be extended b! either part! be!ond four !ears of the date hereof"
Mr" 1m!th indicated that flexibilit! was one of the client's most important concerns" :e further expressed
that the band feels that a duration of three albums or four !ears is sufficient" 6s written, the contract could
be extended for a period be!ond eight !ears if the band does not produce an album per option period"
;nder 1ection -5<<8b2 of the &ranklin 'abor Code a recording contract cannot be held oer for more than
., !ears" =ecause the client desires a much shorter time frame, this is an area for negotiation" The law
does not proide default terms sufficient to satisf! the client's needs" The terms of this section hae been
modified to reduce the contract to three or four !ears at maximum"
-2 6rtistic Production and Release Rights(
1ection 4",." This section establishes that Pol!phon has the exclusie rights and discretion to determine
the contents of each album, to assign producers, and to decide which albums and master tracks are
released to the public" Mr" 1m!th has indicated that the client's preferences are directl! to the opposite"
The proposed reision follows, and changes hae been underlined(
Pol!phon shall consult with the 6rtist, which shale retain the sole discretion to make final determinations
of the Masters to be included in each 6lbum, and shall hae the sole authorit! to select the produces who
shall collaborate on production of each Master and each 6lbum"
The client desires complete artistic control" This clause has been redrafted to meet the client's needs" This
is a core point for negotiation, but it is a matter of contract to for the parties to decide" The 'aw on point
does not address specific matters of artistic control rights, which appear to be sub#ect to part! autonom!"
+2 Client's Marketing 6pproal > ?ualit! Control Rights(
1ection 5",-" This section ests Pol!phon with the exclusie discretion to manage the client's likeness and
name in marketing and promotional efforts" The client has indicated a desire to retain final authori%ation
oer marketing materials to ensure that the band's image and feelings concerning drug and alcohol use are
properl! respected" $t should be noted that seeral of the proposed changes to this section are also
intended to impact the client's abilit! to retain control oer the Palindrome trademark, an issue described
in further detail in the final section of this memorandum" The proposed reision follows, and changes
hae been underlined(
6rtist hereb! authori%es Pol!phon, sub#ect to 6rtist's final written approal for each new use and for each
renewal, to use 6rtist's, and each member of 6rtist's, name, image, and likeness in connection with an!
marketing or promotional efforts, and to use the Masters in con#unction with the adertising, promotion,
or sale of an! goods or serices" Prior to seeking 6rtist's final written approal, Pol!phon warrants that it
will onl! use 6rtist's trademark, names and likeness, in the production and distribution of goods that meet
general /ualit! control standards for merchandise in the rock recording industr!" Pol!phon further
warrants that 6rtist shall hae the right to inspect samples of goods and to reiew proposals for
merchandise manufacturing before an! final orders are placed" @othing in the preceding paragraph shall
be construed as giing
Pol!phon the right to engage in an! marketing actiities or use of the Palindrome trademark for goods
associated with the use, production, consumption of alcohol, tobacco products, or illicit drugs or drug
paraphernalia"
The client wishes to retain control of both the /ualit! of the goods produced bearing its trademarks and
the t!pes of marketing with which the trademark is used" The changes proposed in this paragraph create a
right of final approal in the 6rtist, re/uire that Pol!phon appl! a designated standard of care in producing
goods, and restrict--explicitl!--Pol!phon from using the client's trademark or likeness for promotion of
drugs or alcohol"
The /ualit! control proisions stated in this reised term sere two purposes" &irst, the client has
expressed a desire to ensure that fans of the band continue to receie high /ualit! goods" 1econd, because
retaining control of the Palindrome trademark is one of the band's most important wishes in this contract,
re/uiring Pol!phon 8which will become a licensee of the trademark, not an owner, pursuant to the reised
term below2 to exercise a certain degree of care and /ualit! assurance in producing goods bearing the
mark ensures that Palindrome will not be deemed to hae 9abandoned9 the trademark" $n M> P
1portswear, $nc" " Tops Clothing Co", the &ederal Court in the )istrict of &ranklin found that a trademark
license which did not contain an! /ualit! control proisions for the licensee to follow was in fact an
abandonment of the trademark" =! re/uiring specific /ualit! control proisions in this contract, not onl!
will Palindrome maintain its stated commitment to proiding /ualit! goods, but it ensures that the license
granted to Pol!phon does not result in a loss of rights in the Palindrome trademark"
$n conclusion, these proposed changes will ensure /ualit! goods, restrict use of the band's image in
connection with alcohol and drugs, and help maintain the integrit! of the trademark"
42 Retaining Control of the Palindrome Trademark - 'icensing Rights(
1ection 5",." This section currentl! creates a total transfer of ownership of the Palindrome trademark to
Pol!phon, creates exclusie rights of use in Pol!phon and grants Pol!phon the first to all income from the
trademark" Mr" 1m!th indicates that Palindrome is willing to allow Pol!phon to participate in
merchandising and to use the Palindrome Trademark for limited purposes" The client desires a reenue
sharing scheme for licensed products sold b! Pol!phon so long as the client retains the independent right
to use, market, and profit from the trademark with its own alternatie licensing endeaors" This section
includes an intentional redundanc! on the sub#ect of /ualit! control to ensure that an abandonment of
trademark, discussed aboe, does not result" The proposed reision follows, and changes hae been
underlined(
6rtist warrants that it owns the federall! registered trademark P6'$@)R0ME 8Reg" @o" <,4-+,5552 and
hereb! grants Pol!phon a non-exclusie license, running concurrentl! with the duration of this
6greement, including an! 0ption Periods" Pol!phon ma! use the trademark on an! products, so long as
Pol!phon first obtains written approal from the 6rtist" Pol!phon further warrants that it will use this
license to produce and distribute goods that meet general /ualit! control standards for merchandise in the
rock recording industr!" Pol!phon shall be entitled to retain twent!-fie percent 8-<ABo2 of income deried
from authori%ed uses of the Palindrome trademark3 howeer, the parties ma! agree in increase this
percentage on an item-b!-item basis"
The changes proposed in this section are significant" &irst, the primar! term in Pol!phon's proposal called
for an outright transfer of the trademark" This contraened client's wishes" Moreoer, under Panama :ats
of &ranklin " Elson Enterprises, ''C, the &ederal Court in &ranklin further clarified the rule that an
9assignment in gross9 or a 9naked transaction9 ma! cause a trademark assignor to lose all rights in the
trademark" 6s proposed, the contract affected such a transfer because the transfer was for the trademark
alone--it did not also re/uire an! of the Palindrome Partner's business assetsCnot een good will" The
proisions of the contract calling for producing new recordings are not the transfer of an asset, but the
creation of new work product on Pol!phon's behalf" 6ltering the proision to a non-exclusie license
satisfies the client's needs and also ensures that the trademark is not lost due to the creation of a 9naked
assignment"9
The reised proision further approaches the client's wishes b! altering the terms of pa!ment" The client
has indicated that Palindrome is willing to pa! up to a -<ABo commission on goods sold under the license
to Pol!phon" This proision implements this ob#ectie" The 9alteration9 clause is merel! suggested as a
good faith measure in contract negotiations"
'astl!, the inclusion of /ualit! control proisions and Palindrome's right of approal further ensure that
the trademark cannot be lost on grounds of abandonment as discussed aboe in 1ection + of this
memorandum"
Second Answer to MPT
T0( 'ei Morris
&R0M( Examinee
)6TE( *ul! +,, -,.+
RE( Palindrome Recording Contract
De hae been retained to represent the members of the rock band Palindrome" The band has receied an
offer from Pol!phon, an independent record label, which wants to sign the band to a long term contract"
Pol!phon has sent the band a complex and oluminous contract for the band to reiew" The band has
asked us to negotiate the contract with the record label" $n addition to ensuring the contract complies with
the law, the band has asked us to redraft the proisions to meet the band's wishes and concerns" The =and
would like the contract to assure the following 8.2 treat artists well and reasonabl!, 8-2 the contract does
not extend be!ond + albums at most and onl! for 4 !ears, 8+2 that the band retains artistic integrit!,
including the abilit! to make all the artistic decisions about what songs go into the albums, the recordings,
the producers the! want, and what gets released, 842 the band keeps control oer eer!thing that has to do
with merchandise, including ensuring that the merchandise is of high /ualit!, using high /ualit! materials,
8<2 keep the merchandise deals non-exclusie, 8E2 the band is willing to gie Pol!phon a maximum of .B4
of the reenue of the merchandise that the! produce and sell, but, the bank 8a2 wants to keep trademark
rights, 8b2 be able to use the trademark themseles without giing profits to Pol!phon" This memorandum
identifies the proisions of the contract presented b! Pol!phon that need to be redrafted to meet the band's
wishes and to compl! with the applicable law" &ollowing each redrafted proision, there are the reasons
for the redraft, including legal reasons 8if an!2 for changing the proision to help guide !ou when
conducting negotiations with Pol!phon oer these points"
$" )E&$@$T$0@1
0riginal Proision( 96lbum9 shall mean a sufficient number of Masters embod!ing 6rtist's performances
to comprise one 8.2 or more compact discs, or the e/uialent, of not less than fort!-fie 84<2 minutes of
pla!ing time and containing at least ten 8.,2 different masters"
6" Redrafted proision
96lbum9 shall mean a sufficient number of Masters embod!ing 6rtist's performances to comprise one 8.2
or more compact discs"
=" Rationale
)uring the interiew with 0tto 1m!th, a member of the band Palindrome, 1m!th indicated that the band
wants to retain artistic integrit!, including the abilit! to make all of the artistic decisions about what songs
to put on the albums, the recordings, the producers the! what, and what gets released" To presere their
autonom! as artists and abilit! to make decisions about what goes on each album, the proisions re/uiring
a specific length and number of songs to be placed on each album has remoed"
$$" TERM 6@) )E'$FER7 0='$G6T$0@1
6" Proision +",.
0riginal Proision( +",." )uring each Contract Period, !ou will delier to Pol!phon commerciall!
satisfactor! Masters" 1uch Masters will embod! the featured ocal performances of 6rtists of
contemporar! selections that hae not been preiousl! recorded b! 6rtist, and each Mater will contain the
performances of all members of 6rtist"
." Redrafted Proision
)uring each Contract Period, !ou will delier to Pol!phon commerciall! satisfactor! Masters"
-" Rationale
6s part of retaining its artistic integrit!, the band wants to retain the abilit! to make decisions about its
recordings" Presumabl!, this includes the abilit! to determine whether there will be a featured ocal
performance and whether all the members of the band will perform on each song" Therefore, the proision
re/uiring a featured ocalist and that each member of the band perform on each song has been remoed
and the proision re/uiring the albums to include selections that hae not preiousl! been recorded has
been eliminated"
=" Proision +",-
0riginal Proision( +",-" )uring each Contract Period, !ou will perform for the recording of Masters and
!ou will delier to Pol!phon those Masters 8the 9Recording Commitment92 necessar! to meet the
following schedule( 8see excerpts from contract, which states . album for the initial Contract Period and
.album for each option period2"
." Redrafted Proision
)uring the Contract Period, !ou will delier to Pol!phon at least one, but no more than + commerciall!
satisfactor! Masters"
-" Rationale
&irst, as stated aboe, the band wants to retain its artistic integrit!, which includes decisions about what
songs to put on the albums and what gets released" Therefore, the part of the proision that re/uires the
band to release at least one album each !ear has been eliminated"
1econd, the band stated that the! do not want to be tied with the label for too long, unless the label does a
reall! good #ob" The band also said that the! do not want to be bound to record more than + albums and
do not want to be tied to the label for more than 4 !ears" Therefore, the proisions re/uiring the band to
produce an album during each Contract Period 8which is for a !ear, with 5 separate options -- which
would re/uire the band to produce 5 albums, .each !ear2 has been reised"
C" Proision +",+
0riginal Proision +",+" The initial Contract Period will begin on the date of this 6greement and will run
for one !ear" 7ou hereb! grant Pol!phone eight 852 separate options, each to extend the term of this
6greement for one additional Contract Period of one !ear per option 890ption Period92" $n the eent that
!ou do not fulfill !our Recording Commitment for the initial Contract Period or an! 0ption Period, that
period will continue to run and the next 0ption Period will not begin until the Recording Commitment in
/uestion has been fulfilled
." Redrafted Proision
+",+ The initial Contract Period will begin on the date of this 6greement and will run for one !ear" 7ou
hereb! grant Pol!phone three 8+2 separate options, each to extend the term of this 6greement for one
additional Contract Period of one !ear per option 890ption Period92"
-" Rationale
&irst, the proision re/uiring the 0ption Period to continue to run if the band does not fulfill its recording
commitment has been remoed because it does not compl! with the applicable law" 1pecificall!, the
proision does not compl! with &ranklin 'abor Code H -5<<8a2 and 8b2"
;nder &ranklin 'abor Code H -5<<8b2, a contract to render personal serices in the production of
phonorecords in which sounds are first fixed ma! not be enforced against the person contracting to render
the serice be!ond ., !ears from the commencement of serice under it" This is a contract to render
personal serices3 specificall! the band is contracting to record music" 6ccording to the statutor!
definition, pla!ing songs on an album meets the definition of production of phonorecords, because the!
are audio-onl! reproduction manufactured and distributed for home use" $n the original proision, there
was no end date for the running of the obligation3 hence, the obligation to perform personal serices in the
production of phonorecords could potentiall! extend be!ond ., !ears from the commencement of the
contract"
Therefore, to aoid iolating this temporal limitation in the statute, the proision has been remoed"
;nder &ranklin 'abor CodeH -5<<8a2, a contract to render personal serice ma! not be enforced against
the person contracting to render the serice be!ond fie !ears from the commencement of serice under
it" 6s stated aboe, because the original proision does not contain an end date for the running of the
obligation, the original proision implies that Pol!phon has the right to enforce the contract for personal
serices for an indefinite number of !ears until the band fulfills its Recording Commitment" :oweer,
under &ranklin 'abor Code H -5<<8b2, an emplo!er cannot enforce a contract to render personal serices
be!ond fie !ears from the commencement of the serice under it" Therefore, to aoid iolating this
temporal limitation on Pol!phon's right to enforce the band's obligations under the contract, the proision
has been remoed"
1econd, the proision granting Pol!phon eight 852 separate options, each to each to extend the term of this
6greement for one additional Contract Period of one !ear per option 890ption Period92, has been reised
to better meet the band's wishes" The band stated that it does not want to be tied to the record label for
more than 4 !ears" Therefore, the number of 0ption Periods aailable to Pol!phone has been reduced to +,
so that the initial contract period will be for .!ear, with an option to renew for additional one !ear periods
+ times, creating a maximum of a 4 !ear contract with Pol!phone"
$$$" 6PPR0F6'1
0riginal Proision( 4",." Pol!phon shall, in its sole discretion, make the final determination of the
Masters to be included in each 6lbum, and shall hae the sole authorit! to assign one or more producers
who shall collaborate with !ou on the production of each Master and each 6lbum"
6" Reised Proision
4",. Palindrome shall, in its sole discretion, make the final determination of the Masters to be included in
each 6lbum, and shall hae the sole authorit! to assign one or more producers who shall collaborate with
!ou on the production of each Master and each 6lbum"
=" Rationale
The band stated that it wants to retain artistic integrit!" 1pecificall!, the band stated that it wants to retain
the abilit! to make all of the artistic decisions about what songs go into the albums, the recordings, the
producers the! want, and what gets released" Therefore, the proision has been changed to gie
Palindrome the authorit! to make these decisions, rather than Pol!phon"
$F" MERC:6@)$1E, M6RIET$@G, 6@) 0T:ER R$G:T1
6" Proision 5",.
0riginal Proision( 5",." 6rtist warrants that it owns the federall! registered trademark P6'$@)R0ME
8Reg" @o" <,4-+,5552 and hereb! transfers all right, title, and interest in that trademark to Pol!phon"
Pol!phon ma! use the trademark on such products as, in its sole discretion, it sees fit to produce or
license, and all income from such use shall be Pol!phon's alone"
." Reised Proision
5",." 6rtist warrants that it owns the federall! registered trademark P6'$@)R0ME 8Reg" @o" <,4-+,5552
and gies Pol!phon the non-exclusie license to use the trademark" Pol!phon use of the trademark is
sub#ect to Palindrome's approal to assure the /ualit! of the merchandise" Pol!phon will receie .B4 of the
income from all of the goods produced with the trademark, with the remainder of the income going to
Palindrome" Pol!phon is not entitled to income from the use of the trademark on products that it does not
make or sell"
-" Rationale
&irst, the bank wants to keep its merchandise deals non-exclusie"
Therefore, a proision proiding that Pol!phon's license to use the trademark is non-exclusie is added to
the proision"
1econd, the band want to keep control oer eer!thing that has to do with merchandise bBc that is a real
source of income for them" $n addition, the band feels that it is important to gie fans good alue for
mone! b! using top-/ualit! materials and making sure the merchandise is of high /ualit!" Therefore,
information was added to ensure that the band, not Pol!phon has the abilit! to approe the use of their
trademark on products to ensure that the product is up to their standard of /ualit! for their fans"
Third, the band is willing to gie Pol!phon a .B4 of the reenue for the stuff that the! produce and sell3
howeer, the band 8.2 want to keep trademark, and 8-2 hae to be able to use the trademark ourseles
without giing Pol!phon a share of the mone! from the products that it doesn't make or sell" 6s a
conse/uence, the language transferring all right, title, and interest in the trademark has been remoed"
6nd the language that gies Pol!phon all income from the use of the trademark has been reised"
&ourth, the proision needed to be ad#usted to compl! with the law of &ranklin" 6ccording to M>P
1portswear, $nc" " Top Clothing Co", a licensee will lose its right to the trademark b! failing to assure the
public of an! standard of /ualit! of the goods and serices manufactured and sold under the mark" $n
M>P 1portswear, M>P designed T-shirts and other apparel and is the owner of a registered trademark,
which it uses as the brand name of its shirts" M>P licensed the use of its trademark to Top Clothing" Top
Clothing began making clothing using the trademark, but the clothing was of low /ualit!" The court found
that it is a basic tenet of the trademark law that an! trademark proprietor who licenses the trademark to
another must assure, in the license agreement, that the goods or serices offered b! the licensee meet the
standards of /ualit! of the trademarked goods established b! the trademark proprietor" :ere, Palindrome
has a high standard of /ualit! for the merchandise that it produces for its fans" Therefore, the licensee
here, Pol!phon must meet the standards established b! the trademark proprietor, Palindrome" 6s a
conse/uence, a clause allowing Palindrome's approal to assure the /ualit! of the merchandise was added"
=" Proision 5",-
0riginal Proision( 5",-" 6rtist hereb! authori%es Pol!phon, in its sole discretion, to use 6rtist's, and each
member of 6rtist's name, image, and likeness in connection with an! marketing or promotional efforts
and to use the Masters in con#unction with the adertising, promotion, or sale of an! goods or serices"
." Reised Proision
5",-" 1ub#ect to 6rtist's approal, 6rtist hereb! authori%es Pol!phon to use 6rtist's, and each member of
6rtist's name, image, and likeness in connection with marketing or promotional efforts and to use the
Masters in con#unction with the adertising, promotion, or sale of goods or serices, excluding the sale of
goods or serices relating to alcoholic beerages or consumption"
-" Rationale
0ne of the band members, 6$, almost died because he was hit b! a drunk drier" 6s a result, the band has
become fanatic about drugs and boo%e, swearing off their use" =ecause of 6l's accident, the band wants to
get the message out about drunk driing and do not want to be associated with drinking and doing drugs"
The! specificall! told us that the! do not want their songs used in commercials promoting the sale of
alcohol or their images used in adertisements promoting the sale of alcohol" 6s a result, the proision
was reised so that the band has approal rights and so their name, music, or image will not be used to
promote the sale or consumption of alcohol"
MPT RELEASED ANSWERS ON THE NEW YORK BAR EXAM
JLY !""# - JLY !"#$ %!& MPTS'
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FEBRARY !""/ - PERSAS,-E MEMORANDM************************************************************************************************************0+
R0@6') F" )MF 8MPT--2"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""L4
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JLY !""2 - MEMORANDM4)ASE OF A)T,ON************************************************************************************************************2#
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Answer to MPT.....................................................................................................................................................................82
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FEBRARY !""2 - OBJE)T,-E MEMORANDM**************************************************************************************************************2/
$@ RE '$16 PEE' 8MPT--2""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""5K
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JLY !""0 - PERSAS,-E BR,EF1 DRAFT AR.MENT SE)T,ON*******************************************************************************/0
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Answer to MPT.....................................................................................................................................................................98
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FEBRARY !""0 - PERSAS,-E LETTER*************************************************************************************************************************#"$
G'$CIM6@ F" P:0E@$J C7C'E1, $@C" 8MPT--2"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""".,+
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JLY !""3 - OBJE)T,-E MEMORANDM************************************************************************************************************************#"/
'6R10@ RE6' E1T6TE &$'E 8MPT-.2"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""".,K
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FEBRARY !""3 - PERSAS,-E BR,EF*****************************************************************************************************************************##0
1T6TE 0& &R6@I'$@ F" =;T'ER 8MPT--2""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""..L
Answer to MPT...................................................................................................................................................................118
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JLY !""& - LETTER BR,EF**************************************************************************************************************************************************#!+
$@ RE =R$G:6M 8MPT-.2""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""".-4
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FEBRARY !""& - OBJE)T,-E MEMORANDM************************************************************************************************************#$!
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JLY !""+ - )ASE PLANN,N. MEMORANDM**************************************************************************************************************#$0
GR6:6M RE6'T7, $@C" F" =RE@)6 C:6P$@ 8MPT--2"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""".+L
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FEBRARY !""+ - PERSAS,-E BR,EF1 E-,DENT,ARY BR,EF*********************************************************************************#++
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JLY !""$ - TWO-PART MEMORANDM**************************************************************************************************************************#&!
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FEBRARY !""$ - LETTER TO OPPOS,N. )ONSEL**************************************************************************************************#&/
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JLY !""! - PERSAS,-E MEMORANDM**********************************************************************************************************************#3&
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Answer to MPT...................................................................................................................................................................166
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FEBRARY !""! - OP,N,ON LETTER1 TO .O-T A.EN)Y******************************************************************************************#0#
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JLY !""# - PERSAS,-E BR,EF1 ,N SPPORT OF A MOT,ON***********************************************************************************#03
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Answer to MPT...................................................................................................................................................................177
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JLY !"#$ ( MEMORANDM OF )ONTRA)T REDRAFT
P6'$@)R0ME REC0R)$@G C0@TR6CT
MPT - Palindrome Recording Contract
Examinees' law firm represents the four members of the rock band Palindrome, who hae retained it to
negotiate a recording contract with Pol!phon, an independent recording label" Pol!phon has presented the
band with a detailed contract, and examinees are asked to redraft certain proisions of that contract to
comport with the band's contractual demands and ob#ecties" $n particular, the band is concerned about
artistic control of its recordings, licensing of the band's trademark, and use of the band's images and
trademark for marketing purposes" Examinees are asked not onl! to redraft those contract proisions but
also to explain wh! changes are being made to each, and to anal!%e legal aspects or complications
inoled with each proision, if there are an!" The &ile contains the instructional memorandum, a
transcript of an interiew b! the assigning partner with the leader of the band, an agreement among the
band members concerning the diision of income, and selected proisions of the recording contract" The
'ibrar! contains a &ranklin statute concerning contracts for personal serices and two cases discussing the
assignment and licensing of trademarks"
Answer to MPT
To( 'ei Morris &rom( Examinee
)ate( *ul! +,, -,.+
Re( Palindrome Recording Contract
This memorandum addresses the proposed contract for our client Palindrome, doing business as
Palindrome Partners" The purpose of the memorandum is to identif! the proisions in the contract that
re/uire reision to satisf! the client's wishes as determined in !our recent interiew with 0tto 1m!th" This
memorandum identifies four proisions in the proposed contract that need to be redrafted, proides
suggested language for the contract, and identifies the legal #ustifications for the changed proisions" The
core areas of concern identified in !our interiew and also present in the contract language are( .2
duration of the contract and number of albums that must be produced3 -2 client's rights to control the
artistic production process and release of albums3 +2 client's rights to approe marketing in protection of
the band's public image, and to retain general control oer /ualit! of licensed products bearing that
trademark3 and 42 retention of the Palindrome trademark"
.2 )uration of the Contract(
1ection +",+" This section establishes that Pol!phon has the right to hold Palindrome to the contract for at
least 5 one !ear periods" This ma! in fact be longer if the band does not produce one album per !ear" The
proposed reision follows, and changes hae been underlined(
The initial contract period will begin on the date of this 6greement and will run for one !ear" 7ou hereb!
grant Pol!phon three 8+2 separate options, each to extend the term of this agreement for one additional
Contract Period of one !ear per option 890ption period92" $n the eent that !ou do not fulfill !our
Recording Commitment for the initial Contract Period or an! 0ption Period, that period will continue to
run and the next option Period will not begin until the recording Commitment in /uestion has been
fulfilled" This contract ma! not be extended b! either part! be!ond four !ears of the date hereof"
Mr" 1m!th indicated that flexibilit! was one of the client's most important concerns" :e further expressed
that the band feels that a duration of three albums or four !ears is sufficient" 6s written, the contract could
be extended for a period be!ond eight !ears if the band does not produce an album per option period"
;nder 1ection -5<<8b2 of the &ranklin 'abor Code a recording contract cannot be held oer for more than
., !ears" =ecause the client desires a much shorter time frame, this is an area for negotiation" The law
does not proide default terms sufficient to satisf! the client's needs" The terms of this section hae been
modified to reduce the contract to three or four !ears at maximum"
-2 6rtistic Production and Release Rights(
1ection 4",." This section establishes that Pol!phon has the exclusie rights and discretion to determine
the contents of each album, to assign producers, and to decide which albums and master tracks are
released to the public" Mr" 1m!th has indicated that the client's preferences are directl! to the opposite"
The proposed reision follows, and changes hae been underlined(
Pol!phon shall consult with the 6rtist, which shale retain the sole discretion to make final determinations
of the Masters to be included in each 6lbum, and shall hae the sole authorit! to select the produces who
shall collaborate on production of each Master and each 6lbum"
The client desires complete artistic control" This clause has been redrafted to meet the client's needs" This
is a core point for negotiation, but it is a matter of contract to for the parties to decide" The 'aw on point
does not address specific matters of artistic control rights, which appear to be sub#ect to part! autonom!"
+2 Client's Marketing 6pproal > ?ualit! Control Rights(
1ection 5",-" This section ests Pol!phon with the exclusie discretion to manage the client's likeness and
name in marketing and promotional efforts" The client has indicated a desire to retain final authori%ation
oer marketing materials to ensure that the band's image and feelings concerning drug and alcohol use are
properl! respected" $t should be noted that seeral of the proposed changes to this section are also
intended to impact the client's abilit! to retain control oer the Palindrome trademark, an issue described
in further detail in the final section of this memorandum" The proposed reision follows, and changes
hae been underlined(
6rtist hereb! authori%es Pol!phon, sub#ect to 6rtist's final written approal for each new use and for each
renewal, to use 6rtist's, and each member of 6rtist's, name, image, and likeness in connection with an!
marketing or promotional efforts, and to use the Masters in con#unction with the adertising, promotion,
or sale of an! goods or serices" Prior to seeking 6rtist's final written approal, Pol!phon warrants that it
will onl! use 6rtist's trademark, names and likeness, in the production and distribution of goods that meet
general /ualit! control standards for merchandise in the rock recording industr!" Pol!phon further
warrants that 6rtist shall hae the right to inspect samples of goods and to reiew proposals for
merchandise manufacturing before an! final orders are placed" @othing in the preceding paragraph shall
be construed as giing
Pol!phon the right to engage in an! marketing actiities or use of the Palindrome trademark for goods
associated with the use, production, consumption of alcohol, tobacco products, or illicit drugs or drug
paraphernalia"
The client wishes to retain control of both the /ualit! of the goods produced bearing its trademarks and
the t!pes of marketing with which the trademark is used" The changes proposed in this paragraph create a
right of final approal in the 6rtist, re/uire that Pol!phon appl! a designated standard of care in producing
goods, and restrict--explicitl!--Pol!phon from using the client's trademark or likeness for promotion of
drugs or alcohol"
The /ualit! control proisions stated in this reised term sere two purposes" &irst, the client has
expressed a desire to ensure that fans of the band continue to receie high /ualit! goods" 1econd, because
retaining control of the Palindrome trademark is one of the band's most important wishes in this contract,
re/uiring Pol!phon 8which will become a licensee of the trademark, not an owner, pursuant to the reised
term below2 to exercise a certain degree of care and /ualit! assurance in producing goods bearing the
mark ensures that Palindrome will not be deemed to hae 9abandoned9 the trademark" $n M> P
1portswear, $nc" " Tops Clothing Co", the &ederal Court in the )istrict of &ranklin found that a trademark
license which did not contain an! /ualit! control proisions for the licensee to follow was in fact an
abandonment of the trademark" =! re/uiring specific /ualit! control proisions in this contract, not onl!
will Palindrome maintain its stated commitment to proiding /ualit! goods, but it ensures that the license
granted to Pol!phon does not result in a loss of rights in the Palindrome trademark"
$n conclusion, these proposed changes will ensure /ualit! goods, restrict use of the band's image in
connection with alcohol and drugs, and help maintain the integrit! of the trademark"
42 Retaining Control of the Palindrome Trademark - 'icensing Rights(
1ection 5",." This section currentl! creates a total transfer of ownership of the Palindrome trademark to
Pol!phon, creates exclusie rights of use in Pol!phon and grants Pol!phon the first to all income from the
trademark" Mr" 1m!th indicates that Palindrome is willing to allow Pol!phon to participate in
merchandising and to use the Palindrome Trademark for limited purposes" The client desires a reenue
sharing scheme for licensed products sold b! Pol!phon so long as the client retains the independent right
to use, market, and profit from the trademark with its own alternatie licensing endeaors" This section
includes an intentional redundanc! on the sub#ect of /ualit! control to ensure that an abandonment of
trademark, discussed aboe, does not result" The proposed reision follows, and changes hae been
underlined(
6rtist warrants that it owns the federall! registered trademark P6'$@)R0ME 8Reg" @o" <,4-+,5552 and
hereb! grants Pol!phon a non-exclusie license, running concurrentl! with the duration of this
6greement, including an! 0ption Periods" Pol!phon ma! use the trademark on an! products, so long as
Pol!phon first obtains written approal from the 6rtist" Pol!phon further warrants that it will use this
license to produce and distribute goods that meet general /ualit! control standards for merchandise in the
rock recording industr!" Pol!phon shall be entitled to retain twent!-fie percent 8-<ABo2 of income deried
from authori%ed uses of the Palindrome trademark3 howeer, the parties ma! agree in increase this
percentage on an item-b!-item basis"
The changes proposed in this section are significant" &irst, the primar! term in Pol!phon's proposal called
for an outright transfer of the trademark" This contraened client's wishes" Moreoer, under Panama :ats
of &ranklin " Elson Enterprises, ''C, the &ederal Court in &ranklin further clarified the rule that an
9assignment in gross9 or a 9naked transaction9 ma! cause a trademark assignor to lose all rights in the
trademark" 6s proposed, the contract affected such a transfer because the transfer was for the trademark
alone--it did not also re/uire an! of the Palindrome Partner's business assetsCnot een good will" The
proisions of the contract calling for producing new recordings are not the transfer of an asset, but the
creation of new work product on Pol!phon's behalf" 6ltering the proision to a non-exclusie license
satisfies the client's needs and also ensures that the trademark is not lost due to the creation of a 9naked
assignment"9
The reised proision further approaches the client's wishes b! altering the terms of pa!ment" The client
has indicated that Palindrome is willing to pa! up to a -<ABo commission on goods sold under the license
to Pol!phon" This proision implements this ob#ectie" The 9alteration9 clause is merel! suggested as a
good faith measure in contract negotiations"
'astl!, the inclusion of /ualit! control proisions and Palindrome's right of approal further ensure that
the trademark cannot be lost on grounds of abandonment as discussed aboe in 1ection + of this
memorandum"
Answer to MPT
T0( 'ei Morris
&R0M( Examinee
)6TE( *ul! +,, -,.+
RE( Palindrome Recording Contract
De hae been retained to represent the members of the rock band Palindrome" The band has receied an
offer from Pol!phon, an independent record label, which wants to sign the band to a long term contract"
Pol!phon has sent the band a complex and oluminous contract for the band to reiew" The band has
asked us to negotiate the contract with the record label" $n addition to ensuring the contract complies with
the law, the band has asked us to redraft the proisions to meet the band's wishes and concerns" The =and
would like the contract to assure the following 8.2 treat artists well and reasonabl!, 8-2 the contract does
not extend be!ond + albums at most and onl! for 4 !ears, 8+2 that the band retains artistic integrit!,
including the abilit! to make all the artistic decisions about what songs go into the albums, the recordings,
the producers the! want, and what gets released, 842 the band keeps control oer eer!thing that has to do
with merchandise, including ensuring that the merchandise is of high /ualit!, using high /ualit! materials,
8<2 keep the merchandise deals non-exclusie, 8E2 the band is willing to gie Pol!phon a maximum of .B4
of the reenue of the merchandise that the! produce and sell, but, the bank 8a2 wants to keep trademark
rights, 8b2 be able to use the trademark themseles without giing profits to Pol!phon" This memorandum
identifies the proisions of the contract presented b! Pol!phon that need to be redrafted to meet the band's
wishes and to compl! with the applicable law" &ollowing each redrafted proision, there are the reasons
for the redraft, including legal reasons 8if an!2 for changing the proision to help guide !ou when
conducting negotiations with Pol!phon oer these points"
$" )E&$@$T$0@1
0riginal Proision( 96lbum9 shall mean a sufficient number of Masters embod!ing 6rtist's performances
to comprise one 8.2 or more compact discs, or the e/uialent, of not less than fort!-fie 84<2 minutes of
pla!ing time and containing at least ten 8.,2 different masters"
6" Redrafted proision
96lbum9 shall mean a sufficient number of Masters embod!ing 6rtist's performances to comprise one 8.2
or more compact discs"
=" Rationale
)uring the interiew with 0tto 1m!th, a member of the band Palindrome, 1m!th indicated that the band
wants to retain artistic integrit!, including the abilit! to make all of the artistic decisions about what songs
to put on the albums, the recordings, the producers the! what, and what gets released" To presere their
autonom! as artists and abilit! to make decisions about what goes on each album, the proisions re/uiring
a specific length and number of songs to be placed on each album has remoed"
$$" TERM 6@) )E'$FER7 0='$G6T$0@1
6" Proision +",.
0riginal Proision( +",." )uring each Contract Period, !ou will delier to Pol!phon commerciall!
satisfactor! Masters" 1uch Masters will embod! the featured ocal performances of 6rtists of
contemporar! selections that hae not been preiousl! recorded b! 6rtist, and each Mater will contain the
performances of all members of 6rtist"
." Redrafted Proision
)uring each Contract Period, !ou will delier to Pol!phon commerciall! satisfactor! Masters"
-" Rationale
6s part of retaining its artistic integrit!, the band wants to retain the abilit! to make decisions about its
recordings" Presumabl!, this includes the abilit! to determine whether there will be a featured ocal
performance and whether all the members of the band will perform on each song" Therefore, the proision
re/uiring a featured ocalist and that each member of the band perform on each song has been remoed
and the proision re/uiring the albums to include selections that hae not preiousl! been recorded has
been eliminated"
=" Proision +",-
0riginal Proision( +",-" )uring each Contract Period, !ou will perform for the recording of Masters and
!ou will delier to Pol!phon those Masters 8the 9Recording Commitment92 necessar! to meet the
following schedule( 8see excerpts from contract, which states . album for the initial Contract Period and
.album for each option period2"
." Redrafted Proision
)uring the Contract Period, !ou will delier to Pol!phon at least one, but no more than + commerciall!
satisfactor! Masters"
-" Rationale
&irst, as stated aboe, the band wants to retain its artistic integrit!, which includes decisions about what
songs to put on the albums and what gets released" Therefore, the part of the proision that re/uires the
band to release at least one album each !ear has been eliminated"
1econd, the band stated that the! do not want to be tied with the label for too long, unless the label does a
reall! good #ob" The band also said that the! do not want to be bound to record more than + albums and
do not want to be tied to the label for more than 4 !ears" Therefore, the proisions re/uiring the band to
produce an album during each Contract Period 8which is for a !ear, with 5 separate options -- which
would re/uire the band to produce 5 albums, .each !ear2 has been reised"
C" Proision +",+
0riginal Proision +",+" The initial Contract Period will begin on the date of this 6greement and will run
for one !ear" 7ou hereb! grant Pol!phone eight 852 separate options, each to extend the term of this
6greement for one additional Contract Period of one !ear per option 890ption Period92" $n the eent that
!ou do not fulfill !our Recording Commitment for the initial Contract Period or an! 0ption Period, that
period will continue to run and the next 0ption Period will not begin until the Recording Commitment in
/uestion has been fulfilled
." Redrafted Proision
+",+ The initial Contract Period will begin on the date of this 6greement and will run for one !ear" 7ou
hereb! grant Pol!phone three 8+2 separate options, each to extend the term of this 6greement for one
additional Contract Period of one !ear per option 890ption Period92"
-" Rationale
&irst, the proision re/uiring the 0ption Period to continue to run if the band does not fulfill its recording
commitment has been remoed because it does not compl! with the applicable law" 1pecificall!, the
proision does not compl! with &ranklin 'abor Code H -5<<8a2 and 8b2"
;nder &ranklin 'abor Code H -5<<8b2, a contract to render personal serices in the production of
phonorecords in which sounds are first fixed ma! not be enforced against the person contracting to render
the serice be!ond ., !ears from the commencement of serice under it" This is a contract to render
personal serices3 specificall! the band is contracting to record music" 6ccording to the statutor!
definition, pla!ing songs on an album meets the definition of production of phonorecords, because the!
are audio-onl! reproduction manufactured and distributed for home use" $n the original proision, there
was no end date for the running of the obligation3 hence, the obligation to perform personal serices in the
production of phonorecords could potentiall! extend be!ond ., !ears from the commencement of the
contract"
Therefore, to aoid iolating this temporal limitation in the statute, the proision has been remoed"
;nder &ranklin 'abor CodeH -5<<8a2, a contract to render personal serice ma! not be enforced against
the person contracting to render the serice be!ond fie !ears from the commencement of serice under
it" 6s stated aboe, because the original proision does not contain an end date for the running of the
obligation, the original proision implies that Pol!phon has the right to enforce the contract for personal
serices for an indefinite number of !ears until the band fulfills its Recording Commitment" :oweer,
under &ranklin 'abor Code H -5<<8b2, an emplo!er cannot enforce a contract to render personal serices
be!ond fie !ears from the commencement of the serice under it" Therefore, to aoid iolating this
temporal limitation on Pol!phon's right to enforce the band's obligations under the contract, the proision
has been remoed"
1econd, the proision granting Pol!phon eight 852 separate options, each to each to extend the term of this
6greement for one additional Contract Period of one !ear per option 890ption Period92, has been reised
to better meet the band's wishes" The band stated that it does not want to be tied to the record label for
more than 4 !ears" Therefore, the number of 0ption Periods aailable to Pol!phone has been reduced to +,
so that the initial contract period will be for .!ear, with an option to renew for additional one !ear periods
+ times, creating a maximum of a 4 !ear contract with Pol!phone"
$$$" 6PPR0F6'1
0riginal Proision( 4",." Pol!phon shall, in its sole discretion, make the final determination of the
Masters to be included in each 6lbum, and shall hae the sole authorit! to assign one or more producers
who shall collaborate with !ou on the production of each Master and each 6lbum"
6" Reised Proision
4",. Palindrome shall, in its sole discretion, make the final determination of the Masters to be included in
each 6lbum, and shall hae the sole authorit! to assign one or more producers who shall collaborate with
!ou on the production of each Master and each 6lbum"
=" Rationale
The band stated that it wants to retain artistic integrit!" 1pecificall!, the band stated that it wants to retain
the abilit! to make all of the artistic decisions about what songs go into the albums, the recordings, the
producers the! want, and what gets released" Therefore, the proision has been changed to gie
Palindrome the authorit! to make these decisions, rather than Pol!phon"
$F" MERC:6@)$1E, M6RIET$@G, 6@) 0T:ER R$G:T1
6" Proision 5",.
0riginal Proision( 5",." 6rtist warrants that it owns the federall! registered trademark P6'$@)R0ME
8Reg" @o" <,4-+,5552 and hereb! transfers all right, title, and interest in that trademark to Pol!phon"
Pol!phon ma! use the trademark on such products as, in its sole discretion, it sees fit to produce or
license, and all income from such use shall be Pol!phon's alone"
." Reised Proision
5",." 6rtist warrants that it owns the federall! registered trademark P6'$@)R0ME 8Reg" @o" <,4-+,5552
and gies Pol!phon the non-exclusie license to use the trademark" Pol!phon use of the trademark is
sub#ect to Palindrome's approal to assure the /ualit! of the merchandise" Pol!phon will receie .B4 of the
income from all of the goods produced with the trademark, with the remainder of the income going to
Palindrome" Pol!phon is not entitled to income from the use of the trademark on products that it does not
make or sell"
-" Rationale
&irst, the bank wants to keep its merchandise deals non-exclusie"
Therefore, a proision proiding that Pol!phon's license to use the trademark is non-exclusie is added to
the proision"
1econd, the band want to keep control oer eer!thing that has to do with merchandise bBc that is a real
source of income for them" $n addition, the band feels that it is important to gie fans good alue for
mone! b! using top-/ualit! materials and making sure the merchandise is of high /ualit!" Therefore,
information was added to ensure that the band, not Pol!phon has the abilit! to approe the use of their
trademark on products to ensure that the product is up to their standard of /ualit! for their fans"
Third, the band is willing to gie Pol!phon a .B4 of the reenue for the stuff that the! produce and sell3
howeer, the band 8.2 want to keep trademark, and 8-2 hae to be able to use the trademark ourseles
without giing Pol!phon a share of the mone! from the products that it doesn't make or sell" 6s a
conse/uence, the language transferring all right, title, and interest in the trademark has been remoed"
6nd the language that gies Pol!phon all income from the use of the trademark has been reised"
&ourth, the proision needed to be ad#usted to compl! with the law of &ranklin" 6ccording to M>P
1portswear, $nc" " Top Clothing Co", a licensee will lose its right to the trademark b! failing to assure the
public of an! standard of /ualit! of the goods and serices manufactured and sold under the mark" $n
M>P 1portswear, M>P designed T-shirts and other apparel and is the owner of a registered trademark,
which it uses as the brand name of its shirts" M>P licensed the use of its trademark to Top Clothing" Top
Clothing began making clothing using the trademark, but the clothing was of low /ualit!" The court found
that it is a basic tenet of the trademark law that an! trademark proprietor who licenses the trademark to
another must assure, in the license agreement, that the goods or serices offered b! the licensee meet the
standards of /ualit! of the trademarked goods established b! the trademark proprietor" :ere, Palindrome
has a high standard of /ualit! for the merchandise that it produces for its fans" Therefore, the licensee
here, Pol!phon must meet the standards established b! the trademark proprietor, Palindrome" 6s a
conse/uence, a clause allowing Palindrome's approal to assure the /ualit! of the merchandise was added"
=" Proision 5",-
0riginal Proision( 5",-" 6rtist hereb! authori%es Pol!phon, in its sole discretion, to use 6rtist's, and each
member of 6rtist's name, image, and likeness in connection with an! marketing or promotional efforts
and to use the Masters in con#unction with the adertising, promotion, or sale of an! goods or serices"
." Reised Proision
5",-" 1ub#ect to 6rtist's approal, 6rtist hereb! authori%es Pol!phon to use 6rtist's, and each member of
6rtist's name, image, and likeness in connection with marketing or promotional efforts and to use the
Masters in con#unction with the adertising, promotion, or sale of goods or serices, excluding the sale of
goods or serices relating to alcoholic beerages or consumption"
-" Rationale
0ne of the band members, 6$, almost died because he was hit b! a drunk drier" 6s a result, the band has
become fanatic about drugs and boo%e, swearing off their use" =ecause of 6l's accident, the band wants to
get the message out about drunk driing and do not want to be associated with drinking and doing drugs"
The! specificall! told us that the! do not want their songs used in commercials promoting the sale of
alcohol or their images used in adertisements promoting the sale of alcohol" 6s a result, the proision
was reised so that the band has approal rights and so their name, music, or image will not be used to
promote the sale or consumption of alcohol"
FEBRARY !"#$ ( PERSAS,-E BR,EF
$@ RE G;6R)$6@1:$P 0& D$'' &0J
MPT - $n re Guardianship of Dill &ox
Examinees' law firm represents =ett! &ox, a member of the =lackhawk Tribe, who has petitioned for
guardianship of her minor grandson, Dill" Dill's mother died when he was born and his father, =ett!'s
son, has been in a coma for seeral months as a result of a car accident" =ett! is petitioning for
guardianship in the =lackhawk Tribal Court in response to a petition for guardianship in &ranklin state
court filed b! Dill's maternal grandparents, the 'odens, who are not members of the tribe" $n addition, the
law firm has filed on =ett!'s behalf a motion to transfer the 'odens' state court action to the tribal court"
Examinees are asked to prepare a brief in support of the motion to transfer, following the firm's format for
persuasie briefs, and anticipating those arguments likel! to be raised b! the 'odens against the transfer"
The &ile includes the instructional memo from the superising attorne!, a format memo for persuasie
briefs, the competing petitions for guardianship filed in state and tribal court, a letter from the tribal court,
the motion to transfer, an email from =ett!'s son, and an excerpt from the *ournal of @atie 6merican
'aw" The 'ibrar! contains excerpts from the $ndian Child Delfare 6ct of .KL5, guidelines from the
=ureau of $ndian 6ffairs for $ndian child custod! proceedings, and a case from the &ranklin 1upreme
Court bearing on the sub#ect"
Answer to MPT
=R$E& $@ 1;PP0RT 0& M0T$0@ T0 TR61&ER C61E T0 ='6CI:6DI TR$=6' C0;RT
$" 1tatement of the Case
=ett! &ox, a member of the =lackhawk Tribe liing on the =lackhawk Reseration, and paternal
grandmother of Dill &ox, age .,, is seeking to transfer a case for the Petition of Guardianship and
Temporar! Custod! of Dill &ox, filed in 0ak Count! )istrict Court b! Dill's maternal grandparents )on
and &rances 'oden 8'odens2" The petition b! the 'odens were filed on &ebruar! ., -,.+ and the Motion
to Transfer the case to the Tribal Court was immediatel! filed b! =ett! &ox on &ebruar! .., -,.+" 6
Petition &or Guardianship was filed that same da! in the =lackhawk Tribal Court" The issue in dispute is
whether Ms" &ox is entitled to transfer the case under the re/uirements set forth in the $ndian Child
Delfare 6ct 8$CD62 of .KL5 8Title -< ;1C2" Ms" &ox is entitled to the transfer because she meets all the
re/uirements set forth in $CD6 1ection .K.."
$$" 6rgument
." $CD6 and polic! behind $CD6
Congress declared its polic! behind $CD6 in 1ection .K,-, to protect the best interest of $ndian children
and preent remoal of $ndian children from their families and placement of such children in foster or
adoptie homes, to reflect the uni/ue alues of $ndian culture" 6ccording to the *ournal of @atie
6merican 'aw, almost all @atie 6merican tribes hae a long-standing custom or practice of caring for
their children with extended famil!" $n the =lackhawk tribe, there is an expectation that the @atie
6merican grandparents, maternal or paternal, will become the custodians" $n our case here, =ett! &ox,
Dill &ox are both members of the $ndian Tribe, but the 'odens are not members of an! tribe" There is an
utmost interest in the courts to place $ndian children within the powers of the tribe to presere the uni/ue
aspect of $ndian culture"
-" =ett! &ox meets the re/uirements set forth in 1ection .K.. of $CD6 to transfer the proceedings from
state court to the tribal court"
1ection .K.. of $CD6 proides that 9in an! 1tate court proceeding for the foster care placement of, or
termination of parental rights to, an $ndian child not domiciled or residing within the reseration of the
$ndian child's tribe, the court, in the absence of good cause to the contrar!, shall transfer such proceeding
to the #urisdiction of the tribe, absent an ob#ection b! either parent, upon the petition of either parents or
the $ndian custodian or the $ndian child's tribe( Proided, that such transfer shall be sub#ect to declination
b! the tribal court of such tribe"9 De will take a look at each element of $CD6 separatel! and establish
that =ett! &ox has met the re/uirements for transferring the case from the 1tate of &ranklin's )istrict court
of 0ak Count!, where the 'odens filed their guardianship action to the Tribal Court of the =lackhawk
Tribe"
a" The 'aden's action seeks custod! that falls within the description of 9foster care placement9 or
termination of parental rights"
$n $n re Custod! of RM 8&ranklin 1upreme Court 8-,,K22, the court stated that a critical issue in
determining whether $CD6 applies is what the petition seeks" $CD6 .K.. sub#ects the case to be
transferred when it is for 9foster care placement of, or termination of parental rights"9 $CD6 section
.K,+8.28i2 describes foster care placement as an! action 8.2 remoing an $ndian child from its parent or
$ndian custodian for 8-2 temporar! placement in a foster home or institution or the home of a guardian or
conserator 8+2 where the parent or $ndian custodian cannot hae the child return upon demand, but 842
where parental rights hae not been terminated" These 4 re/uirements were further defined b! the court in
$n Re Custod! of RM, citing to &ranklin state law, that defines a guardian as one with 9the powers and
responsibilities of a parent with sole legal and ph!sical custod! to the exclusion of all others,9 and a
conserator as one who has 9the power to proide for the needs of the child and the dut! to pa! the
reasonable charges for t the support, maintenance and education of the child"9
$n our case, the 'odens filed a petition for guardianship and temporar! custod! in a district court in
&ranklin" 'ike the case in re Custod! of RM, the 'odens here is seeking to hae legal custod! and the
abilit! to decide on the care, including to remoe Dill from =ett! &ox's home" Ms" &ox would not be able
to hae Dill to be returned upon demand" These powers of custodian and guardianship are the er!
powers that the 'odens seek, and therefore, it /ualifies as 9foster care placement9 and would $CD6 would
appl!"
b" Dill is an $ndian child not domiciled or residing within reseration of $ndian child's tribe"
;nder 1ection .K,+8+2 and 8 42 of $CD6, $ndian is defined as an! person who is a member of an $ndian
tribe" 6n $ndian child is an! unmarried person who is under eighteen and either 8a2 a member of an $ndian
tribe or 8b2 is eligible for membership in an $ndian tribe and is the biological child of a member of an
$ndian tribe"
Pursuant to a letter b! the $CD6 )irector 1am Daters dated &ebruar! .,, -,.+, Dill is a member of the
=lackhawk Tribe, and the =lackhawk tribe is recogni%ed under $CD6" Dill is ., !ears of age 8born
*anuar! +, -,,+2, and unmarried, and a member of an $ndian Tribe" 6lso, Dill is not domiciled or residing
within the reseration" 1ince the accident, =ett! has moed into her son's house to care for Dill" Dill lies
in Melille, &ranklin, approximatel! .<, miles from the Reseration" Therefore, $CD6 applies
c" There is an absence of good cause to the contrar! to den! the transfer to the Tribal Court"
The )epartment of the $nterior, =ureau of $ndian 6ffairs, set out guidelines for the 1tate Courts in $ndian
Child Custod! proceedings" 1pecificall!, a releant proision of these guidelines define the determination
of good cause" De will look at each section to see if there is good cause to the contrar! that will prohibit
the transfer of Dill's case to the Tribal Court"
1ection 8a2 states that good cause not to transfer the proceedings exist if the $ndian child's tribe does not
hae a tribal court as defined b! .< ;1C .K,. of the $ndian Child Delfare 6ction which the case can be
transferred" That does not appl! here" Ms" &ox has filed her Petition for Guardianship in the Tribal Court
of the =lackhawk Tribe and Mr" 1am Daters, $CD6 )irector erified in his letter dated &ebruar! ., that
the =lackhawk Tribal Court is a recogni%ed instrumentalit! of the Tribe, with a famil! court unit that has
power and authorit! oer an! famil! latter" Therefore, 1ection 8a2 does not appl!"
1ection 8b2 states that there ma! be good cause not the transfer under an! of 4 circumstances" &irst, if the
proceeding is at an adanced stage when the petition to transfer was receied and the petitioner did not
file the petition promptl! after receiing notice" That is not the case here" :ere, the 'odens filed their
Petition in state court on &ebruar! ., -,.+ and merel! ., da!s later on &ebruar! .., -,.+, Ms" &ox filed
the motion to transfer" The case is not at an adance stage, as no decisions hae !et been rendered b! the
court nor as the court taken an! action as of this date"
1econd, there ma! be good cause not to transfer if the $ndian child is oer .- !ears of age and ob#ects to
the transfer" This is not applicable here, as Dill is onl! ., !ears old and probabl! does not ob#ect to the
transfer, considering that he has been under the care of Ms" &ox since his father's accident and has
attended numerous powwows on the reseration before this date"
Third, there ma! be good cause not to transfer if the eidence necessar! to decide the case could not be
ade/uatel! presented in the tribal court without undue hardship to the parties or the witnesses" De can
look again to $n Re Custod! of RM to further define 9undue hardship"9 The &ranklin 1upreme Court cited
that in that case, the tribal court is located #ust oer an hour's trael, and less than - hours trael from the
home of RM's parents, and within . to two hours of an! witnesses likel! to testif!" 6lso the tribal court
has the power to subpoena witnesses, and therefore it lacks good cause" 'ike $n Re Custod! of RM, the
reseration is within driing distance from Melille, where the 'odens are located" The witnesses that can
testif! to Dill's actiities on the reserations would be located in the reserations" Een though it's a long
drie, it is still within driing distance, and the court has power to subpoena an! witnesses to come to the
reseration" $t would not be an undue hardship to hae the case ad#udicated in the tribal court"
'astl!, there is good cause not to transfer if the parents of a child oer < !ears are not aailable and child
has little or no contact with the child's tribe or members of the child's tribe" That is not the case here"
:ere, Dill has been to at least three powwows in the last !ear, and loes spending time on the reseration"
Dill's father, *oseph, has plans to spend the holida!s on the reseration" 1ince the age of E, Dill has
attended the annual powwows on the Reseration with =ett! &ox" There is significant contact with the
reseration and members of the tribe"
The )0l guidelines also cite that the factors do not include socio-economic conditions or perceied
ade/uac! of tribal or =ureau of $ndian 6ffairs social serices or #udicial s!stem, and the burden is on the
part! opposing the transfer, which would be the 'odens in this case"
d" Transfer proceedings are absent ob#ection b! either parent upon the petition of either parent or $ndian
custodian or $ndian child's tribe 1ection .K.. of $CD6 proides that the transfer proceedings shall moe
forward if there are no ob#ections b! either parents upon the petition of the $ndian custodian" $n Re
Custod! of RM cites that the $ndian custodians are eligible to petition to transfer 8not to ob#ect2"
:ere, neither parents will file an ob#ection as Dill's mother died at childbirth and Dill's father is in a
coma" There is a petition b! the $ndian child's custodian, namel!, Ms" &ox"
C0@C';1$0@
$n conclusion, assuming there is no declination b! the tribal court, the case should be transferred to the
tribal court because there is no good cause to the contrar! to den! the transfer"
Answer to MPT
1T6TEME@T 0& T:E C61E
The Petitioners, 8the 9'odens92 hae filed a Petition for Guardianship and Temporar! Placement of D&, a
minor $ndian child, due to the incapacit! of D&'s onl! liing parent, his father" The Moant 89&ox92 has
filed a motion to transfer the petition to the =lackhawk Tribal Court, under the $ndian Child Delfare 6ct
89$CD692 to determine guardianship and placement, and has filed her own Petition for Guardianship in
the Tribal Court" The 'odens ob#ect to the transfer, and ask the Court to den! &ox's motion"
6RG;ME@T
$ntroduction( Transfer of the Petition for Guardianship and Temporar! Custod! of D& is appropriate
because it has been re/uested b! D&'s 9$ndian custodian9 as defined b! $CD6, D& is an 9$ndian child,9
as defined b! $CD6, the Petition pending before the court is for 9foster care placement9 as defined b!
$CD6 and explained b! the &ranklin 1upreme Court, and the 'odens cannot meet their burden to show
9good cause9 exists to den! the re/uested transfer"
$" $CD6 applies to Ms" &ox's Motion to Transfer because D& is an 9$ndian Child9, Ms" &ox is an 9$ndian
custodian,9 and because the 'odens seek a 9foster care placement9 under the statutor! definitions"
;nder $CD6, a 1tate court proceeding for the 9foster care placement9 of an 9$ndian child9 not currentl!
residing or domiciled within the reseration of the child's tribe shall be transferred to the #urisdiction of
the Tribe upon petition of the 9$ndian custodian9 and absent ob#ection of either parent, or 9good cause9
against such transfer, in a 9foster care placement9 case"
6" 9$ndian Child9 and 9$ndian Custodian9 )efined
$CD6 defines an 9$ndian child9 as an! minor person who is, as is releant here, a member of an $ndian
tribe" The letter from the $CD6 )irector states that D& is a member of the tribe, and he is ., !ears old"
6ccordingl!, D& is an 9$ndian child9 coered under $CD6"
6n 9$ndian custodian9 is defined as 9an! $ndian person who has legal custod! of an $ndian child under
tribal law or custom or under 1tate law or to whom temporar! ph!sical care, custod!, and control has been
transferred b! the parent of such child"9 'ike, D&, Ms" &ox is enrolled in the =lackhawk Tribe, and so is
9$ndian9" 6s described in the excerpt from the *ournal of @atie 6merican 'aw 8the 9Excerpt92, the
=lackhawk Tribe has a custom that @atie 6merican grandparents, maternal or paternal, will become
custodians of a child if the parents are unable to parent" Dhile the Excerpt explains that there is not a
particular preference between maternal and paternal grandparents -- unlike other tribes -- it does state that
9@atie 6merican grandparents9 will be custodian for the $ndian child, thus eidencing a preference for
$ndian grandparents oer non-$ndian grandparents" 6ccordingl!, under =lackhawk custom, Ms" &ox, D&'s
@atie 6merican grandmother, is expected b! the Tribe to take custod! of D&, and so falls within $CD6's
definition of an 9$ndian custodian9"
=" 9&oster Care Placement9 )efined
The 'odens seek a 9foster care placement9 because the! seek guardianship of D&, to the exclusion of
others" 9&oster care placement9 is defined b! $CD6 as an action remoing an $ndian child from its parent
or $ndian custodian for temporar! placement in, among other places, the home of a guardian or
conserator where the parent or $ndian custodian cannot hae the child returned upon demand, but where
parental rights hae not been terminated" 81ection .K,+2"
The &ranklin 1upreme Court more full! explained this definition in $n Re( RM" $n that case, the Court
defined a 9foster care placement9 as an action in which four re/uirements are met( .2 the $ndian child is
remoed from the child's parent or $ndian custodian, -2 the child is temporaril! placed in a 9foster home
or institution or the home of a guardian or conserator9, +2 the parent or $ndian custodian cannot hae the
child returned upon demand, and 42 parental rights hae not been terminated"
:ere, D&'s mother is deceased, and his father is incapacitated, but his parental rights hae not been
terminated, and so the fourth prong is met" 6s explained in the section aboe, D& is an 9$ndian child9 and
Ms" &ox is his 9$ndian custodian"9 Ms" &ox has been caring for D& since his father's accident in
@oember -,.- -- approximatel! 4 months, and the 'odens' Petition for Guardianship seeks to 9rear,
nurture, and educate9 D& as 9guardians and temporar! custodians9, demonstrating that the 'odens seek to
remoe D& from Ms" &ox's care so as to care for him themseles" 6s such, prong . is met"
6s to prongs - and +, the &ranklin 1upreme Court explained in RM that &ranklin law defines a 9guardian9
as one who has 9the powers and responsibilities of a parent with sole legal and ph!sical custod! to the
exclusion of all others"9 =! seeking guardianship, the 'odens are therefore seeking control and authorit!
oer D&, like a parent would hae, to the exclusion of all others, including Ms" &ox" 'ike in RM, where
the Petitioner sought sole legal custod! of the child, the effect of the 'odens' Petition would be to remoe
D& from his $ndian custodian and place him temporaril! in the 'odens' home" $f the 'odens' Petition for
Guardianship were granted, Ms" &ox -- as $ndian custodian -Owould not be able to hae D& returned to
her on demand" Thus prongs - and + are met as well"
Dhile the 'odens ma! argue that their Petition is for onl! 9temporar! custod!,9 the &ranklin 1upreme
Court has made clear that the caption of an action is not dispositie of the issue, and instead the court will
look to what is actuall! being sought" :ere, the 'odens' petition specificall! notes that the! are capable to
9rear, nurture, and educate9 D&, and that the! seek guardianship" The function of their Petition is to hae
the same authorit! as a parent, to the exclusion of others"
:aing met all four re/uirements of $n Re( RM, the action currentl! pending in &ranklin 1tate Court is a
9foster care placement"9
$$" The 'odens cannot show good cause against transfer because the distance between the =lackhawk
Reseration and Melille is not so great as to cause undue hardship to the parties and witnesses"
The law creates a presumption that an action for foster care placement of an $ndian child shall be
transferred in the absence of good cause to the contrar!, and absent the ob#ection of either parent, on the
petition of the parent of the $ndian custodian or the $ndian child's tribe 81ection .K..2" The burden to
show good cause not to transfer is on the part! opposing the transfer 8Guidelines2" $n this case, D& is an
9$ndian child,9 Ms" &ox is his 9$ndian custodian,9 and the 'odens hae filed a 9foster care placement9
action, and so the presumption applies here"
D&'s father is incapacitated, and D&'s mother is deceased, and so the! cannot ob#ect to the transfer"
;nder the Guidelines promulgated b! the )epartment of the $nterior, 9good cause9 not to transfer exists in
the following circumstances( a2 when the proceeding was at an adanced stage when the motion to
transfer was filed, and the petitioner did not promptl! file the motion to transfer3 b2 the $ndian child is
oer .- !ears of age and ob#ects to the transfer3 c2 The eidence necessar! to decide the case could not be
ade/uatel! presented in tribal court without undue hardship on the parties andBor witnesses3 and d2 the
parents for the child are not aailable and the child has had little contact with the tribe or members of the
tribe" Good cause is also shown if the tribe does not hae a tribal court"
Dhile the Guidelines hae not promulgated as binding administratie regulations, the &ranklin 1upreme
Court has followed the Guidelines in $n Re( RM, because the Guidelines clarif! the congressional intent
behind $CD6" 8$n re( RM2" 6ccordingl!, this Court should also appl! the Guidelines"
$n this case, the =lackhawk Tribe has a Tribal Court, as eidenced b! =ett!'s Petition for Guardianship
filed with the Tribal Court on &ebruar! .., -,.+, and b! the letter from 1am Daters that the Tribal Court
has a famil! court unit with power and authorit! oer an! famil! law matter" The 'odens filed their
Petition for Guardianship on &ebruar! ., -,.+, and =ett! filed her Motion for Transfer on &ebruar! ..,
-,.+, at which point the proceedings were not adanced, and there was no dela! in her filing a motion
less than two weeks after the initial petition had been filed" Thus the 'odens cannot establish 9good
cause9 to den! transfer for dela!, or for a lack of Tribal Court" D& is ten !ears old, and so he is not able to
ob#ect to the transfer" 6dditionall!, the email from *oseph to =ett! states that D& has participated in three
powwows on the Reseration as of summer of -,.-, and isits the Reseration on holida!s" These trips
and contacts with the Tribe are significant, and accordingl!, the 'odens cannot show that D& has had
little contact with the Tribe or with members of the Tribe"
;nder 1ection 8b28iii2, 9good cause9 ma! be shown if the eidence necessar! to decide the case could not
be presented in Tribal Court ade/uatel! without undue hardship to the parties or witnesses" $n $n re( RM,
the 1upreme Court discussed this section in a similar fact pattern" $n RM, the Tribal Court was less than
two hours from the home of RM's parents, and within one to two hours from the school and medical
personnel and other likel! witnesses" :ere, the Tribal court is farther, at a three to four hour drie from the
D&'s home in Melille" :oweer, the Court in RM found it er! important that the Petitioner fre/uentl!
took trips with the child to the reseration to isit famil! and friends" $n this case, D& went to the
reseration for three annual powwows, and intends to return for a fourth, as eidenced in the email from
*oseph to =ett!" *oseph and D& also traeled to the Reseration for holida!s, and so for the past three
!ears made trips to the Reseration multiple times per !ear"
Dhile the distance inoled in this case is greater than that in RM, D&'s isits to the Reseration with his
father seeral times per !ear demonstrate that the approximatel! three to four hour drie would not be an
undue hardship to the witnesses and parties inoled, particularl! in light of Congress's intent to
incorporate the consideration for Tribal culture and heritage through the $CD6 legislation"
D& has strong ties to the =lackhawk Tribe, the =lackhawk Tribe has a full!-functioning Court with a
famil! law unit, and Congress enacted $CD6 so that determinations about the placement of $ndian
children could be determined b! Tribal Courts without good cause for the 1tate to determine it" ;nder the
facts presented here, and in light of the &ranklin 1upreme Court's decision in $n Re( RM, the 'odens
cannot show that there is good cause to den! Ms" &ox's motion for transfer of the action to the =lackhawk
Tribal Court" 6ccordingl!, under the $CD6 presumption, the Court should grant Ms" &ox's motion"
JLY !"#! - AR.MENT SE)T,ON OF THE BR,EF
61:T0@ F" $@)$G0 C0@1TR;CT$0@ C0"
Examinees' law firm represents Margaret 6shton, a homeowner, in her dispute with $ndigo
Construction Co" 6 few months ago, $ndigo bought a acant lot behind 6shton's home and began
storing dirt on the lot to use later in its construction and landscaping business" 6lthough $ndigo's
use of the acant lot is in compliance with the releant %oning ordinances, its actiities hae
negatiel! affected Mrs" 6shtonCshe is disturbed b! noise from the trucks going to and from the
acant lot, and the huge dirt pile has caused substantial amounts of dust and mud to accumulate in
her !ard" Examinees are asked to draft the argument section of the brief in support of a
preliminar! in#unction against $ndigo" The &ile contains a memorandum from a firm partner
asking the examinee to prepare the legal argument, a Pformat memoQ that la!s out the format for
persuasie writing of trial briefs, two affidaits 8from Margaret 6shton and from a firm
inestigator2, and an article about the dirt pile from a local newspaper" The 'ibrar! contains two
cases from the &ranklin 1upreme Court( Parker " =lue Ridge &arms, $nc" 8dealing with the
elements of the common law action of priate nuisance2 and Timo Corp" " *osie's )isco $nc"
8dealing with the standards for granting in#unctie relief for a priate nuisance2"
Answer to MPT
6rgument
The court should grant a preliminar! in#unction to the plaintiff to preent the defendant from
continuing to make a historic residential communit! uninhabitable" Graham )istrict in 6ppling is
a neighborhood of peaceful homes and shad! trees" 1ee 6ppling Ga%ette article" 9The Graham
)istrict is one of the largest residential communities in 6ppling without a single business located
within its borders"9 $d"
$n 6pril, -,.-, howeer, $ndigo Construction Compan! bought a lot beside the neighborhood and
began using it to dump piles on dirt into" The compan! dries large trucks, including large dump
trucks, .L times a da!, from E a"m" to 5 p"m", to the site to dump dirt" This causes loud noises of
roaring engines, perasie screeching brakes, crashing and grinding unloading of dirt, and loud
beeping of dump trucks" This preents plaintiff from en#o!ing use and en#o!ment of her home -
she cannot sit outside for periods longer than an hour without hearing trucks driing b! loudl!,
and she cannot read, garden, or talk with her neighbors in peace"
The dirt has alread! been piled to -, feet high" This causes problems in dr! weather and in wet
weather for residents of Graham )istrict" $n dr! weather, een a slight bree%e will blow dust and
dirt onto plaintiff's propert!, preenting plaintiff from en#o!ing her flowers in her garden and
forcing her to spend additional sums to clean the outside of the house, especiall! the windows,
and to do so more fre/uentl! than before" $n the wet weather, runoff from the dirt pile flows into
plaintiff's back!ard" Plaintiff is not the onl! one suffering - 9RoSther neighbors complain about the
runoff during rainstorms, which often flood their !ards"9 6ppling Ga%ette article"
$ndigo is using a .-acre lot to do this interfering work" $t has, howeer, a <,-acre tract of
undeeloped land on the outskirts of 6ppling" Een though $ndigo has brought #obs and
opportunities to !oung families, it could do the same, or een more, b! using this undeeloped
lot, without interfering with residents' use and en#o!ment of their land" The standard for granting
a preliminar! in#unction against nuisance is the likelihood of ultimate success on the merits, the
prospect of irreparable in#ur! if the proisional relief is withheld, and that the balance of e/uities
tips in the plaintiff's faor" Timo Corp" " *osie's )isco"
The plaintiff has a high likelihood of ultimate success on the merits because the defendant's
intentionall! driing loud trucks and dumping piles of dirt throughout the da! and night beside a
large residential-onl! communit! causes unreasonable interference with residents' use of their
homes"
Common-law priate nuisance is a non-trespassor! inasion of another's interest in land" Parker "
=lue Ridge &arms" The focus of the in/uir! is on the interference with plaintiff's use and
en#o!ment of her land" 9$nterference with plaintiff's use of his propert! can be unreasonable een
when the defendant's conduct is reasonable"9 $d" Thus, een a business that seres societ! well
can still be found liable for nuisance"
6 plaintiff will win a claim for nuisance if 8.2 the defendant's conduct was the proximate cause
8-2 of an unreasonable interference with the plaintiff's use and en#o!ment of his or her propert!,
and 8+2 the interference was intentional or negligent"
The defendant's driing of trucks and dumping of dirt proximatel! cause unreasonable
interference with residents' use of their homes"
=efore $ndigo started working right beside Graham )istrict, it was a peaceful residential-onl!
neighborhood" 0nl! because of $ndigo's work, plaintiff and other residents hae suffered constant
noxious noises and hae had dirt go onto their propert!"
)efendant's conduct unreasonabl! interferes with plaintiff's abilit! to use and en#o! her propert!,
such as for gardening, reading, and talking with neighbors"
The noise from defendant's trucks is constant, going from the earl! morning, through the eening"
Plaintiff cannot sit outside her home for more than an hour without hearing trucks roll b!,
screeching, grinding, roaring their engines, and making other noxious noises" 1he has to pa! more
and more fre/uentl! to hae her home cleaned from dirt and she cannot en#o! the flowers in her
garden" The standard for finding unreasonableness is ob#ectie" Parker" Plaintiff does not hae a
special sensitiit! to the noise and the dirt" $nstead, she wishes to use her home for purposes for
which most homeowners do - talking with neighbors, gardening, etc" 6s the 6ppling Ga%ette
article shows, man! of Plaintiff's neighbors hae experienced the same problems"
Dhile defendant's use of the propert! is legal - the area is %oned for mixed use -een a reasonable,
legal, or een desirable uses can cause unreasonable interference" The unreasonableness of the
interference is the ke! factor, not the reasonableness of the use" Parker" 6 court will look at the
following factors to determine unreasonableness of the interference 8Parker2(
." The nature of the interfering use and the use and en#o!ment inaded"
:ere, the nature of the interfering use is legal but it is industrial, beside a large residential
neighborhood that does not contain a single business" The use and en#o!ment inaded are the
residents' rights to use their homes in a normal fashion and be free of noxious noises and dirt the!
hae to clean up constantl!" Plaintiff has resided at her address for +- !ears and has neer before
had to endure such interferences"
-" The nature, extent, and duration of the interference"
The defendant's interfering conduct is constant" Trucks come b! more than once an hour, dumping
dirt and making noxious noises" The trucks come b! .L times a da!, from earl! in the morning 8as
earl! as E a"m"2 to late at night 8as late as 5 p"m"2" The sound of roaring engines is perasie3 the
dirt coming onto Plaintiff's home is constant"
+" The suitabilit! for the localit! of both the interfering conduct and the particular use and
en#o!ment inaded"
Dhile )efendant is operating on land that is %oned for mixed use, that is not the end of the
in/uir!" Parker" )efendant has chosen to start dumping dirt on a .-acre plot right beside an eight-
s/uare-block area consisting entirel! of single-famil! homes" This residential neighborhood does
not een contain a single business" This is clearl! not an appropriate location for dump trucks to
dump -,-foot-high piles of dirt" The plot is also directl! behind Plaintiff's home" 1ee report of
$nestigator Dilliam Porter"
4" Dhether the defendant is taking all feasible precautions to aoid an! unnecessar! interference
with the plaintiff's use and en#o!ment of his or her propert!"
The defendant met with members of the neighborhood, but onl! agreed to stop dumping dirt after
5 p"m" $t could limit its use to during the da!, when homeowners could be at work" $t could also
build a high fence around its plot of land to preent dirt from escaping from it and interfering with
others' land" =etter !et, it has a <,-acre tract of undeeloped land on the outskirts of 6ppling" 1ee
report of $nestigator Porter" $t could use this land #ust as easil! as the much smaller plot it is
using now, without causing the interference it is now causing to the residents of Graham )istrict"
)efendant's interference is intentional because it is aware of the intrusion it is causing and is
continuing to intrude"
Een if a plaintiff cannot proe that a defendant intended to cause discomfort to its neighbors, it is
sufficient to show that )efendant is aware of the intrusion and chooses to continue its behaior"
Timo Corp" " *osie's )isco" $nc" :ere, )efendant met with the residents of Graham )istrict,
showing its awareness that it was causing them discomfort" &urthermore, to limit the discomfort it
promised to stop dumping dirt after 5 p"m" That shows the )efendant's awareness" &rom that
awareness, its mental state can be inferred" Timo"
)efendant's behaior seriousl! impairs Plaintiff's abilit! to use her land b! causing constant noise
and dirt on it, so she will suffer irreparable in#ur! if a preliminar! in#unction is not granted"
The prospect of irreparable in#ur! if the proisional relief is withheld is high" ;nder Timo, land is
uni/ue and there is no ade/uate remed! at law for an! seere or serious impairment of the use of
land" &or example, in Timo, residents were experiencing nightl! intrusions of noise from a nearb!
neighbor, a bar pla!ing music at extremel! loud leels" The court found that this noise, which
often continued until + a"m" was a serious interference and there was no ade/uate remed! at law
for the plaintiffs" 1imilarl!, here, )efendant's trucks roll b! until 5 p"m", and also start as earl! as
E a"m" The! create loud, constant noise" $n addition, the! cause dirt to fl! onto Plaintiff's propert!
on a regular basis, re/uiring constant cleaning" This is a serious impairment of the use of land and
Plaintiff will suffer irreparable in#ur! if a preliminar! in#unction is not granted"
The balance of e/uities tips in plaintiff's faor because )efendant would suffer little harm if it
moed its operations to its larger plot of land on the outskirts of town"
$n determining the balance of the e/uities, a 9court must necessaril! distinguish between those
uses which should continue while absorbing the releant costs, and those which are so
unreasonable or undesirable that the! should be stopped completel!"9 Timo" 9Courts must thus
balance social alue, legitimac!, and indeed the reasonableness of the defendant's use against
ongoing harm to the plaintiff"9 The factors that courts use in making that determination are set out
in Timo(
." The respectie hardships to the parties from granting or den!ing the in#unction"
The Plaintiff is a widow who has lied in her home for +- !ears, and lies in a neighborhood that
is entirel! residential" $t would cause her significant harm if she had to moe so that she could
en#o! her garden, speak with her neighbors, and read books outside" :er friends for decades come
from this neighborhood and it would be hard for her to uproot herself and establish a new home in
a different neighborhood"
0n the other hand, )efendant is a compan! that has no sentimental attachment to the propert!" $t
bought the propert! onl! a few months ago to dump dirt into" $t owns another plot of land that is
much larger 8<, acres instead of . acre2 at the outskirts of town that is paed, so its trucks could
drie there" The plot is undeeloped and awa! from residential propert!" Therefore, it would
suffer little if it had to moe its operations elsewhere"
-" The good faith or intentional misconduct of each part!"
The )efendant has not acted in good faith" $t knows the nature of the propert! around the plot of
land into which it is dumping dirt, as shown b! the meeting it held with residents" Dhen the!
complained, it agreed to stop dumping dirt after 5 p"m", a er! mild, insignificant change" This
was more of a show of compromise rather than a good-faith attempt to preent the harm it is
causing"
+" The interest of the general public in continuing the defendant's actiit!"
$t is undisputed that )efendant's actiities are lawful and een beneficial" $t brings #obs to
6ppling, and opportunities to !oung families, according to Cit! Manager Ia!leen Gibbons"
:oweer, the general public will be sered #ust as well if )efendant moes its conduct to the
other location it owns" $n fact the public will be sered better, both because residents of the cit!
will no longer suffer, and thus be able to be more productie members of societ!, and because the
)efendant's other plot of land is larger, so it could bring in more dirt and therefore hire more
emplo!ees, bringing een more #obs to the cit!"
4" The degree to which the defendant's actiit! complies with or iolates applicable laws" The
defendant's actiit! is lawful, as the land is %oned for mixed use"
:oweer, as the &ranklin 1upreme Court has made clear in Parker, this is not dispositie"
&urthermore, this is #ust one factor"
Therefore, the Plaintiff's common law claim of nuisance is likel! to succeed on the merits,
Plaintiff would suffer irreparable in#ur! to the use and en#o!ment of her land if the court did not
grant a preliminar! in#unction, and the balance of e/uities tips in the faor of plaintiff, who has a
uni/ue need to use the land, rather than )efendant, who has other -and better - choices"
Answer to MPT
6rgument
The standard for granting a preliminar! in#unction re/uires that a plaintiff demonstrate a
likelihood of ultimate success on the merits, the prospect of irreparable in#ur! if the proisional
relief is withheld, and that the balance of e/uities tips in the plaintiff's faor" 0tto Records $nc" "
@elson, 8&r" 1up" Ct" .K542" To show a likelihood of ultimate of success on the merits, a plaintiff
must show that all the elements of the underl!ing claim for relief are met" 1ee Timo Corp" "
*osie's )isco, $nc" 8&r" 1up" Ct" -,,L2" Dhen the claim for relief inoles an! 9seere or serious
impairment of the use of land,9 mone! damages are not sufficient to compensate because the law
considers land uni/ue" Thus no ade/uate remed! at law can exist for the plaintiff" &inall!, the
determination that the balance of e/uities tips in the plaintiff's faor is a fact-drien
determination" $d"
6" $ndigo Construction Corp's dumping on the acant lot at .<4 Dinston )rie is a common law
nuisance"
6 common law nuisance occurs when 9the defendant's conduct was the proximate cause of an
unreasonable interference with the use and en#o!ment of his or her propert!, and the interference
was intentional or negligent9 4 Rest" 8-d"2 Torts 1ec" H 5--" 96 priate nuisance is a non-
trespassor! inasion of another's interest in the priate use and en#o!ment of land"9 $d" H 5-.)"
&ranklin has adopted the basic principles of the Restatement 81econd2 of Torts" Parker " =lue
Ridge &arms, $nc" 8&r" 1up" Ct" -,,-2"
i" $ndigo's dumping on the acant lot from E 6M to 5 PM is the proximate cause of the
interference with Margaret 6shton's propert!"
$ndigo Construction Compan!'s dumping of dirt on the acant lot behind Margaret 6shton's
propert! is the reason Mrs" 6shton can no longer en#o! her propert!" Margaret 6shton has lied at
.<. :a!wood 1t", 6ppling, &ranklin for +- !ears" $n 6pril -,.-, she began noticing that $ndigo
Construction Compan! was dumping dirt on the acant lot which abutted the rear of her propert!"
The trucks and other machiner! make constant noise during their isits, which aerage .L isits a
da!" The truck noise preents Mrs" 6shton from en#o!ing the outside areas of her propert!"
6dditionall!, wind will coer her rose garden with dust because of the dirt carried from the acant
lot" The dirt also results in higher cleaning costs on the interior of her house" Rain results in
mudd! runoff from the acant lot to her propert!"
Prior to $ndigo Construction Compan!'s use of the acant lot, Mrs" 6shton had full en#o!ment of
her propert!" :er en#o!ment of the propert! is now impaired and the proximate cause of that
impairment is the initiation of dumping b! $ndigo" ii" $ndigo's dumping at .<4 Dinston )rie in
an oerwhelmingl! residential area from E 6M to 5 PM without an! other precautions is an
unreasonable interference with Mrs" 6shton's use and en#o!ment of her propert!"
Dhen considering the reasonableness of the interference with the plaintiff's use, the court should
consider 9all releant factors including the nature of both the interfering use and the use and
en#o!ment inaded3 the nature, extent, and duration of the interference3 the suitabilit! for the
localit! of both the interfering conduct and the particular use and en#o!ment inaded3 and whether
the defendant is taking all feasible precautions to aoid an! unnecessar! interference with the
plaintiff's use and en#o!ment of his or her propert!"9 Parker" The standard applied to these
considerations is ob#ectie, what a reasonable person would conclude after considering all the
facts and circumstances" $nterference with the plaintiff's land can be unreasonable een if the
defendant's conduct is lawful" 96 business enterprise that exercises utmost care to minimi%e the
harm from noxious smoke, dust, and gas-een one that seres societ! well, such as a sewage
treatment plant or an electric power utilit!-ma! still be re/uired to pa! for the harm it causes to its
neighbors"9 D" Prosser > Ieeton, Torts H 55"
:ere, $ndigo is sending large pieces of hea! e/uipment multiple times a da! into an
oerwhelmingl! residential neighborhood to pile excess dirt on a lot it owns" The dirt pile blows
dust onto the land and into the houses of neighbors" The dirt pile sends mud into neighboring
lands when it rains" $ndigo's onl! concession to neighborhood complaints regarding the dirt pile
and the noise has been to stop deliering dirt after 5 PM" )elieries take place from E 6M to 5
PM" Thus from sunup to sundown, the neighborhood expects the attendant noises of hea!
e/uipment at work and suffers from the blowing and flowing of dirt" Residents cannot sit outside
and en#o! the full extent of their propert! without being sub#ected to $ndigo's use of .<4 Dinston
)rie"
$ndigo's use of the propert! is an unreasonable interference with the residential uses of the
surrounding communit!" $t is grossl! out of character for the neighborhood" iii" $ndigo was aware
of the neighbor's complaints and negligentl! chose to continue their behaior"
$ndigo was aware of the neighbors' complaints regarding .<4 Dinston )rie" $t met with
members of the neighborhood at one point" 6dditionall!, the 6ppling Ga%ette has published
stories regarding the unhappiness surrounding the use of .<4 Dinston )rie" The onl! concession
to these concerns has been a curtailment of dirt delieries after 5 PM" This curtailment does not
materiall! lessen $ndigo's interference on Mrs" 6shton's use and en#o!ment of her propert!" The
fact that $ndigo responded to the complaints at all demonstrates that it is aware of the problem and
thus negligence can be inferred from its actions"
=" Mrs" 6shton faces irreparable in#ur! because the nuisance impacts her land"
Dhile damages ma! be recoerable in an action for nuisance, land is uni/ue and thus an! seere
or serious impairment of the use of land has no ade/uate remed! at law" )aidson " Red )eil
6renas 8&r" 1up" Ct" .KK-2" Thus, the blowing and flowing of dirt and the sounds of working
hea! e/uipment are intrusions without remed! at law and thus Mrs" 6shton is faced with an
irreparable in#ur!"
C" 6n in#unction is not a stop-work order for $ndigo and thus the balance of hardships tips in Mrs"
6shton's faor"
To determine whether to grant a preliminar! in#unction, courts must recogni%e that 9en#oining a
reasonable use of propert! goes be!ond imposing an added cost of doing business"9 Timo Corp"
$nstead, the in#unction ma! 9stifle legitimate actiit!, which could continue while the business
pa!s for the conse/uences of its actions"9 $d" $n these situations, courts must balance the social
alue, legitimac!, and reasonableness of the defendant's use against ongoing harm to the plaintiff"
&actors which a court should consider to aid its deliberations include the respectie hardships to
the parties from granting or den!ing the in#unction3 the good faith or intentional misconduct of
the part!3 the interest of the general public in continuing the defendant's actiit!, and the degree to
which the defendant's actiit! complies with or iolates applicable laws" $d"
:ere, should the court en#oin the dumping of dirt at .<4 Dinston )rie, $ndigo Construction
would not face substantial hardship" $ndigo Construction owns an undeeloped un%oned <, acre
lot on the outskirts of 6ppling with regular road access" The dirt which is currentl! at .<4
Dinston )rie does not need to be where it is" 6n in#unction means onl! that $ndigo switch the
locale of its dumping operations, not permanentl! stop all of its dumping whereas a failure to
proide the in#unction means that Mrs" 6shton cannot en#o! her home of +- !ears as she has in
the past"
$ndigo has barel! acted in good faith at all" $ts onl! concession to neighborhood complaints was
to stop the dumping of dirt from 5PM to E6M" Dhile $ndigo ma! be operating in good faith, it
ma! not be particularl! responsie to its neighbors' complaints" This lack of responsieness will
weigh in the balance of hardships"
The general public does hae an interest in $ndigo continuing its operations" 6s noted in the
6ppling Ga%ette, $ndigo pushed through some affordable housing pro#ects which benefitted the
Cit!, it is a noted emplo!er in the communit!, and it has a good enironmental record" The
general public certainl! has an interest in $ndigo continuing its operations but the en#oinment of
dumping at .<4 Dinston )rie does not necessaril! e/uate to a stop-work order for $ndigo" 6s
preiousl! noted, $ndigo can merel! switch to one of its fift! acres on the outskirts of 6ppling"
Dhile it is true that $ndigo is in compliance with %oning regulations because .<4 Dinston )rie is
%oned for mixed use, strict compliance with %oning regulations should not weigh heail! on the
court's deliberation" The lot which is mixed use has been acant for oer +, !ears" The
neighborhood around it has become known as one of the largest residential communities in
6ppling" The spirit of the neighborhood is residential and not mixed use" Thus $ndigo's
compliance with %oning regulations should weigh onl! so far as its actiities are lawful but the
nature of its interference is unreasonable"
The balance of hardships weighs in faor of Mrs" 6shton and the residents of the Graham )istrict"
=ecause en#oining $ndigo's use of .<4 Dinston 1t" will not result in $ndigo being unable to
conduct its business and because the cost to the neighborhood and Mrs" 6shton is so high, the
court should find Mrs" 6shton would suffer more from $ndigo's continuing use of .<4 Dinston )r"
than $ndigo would should $ndigo be forced to dump elsewhere"
FEBRARY !"#! - LEA-E BEH,ND %PERSAS,-E MEMORANDM'
&R6@I'$@ RE16'E R076'T$E1 'EG$1'6T$0@
$n this performance test, examinees are emplo!ed b! the law firm that represents the &ranklin
6rtists Coalition" The Coalition supports enactment of legislation which would re/uire a fie
percent ro!alt! to be paid to artists and their heirs on the resale of their isual artworks" To this
end, the Coalition has asked the law firm to prepare a document which the! can hand out to
legislators and which will set forth the need for and benefits of the legislation, especiall! in light
of the fact that similar legislation was introduced but not adopted in the neighboring state of
0l!mpia" Examinees' task is to draft the leae-behind Ca persuasie document that will conince
legislators to ote in faor of the resale-ro!alties legislation" $n doing so, examinees must set out
the arguments in faor of the legislation, respond to the ob#ections to the legislation, and address
the legal issue of whether the legislation is preempted b! the .KLE federal Cop!right 6ct" The &ile
contains the instructional memorandum from the superising attorne!, a letter from the client, a
template for the leae-behind, and testimon! b! three witnesses before the 0l!mpia 1tate 1enate
regarding the similar legislation in that state" The 'ibrar! contains the text of the proposed
legislation, excerpts from the federal Cop!right 6ct, and two cases bearing on the legal issue of
preemption"
Answer to MPT
$ntroduction(
&ranklin 6ssembl! =$ll +5 8&"6" +52 seeks to proide ro!alties to artists and their heirs on resales
of 9isual art9" 1pecificall! the bill will onl! proide ro!alties for the resale of paintings,
sculptures, or drawings existing in a single cop!" The bill will onl! appl! to artists who at the time
of resale are either citi%ens of the ;nited 1tates or residents of &ranklin" &urthermore the bill will
onl! appl! to sellers that reside in &ranklin or to sales that take place in &ranklin" The ro!alties to
be paid will be fie percent of the profits of the sales, and failure to pa! the artist or his agent will
result in liabilit! to the artist" The right to these ro!alties will be held b! the artist's heirs for a
period of L, !ears after the artistTs death" &inall! this bill will not appl! to initial sales of art b!
the artist, resales for a profit of less than one thousand dollars or to resales between art dealers for
a period of ten !ears after the initial sale"
Dh! De @eed &"6" +5(
Fisual art is unlike other art mediums such as music, art and drama" The alue to the artists in
these other mediums generall! comes from cop!right rights or the sale of mass produced ph!sical
copies" This is not the case for painters, sculptors and other isual artists" 6lmost all of the mone!
these artists receie is from the original sale of their work" $n fact an economic stud! from the
0l!mpia 6rt Collectie in our neighboring state of 0l!mpia found that K+U of their isual artist's
income comes from these initial sales" Dhen this is iewed in connection with the fact that the
life for the ma#orit! of these artists is financiall! er! difficult 8the same stud! showed that KLU
of 0l!mpia's artists made onl! V+<,,,, annuall!2 we can see the need to help support and foster
our isual art communit!"
1econdl!, this is not simpl! an appeal for charit!" The argument in faor of &"6" +5 is based in
e/uit!" 6s things currentl! stand a isual artist stands to make almost nothing from the resale of
their work" 7et those who bu! and sell their art can reali%e tremendous profits" $t seems onl! fair
that the original creator of that work be compensated, een if onl! with a meager <U ro!alt!"
Third, the production of isual art re/uires the inestment b! the artists in tools and materials"
The! need the abilit! to earn income be!ond their initial sales so that the! can keep on inesting
in their work and keep the isual art communit! alie"
There hae been seeral criticisms adanced against bills that proide for ro!alties such as these"
0ne of the main ones is that laws like this will work to drie art collectors awa! from &ranklin as
the! seek to bu! in places where the! won't hae to pa! these ro!alties" 6gain referring to the
stud! of The 0l!mpia 6rt Collectie, 0l!mpia's art sales dropped initiall! after the enactment of
the law but rebounded er! /uickl!" The drop in art sales in the short term will be outweighed b!
the long term alue gien to support the growth of the isual art communit!"
'aws like this hae also been attacked for re/uiring a percentage of the sale price to be paid as a
ro!alt! rather than a percentage of the profit" &"6" +5 will onl! coer resales where a profit of
more than one thousand dollars is made" Therefore an art patron who loses mone! when reselling
a piece of art will hae to forfeit nothing" The same will go for a patron who onl! reali%es a small
profit, as the! will not hae to spend an! mone! in the transaction costs of tracking down the
artist and pa!ing checking account fees"
&inall! these laws hae been attacked as not recogni%ing the need for art dealers to deelop a
market for an artistTs work" 6gain &"6" +5 takes this into account b! giing art dealers a ., !ear
grace period to sell the art amongst themseles without pa!ing an! ro!alties before the art is sold
to the public"
Dh! &"6" +5 is not preempted b! the &ederal Cop!right 6ct(
$t has been argued that a state statute such as the one proposed b! &"6" +5 is preempted b! federal
law, specificall! the .KLE Cop!right 6ct" This argument is based on the theor! that when the
federal goernment seeks to full! occup! a field of law, no state laws ma! conflict with the
federal law" &or a long time it had been well settled precedent that ro!alt! laws like the one
proposed in &"6" +5 were not preempted b! &ederal law" $n the .KLL case of 1amuelston " Rogers
the ;nited 1tates Court of 6ppeals for the .<th Circuit stated that the state law in /uestion
9proided an additional right9 that was not then coered b! the then federal law" The federal law
had onl! stated that the cop!right holder had right to sell their work, it said nothing about
ro!alties to be paid after the work had been sold" &urthermore the court also noted that the ro!alt!
law in /uestion did not 9 'restrict the transfer' of a cop! of the work9 which was a matter also
coered b! the then &ederal law" Rather it merel! created a liabilit! to the artist, but was not a
legal restraint"
1ince 1amuelston the law has been changed" The new federal law has an explicit preemption
proision which sa!s that the exclusie rights within the general scope of the federal law are
goerned exclusiel! b! the .KLE Cop!right 6ct" 6mong these included in section .,E of the law
are the right 9to distribute copies"""of the cop!righted work to the public b! sale or other transfer
of ownership" 6 more recent case of the .<th circuit court of 6ppeals &ranklin Press 1erice " E-
;pdates has stated that in order for a state statute to be preempted b! federal law it must meet a
two part anal!sis" &irst it must come within the sub#ect matter of cop!right and second the rights
inoled must be exclusie rights granted to the cop!right owner b! the Cop!right 6ct of .KLE"
Dhile the works of isual artists do in fact come within the sub#ect matter of cop!rights, it is not
the case that the rights of the artists to ro!alties on subse/uent sales of their works are one of the
rights exclusiel! granted in the Cop!right 6ct of .KLE" Rather, as the court stated in 1amuelston
these ro!alties are additional rights that hae not been preempted b! federal law" Therefore there
is no issue with &ederal preemption in our attempts to get &"6" +5 passed"
Answer to MPT
$ntroduction(
&ranklin 6ssembl! =ill +5 89&6 +592 is an essential piece of legislation that aims to protect the
economic interests of the artists of &ranklin and their heirs" To that end, &6+5 establishes a s!stem
b! which artists or their heirs receie ro!alties on an! resale of a work created b! the releant
artist" =esides proiding much needed compensation to the artistic communit! which has
historicall! been astl! underpaid, this bill also seres to put artists on par with musicians,
authors, and other creatie creators b! allowing them to receie compensation not #ust on the
initial sale of the artist's work, but on certain subse/uent sales as well" 1pecificall!, &6 +5 calls
for resellers of works of isual art to pa! the artist fie percent of the resale alue of the work,
sub#ect to certain limitations" De greatl! appreciate !our consideration of this bill and hope !ou
choose to support it"
&6 +5 is necessar! and appropriate to Protect and 1upport &ranklin's Fibrant Communit! of
6rtists(
&6 +5 is essential to encourage and support &ranklin's artists for a number of reasons ranging
from economics, to fairness, to enhancing culture and promoting the 6merican wa! of life" :ere
are a number of reasons wh! !ou should support &6 +55(
a" Economics" 6rtists generall! must deal with er! harsh economic realities as the! produce their
work" $n our neighboring state 0l!mpia, KLU of isual artists earn less than V+<,,,, per !ear and
still must pa! for a great deal of expensie e/uipment to produce their works" 6llowing &ranklin
artist to collect ro!alties on resales of their work will help ease this burden in our state,
encouraging more artists and more great works from those we hae alread!"
b" &airness" $t is onl! fair that artists be allowed to benefit from the increase in the alue of their
works" The example of 'awrence :iggins, an artist who sold a sculpture for V4< in .K5+, is
telling" That sculpture was resold in -,,E for VL5,,,,,3 'awrence receied nothing from the
resale, despite its alue's drastic increase" Musicians and authors receie ro!alties when the alue
of their work increases, it is onl! fair that artist should too" Dhen !ou are successful and the work
!ou create is in high demand, !ou should reap the benefits - it's the 6merican Da!W
c" Enhancing culture" This bill proides artists with incenties to produce more work" The! will
be better paid and hae more time to spend on their art 8as opposed to working part time #obs to
make ends meet2"
There are also a few arguments that hae been made against &6 +5 and similar bills introduced in
other states" :oweer, none, is compelling enough to deprie the artists of this much desered
benefit" Those arguments include(
a" The bill will onl! make rich artists richer because artists who are not !et successful do not often
hae their works resold" Dhile it is true that successful artists will reap substantial rewards, this
will sere as incentie to the not-!et-successful group"
6lso, there are a number of resales of artists who are not !et stars and ro!alties from these sales
would go a long wa! for them"
b" The bill ma! diminish the art trade in &ranklin because dealers will go out of state to aoid the
tax" This goes together with the argument that galleries will then hae less mone! to fund new
artists" &6 +5 was crafted to aoid this result b! creating an exception for resale to other dealers
8no ro!alties would be paid2 in the ten !ear period following the initial purpose" 1ince m! earl!
sales are to other dealers, this exception nullifies the argument"
c" There must be lower limits on resale" Preious bills did not hae lower limits and allowed for
ro!alties to be collected een if the work is sold at a loss3 &6 +5 does restricting ro!alt! pa!ments
to resales for which the profit on the resale is oer V.,,,"
&6 +5 is @ot Preempted b! the .KLE Cop!right 6ct(
There is one legal issue that the legislature should consider in deciding whether to pas &6 +5(
whether it is prompted b! the federal Cop!right 6ct of .KLE" This section will guide !ou through
a discuss of the preemption doctrine and show wh! &6 +5 is not preempted"
The preemption doctrine states that federal law preempts state law to the extent that federal law
has 9occupied the field9 and the state law conflicts with federal laws" This basicall! means that if
the federal laws in a gien field are meant to be exhaustie, states cannot create laws in that field
that conflict with the federal law" 1ometimes, as is the case here, a federal law will specificall!
state that it intends to full! occup! a particular field" The .KLE Cop!right act proides that 9all the
legal or e/uitable right that are e/uialent to an! of the exclusie rights within the general scope
of cop!right """ and come within the sub#ect matter of cop!right """ are goerned exclusiel! b!
Rthe .KLE Cop!right 6ctS9"
The Cop!right 6ct sets forth two criteria which must both be met for preemption to appl!" &irst,
the work must come with the sub#ect matter of cop!right" That is the case here because section
.,- specificall! includes pictorial, graphic or sculptural works in the sub#ect matter"
1econd, the rights inoled must be within the exclusie rights granted to a cop!right owner" This
is where the legal argument for preemption falls apart" 1ection .,E8+2 of the .KLE Cop!right 6ct
sets forth the exclusie rights, including in releant part( the right to 9distribute copies """ of the
cop!righted work to the public b! sale or other transfer of ownership"9 8emphasis added2" &6 +5
does not discuss the distribution of copies of the artist's work3 it onl! concerns the resale of the
original work of art produced b! the artist" This means that a law calling for ro!alties to be paid
on the sale of prints of an artistsT work 8or imitation sculptures2 would fall within the gambit of
cop!right law" =ut here, it is clear that &6 +5 deals onl! with the original work of art and thus,
cop!right law does not appl!"
6s such, there is no reason to fear that &6 +5 is preempted"
JLY !"## - PERSAS,-E MEMORANDM
$@ RE 10C$6' @ETD0RI$@G $@?;$R7 8MPT--2
6pplicantsT superising partner is the chairman of the &ranklin 1tate =ar 6ssociation Professional
Guidance Committee" The committee issues adisor! opinions in response to in/uiries from &ranklin
attorne!s concerning the ethical propriet! of contemplated actions under the &ranklin Rules of
Professional Conduct" The committee has receied an in/uir! from a &ranklin attorne! asking whether an
inestigation using the social networking pages 8such as &acebook or M!1pace2 of a nonpart!,
unrepresented witness in a personal in#ur! lawsuit would iolate the Rules" The superising partner has
reiewed the matter and beliees that the attorne!Ts proposed course of conduct would be contrar! to the
Rules" 6pplicantsT task is to prepare a memorandum anal!%ing the issue with the ob#ect of persuading the
other committee members that the proposed course of conduct would iolate the Rules" This is an issue of
first impression in &ranklin" 6pplicants must therefore discern the releance of, and guidance to be
deried from, the three differing applications of those Rules in other states and then appl! those differing
approaches to the proposed course of conduct" The &ile contains the instructional memorandum, the letter
from the &ranklin attorne! making the in/uir! to the committee, and notes of the committee meeting" The
'ibrar! contains the applicable Rules of Professional Conduct 8including commentar! on the Rules2 and
two casesCone from 0l!mpia and one from ColumbiaCbearing on the legal issues"
J567 !"##
Answer to MPT
MEM0R6@);M
T0( &ranklin 1tate =ar 6ssociation - Professional Guidance Committee
&R0M( =ert :" =allantine, Chairman
)6TE( *ul! -E, -,..
RE( Melinda @elson's $n/uir!
Pursuant to our meeting of *ul! -<, -,..,. hae conducted additional research on the
releant law regarding misrepresentations b! attorne!s and those operating on behalf of attorne!s
and $ remain coninced that Melinda @elson's proposed course of action iolates the &ranklin
Rules of Professional Conduct 8the 9Rules92" Courts take three distinct approaches to the rules
regarding attorne! misrepresentations( the strict approach, the conduct-based approach and the
status-based approach" $ shall discuss all three approaches, but Ms" @elson's proposed course of
conduct iolates the Rules regardless of the approach taken"
$" The Proposed Course of 6ction Fiolates a 1trict Reading of the Rules of
Professional Conduct
;nder what some courts hae referred to as the strict approach, an! misrepresentation b!
an attorne! iolates the Rule 5"48c2, which proides that 9it is professional misconduct for a
law!er to " " " engage in conduct inoling dishonest!, fraud, deceit or misrepresentation,9 or Rule
4".8a2, which proides that the law!er shall not knowingl! 9make a false statement of material
fact to a third person"9 The 0l!mpia 1upreme Court followed this approach in $n the Matter of
)eonia Rose, where it held that a district attorne!'s misrepresentation of herself as a public
defender to a suspect holding hostages was misconduct, een though the court admitted that she
9sincerel! belieed she was protecting the public"9 That court held that the Rules leae 9no room
for deception " " " regardless of the cause"9 Een a proper cause was held to be no license to
iolate the rules and een her high dut! to protect the public as a goernmental official did no
excuse her deception"
;nder this approach, Ms" @elson's course of conduct clearl! iolates the Rules" Een
though the assistant would not use an! false information, haing him or her pose as an
ac/uaintance of the witness to gain access to her social networking pages is a misrepresentation,
since she has an ulterior purpose for accessing the pages" The comment to Rule 4". indicates that
misrepresentations can occur b! 9particularl! true but misleading statements or omissions that are
the e/uialent of affirmatie false statements"9 The assistant's omission that the purpose of the
9friend9 re/uest is the e/uialent of an affirmatie false statement because the information would
be material to the witness in deciding whether or not to grant the re/uest" The fact that Ms"
@elson admits the witness would not allow her personall! to look at the page shows that the
omission is the e/uialent of making an affirmatie false statement that the assistant is not
affiliated with the attorne!" $t is no defense that the assistant is not an attorne!, because the Rules
J567 !"##
specificall! forbid a law!er from iolating or attempting to iolate the Rules 9through the acts of
another"9 &ranklin Rules of Professional Conduct 5"48a2" The strict interpretation leaes no room
for #ustifications or /uestions of harm" Thus, een though the witness ma! not be harmed b! the
misrepresentation, and een though there ma! be a noble purpose in exposing a l!ing witness and
ensuring #ustice is done for the defendant, there is no exception to the rules and an! deceit or
misrepresentation is disallowed"
The court in )eonia Rose did suggest that there ma! be an exception for cases of
9imminent public harm,9 but found that it would not be met because the police and the district
attorne! had other options to preent harm from coming to the remaining hostages" $n this case,
there is no threat of public harm at all, except perhaps the threat of an un#ust erdict, but the
court's reasoning that iolations of the Rule should not be allowed if the part! has other options is
releant to the discussion here" $f Ms" @elson
can obtain the information sought in an! other wa! that does not iolate the Rules, een if it is
more difficult or expensie, she is obligated to exhaust those options before considering conduct
that would iolate the text of the Rule"
$$" Conduct-=ased 6pproach
The second approach some courts hae taken in misrepresentation cases is a conduct-based
anal!sis of the attorne!'s behaior" 6s laid out b! the Columbia 1upreme Court in $n re :artson
=rant, this approach assesses( 8i2 the directness of the law!er's inolement in the deception3 8ii2
the significance and depth of the deception3 8iii2 the necessit! of the deception and the existence
of alternatie means to discoer the eidence3 and 8i2 the relationship with an! other of the Rules
of Professional Conduct" This approach is less rigid and accounts for the second comment to Rule
5, which suggests that onl! dishonest conduct which 9goes to the core of the integrit! of the
profession and adersel! reflects on the fitness to practice law9 iolates the Rule" Though that
court chose to use a narrower resolution, it did find 9substantial merit9 in the conduct-based
approach"
$n our case, the law!er is directl! inoled in the deception" Though it will be carried out
b! an assistant, it was the law!er's idea and her plan to execute it3 the onl! reason she is not doing
it herself" The deception is significant because it allows the attorne! access to all of the witness's
personal information b! means of a deception" Though some members of the board suggested that
the misrepresentation was minor or that the conduct is harmless because the networking pages are
open to the public, the misrepresentation is actuall! /uite serious because the witness's personal
page is not open to the public" Though the witness admitted that she grants access to the page to
9#ust about an!one who asks for it,9 that is most likel! because an!one who bothered to ask for it
is likel! to be a friend of the witness and is not probatie of how deep a priac! iolation it would
be" $n addition, it could open the witness up to a claim of per#ur!, which would be highl!
significant" The depth of the misrepresentation is not #udged on how big a lie it was for the
attorne!, but how significant the reliance was for the person lied to" 6s in )eonia Rose, the
district attorne!'s lie was not terribl! important from her perspectie, as the suspect receied a
public defender an!how, but it was significant for him because it ma! hae destro!ed his trust in
the #ustice s!stem"
J567 !"##
@ext, the deception is not necessar! because the eidence is aailable b! other means" Ms"
@elson is free to subpoena an! photos that the witness has of the night in /uestion or ask for
access to the account through the court s!stem" Gien how releant the information is to the
claim, she would certainl! be able to access that information through discoer! or subpoenas, and
that t!pe of discoer! would minimi%e the priac! harms to the witness, because none of her
other personal information would be isible to the attorne! or her agents" Though it ma! be more
troublesome for Ms" @elson to access the information through the #udicial s!stem instead of
asking her assistant to retriee it for her, she is re/uired to go through the courts where possible
if it means aoiding a iolation of the Rules" This also addresses the concern of members of the
committee that it would be worthwhile to deceie the witness to expose her as a liar" Dhile
exposing a l!ing witness is in the interests of #ustice, through discoer! and subpoenas exposure
can be accomplished without a iolation of the rules, and aoids inading the witness's priac!
through the use of deception and misrepresentation" $f Ms" @elson knew for a fact she was l!ing,
the case would be stronger, but as of right now she merel! has a 9belief that the pages 9ma!9
contain information which 9could9 impeach the witness at trial"
To #ustif! iolations of the Rules on the grounds of necessit! should re/uire a stronger case
than that" $t would also be different if discoer! were not aailable and the deception was the onl!
means of procuring the information, but we hae no indication that that's the case" $ndeed, Ms"
@elson did not een ask the witness in the deposition to reeal the contents of the pages or for
permission to access them" 1urel! these more traditional aenues should be pursued before we
countenance a iolation of the Rules"
The final point goes to whether the conduct is 9otherwise illegal or unethical,9 separate and
apart from a iolation of the rules goerning dishonest!, misrepresentation or deception" There is
no eidence that the proposed conduct iolates other rules or laws of which $ am aware"
;nder this approach, Ms" @elson's conduct is not allowed because her direct inolement
in a significant deception is not #ustified b! an! pressing necessit!, and an! necessit! is mitigated
b! the ample alternatie means of discoering the releant eidence"
$$$" 1tatus-=ased 6pproach
The Columbia 1upreme Court in $n Re :artson =rant took a third approach to problems
arising out of attorne! dishonest!, misrepresentation or deception" $n that case, the attorne! for
the &air :ousing 6ssociation, a non-profit organi%ation, recruited two assistants to pose as a
couple looking to bu! a home in order to expose discriminator! housing practices" The court did
not read the Rule against misrepresentation strictl! and instead took a 9status-based9 approach
which focused on the 9role that the attorne! pla!s in adancing the interests of #ustice"9 $n that
case, the fact that eidence of unfair housing practices would be 9irtuall! impossible9 to obtain
without resorting to 9sting9 operations of the t!pe conducted b! the attorne! weighed heail! in
faor of not disciplining him" This approach looks to the spirit of the Rules, 9to see that #ustice is
done, without compromising the integrit! of the profession"9
J567 !"##
$n Ms" @elson's case, while there is some interest in seeing 9#ustice done9 b! exposing a
potentiall! l!ing witness and ensuring that the truth comes out at trial, the
conduct proposed would 9compromise the integrit! of the profession"9 $n Ms" @elson's case,
unlike the fair housing case, the eidence would not be 9irtuall! impossible9 to obtain without
deception" 6s discussed aboe, there are seeral wa!s in which Ms" @elson could obtain the
eidence without resorting to deception" The =rant court also recogni%ed that exceptions to the
Rule would be more readil! aailable when the attorne! was acting in the public interest to 9root
out iolations of ciil rights9 as opposed to the indication of the merel! priate rights of Ms"
@elson's client" &inall!, the proposed action does not fit within the =rant court's other two
examples, to preent imminent danger to public safet! or inestigating iolations of intellectual
propert! rights, presumabl! b! bu!ing goods from the alleged iolators without disclosing one's
attorne! status"
The conduct compromises the integrit! of the profession" $t furthers the stereot!pe that
law!ers are willing to lie in order to get the information the! want when it is expedient and
undermines the #udiciall!-controlled discoer! process b! allowing attorne!s to short-circuit that
process when it is arguabl! allowed, without re/uiring them to make an! good faith attempt to
ac/uire the same information through the usual legal channels" This exception is narrowl! crafted
to cases where the harm is minimal or the conduct is necessar! for a greater public good" :ere,
the harm to the witness is significant and the conduct is onl! possibl! necessar! to adance a
priate part!'s interests"
The =rant court took pains to emphasi%e that the exception it was creating was narrow and
that it the! 9limit our reading of permissible actions of this sort onl! to these circumstances and
extend it to no others"9
6s Ms" @elson's proposed course of action is not within an! of those circumstances, ciil
rights, public safet! and corruption, or intellectual propert! iolations, it is not permissible under
this approach"
C0@C';1$0@
&or the foregoing reasons, this Committee should find that Ms" @elson's proposed course of
conduct would iolate the &ranklin Rules of Professional Conduct and issue an adisor! opinion
to that effect"
J567 !"##
Answer to MPT
To( Members of the &ranklin 1tate =ar 6ssociation Professional Guidance Committee
&rom( 6pplicant, on =ehalf of =ert :" =allentine
)ate( *ul! -E, -,..
Re( 1ocial @etworking $n/uir!
$n this case, we are asked to determine whether Ms" @elson will iolate the Rules of
Professional Conduct b! asking an assistant to friend a nonpart! witness, under the guise of being
a stranger to the case, for the purpose of obtaining eidence for impeachment at trial" $t should be
noted that although Ms" @elson is not directl! doing the 9friending9, she ma! be held liable under
Rules 4".8a2 and 5"48a2 for asking or ordering her agent to do so under her direction" ;nder all
aailable anal!ses, Ms" @elson's actions would iolate the Rules of Professional Conduct for
deception and misrepresentation and she should be adised not to engage in such deceptie
conduct"
$" Ms" @elson Dill Fiolate her )uties ;nder the Plain 'anguage of Rule 4".8a2 and Rule 5"4 b!
Making a &alse 1tatement of Material &act to a Third Person and Engaging in Misrepresentation b!
&alsel! &riending a Ditness to Gain 6ccess to :er 1ocial @etworking Pages =ecause :er
Conduct is @ot Excused b! :er Motie to Preent a Ditness from '!ing at Trial"
Ms" @elson is engaging in a false statement of material fact as well as dishonest! and
misrepresentation in ordering an assistant, not known to the third part!, to 9friend9 a witness on a
social networking site for the sole purpose of gaining access to eidence for impeachment"
&ranklin Rule of Professional Conduct 4". re/uires an attorne! to know 9knowingl! 8a2 make a
false statement of material fact or law to a third person"9 8RPC 4".2" The commentar! to that rules
proides that a misrepresentation can 9occur b! partiall! true but misleading statements or
omissions that are the e/uialent of affirmatie false statements"9 8RPC Commentar!2" Rule 5"4
states that 9it is professional misconduct for a law!er to 8c2 engage in conduct inoling
dishonest, fraud, deceit, or misrepresentation"9 Ms" @elson proposes to allow her assistant to
friend the witness b! using truthful information" :oweer, the assistant will withhold his working
relationship with @elson, his purpose for friending the witness, and that the information will be
used in trial to impeach the friend" Moreoer, the friending is done with the intent to impeach the
witness" The friending is designed to deceie the friend into accepting the re/uest so that she ma!
be impeached" @elson has stated that she beliees the witness will not accept her friend re/uest,
indicating the friend wishes to keep the information on the sites priate from Ms" @elson" ;sing a
third part! whom the witness does not recogni%e is meant to trick the witness into acceptance, and
thus into possible impeachment"
Ms" @elson wishes to argue that her motie is to preent a witness from l!ing on the stand"
$n a -,,4 opinion, the 0l!mpia 1upreme Court noted that the Rule 5"4 and its commentar! are
deoid of an! exceptions 8$n the Matter of )eonia Rose, 0l!mpia 1upreme Court 8-,,422" $n
that case, an assistant district attorne! was deemed to hae iolated the rules of professional
conduct b! impersonating a public defender with a future defendant during a hostage situation"
J567 !"##
The court held that 9een a noble motie does not warrant departure from the Rules"9 6lthough in
that case, the court noted the special responsibilities of a prosecutor, it also stated that 9the leel
of ethical standards to which our profession holds all attorne!s, especiall! prosecutors, leaes no
room for deception"9 8Rose2" 1imilarl!, no matter Ms" @elson's motie, her actions iolate the
Rules of Professional Conduct" $n the Rose case, the attorne!'s actions were meant to ensure the
safe release of hostages" Dhile her motie was outstanding, the attorne!'s actions were still held
to be iolations of the Rules and the court declined to make an exception een for 9imminent
public harm"98Rose2" :ere, Ms" @elson means to keep the witness from l!ing on the stand" This
ma! be a good motie, but it does not excuse her fraudulent conduct especiall! where other
means of impeachment are aailable"
Ms" @elson has other options aailable to impeach the witness and introduce the eidence"
$n Rose, the court made not that Rose had options other than acting deceptiel!" 1imilarl! here,
@elson ma! subpoena the records of the site from the social networking sites themseles, ma!
subpoena the witness, ma! subpoena the witness' camera itself, or could simpl! attempt to friend
the witness under her own name"
$$" Ms" @elson's 6ctions is ;nethical under a Conduct =ased 6nal!sis =ecause 1he Created and
Dill =enefit from the )eception3 the )eception which Gathers :ighl! Personal $nformation is
1ignificant and )eep3 the )eception is @ot @ecessar! =ecause Ms" @elson has not 6ttempted the
6lternatie Means of Gathering Eidence3 and $t is 0therwise ;nethical =ecause it Fiolates
Rules of Professional 8Conduct 5"4 and 4"."2
Commentators reiewing attorne! iolations of the Rules of Professional Conduct hae
suggested a conduct-based anal!sis for cases inoling dishonest!, misrepresentation, or
deception" This anal!sis does not concentrate on a single rule, but instead applies in a unitar!
fashion across all releant rules" 8$n re :artson =rant, Columbia 1upreme Court 8-,,L22" This
anal!sis re/uires assessment of four factors( 8.2 the directness of the law!er's inolement in the
deception, 8-2 the significance and depth of the deception, 8+2 the necessit! of the deception and
the existence of alternatie means to discoer the eidence, and 842 the relationship with an! other
of the Rules of Professional Conduct, that is, whether the conduct is otherwise illegal or unethical"
81ee Goldring > =ass, ;ndercoer $nestigation and the Rules of Professional Conduct, K<
&ranklin '" Re" --4 8-,,E22"
a" Ms" @elson is )irectl! $noled in the )eception =ecause 1he is 0rdering her 6ssistant
to Proide &alse or $ncomplete $nformation so that 1he Ma! Fiew the $nformation and ;se the
$nformation at Trial"
Ms" @elson is directl! inoled in the deception because it is being done b! her assistant
for her benefit" The commentar! to Rule 4".8a2 indicates that 9misrepresentations can occur if the
law!er incorporates or affirms a statement of another person that the law!er knows is false"9
8Commentar!2" The Commentar! to Rule 5"4 specificall! indicates that a law!er can be sub#ect to
discipline when 9the! knowingl! assist or induce another to Riolate the RulesS or do so through
the acts of another, as when the! re/uest or instruct an agent to do so on the law!er's behalf"9
J567 !"##
:ere, Ms" @elson is instructing her assistant to commit deception" 6lthough the assistant is
proiding true information, he is merel! acting as a conduit of information for Ms" @elson" :e
has no ulterior motie of trul! becoming the witness' $nternet friend, but seeks to friend for the
sole purpose of proiding information for @elson" @elson then plans to use the information for
impeachment at trial" The plan not onl! originated with @elson, but the fruits of the deception
will be directl! used b! @elson in her case" 6s such, she is directl! inoled with the deception"
b" The )eception is 1ignificant and )eep =ecause $t :as the Possibilit! of
Reealing :ighl! Personal $nformation of a @onpart! @ot Represented b! Counsel"
The depth and significance of the deceptions indicates that it would iolate the Rules of
Professional Conduct because it has the possibilit! of reealing highl! personal information"
6lthough Ms" @elson indicated that the witness stated she loosel! grants access to the pages, she
also admits that there ma! be highl! confidential information and that the witness still retains the
option of re#ecting friendship re/uests" Gien the option of leaing her pages open or re/uiring
permission, the witness has chosen to re/uire permission" $n fact, Ms" @elson openl! admits that
the witness would not accept her friend re/uest, indicating that there ma! be information on the
pages which the witness wishes to keep /uiet"
$n addition, @elson stated that the nonpart! witness was not represented b! counsel" This
witness is onl! a witness, and is not a part! actiel! engaged in this suit" 6s such, Ms" @elson's
far reaching attempts into her priate life in order to proide impeachment eidence are er!
significant" The fact that the witness has not retained counsel indicates that not onl! does she not
beliee her priate life or information to be at stake, but also that she is not as informed as a part!
with counsel" )eceiing a witness without counsel is a significant deception"
c" The )eception is @ot @ecessar! =ecause There 6re 6lternatie
Means to Gain 6ccess to the Eidence which @elson has @ot 6ttempted"
The deception here is not necessar!" @elson ma! gain access to the eidence in seeral
other wa!s" &irst, @elson could simpl! ask the witness for access to the pages" 1he ma! do so
formall! or through a 9&riend re/uest"9 1econd, @elson ma! subpoena the friend for access" 1he
ma! also subpoena the site's administrator" 1he can subpoena for access to the ph!sical copies of
the photos" $n addition, @elson ma! seek to find the testimon! of other witnesses who can testif!
to the drunken state of the plaintiff" :oweer, the facts indicate that @elson has not een
attempted an! of these prior to considering deceiing the witness b! creating a false online
friendship"
d" The )eception is 0therwise ;nethical =ecause it Fiolates Rules 5"4 and 4". in Making
a &alse 1tatement"
The underl!ing deception of falsel! friending the witness iolates Rules 5"4 and 4"." This
anal!sis is the same as the anal!sis proided in 1ection $, aboe"
J567 !"##
$$$" @elson's Conduct Goes to the Core of the $ntegrit! of the Profession and 6dersel! Reflects
her &itness to Practice 'aw =ecause $t is @ot $mpossible to Collect Eidence for $mpeachment
without )eception and it is an $mpinges on the Rights of a @onpart! Ditness"
@elson's conduct would iolate Rules 5"4 and 4".8a2, leading to a iolation that would go
to the core of the integrit! of the profession and adersel! reflect on @elson's fitness to practice
law" 8$n re :artson =rant3 Columbia 1upreme Court 8-,,L22" ;nder the status based anal!sis
proposed b! the Columbia 1upreme Court in $n re :artson =rant, a misrepresentation ma! be
acceptable where it is ital to the proper administration of #ustice and would neither #eopardi%e
the integrit! of the profession nor reflect on the fitness to practice law" 8=rant2" $n that case, the
Columbia 1upreme Court held that an attorne! who asked his assistants, both minorities, to feign
interest in a housing deelopment to reeal a landlord's iolation of the ciil rights law, did not
iolate the Rules of Professional Conduct" 8=rant2" :oweer, the court also emphasi%ed that it
limited its reading to actions of ciil rights iolations, intellectual propert! infringement, and
crime preention" 8=rant2" Moreoer, the court also noted the impossibilit! of collecting eidence
for these t!pes of actions in wa!s other than deception" 8=rant2"
;nlike the case in =rant, this deception compromises the integrit! of the profession" $n
=rant, the attorne! had no other means of collecting information about ciil rights iolations"
:ere, @elson has seeral other options to show the witness ma! be l!ing" @elson is seeking to
find permanent eidence, which is stored b! serers, site administrators, etc" The attorne! in
=rant had no other choice than to catch the perpetration while it was in action" Moreoer,
@elson's action will expose a nonpart!'s highl! public information to someone in her office solel!
for the purposes of possibl! impeachment" Certainl!, l!ing on the stand is pre#udicial to the
administration of #ustice" :oweer, the witness was merel! present at the site of the accident" The
court in =rant noted that the Rules are made in the spirit of seeing #ustice carried out" :ere,
#ustice ma! be carried out without deceiing a nonpart! into reealing priate information"
$mpeaching a part! ma! be important, but it can be done in manners other than obtaining this
eidence 8for example, a thorough cross examination would be likel! to
reeal inconsistencies in the witness's statement2" $n addition, this case does not fit in to the t!pes
of cases to which the =rant intended to appl! it anal!sis" This is a personal in#ur! case, with the
collateral matter of impeaching b! obtaining pictures or information about consumption of
alcohol" The =rant court narrowed its decision to appl! onl! to cases of ciil rights iolations3 the
prosecutors misleads an alleged perpetrator of a crime in the interests of preenting imminent
danger3 and the inestigation of the iolation of $P rights such as trademark counterfeiting"
Conclusion
Ms" @elson's action will be a substantial deception and proision of false information to a
nonpart! in a ciil suit for personal in#ur!" De should adise her not to attempt to obtain
information in this manner because it will iolate Rules 5"4 and 4"." This is true whether we adopt
a iew of strict application of the rules3 a conduct based approach3 or a status based anal!sis"
J567 !"##
FEBRARY !"## - BR,EF OBJE)T,-E MEMORANDM AND
)LOS,N. AR.MENT
=;T'ER F" :$'' 8MPT-.2
6pplicantsT law firm represents *ennifer =utler in a diorce action against Robert :ill" *ennifer
was .L when the marriage ceremon! was performed, and Robert forged the re/uired signatures
on the parental consent form" :oweer, the couple lied together, had two children, and
presented themseles as a married couple" Dhen *ennifer learned that Robert had been haing
an affair, she decided to end the marriage" 1hortl! thereafter, she discoered that Robert had
been married before, and that he and his first wife were diorced in -,,5Cthat is, seeral !ears
after *ennifer and RobertTs marriage ceremon!" 6pplicantsT task is twofold" &irst, the! are asked
to draft a brief ob#ectie memorandum for the superising partner anal!%ing whether the partiesT
marriage ceremon! in 1eptember -,,+ had an! legal effect under the &ranklin &amil! Code"
1econd, applicants are to prepare a closing argument in which the! persuasiel! set forth the
case for wh! the court should conclude that *ennifer and Robert are married under &ranklin law
8&ranklin recogni%es common law marriage2 and that *ennifer should be awarded more than <,
percent of the marital propert!" The &ile consists of the task memorandum, the partnerTs
memorandum to the file, a transcript of an interiew with a neighbor, the coupleTs marriage
certificate, the diorce #udgment for RobertTs first marriage, the deed for the partiesT residence,
and an initation to their anniersar! part!" The 'ibrar! contains the releant sections of the
&ranklin &amil! Code and three cases relating to oid marriages, common law marriages, and
the diision of marital propert!"
J567 !"##
Answer to MPT
To1 1ophia Diggins
Fro81 6pplicant
D9te1 &ebruar! --, -,..
Re1 *ennifer =utler " Robert :ill
,ntrod5ction1
This memo addresses the /uestion of whether the ceremonial marriage on
1eptember ., -,,+ 8the 9Marriage92 of *ennifer =utler 89=utler92 and Robert :ill 89:ill92
had an! legal effect under &ranklin &amil! Code s" +,. et. seq. 8the 9&&C92
S:ort Answer1
The Marriage did not hae an! legal effect because :ill was alread! married at the
time"
Lon; Answer1
=utler and :ill we married in -,,+ when =utler was .L and pregnant and :ill was
--" The &ranklin famil! code proides two circumstances under which a .L !ear old's
marriage can be alid" &irst, a .L !ear old can marr! with parental consent" &&C s"
+,.8a28.2" Though =utler presented the presented a parental authori%ation form at the
ceremon!, the signature on it was forged and thus her marriage could not be alidated b!
means of parental consent" 1econd, a .L !ear old can marr! without parental consent if a
licensed ph!sician gies the clerk a certificate attesting that the woman to be married is
pregnant" &&C s" +,.8a28-2" 6lthough =utler was pregnant at the time, there is no
eidence that she presented such a certificate to the clerk, so the marriage cannot be
alidated b! ph!sician either"
The &&C further proides that a marriage entered into b! a .L !ear old
withoutconsent or ph!sician's attestation is merel! oidable and can be ratified b!
subse/uent eents" &&C s" +,.8b2" 0ne such eent which will sere to ratif! an otherwise
oidable marriage is the continued cohabitation of the couple as husband and wife after
the minor part! reaches the age of consent" :ere =utler and :ill hae satisfied this
condition" The! lied together for almost seen !ears, well after =utler reached the age
of ma#orit!" &urthermore, we hae strong eidence that the! considered themseles
husband and wife and held themseles out to the communit! as such" See Transcript of
Telepone !nter"iew wit #o$isa Milli%an 8*anuar! -5, -,..2" Therefore, under &&C s"
+,.8b2, the Marriage was legall! ratified"
J567 !"##
:oweer, =utler recentl! discoered that :ill was alread! married at the time of
their 1eptember, -,,+ wedding, and was onl! legall! diorced in 6pril, -,,5" &&C s"
+.,8l28a2 proides that 9a marriage entered into prior to the dissolution of an earlier
marriage of one of the parties9 is strictl! prohibited" This conclusion is reinforced b! the
&ranklin Court of 6ppeal's holding in &a%er ". &a%er' where the court stated flatl! that
9a bigamous marriage is "oi( a) initio ... notwithstanding R&&CS s" +,."9 Thus, the fact
that :ill was alread! married in 1eptember -,,+ controls oer ratification b! operation of
&&C s" +,." The Marriage was "oi( a) initio' or in the words of the &ranklin Court of
6ppeal, 9it was as if no marriage had been performed"9 &a%er ". &a%er 8.KKE2"
)LOS,N. AR.MENT ,N BTLER -* H,LL
$ntroduction
'adies and Gentlemen of the *ur! 8if it is a #ur! trial2B 7our :onor 8if it is a bench
trial2,
$n -,,+, *ennifer =utler was a scared .L !ear girl, pregnant and under the
influence of a much older and more experienced manCRobert :ill" 1he agreed to marr!
this man, against her famil!'s wishes, and together the! had two children" 1he stuck with
him for nearl! seen !ears, raising the kids and contributing financiall! to the household"
1he did all this despite his abuse, his infidelit!, andCas !ou hae heardChis lies" @ow
she seeks onl! what is the legal right of an! spouse in her positionCa diorce which is
more than #ustified and the martial propert! which is rightfull! hers" Mr" :ill, on the
other hand, seeks to deprie her of these rights on the basis of his own lies" 6s our
eidence has shown, howeer, the law will not allow Mr" :ill to take such adantage of
his own wrongdoing"
6rgument
Mr" :ill argued to !ou that his marriage to Ms" =utler was neer alid because he
was alread! married at the time of their wedding in -,,+" :e /uoted the &ranklin
1upreme Court in &a%er ". &a%er' where the! held that an! bigamous marriage is a
nullit! from its beginning" Dhile Mr" :ill's reading of that case is correct, his depiction
of the relationship between himself and Ms" =utler is fatall! flawed"
The in/uir! into that relationship does not end on 1eptember ., -,,+" The
&ranklin &amil! Code clearl! states that &ranklin is a state which recogni%es common-
law marriage" The &ranklin Court of 6ppeal, in 0wen " Datts, has further stated that
9&ranklin has long recogni%ed common law marriage"9 $n that case, the Court also
clearl! stated the re/uirements for a common law marriage entered into after a legal
impediment was remoed" 1uch a marriage re/uires, and $ /uote( 9a manifestation of
J567 !"##
mutual agreement, b! parties able to enter into a alid marriage, that the! are presentl!
married, followed b! cohabitation, including holding themseles out to the communit! as
being husband and wife"9
Mr" :ill and Ms" =utler satisf! this description to the letter" To begin with, there
was a legal impediment to their marriageCMr" :ill's former wife" =ut that legal
impediment was remoed in 6pril of -,,5, when 1erena and Robert :ill were officiall!
diorced" 1ince then, Mr" :ill and Ms" =utler hae clearl! manifested their mutual
agreement that the! are presentl! marriedCas eidenced b! the wedding anniersar!
initation dated 1eptember ., -,,KCoer a !ear after Mr" :ill's diorce was finali%ed"
=oth are competent to enter into a common law marriage under &ranklin &amil! Code
1ection 4.," 6nd the! cohabited for oer two !ears after Mr" :ill's diorce" &inall!, as
Ms" Milligan's testimon! made abundantl! clear, Mr" :ill and Ms" =utler hae regularl!
held themseles out to the communit! as husband and wife" Thus, according to the well-
established and long recogni%ed law of &ranklin, Mr" :ill and Ms" =utler are :usband
and Dife, and she is entitled to diorce and a share of the marital propert!"
&urthermore, Ms" =utler is entitled to the ma#orit! of that propert!, including the
home that she now lies in" Mr" :ill's argument that the home is his sole propert! based
on the fact that his name is on the title is unaailing" ;nder the &ranklin &amil! Code,
section 4.,, the name on the title is irreleant to ownership of marital propert!" The
releant in/uir! is into when the propert! was ac/uired" Propert! ac/uired during a
marriage belongs to the marital estate, period" Mr" :ill and Ms" =utler bought their house
in the summer of -,,5, months after Mr" :ill's diorce had become final" $t was thus
purchased after the inception of the marriage and rightl! should be counted as marital
propert!"
&inall!, e/uit! demands that Ms" =utler be granted more than half of the existing
marital propert!" &ranklin &amil! Code s" 4., states that a court ma! take into account a
ariet! of factors in determining an e/uitable distribution of marital propert!, including
but not limited to the needs of each part! and the circumstances which contributed to the
estrangement" Eer! e/uitable factor in this case tilts in faor of Ms" =utler" To begin
with, she put up with !ears of erbal abuse and lies from her husband in the interests of
the famil! and her children, while he was demonstrabl! unfaithful and een went so far
as to burden the famil! finances b! giing a substantial amount of mone! to his
J567 !"##
paramour" 6s the &ranklin Court of 6ppeal has noted, an extramarital affair that places a burden
upon the non-offending spouse can #ustif! a disproportionate distribution of marital propert!"
V.,,,,, is a substantial burden for #ust about an! spouseCespeciall! one with two !oung children
to take care of" $ncidentall!, Ms" =utler has alwa!s been the primar! caretaker of the :ill children,
and now that Mr" :ill has moed out, is their onl! caretaker" This is another factor which should
significantl! tilt the distribution of martial propert! in faor of Ms" =utler" 1ection 4.,
specificall! notes that both 9contribution to the famil! unit9 and 9needs of each part!9 should be
considered as a factor in e/uitable distributionChere, Ms" =utler has not onl! alwa!s taken care
of the children, but also contributed a significant income to the household"
Though the &ranklin Court of 6ppeal in Charles " Charles noted that in the absence of
in#ustice, 9the diision of marital propert! should be substantiall! e/ual9, such a result here would
amount to in#ustice writ large" Mr" :illCwho has abused, lied to, and cheated on Ms" =utler, and
now wants to kick his own children out of their homeCshould be luck! to be awarded the shirt on
his back"
De therefore ask !ou, the #ur!B!our honor, to grant Ms" =utler's petition for diorce, and to
award her whateer portion of the marital propert! !ou determine is #ust and e/uitable, but in no
eent less than <,U of its total alue" Thank !ou"
Fe< !"##
Answer to MPT
T0( 1ophia Diggins
&R0M( 6pplicant
)6TE( &ebruar! --, -,..
RE( *ennifer =utler " Robert :ill
De represent *ennifer =utler in a suit against Robert :ill seeking a diorce and propert!
distribution" Robert has challenged the alidit! of the parties' underl!ing marriage" 7ou asked for
an anal!sis of whether the parties' 1eptember ., -,,+ ceremonial marriage had an! legal effect
under &ranklin &amil! Code HH+,. et seq. The short answer is that, under the anal!sis set forth
below, the ceremonial marriage did not hae an! legal effect because Robert was alread! married
to someone else"
;nder &ranklin &amil! Code HH +,. et seq.' an indiidual .E or .L !ears old ma! not marr!
unless the indiidual 9has the consent of a parent or guardian9 who 9swears that the indiidual is
at least .E !ears old9 or either part! to be married proides 9a certificate from a licensed
ph!sician stating that the ph!sician has examined the woman to be married and has found that she
is pregnant or has gien birth to a child"9 &rank" &am" Code H +,.8a28l2-8-2" 6 marriage without
alid consent under this section 9ma! be ratified and become completel! alid and binding when
the underage part! reaches the age of consent,9 including b! 9continued cohabitation as husband
and wife after reaching the age of consent"9 !(. H +,.8b2" 1eparatel!, the &ranklin &amil! Code
defines 9prohibited9 marriages to include an! marriage 9entered into prior to the dissolution of an
earlier marriage of one of the parties"9 !(. H +.,8l28a2" The Court of 6ppeal has made clear that 9a
bigamous marriage is oid a) initio'* 9has no effect,9 and 9cannot be ratified"9 &a%er ". &a%er' at
. 8.KKE2"
$n this case, when *ennifer and Robert obsered their ceremonial marriage in -,,+,
*ennifer was .L !ears old and pregnant with their first child" =ecause *ennifer's parents ob#ected
to the marriage, Robert forged a parental consent form" 8There was neer a certificate from a
doctor attesting to *ennifer's pregnanc!"2 Robert was then -- but, unbeknownst to *ennifer, he
alread! was married to 1erena 8*ordan2 :ill, with no dissolution or diorce decree haing been
entered with respect to that marriage" $f the onl! defect in the -,,+ ceremon! had been *ennifer's
age, then the ceremon! still would hae had some legal effect because it could hae allowed
*ennifer and Robert to ratif! their marriage b! cohabitating after *ennifer turned .5" See &rank"
&am" Code H +,.8b2" $n light of the fact that Robert alread! was married in -,,+, howeer, the
marriage was prohibited under &ranklin law and the -,,+ ceremon! had no legal effect" $ndeed, in
the Court of 6ppeals' controlling &a%er case, the court ruled that a marriage ceremon! when one
part! alread! was married 9could confer no legal rights,9 and 9RiSt was as if no marriage had been
performed"9 &a%er ". &a%er' at . 8.KKE2"
Fe< !"##
Please let me know if !ou hae an! /uestions" $ would be happ! to research this issue
further"
DRAFT )LOS,N. AR.MENT
BTLER =* H,LL
." =rief $ntroduction
Thank !ou, 7our :onor, and ma! it please the Court"
M! name is 1ophia Diggins, and $ represent *ennifer =utler in this diorce action" 6fter
!ears of deception and erbal and emotional abuse b! the defendant, Robert :ill, m! client seeks
what is rightfull! hers X a diorce decree and a fair share of the marital propert!, including a
ma#orit! interest in the marital home she has worked to maintain" 0er the course of this trial, !ou
hae seen and heard the unrebutted eidence that Robert and *ennifer hae held themseles out as
husband and wife for man! !ears" 7ou also know the eidence of Robert's lies that strike at the
heart of the marital relationship X his lies about his preious marriage and diorce, and his
extramarital affair X as well as his abusie behaior to the mother of his two children" 0n the
record before this Court, it is clear that there was a alid marriage, that the home is marital
propert!, and that *ennifer is entitled to a propert! distribution that includes more than <, percent
of the alue of the home" $ will address each issue in turn"
-" 6rgument
To begin with, there is a alid marriage between *ennifer and Robert, and *ennifer is
therefore entitled to pursue a claim of diorce" 6s !ou know, *ennifer and Robert were married
when *ennifer was onl! .L and was seen months pregnant with their first child 8their now L-
!ear-old daughter, Christina2" *ennifer was not !et .5, and her parents ob#ected to the marriage,
meaning that under the &ranklin &amil! Code, *ennifer and Robert needed a doctor's certificate of
her pregnanc! to go forward with the wedding" Caught in this difficult situation, the! went ahead
with the marriage but without seeing a doctor" $nstead, Robert forged a parental consent form, and
the! were married b! the )istrict Court here in 0cean Cit!" That marriage was inalid but capable
of ratification after *ennifer reached the age of .5, so long as *ennifer and Robert continued to
cohabit as husband and wife"
6s we now know, howeer, Robert was hiding a ke! fact from *ennifer" Robert concealed
that he preiousl! had married 1erena *ordan and that he had not obtained a diorce from her" The
fact that Robert was married rendered the -,,+ wedding ceremon! a nullit! under &ranklin law,
and we do not contend otherwise" $ronicall!, Robert now relies on his past deceit to tr! to preent
*ennifer from obtaining a diorce from him" =ut despite Robert's effort now to aoid the
conse/uences of his actions, there is a alid marriage here under the doctrine of common law
marriage" That doctrine has long been recogni%ed under the &ranklin &amil! Code as well as the
case law" ;nder 1ection +,K of the &amil! Code, common law marriage is recogni%ed where both
parties are .5 and the marriage is not a bigamous one or entered into between blood relaties" The
Court of 6ppeals, in the controlling case of +ast ". +ast in .K+., held that the elements of
Fe< !"##
common law marriage are manifestation of mutual agreement, b! parties able to enter into a alid
marriage, that the! are presentl! married, followed b! cohabitation, including holding themseles
out to the communit! as behind husband and wife"9 The court reaffirmed this principle in -,,+ in
,wen ". -atts' and neither the cases nor the &amil! Code set a durational re/uirement in order for
a relationship to be considered a common law marriage" The facts of ,wen are so important that $
want to set them out for !ou er! briefl!" $n ,wen' words of marital intent were spoken onl!
when one of the parties was not !et diorced and therefore could not legall! agree to marr! the
other part!" 6fter the diorce was final, the parties conducted their affairs as single persons3 the
woman referred to herself as single or as a widow who had not remarried3 and in her will, the
woman left propert! to the man as her 9friend,9 not as her 9husband"9 0f course, on those facts,
the court found no common law marriage, but the court stated that cohabitation after the remoal
of a legal impediment to marriage can ripen into a common law marriage if it was pursuant to
mutual consent or an agreement to be married made after the impediment was remoed"
;nder the holding and reasoning of ,wen' it is clear that there is a alid common law
marriage in this case" @ot onl! hae *ennifer and Robert held themseles out as husband and wife
from the beginning of their relationship in -,,+, but the! hae done so in numerous wa!s X and
p$)licl. / since Robert obtained the diorce from his first wife in -,,5" Robert and *ennifer hae
cohabitated since that time" The! hae continued to raise their two children X Christina and their
son, Dilliam, who #ust celebrated his 4th birthda!" The! hae contributed together to the financial
support of the famil! and the household, kept a #oint checking account, and een put their marital
assets toward the purchase of the marital home in -,,5 X four months after Robert's diorce was
final" 7ou also heard testimon! about the celebration of *ennifer and Robert's sixth wedding
anniersar! in -,,K" The initation asked their guests to celebrate 9the Eth wedding anniersar!
of *ennifer and Robert"9 6s 'ouisa Milligan testified, it was a big barbecue for eer!one in the
neighborhood, and all of *ennifer and Robert's famil! and friends were there" Robert een gae a
toast, sa!ing that marr!ing *ennifer 9was the smartest thing he'd eer done"9 Ms" Milligan also
testified that *ennifer and Robert 9alwa!s9 refer to themseles as husband and wife and that she
had no reason to beliee that *ennifer and Robert were not married"
There has been no contradictor! eidence, 7our :onor" There is nothing to suggest that
*ennifer and Robert did not hold themseles out as husband and wife or that the! did not mutuall!
consent to be in a marital relationship X not onl! from -,,+ to -,,5 but also, criticall!, from
Robert's diorce in the spring of -,,5 to the time of their separation in -,.," ;nder ,wen and in
light of the sheer weight of the eidence, *ennifer has more than satisfied the preponderance
standard to show that a alid common law marriage exists, and this Court should not allow Robert
to use his past misdeeds to escape his marital and famil! obligations to *ennifer and their children"
The second point, 7our :onor, is that the home is marital propert! sub#ect to distribution"
*ennifer and Robert hae lied in the same home since their marriage ceremon! in -,,+" &or the
first fie !ears, the! rented the house, but in the summer of -,,5 the! were gien the chance to
purchase it outright" ;sing their #oint income tax refund as a down pa!ment, *ennifer and Robert
purchased the home on 6ugust .-, -,,5" *ennifer did not attend the closing, and she was shocked
to learn that Robert recorded the deed in his name onl!" This is but one of man! examples of
Robert's misleading conduct that has come to light in this proceeding" &ortunatel!, Robert's action
Fe< !"##
has no effect on whether the home is considered marital propert!" &ranklin law is clear on this
point" ;nder the &ranklin &amil! Code, marital propert! includes 9all""propert!"""accumulated
during the marriage, regardless of whether title is held indiiduall! or b! the parties in a form of
#oint tenanc! or tenanc! b! the entiret!"9 The Code considers as separate propert! onl! that
propert! 9ac/uired prior to the marriage9 X which the home clearl! was not -- or propert!
ac/uired b! one spouse 9during the marriage b! gift, be/uest, deise, or descent"9
Robert's onl! rebuttal point here is to den! the common law marriage and to contend that,
een if he and *ennifer are considered married now, he obtained the propert! in 6ugust -,,5 prior
to the common law marriage taking effect" That is not supported b! the facts" Robert's diorce
from Ms" *ordan was final on 6pril .<, -,,5" *ennifer and Robert purchased the home using #oint
funds almost four months later, on 6ugust .-, -,,5" @ot onl! is their decision to use their #oint
tax return to purchase the home sufficient to establish their intent to be in a marital relationship,
but also during that time the! were operating as a married couple and holding themseles out to
the public as married" 6gain, there is no durational re/uirement for a common law marriage to
take effect under &ranklin law, and there is no basis to conclude that the common law marriage
here somehow did not take effect until after the purchase of the home in 6ugust -,,5"
Third and finall!, *ennifer is entitled to a propert! distribution that includes more than <,
percent of the alue of the home" $n distributing marital propert!, this Court is charged b! the
&ranklin &amil! Code with diiding marital propert! in a manner that is 9e/uitable, #ust, and
reasonable"9 The releant statutor! factors include the needs of the parties, each part!'s
contribution 9as a homemaker or otherwise to the famil! unit,9 and 9the circumstances which
contributed to the estrangement of the parties"9 7our :onor's discretion is guided b! the Court of
6ppeal's ruling in 0arles ". 0arles' in which the court repeated its command that the starting
point is an e/ual diision for the parties 9unless one or more statutor! factors causes such a
diision to be un#ust"9 The 0arles court held that an extramarital affair alone can 9be an added
burden sufficient to #ustif! a disproportionate diision of marital propert! proided that the
eidence establishes the specific added burdens that the non-offending spouse suffered as a result
of such misconduct"9
The statutor! factors and the e/uitable distribution anal!sis tilt decidedl! in faor of a
distribution for *ennifer that includes more than <, percent of the alue of the home" =oth parties
hae worked during the marriage and contributed financiall! to the household" @ot onl! has
*ennifer made financial contributions, she also has cared for their two !oung children, which
alone would be a substantial contribution to the marital relationship" $f the Court needed an!
further proof that *ennifer is entitled to at least <, percent, it is undisputed that *ennifer and
Robert's #oint tax refund was the source of the mone! for the down pa!ment on the propert!"
0n top of this, from a starting point of e/ual diision, now add the fact of Robert's
extramarital affair, which placed a direct burden on *ennifer because Robert was haing an affair
with a coworker an( lending her mone! X marital assets to the tune of V.,,,,," That is
substantiall! more burden than was present in the 0arles case, 7our :onor" &urthermore,
although onl! an extramarital affair was present in 0arles' here Robert has been misleading
*ennifer since the beginning of their relationship" :e fathered a child with her and the! rushed
Fe< !"##
into marriage with Robert hiding the fact that he was married to someone else" The testimon!
shows that Robert has been erball! and emotionall! abusie throughout their relationship"
Robert used #oint funds and purported to bu! the marital home in his and *ennifer's name, but as a
result of this action *ennifer has learned that Robert actuall! titled the house in his name onl! X
apparentl! as part of a plan to assert that the house somehow was 9separate propert!"9 6ll of these
offenses against *ennifer and the relationship should weigh heail! on the distribution of propert!
in this matter" $ would also note that Robert has demanded that *ennifer and the children leae the
home so that Robert can sell the house" $t is in the children's best interest that the! remain in the
marital home"
+" Relief 1ought
$n closing, 7our :onor, we thank the Court for its time and for hearing this important case"
De ask onl! that *ennifer receie the basic relief to which she is entitled after enduring a
relationship in which she was abused and misled from the er! beginning" &ranklin law is clear
that there is a alid, common law marriage here, that the home should be considered marital
propert!, and that *ennifer is entitled to a fair diision of the marital propert!, including a more
than <, percent interest in the marital home" Thank !ou"
"
Fe< !"##
JLY !"#" - PERSAS,-E BR,EF1 ,N SPPORT OF A MOT,ON
$@ RE :6MM0@) 8MPT-.2
$n this performance test, applicants work for a law firm, which has receied a re/uest for guidance from
another attorne!, Carol Dalker, related to her representation of Dilliam :ammond" 6 suspicious fire
destro!ed a building that :ammond owned and that housed his business" :e has sought DalkerTs adice
about whether he has an! criminal exposure related to the fire and whether he ma! file an insurance claim
for the loss of the building" Dhile Dalker suspects that :ammond ma! hae been inoled in the fire,
:ammond has not admitted or denied inolement and Dalker has not explicitl! asked" Dalker wants to
know whether she can successfull! moe to /uash a subpoena duces tecum compelling her to appear
before a grand #ur! conened to inestigate the fire and to testif! and produce materials relating to her
communications with :ammond" 6pplicantsT task is to prepare the argument section of a brief in support
of the motion to /uash on the grounds that under the &ranklin Rules of Professional Conduct and the
&ranklin Rules of Eidence, Dalker ma! not be compelled to gie the testimon! or produce materials" The
&ile contains the instructional memorandum from the superising attorne!, a memorandum on persuasie
briefs, a letter from Dalker to the firm, two memoranda from :ammondTs case file, a police report, the
subpoena duces tecum, and the motion to /uash" The 'ibrar! contains proisions of the &ranklin Rules of
Professional Conduct, the &ranklin Rules of Eidence, and the &ranklin Criminal Code, and two cases
from other #urisdictions bearing on a /uestion, unresoled in &ranklin, inoling the attorne!-client
priilege and the crime-fraud exception"
J567 !"#"
Answer to MPT
1T6TE 0& &R6@I'$@ G0R)0@ C0;@TR7
)$1TR$CT C0;RT
$n re Grand *ur! Proceeding ..-.,,
M0T$0@ T0 ?;61:
1;=PE0@6 :ammond Container Compan!
);CE1 TEC;M
6RG;ME@T
$" ;nder the &ranklin Rules of Professional Conduct, a law!er has a dut! not to
reeal confidential information related to the representation of client, and maintains complete
discretion to reeal such information regardless of the circumstances"
The &ranklin Rules of Professional Conduct states unambiguousl! that 9a law!er shall not
reeal information relating to the representation of a client"""9 1ee &RPC Rule ."E8a2" :oweer, a
law!er ma! reeal such information under three circumstances( .2 if the client gies informed
consent, -2 the disclosure is impliedl! authori%ed in order to carr! out the representation, or +2
under &RPC Rule ."E8b2" $d" &RPC Rule ."E8b2 also gies the law!er complete discretion in
determining whether to reeal confidential information from a client, explicitl! stating that a
law!er 9ma! reeal9 confidential information to the extent 9the law!er reasonabl! beliees
necessar!9 under certain circumstances" 1ee &RPC Rule ."E8b2" 0ne of those circumstances under
&RPC Rule ."E8b2 is 9to preent, mitigate or rectif! substantial in#ur! to the financial interest or
propert! of another that is reasonabl! certain to result"""from the client's commission of a crime of
fraud"9 1ee &RPC Rule ."E8b28+2" 0nce again, howeer, een if those circumstances are met, an
attorne! still maintains complete discretion oer whether he or she must reeal the confidential
communication from the client"
$n this case, 6ttorne! Dalker is under no obligation to reeal an! confidential
communication made to her b! her client, Dilliam :ammond, in the course of her representation
of Mr" :ammond" Mr" :ammond has not gien 6ttorne! Dalker informed consent to reeal an!
confidential communications, nor is disclosure of an! confidential communication impliedl!
authori%ed b! Mr" :ammond in order for 6ttorne! Dalker to carr! out her representation of him"
1ee &RPC Rule ."E8a2" Een if those circumstances were present, 6ttorne! Dalker would be
under no obligation to reeal the confidential communication, because under no circumstances
does &RPC Rule ."E8a2 re/uire disclosure b! an attorne! representing client" $d" 6dditionall!,
6ttorne! Dalker is not under an! obligation to reeal confidential communications from Mr"
:ammond under &RPC Rule ."E8b2, as that rule gies 6ttorne! Dalker complete discretion to
reeal information to the extent that 6ttorne! Dalker finds such disclosure 9reasonabl!
necessar!"9 1ee &RPC Rule ."E8b2" Dhether the circumstances under &RPC Rule ."E8b28+2 hae
been met in this case are irreleant, because een if 6ttorne! Dalker was 9reasonabl! certain9 that
Mr" :ammond intended to commit a crime or fraud through her serice 8which 6ttorne! Dalker
J567 !"#"
does not hae enough information to beliee2, she could not be compelled to disclose such
information under the rule" 1ee &RPC Rule ."E8b28+2" @or does the Gordon Count! )istrict
6ttorne! hae the right to compel such information from 6ttorne! Dalker, as such action would
re/uire 6ttorne! Dalker to iolate the &ranklin Rules of Professional Conduct and sub#ect herself
to professional reprimand, since 6ttorne! Dalker does not feel it is reasonabl! necessar! to reeal
an! information that she receied from Mr" :ammond under &RPC Rule ."E8b28+2" $d"
&or the reasons aboe, this Court should /uash the subpoena ($ces tec$1 that re/uires
6ttorne! Dalker to reeal confidential client communication in iolation of the &ranklin Rules of
Professional Conduct"
$$" =ecause the attorne!-client priilege is a cherished and highl! important legal right, the court
should adopt the more stringent 9probable cause9 standard to determine whether the part! seeking
to compel disclosure of priileged attorne!-client communications has proided sufficient
eidence to show that the client attained the attorne! for improper purposes"
The &ranklin Rules of Eidence state that a 9client has a priilege to refuse to disclose and
to preent an! other person from disclosing confidential communication made for the purpose of
facilitating the rendition of professional legal serices to the client"9 1ee &RE Rule <.+8b2" $n
addition, an attorne! ma! assert the client's attorne!-client priilege on the client's behalf when a
part! seeks to compel the attorne! from disclosing confidential client communications" 1ee &RE
Rule <.+8b28+2" :oweer, if a client seeks the serices of an attorne! 9to enable or aid9 the client
in a crime or fraud, then the attorne!-client priilege will not appl! to the statements made to the
attorne! b! the client in the course of the representation" 1ee &RE <.+8d28.2" Dhen a part! seeks
to compel attorne! testimon! regarding priileged client communications under the &RE Rule
<.+8d28.2 exception, the moing part! bears the burden of proof b! a preponderance of eidence"
1ee &RE <.+8d28.2, Comment +" :oweer, prior to showing proof b! a preponderance of
eidence, the moing part! ma! compel the part! seeking to keep the communication priileged
to disclose the confidential communication in ca1era" $d" &ranklin courts hae !et to determine
the standard to appl! to compel an in ca1era disclosure, and other courts that hae addressed the
issue are split on which standard to
appl!" $d" The Columbia 1upreme Court applies a 9probable cause9 standard, which re/uires a
showing that establishes probable cause that 9the client sought or obtained the attorne!'s serices
to further a crime or fraud"9 1ee State ". Saw.er 8Columbia 1up" Ct" -,,-2" The .<th Circuit has
adopted a lower standard, re/uiring onl! that the moing part! show 9some eidence9 that the
client obtained the attorne!'s serice to perpetrate a crime or fraud" 1ee 2nite( States ". 3o))
8.<th Cir" .KKK2"
Dhile 6ttorne! Dalker urges the court to adopt the more stringent 9probable cause9
standard in order to protect the cherished attorne!-client priilege, 6ttorne! Dalker asserts that
she cannot be compelled to disclose Mr" :ammond's confidential communications under either
standard" $n Saw.er, the Columbia 1upreme Court found that an attorne! was not re/uired to
disclosure confidential communications where 9eidence would support an inference that Rthe
attorne! was retainedS to facilitate per#ur! Rand there wasS an e/uall! strong inference that Rthe
attorne! was retainedS to ensure that his choices were informed"9 1ee State ". Saw.er 8Columbia
1up" Ct" -,,-2" $n this case, the facts suggest that there is an e/uall! strong inference that Mr"
J567 !"#"
:ammond retained 6ttorne! Dalker to protect himself from potential criminal liabilit! for the fire
to his business as there is to suggest that Mr" :ammond retained 6ttorne! Dalker to perpetrate
fraud upon the Mutual $nsurance Compan!" Dhether Mr" :ammond committed the arson or not,
he is entitled to legal representation to protect himself from criminal liabilit! because he is a
suspect in the arson" 1ee Gordon Police $ncident Report" $n addition, while there is circumstantial
eidence that Mr" :ammond ma! be attempting to commit fraud against Mutual $nsurance 8the
false alibi, the re/uest for claim forms2, that eidence does not suggest that Mr" :ammond
retained 6ttorne! Dalker to perpetrate the fraud" Rather, the facts onl! point to suggest that Mr"
:ammond retained 6ttorne! Dalker to protect himself from criminal liabilit!, and that is not
enough under the probable cause standard to suggest that Mr" :ammond's attorne!-client
priilege should be negated"
$n addition, under the 9some eidence9 standard in 3o)), 6ttorne! Dalker cannot be
compelled to reeal Mr" :ammond's statements" $n that case, the court compelled disclosure from
the attorne! where there was eidence that the attorne! was retained in the midst of a fraudulent
scheme, the attorne! was the primar! source of legal adice, the attorne! had regular contact and
access to all client information, and there was actual fraud present" 1ee 2nite( States ". 3o))
8.<th Cir" .KKK2" $n this case, while 6ttorne! Dalker was Mr" :ammond's sole source of legal
adice and she ma! hae been retained during a fraudulent scheme of Mr" :ammond, there is no
eidence that an! fraud has actuall! occurred !et, nor is there eidence that 6ttorne! Dalker has
had access to all of Mr" :ammond's records or had regular contract with him 8although we ma!
presume she has had regular contact and access as Mr" :ammond's attorne!2" 6dditionall!,
6ttorne! Dalker did not hae an! information from Mr" :ammond that would suggest that he
intended to commit fraud against Mutual $nsurance" The fact that no eidence of fraud can be
shown and that Mr" :ammond has a right to legal counsel to protect himself from criminal
liabilit! for the arson should be sufficient to preent the Gordon Count! )istrict6ttorne! from
showing 9some eidence9 of Mr" :ammond retaining 6ttorne! Dalker to perpetrate fraud under
the 3o)) standard"
&or the reasons aboe, this Court should /uash the subpoena ($ces tec$1 that re/uires
6ttorne! Dalker to reeal confidential client communication in iolation of the &ranklin Rules of
Eidence and adopt the 9probable cause9 standard to determine whether the part! seeking to
compel disclosure of priileged attorne!-client communications has proided sufficient eidence
to show that the client attained the attorne! for improper purposes"
J567 !"#"
Answer to MPT
$" 6bsent consent of the client an attorne! shall not reeal information relating to the
clientTs representation"
The law!er-client priilege is well established b! both the &ranklin Rules of Professional
Conduct 8hereinafter &RPC2 and &ranklin Rules of Eidence 8hereinafter &RE2" The &RPC
explicitl! state that a Pla!er shall not reeal information relating to the representation of the client
unless the client gies informed consent, the disclosure is impliedl! authori%ed in order to carr!
out representation or the disclosure is permitted b! paragraph 8b2 8to be discussed below2" 8&RPC
."E2
:ere, 6ttorne! DalkerTs client has not onl! failed to gie informed consent but Mr"
:ammond has expressl! stated that he does not wish to waie the priilege and does not want
6ttorne! Dalker to reeal his communications" 'ikewise, Mr" :ammond has not b! the act of
retaining counsel implicitl! authori%ed disclosure to carr! out his representation" Rather the
reason for his retaining counsel is simpl! to ensure that he faces no criminal liabilit! from the fie
which destro!ed his business 8a prudent moe for an!one2 and to discoer whether or not he could
file an insurance claim" 6gain, neither of these acts impl! his desire for counsel to breach his
confidence" =reach of :ammondTs confidence based on the aboe would erode the er! essence
of the law!er-client priilege the code seeks to protect"
&urther, the alleged acts asserted b! the prosecution do not fit the exception of subsection
8b2 of &RPC H."E" 1ection 8b2 permits a law!er to Preeal information relating to the
representation of a client to the extent that the law!er beliees is reasonabl! necessar! to .2
preent reasonabl! certain death or substantial bodil! harmY8or2Y-2 to preent, mitigate or
rectif! substantial in#ur! to the financial interest or propert! of another that is reasonabl! certain
to result from the clients commission of a crime or fraud of which the client has used the law!erTs
serices"Q R&RCP H."E8b2S
@either of the aboe exceptions to &RCP H."E8a2 are applicable" &irst off, 6ttorne! Dalker
is full! aware of the rules set forth in H."E and the exceptions and beliees that H."E protects her
clients information"
Regardless of whether 6ttorne! DalkerTs belief that she does not hae to disclose her
clients confidences it is clear that neither exception of H."E8b2 applies 6ttorne! DalkerTs reealing
information fails to fulfill the subsection 8.2 re/uirement because there is no threat of death or
substantial bodil! harm" The conduct alleged b! the prosecution has alread! occurred making
subsection 8.2 wholl! implacable"
&urther, there is no need to reeal client confidences based on subsection 8+2 of H."E"
6lthough it allows an attorne! to reeal client confidences to preent or rectif! substantial in#ur!
to the financial interest of another there is no proper application of this exception" 6s police
reports conclude :ammond at most has contacted his insurance carrier he has not filed an! t!pe
of insurance claim as of date 8see Gordon Police )epartment $ncident Report2" Thus, there is no
J567 !"#"
threat of financial harm present to date to anotherTs propert! interest" 6 claim under this exception
if it was een appropriate 8which is arguable at best2 is not ripe"
'astl!, subsection 8+2 is implicable as per its final part because there is no fraud which has
Presulted from the clientTs commission of a crime or fraud in furtherance of which the client has
used the law!erTs serices"Q R&RCP ."E8b28+2S 6ttorne! Dalker is full! aware of her ethical
obligations and recommends to all clients that the! do not commit nor will she participate in a
crime or fraud"
6ccordingl!, under H."E of the &RPC 6ttorne! Dalker is not permitted to reeal the client
confidences of Mr" :ammond"
$$" The people hae failed to come forth with sufficient Psome eidenceQ to breach the
&ranklin Rules of Eidences law!er client priilege"
The attorne! client priilege represents one of the oldest and most sacred priileges in the
legal realm" $t is meant to Pencourage full and frank communication between attorne!s and
clients" 82.S. ". 3o))2" :oweer, this priilege is not absolute and Pbecause the priilege has the
effect of withholding information from the fact finder it should appl! onl! where necessar!"
83o))2" Thus, the &ranklin Rules of Eidence 8hereinafter &RE2 as well as case law has
established the crime fraud exception to the priilege set forth in &RE H<.+8d2" This exception
breaches the eil of the priilege Pif the law!erTs serices were sought or obtained to enable or aid
an!one to commit or plea what the client knew or reasonabl! should hae known to be a crime or
fraud"Q R&RE H<.+8d2S"
:oweer, it must be noted as per the official adisor! comment to H<.+ that a
communication made between a client and a law!er is presumed to be priileged" 6n! part! 8here
the people2 claiming that such communication is not priileged bears the burden of proof b! a
preponderance of the eidence"
6lthough to date &ranklin courts hae not !et determined what eidence must be proen to
breach the priilege the proponent part! must at least state sufficient Psome eidenceQ 8if not
probable cause2"
6ccording to the court in 3o)), the same eidence standard is established b! the part!
seeking to breach the priilege that there exists at least some eidence supporting an inference
that the client retained the attorne! to commit a crime or fraud" The 3o)) court belieed this to be
a proper balance between the eil of the priilege and the need to preent crimeBfraud" :oweer,
the moing part! must do more than simpl! assert crime or fraud the! must present the same
eidence discussed aboe" $n 3o)), the defendant was committing ongoing fraud b! falsif!ing the
alue of his gold mine" $n 3o)), the court found that the goernment met its burden of the some
eidence standard because the defendant retained his attorne! while Pin the midst of a fraudulent
schemeQ and that during the scheme the attorne! was the primar! course of legal adice to the
defendant"
J567 !"#"
:ere, no fraudulent scheme has been committed" The onl! fraudulent scheme alleged
under the &ranklin Criminal Code H<"<, is implacable because as stated earlier :ammond has !et
to file a claim" 6dditionall!, 6ttorne! Dalker was retained after the burning of :ammondTs
building thus she had no part in the alleged crime"
Thus, the peoples re/uest is a mere fishing expedition and the! hae failed to raise a
sufficient influence" &urther, een if the! had raised such an influence per 3o)) the defendant is
allowed to come forward with eidence that the attorne! was retained for a proper purpose"
6dditionall!, een if the people hae met their burden 8which the! hae not2 the appropriate
remed! would be on in camera hearing not testimon! at a grand #ur! trial" Thus, there subpoena is
at least untimel!"
'astl!, it is arguable that a higher standard should be needed rather than the some eidence
standard to trigger an in camera hearing" 6lthough not controlling the court in &ranklin, State ".
Saw.er applies a probable cause standard re/uiring the people to come forward with probable
cause to beliee that the attorne! was retained Pto further a crime or fraudQ in order to trigger the
in camera reiew" $n Saw.er, the court belieed that this standard was not met while the
proponent of breaching the priilege argued that an attorne! was retained to further crime or
fraud, an e/uall! likel! inference was that the attorne! was Pretained to ensureYthat choices
were informed"Q :ere, :ammond retained 6ttorne! Dalker to ensure he made correct choices and
similar to Saw.er, the alleged guilt! part! could hae Pfailed to cooperate because he was afraid
he might expose himself to liabilit! with no counterailing benefit"Q Retaining a law!er simpl!
does not e/ual guilt" $t is more prudence and good #udgment"
Regardless of which standard the court applies some eidence or probable cause, the
defendant is at first entitled to an in camera reiew and rebut the eidence prior to testif!ing at a
grand #ur!" 'ikewise, an exception H."E of the &RPC has not been proen" The court must /uash
the subpoena ($ces tec$1 prior to an in camera reiew if the people hae met their burden"
J567 !"#"
FEBRARY !"#" - PERSAS,-E BR,EF1 ,N SPPORT OF A MOT,ON
1T6TE 0& &R6@I'$@ F" MC'6$@ 8MPT-.2
The client, =rian Mc'ain, has been charged with iolating arious sections of the &ranklin Criminal Code
dealing with methamphetamine, a controlled substance" The charges are based on eidence sei%ed from
Mc'ain after police stopped him for inestigator! purposes, acting on an anon!mous tip that an indiidual
matching Mc'ainTs description had been seen purchasing items at a conenience store that, while entirel!
legal, are known ingredients of methamphetamine production" The officers searched his car, finding the
goods described in the tip, together with a small plastic bag containing what appeared to be a mari#uana
cigarette" Mc'ain was arrested and booked" 6fter /uestioning, Mc'ain directed the police to a Pmeth labQ
where the! found chemicals and e/uipment used to manufacture methamphetamine, as well as the drug
itself" Mc'ain was charged with possession of methamphetamine with intent to distribute, possession of
laborator! e/uipment and supplies with the intent to manufacture methamphetamine, and manufacture of
methamphetamine" :e has moed to suppress all eidence sei%ed b! police on grounds that the officer
lacked reasonable suspicion to stop him" :e has also moed to dismiss the possession of e/uipment with
the intent to manufacture methamphetamine charge on the ground that it is a lesser-included offense of
manufacture of methamphetamine"
6pplicantsT task is to draft the arguments in support of both motions" The &ile consists of a memorandum
from the superising attorne! describing the assignment, guidelines for drafting persuasie briefs, the
criminal complaint, the motion to suppress eidence and to dismiss Count -, the transcript of the
anon!mous call to the crime hotline, and an excerpt of the transcript of the eidentiar! hearing" The
'ibrar! contains the releant &ranklin statutes and three casesCtwo relating to inestigator! stops, and
one dealing with lesser-included offenses"
Fe< !"#"
Answer to MPT
AR.MENT
,* T:e E=idence O<t9ined Fro8 McL9in>s -e:ic6e 9nd S:ed M5st Be S5??ressed Bec95se
O@@icer Si8on Did Not H9=e A Re9son9<6e S5s?icion To Sto? McL9in>s -e:ic6e
The eidence obtained from Mc'ain's ehicle and shed must be suppressed because receiing a tip
from an anon!mous, unknown informant and iewing Mc'ain walk out of a grocer! store with a paper bag
did not gie 0fficer 1imon a reasonable suspicion to stop him"
9The &ourth 6mendment protects indiiduals from unreasonable searches and sei%ures"9 1tate "
Montel 8&r" Ct" 6pp" -,,+2" :oweer, under the leading case of Terr! " 0hio, +K- ;"1" . 8.KE52, police
ma! make brief inestigator! stops if the! hae a reasonable suspicion that the person detained is
inoled in criminal conduct" Montel" To conduct a lawful Terr. stop, officers must hae 9a reasonable
suspicion, grounded in specific and articulable facts, that the person RisS inoled in criminal actiit!"9 $d"
8/uoting Terr!2" $n determining whether the officer's suspicion is reasonable, courts looks at the totalit! of
the circumstances" $d"
Cases inoling anon!mous informants are particularl! suspect" $n &ranklin and elsewhere, courts
hae long recogni%ed that tips from anon!mous informants lack the reliabilit! of tips from known or
identified informants" Montel" 6ccordingl!, to support a reasonable suspicion, an anon!mous tip must be
8.2 9reliable in its assertion of illegalit!, not #ust in its tendenc! to identif! a determinate person,9 as well
as 8-2 corroborated, 9such as b! inestigation or independent police obseration of unusuall! suspicious
conduct " " " "9 Montel 8/uoting &lorida " *"'", <-K ;"1" -EE, -L- 8-,,,2"
$n this case, the totalit! of the circumstances indicates that 0fficer 1imon did not hae enough
grounds to form a reasonable suspicion( the anon!mous tipster who called the police about Mc'ain was
unknown to the police and otherwise lacking in reliabilit!, and the tip itself was not supported b!
sufficient independent corroboration" &or these reasons, 0fficer 1imon's stop of Mc'ain and subse/uent
search of his car and shed were unconstitutional, and the fruits of those unlawful searches must be
suppressed"
A* T:e Anon78o5sA nBnown Ti?ster W:o ,denti@ied McL9in>s Acti=it7 As S5s?icio5s
W9s L9cBin; ,n Re6i9<i6it7
0fficer 1imon lacked reasonable suspicion #ustif!ing his decision to stop Mc'ain because his
primar! source of information was entirel! lacking in reliabilit!" $n a similar case, 1tate " 1need 8&r" Ct"
6pp" .KKK2, police stopped the defendant after he isited a house that police had been sureilling based on
a tip from an 9untested confidential informant"9 The court held that the police did not hae reasonable
suspicion to stop the defendant, noting that the! stopped him without erif!ing the tip through
independent inestigation" 'ikewise, in Montel, a tip from een a known informant did not support a
reasonable suspicion when it was otherwise lacking in reliabilit!"
Fe< !"#"
:ere, the tipster who called the Centralia police hotline was an untested, anon!mous informant
who refused to gie the hotline his name" ;nlike preious hotline calls from the 0xford 1treet area, which
had been from 1hop-Mart managers and emplo!ees, this call was not from a 1hop-Mart manager or
emplo!ee and was otherwise unknown to the police" Moreoer, whereas preious calls had inoled
shoplifting, this call was the first to report methamphetamine actiit!" 6dditionall!, the informant did not
hae an! firsthand knowledge that Mc'ain was purchasing the items in /uestion to manufacture drugs"
Rather, the tipster made clear in the call transcript that it was his own conclusion that Mc'ain was
9clearl! up to something"9 ;nlike the tipster in 1tate " Gra!son 8&r" Ct" 6pp" -,,L2, who gae police
specific details indicating knowledge that the defendant had cocaine in his briefcase, the tipster in this
case had no concrete knowledge of unlawful actiit!, onl! a suspicion" 'astl!, the informant refused to
identif! himself" 6ll of these factors seriousl! call into /uestion the reliabilit! of the tipster" 6s in Montel,
because the tip had a 9relatiel! low degree of reliabilit!, " " " RtShe tip, standing alone, was insufficient to
proide reasonable suspicion for the officers' stop"9 Montel"
B* T:e Anon78o5s Ti? W9s Not S5??orted B7 S5@@icient C,nde?endent Po6ice
)orro<or9tionC
Moreoer, the 9independent police corroboration9 in this case falls fall short of the corroboration
needed to supplement an otherwise unreliable tip" $ndependent corroboration can include such eidence as
independent police obseration and unusuall! suspicious conduct" Montel" $t ma! also include specific
knowledge that a location or area is often used for a particular illegal purpose" 1ee 1need 8finding no
reasonable suspicion where there was no eidence that the area was known for drug trafficking or that the
house under sureillance had experienced short-term traffic23 cf" Montel 896 person's mere presence in a
high-crime area known for drug actiit! does not, b! itself, #ustif! a stop"92
0fficer 1imon's 9independent police corroboration9 in this case consisted solel! in locating
Mc'ain's car, erif!ing that he matched the description gien, and obsering him coming out of the
Cullen's &ood Emporium with a small paper bag in his hand" Merel! identif!ing that Mc'ain's car and
appearance matched the description gien goes onl! to identification3 it is insufficient to gie rise to a
reasonable suspicion of criminal actiit!" 0fficer 1imon's obseration that he matched the description is
no more confirmator! than the obseration made b! the police in Montel that the defendant had a white
:onda, and which the court held to be insufficient" $nnocent shoppers walk out of grocer! stores all da!,
and had the informant been l!ing or mistaken, 0fficer 1imon could well hae stopped and searched an
innocent person" $n such a case, his suspicion would clearl! appear to be unreasonable"
This police work also falls short of the independent corroboration conducted b! the police in
Gra!son" $n Gra!son, police followed the defendant and confirmed that he had followed the exact route
that the informant had said he would" Moreoer, in Gra!son, the police also had more specific information
from the informant that indicated that the informant had personal knowledge of the defendant's possession
of illegal cocaine"
Moreoer, Mc'ain's conduct was not unusuall! suspicious" Fiewing a man walk out of a grocer!
store with a paper bag falls far short of suspicious actiit!" Dhile the informant had told police that
Fe< !"#"
Mc'ain had purchased 1udafed from the 1hop-Mart and had asked about engine-starter fluid, this
information must be treated as suspect because of its unreliable source"
&inall!, there is no indication here that the 0xford and 5th 1treet area is known for
methamphetamine actiit!" Dhile the area has experienced an uptick in crime, the fact that an area is high
in crime is, b! itself, insufficient" Montel 89The fact that the area of &ranklin Cit! where Montel's car was
stopped is a high-crime area did not warrant the stop"92" 6s 0fficer 1imon testified, this was the first
report of methamphetamine actiit! in the area" Therefore, 0fficer 1imon's suspicion was lacking in this
independent basis of support as well"
=ecause the anon!mous tip was unreliable, and 0fficer 1imon had not done sufficient independent
police work to corroborate the tipster's information, he did not hae a reasonable suspicion to stop
Mc'ain, and the motion to suppress should be granted"
,,* T:e ED5i?8ent Possession )o5nt %)o5nt Two' M5st Be Dis8issed Bec95se ,t ,s A Lesser-
,nc65ded O@@ense o@ t:e M9n5@9ct5re )o5nt %)o5nt T:ree'
The e/uipment possession count, Count Two, against Mc'ain must be dismissed because it iolates
Mc'ain's constitutional right not to be placed in double #eopard! for the same criminal act" Dhere a
criminal defendant is prosecuted for a 9greater9 crime which necessaril! includes the 9lesser9 crime, 9the
latter offense is a lesser-included offense and prosecution of both crimes iolates double #eopard!"9 1tate
" )ecker 8&r" 1up" Ct" -,,<2 8citing =lockburger " ;nited 1tates, -54 ;"1" -KK 8.K+-22" 96 lesser
included offense is necessaril! included within the greater offense if it is impossible to commit the greater
offense without first haing committed the lesser offense"9
Courts in &ranklin anal!%e whether a crime is a lesser included offense b! appl!ing the 9strict
elements9 test--comparing the elements of both offenses" )ecker" :ere, &ranklin Criminal Code section 4+
defines unlawful methamphetamine e/uipment possession as 8.2 knowingl! 8-2 possessing e/uipment or
chemicals 8+2 for the purpose of manufacturing methamphetamine" &ranklin Criminal Code section <.
defines unlawful methamphetamine manufacture as 8.2 knowingl! 8-2 manufacturing methamphetamine"
1ection <. further defines 9manufacture9 to mean 9produce, compound, conert, or process
methamphetamine, including to package or repackage the substance, either directl! or indirectl! b!
extraction from substances of natural origin or b! means of chemical s!nthesis"9
The fact that the elements do not read exactl! in the same wa! does not preclude a finding that
e/uipment possession is not a lesser-included offense of manufacture" 9&ranklin case law does not re/uire
a strict textual comparison such that onl! where all the elements of the compared offenses coincide
e4actl. will one offense be deemed a lesser-included offense of the greater"9 )ecker" :ere, the element
9manufacturing methamphetamine9 necessaril! includes the elements of the e/uipment possession count3
one cannot manufacture methamphetamine without knowingl! possessing e/uipment or chemicals for the
purpose of manufacturing methamphetamine" This case is not like 1tate " *ackson, in which the court
concluded that possession of drug paraphernalia was not a lesser-included offense of possession of cocaine
because one can possess drugs and not paraphernalia, as well as paraphernalia without drugs" :ere, one
cannot manufacture methamphetamine without knowingl! possessing e/uipment or chemicals for the
Fe< !"#"
purpose of manufacturing methamphetamine" &or these reasons, the e/uipment possession count is a
lesser-included offense of the manufacture count, and the Constitution preents the 1tate from prosecuting
Mc'ain for both" 6ccordingl!, the e/uipment possession count should be denied"
Fe< !"#"
Answer to MPT
Ar;58ent
,* O@@icer Si8on H9d No Re9son9<6e S5s?icion to J5sti@7 t:e Sto? 9nd ,nterro;9tion o@
McL9in*
6 police officer ma! not stop and interrogate a person suspected of criminal conduct unless the
officer has 9'a reasonable suspicion, grounded in specific and articulable facts, that the person RisS
inoled in criminal actiit!' at the time*9 State ". Montel 8&r" Ct" 6pp" -,,+2 8citin% Terr. ". ,io, +K-
;"1" . 8.KE52"
Dhile an anon!mous tip from an informant who has proen reliable to police in the past ma!
proide a reasonable suspicion, 9an anon!mous tip is different3 it must be corroborated, such as b!
inestigation or independent police obseration of unusuall! suspicious conduct, and must be 'reliable in
its assertion of illegalit!, not #ust in its tendenc! to identif! a determinate person"'9 State ". Montel 8&r" Ct"
6pp" -,,+2 8citin% 5lori(a ". 6.#., <-K ;"1" -EE, -L- 8-,,,2" 6 stop 9based solel! on information receied
b! an informant without Ran independent inestigation erif!ing the informant's inestigationS9 is inalid"
State ". Montel 8&r" Ct" 6pp" -,,+2 8discussing with approal State ". Snee( 8&r" Ct" 6pp" .KKK2 wherein
the Snee( court held that a tip from an untested confidential informant that a house was being used to
peddle heroin was not sufficient to #ustif! the search of an indiidual isiting the house where heroin was
aertedl! being peddled2"
0fficer 1imon's stop and interrogation of Mc'ain was exactl! the sort of stop and interrogation
based solel! on an anon!mous tip that is forbidden b! Montel, and as the stop and interrogation iolated
Mc'ain's &ourth 6mendment rights, all eidence and statements following the stop must be suppressed
under the fruit of the poisonous tree doctrine"
6ccording to 0fficer 1imon, Mc'ain was stopped on the basis of the anon!mous tipster's tip, and
0fficer 1imon alluded to the #ustification that he further stopped Mc'ain on the basis of his presence in a
high-crime area" :oweer, the aerred high rate of criminal actiit! referred to b! 0fficer 1imon related
to shoplifting and andalism, and such crimes are irreleant to the drug actiit! alleged b! the anon!mous
tipster" $n an! eent, an! such assertion b! 1imon is irreleant, as 9a person's mere presence in a high-
crime area known for drug actiit! does not, b! itself, #ustif! a stopR,S9 and presence in a high-crime area
does not suffice as sufficient corroboration to an anon!mous tip to constitute reasonable suspicion
#ustif!ing a stop and interrogation" State ". Montel 8&r" Ct" 6pp" -,,+2"
&urther, the anon!mous tipster did not een allege and criminal actiit!" The tipster merel!
speculated that a person bu!ing cold medicine and coffee filters, and commenting on the sale of engine-
starter fluid, was engaged in the manufacture of methamphetamine" 6s 0fficer 1imon testified, the
purchase of all these items is perfectl! legal, and as 0fficer 1imon testified, the tipster omitted that
Mc'ain also purchase other innocuous and legal items"
Fe< !"#"
Moreoer, the situation here is distinguishable from that in State ". 7ra.son 8&r" Ct" 6pp" -,,L2" $n
7ra.son, the &ranklin Court of 6ppeal held that an anon!mous tip was 9sufficientl! corroborated Rb!
independent police inestigationS9 as the tipster correctl! predicted specific behaior that an indiidual
would engage in, and the police then watched the indiidual to erif! the tipster's reliabilit! b! cross-
referencing the indiiduals behaior to the tipster's predictions" The tipster was able to accuratel! predict
that the indiidual stopped left a particular apartment building, entered a particular ehicle with a broken
tail-light, and followed a route described b! the tipster" !("
:ere the anon!mous tipster was onl! able to proide a general description of a 9sku%%! looking9
indiidual matching Mc'ain's general description" Moreoer, the anon!mous tipster stated the 9sku%%!
looking9 indiidual was at the 0xford 1treet 1hop-Mart, when in fact, 0fficer 1imon testified Mc'ain was
neither at 1hop-Mart nor in 1hop-Mart's parking lot" &urther, the anon!mous tipster reported that the
9sku%%! looking9 indiidual had purchased coffee filter, but omitted the fact he purchased coffee"
6ccording to 0fficer 1imon coffee filters are commonl! used to manufacture methamphetamine, but as a
matter of common knowledge coffee filters are assuredl! more often purchased to brew and manufacture
coffee"
;nlike 7ra.son, here the tipster proided inaccurate information that 0fficer 1imon actuall!
proed false b! his independent inestigation" The tipster's ague and speculatie assertions of criminal
actiit! were not onl! uncorroborated b! independent police inestigation, but were proen false b!
independent police inestigation" The tipster's obserations were false, inoled a p!ramid of
assumptions based upon inaccurate and incomplete eidence, and in no wa! #ustified a stop and
interrogation of Mc'ain"
Thus, here, as in Montel, the tip from the unidentifiable caller was 9hearsa! " " " there was no wa!
of knowing Rthe unidentified tipper'sS state of mind at the time Rthe tipperS gae the information, or
whether Rthe tipperS could reliabl! and accuratel! rela! eents"9 State ". Montel 8&r" Ct" 6pp" -,,+2" 6s
independent inestigation from 0fficer 1imon proed the anon!mous tipper's tip false and omissie,
0fficer 1imon had no reasonable suspicion of criminal actiit! when he stopped Mc'ain, and as a result,
both the stop and subse/uent search iolated Mc'ain's &ourth 6mendment rights under the &ederal and
1tate Constitution" 6ll eidence and testimon! subse/uent to 0fficer 1imon's stop and interrogation of
Mc'ain must be suppressed, as such testimon! and eidence was obtained in iolation of Mc'ain's
&ourth 6mendment rights and is thus excludable under the fruit of the poisonous tree doctrine"
,,* )o5nt Two o@ T:e )ri8in96 )o8?69int M5st <e Dis8issed 9s it is 9 Lesser ,nc65ded
O@@ense o@ )o5nt T:ree*
Dhen the same series of eents gies rise to two separate statutor! actions, and the elements of a
9greater9 statutor! action necessaril! includes the elements of the other 9lesser9 statutor! action,
prosecution of both crimes iolates the double #eopard! clause of the ;nited 1tates Constitution" See State
". 8ec9er 8&ranklin 1upreme Court -,,<2 8citing :loc9)$r%er ". 2nite( States, -54 ;"1" -KK 8.K+-223 see
also &ranklin Criminal Code 1ection <8-2" 6 lesser included offense is necessaril! included within the
greater offense if it is impossible to commit the greater offense without haing committed the lesser
offense" !("
Fe< !"#"
Moreoer, 9&ranklin case law does not re/uire a strict textual comparison such that onl! where all
the elements of the compared offenses coincide e4actl. will one offense be deemed a lesser-included
offense of the greater " " " if, in comparing the elements of the offenses in the abstract, the offenses are so
similar that the commission of one offense will necessaril! result in the commission of the other, then the
offenses are multiplicitous"9 State ". 8ec9er 8&ranklin 1upreme Court -,,<2"
:ere, )efendant Mc'ain has been charged with both 8.2 the manufacture of
methamphetamine and 8-2 possession of e/uipment or supplies with intent to manufacture
methamphetamine"
The criminal code prohibiting manufacture of methamphetamine is codified in &ranklin Criminal
Code 1ection <." 1ection <. states in part that 9RiSt is unlawful for an! person to knowingl! manufacture
methamphetamine" 'Manufacture' means to produce, compound, conert, or process methamphetamine,
including to package or repackage the substance, either directl! or indirectl! b! extraction of substances of
natural origin or b! means of chemical s!nthesis"9 &ranklin Criminal Code 1ection <."
The criminal code prohibiting possession of e/uipment or supplies with intent to manufacture
methamphetamine is codified in &ranklin Criminal Code 1ection 4+" 1ection 4+ states in part that 9RnSo
person shall knowingl! possess e/uipment or chemicals, or both, for the purposes of manufacturing a
controlled substance, to wit, methamphetamine " " " "9 &ranklin Criminal Code 1ection 4+"
Thus, under the &ranklin Criminal Code, to unlawfull! manufacture methamphetamine, one must
take raw elements or chemicals and through scientific process or chemical s!nthesis create
methamphetamine" &urther, under the &ranklin Criminal Code, the possession of the raw elements of
chemicals or the scientific e/uipment necessar! to s!nthesi%e methamphetamine is considered criminal
possession of e/uipment or supplies with intent to manufacture methamphetamine"
6s a matter of law and logic, the crime of unlawfull! possessing e/uipment or supplies with intent
to manufacture methamphetamine is the lesser included offense of the crime of manufacturing
methamphetamine" ;nder the statutor! definition of 9manufactureR,S9 one must hae the raw elements
necessar! to manufacture methamphetamine in order to actuall! manufacture methamphetamine" The
possession of these raw elements is a necessar! element in the crime of the unlawful production of
methamphetamine"
6s one cannot make an omelet without eggs, one cannot manufacture methamphetamine without
the raw materials necessar! to do so" 6s 0fficer 1imon testified, the items Mc'ain purchased or possessed
8coffee filters, 1udafed cold medicine and matches2 were all simpl! the raw elements that could allegedl!
be used for the manufacture of methamphetamine" Therefore, one must iolate the statute prohibiting
possession of the raw materials to manufacture in order to subse/uentl! run afoul of the statute prohibiting
manufacture"
Much as the elements of first-degree burglar! necessaril! include the elements of assault, the
elements of manufacturing methamphetamine necessaril! include the elements of unlawfull! possessing
e/uipment or supplies with intent to manufacture methamphetamine" See State ". 8ec9er 8&ranklin
Fe< !"#"
1upreme Court -,,<2 8holding that since first-degree burglar! re/uires intent to cause bodil! in#ur! and
the causation of serious in#ur!, and since assault re/uired the same two elements, assault is a lesser
included offense of first degree burglar!2" *ust as the crime of first-degree burglar! necessaril! re/uires
the commission of assault, the crime of manufacturing methamphetamine re/uires the commission of the
crime of unlawfull! possessing e/uipment or supplies with intent to manufacture methamphetamine"
The fact that the literal language of the statutes does not oerlap is irreleant, as under 8ec9er a
literal linguistic oerlap is unnecessar! for one crime to be the lesser included offense of another"
Moreoer, the situation at hand differs from that in State ". 6ac9son 8&r" Ct" 6pp" .KK-2, wherein
possession of drug paraphernalia was found to be a separate and distinct offense from possession of drugs"
0ne can possess drugs without possessing paraphernalia, !et here, one cannot manufacture
methamphetamine without with raw materials to do so"
Count Two of the Criminal Complaint 8for unlawfull! possessing e/uipment or supplies with intent to
manufacture methamphetamine2 must be dismissed as it is a lesser included offence of Count Three 8for
unlawfull! manufacturing methamphetamine2, and thus prosecution of Mc'ain for both crimes would
iolate the double #eopard! clause of the ;nited 1tates Constitution and constitute reersible error" See
State ". 8ec9er 8&ranklin 1upreme Court -,,<2"
Fe< !"#"
JLY !""/ - OBJE)T,-E MEMORANDM
*6CI10@ F" &R6@I'$@ 1P0RT1 G6METTE, $@C" 8MPT-.2
The client, the &ranklin 1ports Ga%ette, a weekl! tabloid sports newspaper, has been sued b! Richard
P6ctionQ *ackson, a star baseball pla!er, for an alleged iolation of *acksonTs right of publicit! under
&ranklinTs recentl! enacted right-of-publicit! statute" The Ga%ette ran a photograph of *ackson, onl!
partiall! isible, sliding into home plate as part of its coerage of a baseball game" *acksonTs complaint
arises from the Ga%etteTs use of that same photo in a print adertisement soliciting subscriptions" The
Ga%ette seeks the law firmTs assistance in defending against the suit" 6pplicantsT task is to draft an
ob#ectie memorandum anal!%ing whether there is a cause of action under &ranklinTs right-of-publicit!
statute and identif!ing the Ga%etteTs possible legal arguments to oppose such a cause of action" The &ile
contains the instructional memorandum from the superising attorne!, a summar! of the client interiew
and background research, an internal memorandum from the Ga%ette approing the adertisement, and a
cop! of the adertisement itself" The 'ibrar! contains the &ranklin Right of Publicit! 1tatute, excerpts
from its legislatie histor!, and three right-of-publicit! cases decided under the preious common law in
&ranklin"
J567 !""/
Answer to MPT
Memorandum
To( Robert =enson
&rom( 6pplicant
Re( *ackson &ranklin 1ports Ga%ette, $nc"
)ate( *ul! -5, -,,K
This memorandum will discuss whether *ackson has a cause of action under the right of publicit!
statute for use of his image in an adertisement b! and for our client, the &ranklin Ga%ette, a news
medium under &ranklin's new Right of Publicit! 1tatute" &urthermore, the memorandum will discuss an!
defenses aailable to our client" Part $ of the memo will discuss the cause of action Richard 6ction
*ackson is asserting and will weigh this claim" Part $$ of the memo will discuss and anal!%e the defense
that the printed photograph is not readil! identifiable, as set out b! the statutor! guidelines" Part $$$ of the
memo will discuss a second potential defense of newsworthiness"
Part $( Cause of 6ction(
9;nder 1ection E- of &ranklin's Right of Publicit! 1tatute, an! person who knowingl! uses
another's photograph or likeness in an! manner on or in products""""for purposes of adertising or
selling"""or soliciting purchases of products""""shall be liable for an! damages sustained b! the person or
persons in#ured as a result thereof"9
6lthough the statute pre-empts common law rights and the common law cause of action, it is still
helpful to anal!%e how prior cases were decided under the similar standard set out b! the common law(
.2 )efendants use of the plaintiff's persona
-2 6ppropriation of the plaintiff's persona to the defendant's commercial or other adantage
+2 'ack of consent
42 Resulting in#ur!
Richard *ackson certainl! has a claim against our client" The &ranklin Ga%ette used his persona in
order to solicit sales without his consent and as a direct result of using the picture, adertisements
increased b! .5U"
Part $$( )efense that the photograph is not readil! identifiable"
The &ranklin Ga%ette can argue that *ackson is not readil! identifiable from the Photo that the!
used in soliciting sales" $n enacting the new statute, the legislature's goal was to establish a single standard
for this anal!sis" The statute purports that 96 person shall be deemed to be readil! identifiable from a
photograph when one who iews the photograph with the naked e!e"""the person depicted in the
photograph is the same person"""9
J567 !""/
$n &olt " 6$ic.0o !nc and 6ani% !nc the court said that the test was not whether one could
recogni%e an indiidual's features, but whether one can identif! the specific indiidual from the use made
of his image" The court found that the lower court erred as a matter of law in sa!ing the skier could not be
identifiable as :olt because it failed to attribute proper significance to the distinctie appearance of :olt's
suit and its potential, as a factual matter to allow the public to identif! :olt as the skier in the commercial"
The suit's color scheme and design are uni/ue to :olt and their depiction could easil! lead a trier of fact
to conclude it was :olt and not another" $t is a factual /uestion to be decided b! the #ur!" The readil!
identifiable standard was not emplo!ed in this case"
$n :rant " 5ran9lin 8ia1on( +4can%e, 'td the photograph showed her from the waist to the toes,
while her head and torso to her waist are not isible since the! hae alread! entered the water" 6ll the
picture showed was her legs and the generic bathing suit that was re/uired to be worn b! all female diers
who participated in the championships" Court dismissed the complaint" )ifferentiated from :olt where
the skier whose picture was used was identifiable because of his uni/ue uniform which although
somewhat altered neertheless remained basicall! the same and clearl! isible" Thus the public to whom
the adertisement was aimed could easil! identif! the figure depicted as :olt and no other skier" The court
simpl! could not find that her legs, which hae no uni/ue scars, marks or tattoos are identifiable b! the
public compared to an! other dier's legs" Court found there was no wa! the public could conclude this
was a picture of =rant as opposed to an! other dier" @either her likeness nor an! other identif!ing
attribute was present in the photograph and her right of publicit! was not infringed"
De should anal!%e the facts at hand according to the readil! identifiable standard to determine if
our client has a alid defense" $n The Photo, a spra! of dirt from the slide obscured most of *ackson's bod!
and uniform number allowing onl! the second %ero to be partiall! isible" 6dditionall!, no part of his face
could be seen" :is uniform, was one that was worn b! all members of the =lue 1ox and three other pla!ers
8two who were also Caucasian2 wore uniform numbers ending in %ero" $n addition, the pla!ers did not
hae their names on the back of their uniform" *ackson ma! argue that it didn't matter that his name was
not on the back of his uniform or that #ust one %ero was showing, that his fans still could readil! identif!
him" :oweer, although *ackson was famous amongst his fans, the Photo was not one of a memorable
moment or a memorable season" $t's hard to imagine that this photo can be deemed 9readil!9 identifiable
and on the contrar! appears to be /uite obscure" 0ur client will probabl! be successful in asserting this
defense"
Part $$$( )efense of newsworthiness"
9&or purposes of this section, a use of"""photograph or likeness, in connection with an! news""""shall
not constitute a use for which consent is re/uired"9
The legislatie histor! behind enactment of the statute states that the most important right is the
exception for news reporting" $t further notes that the guarantees of freedom of the press in &ranklin and
the ;1 Constitution are such that no indiidual can complain of legitimate news reporting"
$n the Miller " 5SM +nterprises, the court found that Miller's image was incidental to the
adertising of a news medium and in relationship to its news reporting function een though the
republication of the picture was in motiation, sheer adertising and solicitation" The court concluded that
J567 !""/
so long as the photo was used onl! to illustrate the /ualit! and content of the periodical, in which it
originall! appeared and nothing more,
MillerTs rights were not iolated" $t ma! hae been different if the adertisement had somehow tied her
explicitl! to the solicitation for subscription, as b! featuring her name in its heading or text thus impl!ing
endorsement" 1imilar to Miller, our case at hand can be distinguished from *ancoic where the use of the
image was printed on a large poster and sold b! the newspaper to retail stores who in turn sold it to the
public" The court found that this was not b! an! function of a newspaper since in the mind of the consumer
there was no relationship between the poster with *ancoic's image and the newspaper and hence the court
could not use the common law exception for news reporting"
The problem for us and our client is that in Miller, the adertisement did not use her name at all
where in our case the &ranklin Ga%ette used *ackson's nickname, 6ction" =ased on prior case law, it ma!
be argued that his actual name was not used and 96ction9 was simpl! a pla! on words, but this defense
does not seem to be er! strong since *ackson was readil! identifiable b! his name 6ction" :e was a
much-beloed fixture in the sports scene and ma#orit! of fans at =lue 1ox games would wear apparel with
his name, nickname or uni/ue double %ero number" $t is important, howeer, to keep in mind that the
committee explicitl! said that common law is not controlling and the committee intends that the
legislation set forth the full extent of the right thus preempting the common law cause of action in the
area" The legislature specificall! noted that there has been some uncertaint! as to whether news reporting
organi%ations were liable for infringement of the right of publicit! when the! included an indiidual's
picture in ancillar! uses and that the important right of freedom of the press must supersede" &rom these
excerpts from legislatie histor! it appears as though the dicta in the Miller case will not at all be
controlling and #ust because our client used the name 6ction, the! will probabl! be successful in asserting
this defense" The! did not use *ackson's full name or real name in its ancillar! use and instead used
96ction9 as a pla! on words"
J567 !""/
Answer to MPT
=enson > )eGrandi
6ttorne!s at 'aw
.-, Garfield 6enue
&ranklin Cit!, &ranklin ++<+E
MEM0R6@);M
&rom( =ar 6pplicant
To( Robert =enson
)ate( *ul! -5, -,,K
Re( 6ac9son ". 5ran9lin Sports 7a;ette' !nc.
$ntroduction
This memorandum will address the complaint that has been filed against our client, the 5ran9lin
Sports 7a;ette, b! Richard 96ction9 *ackson, for infringement of his right to publicit! under 1ection E- of
Code" The statute addresses the tension between the public's right to access information and the rights of
indiiduals to make productie use of such information in toda!'s celebrit! culture, with the rights
indiiduals hae in the use of their person for those commercial purposes" The memorandum will present
in turn each of the elements of the cause of action, as set forth in the recent statute, and identif! an!
arguments we ma! make to refute *ackson's claims"
$" To fall within the puriew of the statute, defendant must hae used another's 9photograph, or
likeness,9 and photograph is defined as 9an! photographic reproduction, still or moing"""of an! person,
such that the person is readil! identifiable"
6 threshold issue in the cause of action is whether the action the complaint is based on is properl!
actionable under this statute" The &ranklin Right to Publicit! statute applies to the use of another's
persona" &or purposes of the statute, this is limited to photographs or likenesses, which is further defined
b! the statute to include photographs where the sub#ect is reasonabl! identifiable" Per 1ection 8b28.2, a
person is deemed to be readil! identifiable from a photograph when one iewing that photograph with a
naked e!e can reasonabl! determine that the person depicted in the photograph is the plaintiff" Therefore,
if *ackson is not readil! identifiable in the photograph being used b! the Ga%ette, he will not hae a cause
of action, regardless of what the photograph is used for" The term 9readil! identifiable9 has preiousl!
been addressed b! the courts in seeral cases, and those decisions shed some light on how the court will
appl! the text of the statute to the particular facts of our case" Dhile these decisions will not be binding on
the courts as the! rule as a matter of first impression on the statute, which specificall! preempts the
common law, to the extent the! are in accord with the legislatie proisions the! will remain persuasie" $n
&olt' the court clarified that 'identifiabilit!' does not turn solel! on the abilit! to recogni%e an indiidual's
likeness, or facial features" Rather, it is a /uestion of whether as a factual matter, a member of the public
could identif! the specific indiidual, based on such considerations as distinctie appearance of clothing3
J567 !""/
one must look at the totalit! of the persona depicted" :oweer, in :rant the court clarified that if a
uniform is the basis of the identification, it must be uni/ue, rather than a generic, identical outfit, paired
with no facial or distinctie bod! features that could be recogni%ed, and therefore declined to find a
iolation on the basis of a picture of the lower half of a dier's bod!, including her team suit"
:ere, *ackson was photographed in his game uniform, which is the same uniform that all of the
other ballpla!ers wear" :e has a distinctie number, ,,, but onl! the second %ero is isible" 6t the time, +
other pla!ers had , as the second number, and toda! < other pla!ers do" 6s a factual matter, the situation
appears closer to that of :rant than &olt' since there are more generic characteristics to his uniform than
there are
uni/ue ones" $n contrast to a gold and purple colored suit, particularl! distinctie and memorable against
the backdrop of snow, this is a generic, team-mandated uniform partiall! obscured b! the spra! of dust, in
much the same manner that the =rant had a uniform and was partiall! obscured b! the water" @o eidence
has been proided that *ackson has a particularl! uni/ue bodil! characteristic, other than the fact that he is
Caucasian, as are seeral other members of the team" 6s in :rant, this would not likel! be enough to sere
as an identifier, since from the back there is nothing distinguishing about his bod! itself" 6dditionall!, the
eents depicted in this picture occurred < !ears ago, although *ackson is still a member of the team"
=ecause of the lack of distinguishing features, it appears more similar to the situation in :rant, which had
a L !ear gap between the eent and the use of the photograph, and so the public would be less likel! to
recogni%e it" :oweer, since like in &olt, where, Ien was still actiel! competing and in the public e!e at
the time of the use, *ackson is on the team, this is not likel! to be a particularl! strong argument for us to
rel! on"
Dhile as a factual matter this would hae to be determined b! the #ur!, we hae a strong argument
that *ackson is not readil! identifiable, and therefore that there should not be liabilit! under this statute"
$$" $f the person is determined to be readil! identifiable, it ma! not be used for purposes of
adertising or selling products without consent, unless it falls within an exemption for incidental
adertising of a news medium itself"
$f the use of the product is for a commercial use, such as an adertisement to solicit subscriptions,
then it is improper without the consent of the indiidual" :oweer, the statute proides an affirmatie
defense where the photograph is used in connection with an! news, public affairs, or sport broadcast, or
an! political campaign, in which case consent is not re/uired" The statute does not proide additional
clarification regarding the extent of the definition, but prior case law suggests that the inclusion of the
affirmatie defense was an attempt to presere the court's reasoning in Miller. $n that case, the court found
that where the photograph is being used in an adertisement for a newspaper or other publication, an
additional in/uir! must be conducted" $f the use of the photograph was incidental to the adertising of the
paper in relationship to its news reporting function, it determined that the right to publicit! was not
iolated" Thus, een if the motie is sheer adertising and solicitation, that should be considered to fall
within the newsworth! affirmatie defense"
:ere, as in, Miller, the adertisement illustrates the wa! in which *ackson was earlier properl! and
fairl! depicted b! the maga%ine in a legitimate news account of the regular season game" The photo is
now being used to illustrate the /ualit! and content of that same periodical in which it originall! appeared,
to show the kind of sports coerage the! proide" The adertisement itself emphasi%es the /ualit! of the
J567 !""/
coerage, and uses the photograph of an example of the nature and /ualit! of 7a;ette reporting"
Moreoer,
unlike in 6anco"ic, the image is being used in the paper, clearl! in connection to the newspaper itself, and
could not be confused with the proprietar! functions of a sports memorabilia store" 0n these facts, we
hae a strong argument that the paper falls within the puriew of the affirmatie defense, and that banning
it would run afoul of the &irst 6mendment"
$$$" $f the statute incorporates the court's dicta on implied endorsement, the 7a;ette
ma! nonetheless face liabilit! for its actions in utili%ing the photograph"
)espite the applicabilit! of the newsworth! defense to the specific class of adertisements b!
publications, it is possible that that defense will be further limited than in the past when courts appl! it to
the new statute" $f the court adopts the incidental adertising exemption, it ma! adopt it in its most limited
form, because the legislature has attempted to comprehensiel! address the issue and aoid disparate
erdicts3 therefore, we must consider whether the ad will run afoul of the implied endorsement
prohibition" $n Miller, the court suggested that a limit on the exemption for incidental adertising would
be where the photo was used for purposes be!ond illustrating the /ualit! and content of the periodical in
which it originall! appeared" $f the adertisement had 9somehow tied Rthe plaintiffS explicitl! to the
solicitation for subscriptions 8as, for example, b! featuring her name in its headline or text2, and thus
implied an endorsement,9 that could bring the use out of the newsworth! exception" The dissent added
that where a plaintiff is alread! in the business of endorsing products, use of the picture is sufficient to
impl! an endorsement, because 9a picture is worth a thousand words"9
:ere, *ackson's full name is not used, but the ad does make reference to 96ction"9 )epending on
how commonl! known this nickname is, a court could find that this was using the persona for commercial
adantage, and therefore inappropriate" 1ince Miller was decided in .KK5, endorsements hae become
een more important in our commercial culture, and therefore the dissent might hae more weight with a
court toda!, to the extent that the public is er! read! to beliee a public figure could potential endorse
an!thing" &urther, the text sa!s 9Get in with the 6ction,9 impl!ing that 6ction is alread! a part of the
organi%ation"
$n order to aoid litigation, it would probabl! be in our client's best interests to remoe the mention
of 9action9 from the ad" 6s 1andi 6llen stated in her memo, the photo itself cone!s the excitement and
kind of sports coerage the paper offers, and a few words in the text are likel! incidental"
$F" Conclusion
0ur strongest argument is that *ackson is not readil! identifiable in the picture, and therefore does
not hae a cause of action" $f the court fails to accept that argument, we should adise our client to remoe
the words 9action9 from the adertisement, and argue for the application of the newsworth! exemption"
J567 !""/
FEBRARY !""/ - PERSAS,-E MEMORANDM
R0@6') F" )MF 8MPT--2
$n this performance test, applicants work for a sole practitioner who represents =arbara Ronald in an
administratie proceeding before the &ranklin )epartment of Motor Fehicles 8)MF2" The )MF
suspended Ronald's drier's license for allegedl! operating a motor ehicle with a blood-alcohol leel of
,",5 percent, the legal limit" Ronald re/uested an administratie hearing to challenge the suspension"
=ecause this is an administratie proceeding, and not a criminal prosecution, the )MF must proe b! a
preponderance of the eidence that Ronald droe a motor ehicle with a prohibited blood-alcohol content"
The administratie hearing officer has heard the eidence and has directed the parties to submit written
briefs" 6pplicants' task is to draft a persuasie memorandum arguing that the police officer did not hae a
reasonable suspicion warranting the stop of Ronald's car, that the hearing officer cannot rel! solel! on the
blood test to find that Ronald was driing with a blood-alcohol content of ,",5 percent or more, and
finall!, that in light of all the eidence, the )MF has not proed that Ronald was operating a motor
ehicle while intoxicated" The &ile contains the memorandum from the superising attorne!, the
administratie hearing transcript the police report, and the blood-alcohol test results" The 'ibrar! contains
a selection of &ranklin statutes and three cases"
Fe< !""/
Answer to MPT
'6D 0&&$CE1 0& M6RF$@ 6@)ER1
..,, 'archmont 6enue
:awkins &alls, &ranklin +++..
MEM0R6@);M
To( Marin 6nders
&rom( 6pplicant
)ate( &ebruar! -4,-,,K
1ub#ect( Ronald " )epartment of Motor Fehicles
." The police officer did not hae reasonable suspicion to stop =arbara Ronald"
6ccording to the written report of 0fficer =arr! Thompson, he began following Ms" =arbara Ronald at
.(,, 6M as she pulled out of the 'exington Club parking lot" :e thereafter followed her, and stated that
he saw her ehicle weaing" 8Exhibit .2 :oweer, under examination, he admitted that he did not see Ms"
Ronald weaing until after he had begun following her car" 8Transcript at 42 $n fact, her weaing did not
begin until after he had been following her car closel! for approximatel! a mile with his high-beam
headlights on" 8Transcript at +2 This fact renders the instant case readil! distinct from Pratt " )epartment
of Motor Fehicles 8&T" Ct" 6pp" -,,E2, where the officer first obsered that the defendant's ehicle was
9canted9 and onl! thereafter followed it" Pratt at K"
More importantl!, the Court in Pratt explicitl! re#ected the notion that there could be 9a bright line rule
that weaing within a single lane alone gies rise to reasonable suspicion"9 $d at .," The Court in Pratt
further stated that the notion of weaing alone within a lane would further conflict with its earlier holding
in 1tate " Iessler 8)r" Ct" 6pp" .KKK2, and that the )MF's proposed standard would not onl! potentiall!
sub#ect man! members of the public to unconstitutional inasions of priac!, but would be 9in effect no
standard at all"9 Pratt at .,"
Dhile it should be noted that the Court in Pratt did find reasonable suspicion, that finding ma! be readil!
distinguished b! the fact that the defendant in that case weaed, canted into the parking lane9 and 9wasn't
in the designated traffic lane"9 $d at .." $n marked contrast here, Ms" Ronald is said in the police report
merel! to hae been 9weaing back and forth in her lane"9 8Exhibit .2
&or the foregoing reasons, the Court must find that 0fficer Thompson's obseration of Ms" Ronald's
9weaing9 is not sufficient to constitute reasonable suspicion under binding precedent set forth b! the
Court of 6ppeal in Pratt and Iessler, and would therefore constitute a iolation of Ms" Ronald's
constitutional rights under the &ourth 6mendment to the ;nited 1tates Constitution, since absent the
)MF's alread!-re#ected bright line weaing rule, stopping someone in Ms" Ronald's position must be
based on more titan the officer's 9inchoate and unparticulari%ed suspicion or Phunch"9 Pratt dJ ..," citing
Terr! " 0hio 8;"1" .KE52" $t is further demonstrable that 0fficer Thompson began trailing Ms" Ronald on
nothing more than a 'hunch,' since he began his actions based merel! on the fact that she exited the
'exington Club parking lot, which seres to underscore the merel! 9inchoate and unparticulari%ed
suspicion or Phunch9 utili%ed b! 0fficer Thompson"
Fe< !""/
-" The 6dministratie 'aw *udge cannot solel! rel! on the blood test report to find that Ms" Ronald
was driing with a prohibited blood-alcohol concentration
Dhile it is generall! true that section +<+ of the &ranklin Fehicle Code proides generall! that the
)epartment of Motor Fehicles 89)MF92 ma! immediatel! suspend a license on receipt of a blood-alcohol
test result of ",5 or greater, subsection b2 of the statute in /uestion explicitl! notes that the )MF 9shall
bear the burden9 of proing that matter" Moreoer, while &ranklin Code of Regulations s" .-. states that a
forensic blood alcohol test performed b! a forensic alcohol anal!st ma! be admitted in an! administratie
suspension hearing, without the re/uirement of a further foundation, s" ..< of the &ranklin 6dministratie
Procedure 6ct states that hearsa! eidence shall be admissible in an administratie hearing if either, it
would be admissible in a #udicial hearing as a generall! recogni%ed hearsa! exception or, if not falling
into such a categor!, 9it ma! nonetheless be used for the purpose of supplementing or explaining other
eidence"9 1" ..<
:earsa!, as defined b! &ranklin Eidence Code s" .-L5, 9is a statement, other than one made b! the
declarant while testif!ing at a #udicial proceeding, offered in eidence to proe the truth of the matter
asserted"9 1" .-LK further states that hearsa! is not admissible 9except proided b! this Code"9 Turning to
the specific eidentiar! statute most germane to this matter, section .-5, defines the public-records
exception to hearsa!, when the writing in /uestion a2 9was made b! and within the scope of dut! of a
public emplo!ee, 8b2 the writing was made at or near the time of the act, condition, or eent, and 8c2 the
sources of information and method and time of preparation were such as to indicate its trustworthiness"9
Emphasis added"
6s written in the =lood 6lcohol Test Results admitted into eidence as Exhibit -, there are two factors
that preent it from being relied upon under &EC s" ..<" &irst, in order for the Test to constitute a public
record for hearsa! exception purposes under &EC s" .-5,, as indicated aboe, the writing had to be made
9at or near the time of the act, condition or eent"9 6s the Test itself indicates, howeer, the sample was
anal!%ed on )ecember -.,-,,5 8two da!s after the sample was taken, see Exhibit .2, but the certified
cop!, was not signed b! the Records Custodian until )ecember -K,-,,5, eight da!s later" $n a case before
the Court of 6ppeal, the Court held that where an official report did not come out until oer a month after
the defendant's arrest and blood draw, that it did not satisf! the public-records hearsa! exception"
1chwart% " )epartment of Motor Fehicles 8&r" Ct" 6pp" .KK42 $n that case, the Court stated that the blood
test report could be used in an administratie procedure onl! 9for the purpose of supplementing or
explaining other eidence"9 1chwart% at .+, citing &ranklin 6P6 s" ..<" 6ccordingl!, while the
6dministratie 'aw *udge could properl! refer to the Test 9together with the police officer's obserations9
it ma! not do so merel! on the basis of inadmissible hearsa!" 1chwart% at .+"
&urthermore, there is a second factor that lessens the utilit! of the Test under &CR s" .-., which states that
a 9forensic blood anal!sis signed b! such a forensic alcohol anal!st and certified as authentic b! a records
custodian"""ma! be admitted""" without further foundation"9 6s Exhibit - demonstrates, while the name
)aniel Gans, a dul! certified &orensic 6lcohol 6nal!st appears, the signature on the Test report is 9)aniel
Gans signed b! Charlotte 1wain"9 Charlotte 1wain, who also signed her own name, is stated as being a
1enior 'aborator! Technician, and not a &orensic 6lcohol 6nal!st, as re/uired b! statute"
&or the foregoing reason, this case bears a striking resemblance to the binding precedent of Rodrigue% "
)epartment of Motor Fehicles 8&r" Ct" 6pp" -,,42, in which the blood-alcohol test was performed b! an
unauthori%ed indiidual, a 9criminalist"9 6s the Court stated, 91ection .-. authori%es onl! 9forensic
alcohol anal!sts9 to perform forensic alcohol anal!sis - and none others, including 9criminalists"99
Rodrigue% at .<"
Fe< !""/
=ased on the two inescapable facts that the Test was not properl! recorded pursuant to applicable
statutor! re/uirements, as further elucidated b! the Court of 6ppeal in two separate cases, the
6dministratie 'aw *udge cannot solel! rel! on the blood test report to find that Ms" Ronald was driing
with a prohibited concentration, and indeed, should place extremel! little reliance on said Test"
+" The )MF has not met its burden of proing, b! the preponderance of the eidence that Ms" Ronald
was driing with a prohibited blood-alcohol concentration
6s more full! stated in sections . and - of this memorandum, the )MF has failed to demonstrate either
iable eidence of 0fficer Thompson's 'reasonable suspicion' in stopping Ms" Ronald or that the blood-
alcohol test administered comported with applicable statutes so as to /ualif! as a public-records exception
to the hearsa! rule" This particular combination of failures on the )MF's part renders the instant case
analogous to Rodrigue%, cited aboe" $n that case, the blood-alcohol test was conducted and signed b! a
non-forensic alcohol anal!st" 6dditionall!, the )MF failed to proide more than 9cursor! proof of the
officers obserations"9 $d at .<, distinguishing that case from 1chwart%, supra"
6s the Rodrigue% Court stated une/uiocall!, 96 police report oid of detail and a blood test report that
lacks proper foundation, een in combination, to not add up to the necessar! /uantum of eidence"
Conse/uentl!, the )MF failed to proe b! a preponderance of the eidence that Rodrigue% had an
excessie blood-alcohol concentration"9 Rodrigue% at .E" 6s point $ of this memorandum preiousl!
demonstrated, 0fficer Thompson failed to hae a reasonable suspicion upon which to stop Ms" Ronald"
Examination of 0fficer Thompson further demonstrated that he did not recall if she was speeding, but
9probabl! would hae9 included that fact in his report, couldn't recall if the night was bus!, and could not
recall een if she had alcohol on her breath" The combination of a lack of detail in 0fficer Thompson's
testimon! coupled with the lack of ade/uate basis for 'reasonable suspicion' is clearl! analogous to the
9police report oid of detail9 cited in Rodrigue%"
6ccordingl!, with the fact that the blood test report similarl! lacked proper foundation, haing been
signed b! an!one other than a dul! certified forensic alcohol anal!sis, the )MF has clearl! not met its
burden of proing b! the preponderance of the eidence, that Ms" Ronald was driing with a prohibited
blood-alcohol concentration, under the binding and clearl! applicable precedent set forth b! the &ranklin
Court of 6ppeal in Rodrigue% " )epartment of Motor Fehicles"
Fe< !""/
Answer to MPT
'6D 0&&$CE1 0& M6RF$@ 6@)ER1
..,, 'archmont 6enue
:awkins &ails, &ranklin +++..
MEM0R6@);M
To( Marin 6nders
&rom( 6pplicant
)ate( &ebruar! -4,-,,K
1ub#ect( Ronald " )epartment of Motor Fehicles
." The police officer did not hae reasonable suspicion to stop =arbara Ronald
6ccording to the written report of 0fficer =an! Thompson, he began following Ms" =arbara Ronald at
.(,, 6M as she pulled out of the 'exington Club parking lot" :e thereafter followed her, and stated that
he saw her ehicle weaing" 8Exhibit .2 :oweer, under examination, he admitted that he did not see Ms"
Ronald weaing until after he had begun following her car" 8Transcript at 42 $n fact, her weaing did not
begin until after he had been following her car closel! for approximatel! a mile with his high-beam
headlights on" 8Transcript at +2 This fact renders the instant case readil! distinct from Pratt " )epartment
of Motor Fehicles 8&r" Ct" 6pp" -,,E2Z where the officer first obsered that the defendant's ehicle was
9canted9 and onl! thereafter followed it" Pratt at K"
More importantl!, the Court in Pratt explicitl! re#ected the notion that there could be 9a bright line rule
that weaing within a single lane alone gies rise to reasonable suspicion"9 $d at .," The Court in Pratt
further stated that the notion of weaing alone within a lane would further conflict with its earlier holding
in 1tate " Iessler 8)r" Ct" 6pp" .KKK2, and that the )MF's proposed standard would not onl! potentiall!
sub#ect man! members of the public to unconstitutional inasions of priac!, but would be 9in effect no
standard at all"9 Pratt at .,"
Dhile it should be noted that the Court in Pratt did find reasonable suspicion, that finding ma! be readil!
distinguished b! the fact that the defendant in that case weaed, 9canted into the parking lane9 and 9wasn't
in the designated traffic lane"9 $d at .." $n marked contrast here, Ms" Ronald is said in the police report
merel! to hae been 9weaing back and forth in her lane"9 8Exhibit .2
&or the foregoing reasons, the Court must find that 0fficer Thompson's obseration of Ms" Ronald's
9weaing9 is not sufficient to constitute reasonable suspicion under binding precedent set forth b! the
Court of 6ppeal in Pratt and Iessler, and would therefore constitute a iolation of Ms" Ronald's
constitutional rights under the &ourth 6mendment to the ;nited 1tates Constitution, since absent the
)MF's alread!-re#ected bright line weaing rule, stopping someone in Ms" Ronald's position must be
based on more than the officer's 9inchoate and unparticulari%ed suspicion or 'hunch"'9 Pratt at .., citing
Terr! " 0hio 8;"1" .KE52" $t is further demonstrable that 0fficer Thompson began trailing Ms" Ronald on
nothing more than a hunch,' since he began his actions based merel! on the fact that she exited the
'exington Club parking lot, which seres to underscore the merel! 9inchoate and unparticulari%ed
suspicion or hunch'9 utili%ed b! 0fficer Thompson"
Fe< !""/
-" The 6dministratie 'aw *udge cannot solel! rel! on the blood test report to find that Ms" Ronald
was driing with a prohibited blood-alcohol concentration
Dhile it is generall! true that section +<+ of the &ranklin Fehicle Code proides generall! that the
)epartment of Motor Fehicles 89)MF92 ma! immediatel! suspend a license on receipt of a blood-alcohol
test result of ",5 or greater, subsection b2 of the statute in /uestion explicitl! notes that the )MF 9shall
bear the burden9 of proing that matter" Moreoer, while &ranklin Code of Regulations s" .-. states that a
forensic blood alcohol test performed b! a forensic alcohol anal!st ma! be admitted in an! administratie
suspension hearing, without the re/uirement of a further foundation, s" ..< of the &ranklin 6dministratie
Procedure 6ct states that hearsa! eidence shall be admissible in an administratie hearing if either, it
would be admissible in a #udicial hearing as a generall! recogni%ed hearsa! exception or, if not falling
into such a categor!, 9it ma! nonetheless be used for the purpose of supplementing or explaining other
eidence"9 1" ..<
:earsa!, as defined b! &ranklin Eidence Code s" .-L5, 9is a statement, other than one made b! the
declarant while testif!ing at a #udicial proceeding, offered in eidence to proe the truth of the matter
asserted"9 1" .-LK further states that hearsa! is not admissible 9except proided b! this Code"9 Turning to
the specific eidentiar! statute most germane to this matter, section .-5, defines the public-records
exception to hearsa!, when the writing in /uestion a2 9was made b! and within the scope of dut! of a
public emplo!ee, 8b2 the writing was made at or near the time of the act, condition, or eent, and 8c2 the
sources of information and method and time of preparation were such as to indicate its trustworthiness"9
Emphasis added"
6s written in the =lood 6lcohol Test Results admitted into eidence as Exhibit -, there are two factors
that preent it from being relied upon under &EC s" ..<" &irst, in order for the Test to constitute a public
record for hearsa! exception purposes under &EC s" .-5,, as indicated aboe, the writing had to be made
9at or near the time of the act, condition or eent9 6s the Test itself indicates, howeer, the sample was
anal!%ed on )ecember -.,-,,5 8two da!s after the sample was taken, see Exhibit .2, but the certified
cop!, was not signed b! the Records Custodian until )ecember -K,-,,5, eight da!s later" $n a case before
the Court of 6ppeal, the Court held that where an official report did not come out until oer a month after
the defendant's arrest and blood draw, that it did not satisf! the public-records hearsa! exception"
1chwart% " )epartment of Motor Fehicles 8&r" Ct" 6pp" .KK42 $n that case, the Court stated that the blood
test report could be used in an administratie procedure onl! 9for the purpose of supplementing or
explaining other eidence"9 1chwart% at .+, citing &ranklin 6P6 s" ..<" 6ccordingl!, while the
6dministratie 'aw *udge could properl! refer to the Test 9together with the police officer's obserations9
it ma! not do so merel! on the basis of inadmissible hearsa!" 1chwart% at .+"
&urthermore, there is a second factor that lessens the utilit! of the Test under &CR s" .-., which states that
a 9forensic blood anal!sis signed b! such a forensic alcohol anal!st and certified as authentic b! a records
custodian"""ma! be admitted""" without further foundation"9 6s Exhibit - demonstrates, while the name
)aniel Gans, a dul! certified &orensic 6lcohol 6nal!st appears, the signature on the Test report is 9)aniel
Gans signed b! Charlotte 1wain"9 Charlotte 1wain, who also signed her own name, is stated as being a
1enior 'aborator! Technician, and not a &orensic 6lcohol 6nal!st, as re/uired b! statute"
&or the foregoing reason, this case bears a striking resemblance to the binding precedent of Rodrigue% "
)epartment of Motor Fehicles 8&r" Ct" 6pp" -,,42, in which the blood-alcohol test was performed b! an
unauthori%ed indiidual, a 9criminalist"9 6s the Court stated, 91ection .-. authori%es onl! 9forensic
alcohol anal!sts9 to perform forensic alcohol anal!sis - and none others, including 9criminalists"99
Rodrigue% at .<"
Fe< !""/
=ased on the two inescapable facts that the Test was not properl! recorded pursuant to applicable
statutor! re/uirements, as further elucidated b! the Court of 6ppeal in two separate cases, the
6dministratie 'aw *udge cannot solel! rel! on the blood test report to find that Ms" Ronald was driing
with a prohibited concentration, and indeed, should place extremel! little reliance on said Test"
+" The )MF has not met its burden of proing, b! the preponderance of the eidence that Ms" Ronald
was driing with a prohibited blood-alcohol concentration"
6s more full! stated in sections . and - of this memorandum, the )MF has failed to demonstrate either
iable eidence of 0fficer Thompson's 'reasonable suspicion' in stopping Ms" Ronald or that the blood-
alcohol test administered comported with applicable statutes so as to /ualif! as a public-records exception
to the hearsa! rule" This particular combination of failures on the )MF's part renders the instant case
analogous to Rodrigue%, cited aboe" $n that case, the blood-alcohol test was conducted and signed b! a
non-forensic alcohol anal!st" 6dditionall!, the )MF failed to proide more than 9cursor! proof of the
officer's obserations"9 $d at .<, distinguishing that case from 1chwart%, supra"
6s the Rodrigue% Court stated une/uiocall!, 96 police report oid of detail and a blood test report that
lacks proper foundation, een in combination, to not add up to the necessar! /uantum of eidence"
Conse/uentl!, the )MF failed to proe b! a preponderance of the eidence that Rodrigue% had an
excessie blood-alcohol concentration"9 Rodrigue% at .E" 6s point $ of this memorandum preiousl!
demonstrated, 0fficer Thompson failed to hae a reasonable suspicion upon which to stop Ms" Ronald"
Examination of 0fficer Thompson further demonstrated that he did not recall if she was speeding, but
9probabl! would hae9 included that fact in his report, couldn't recall if the night was bus!, and could not
recall een if she had alcohol on her breath" The combination of a lack of detail in 0fficer Thompson's
testimon! coupled with the lack of ade/uate basis for 'reasonable suspicion' is clearl! analogous to the
9police report oid of detail9 cited in Rodrigue%"
6ccordingl!, with the fact that the blood test report similarl! lacked proper foundation, haing been
signed b! an!one other than a dul! certified forensic alcohol anal!sis, the )MF has clearl! not met its
burden of proing b! the preponderance of the eidence, that Ms" Ronald was driing with a prohibited
blood-alcohol concentration, under the binding and clearl! applicable precedent set forth b! the &ranklin
Court of 6ppeal in Rodrigue% " )epartment of Motor Fehicles"
Fe< !""/
JLY !""2 - MEMORANDM4)ASE OF A)T,ON
D$''$6M1 F" 6-' 6;T0M0T$FE CE@TER 8MPT--2
The client, Robert Dilliams, took his minian to 6-l 6utomotie Center 86-l2 for a routine oil change"
6fter being told b! the repair shop's owner that the minian's transmission was in imminent danger of
failing, Dilliams agreed to hae a rebuilt transmission installed for V.,L,," Dilliams subse/uentl! found
out from a local dealership that 6-l had not performed the agreed-upon work, but had in fact reinstalled
his original transmission" :e now wants to file suit against 6-l" 6pplicants' task is to anal!%e seeral
potentiall! actionable statements made b! 6-l's owner and to determine which statements are actionable
and which are not" @ext, applicants are to draft a cause of action for fraud based on those statements
determined to be actionable" $n doing so, applicants are expected to follow the firm's drafting guidelines,
which proide an example of a well-pleaded cause of action" The &ile contains the instructional
memorandum from the superising attorne!, the law firm's guidelines for drafting causes of action, client
interiew notes, a memorandum from the superising attorne! identif!ing four potentiall! actionable
statements, and 6-l's receipt for the alleged repairs" The 'ibrar! contains three cases discussing the
pleading re/uirements for a fraud cause of action"
J567 !""2
Answer to MPT
MEM0R6@);M
To( Tania Miller
&rom( 6pplicant
Re( Dilliams " =iggs dBbBa 6-l 6utomotie Center
)ate( *ul! -K, -,,5
7ou hae asked me to write a memorandum identif!ing which, if an!, of the four actionable statements b!
Mr" =iggs that !ou identified are actionable and which are not, along with m! anal!sis for each
conclusion" $n addition, for each statement that $ hae found to be actionable, $ hae drafted a separate
cause of action according to our firm's drafting guidelines"
6s discussed below, $ hae identified 1tatement . 89=iggs had 'found a notification from )odge about a
defect causing the gears to grind down92 and 1tatement - 897our transmission is going to fail, and soonW2
as supporting a cause of action for fraud" Dhile 1tatement + and 1tatement 4 both meet seeral of the
criteria for fraud, the! are missing some of the ke! elements 8significantl!, the! are both missing
reliance2"
." 1tatement .( =iggs had 9found a notification from )odge about a defect causing the gears to grind
down"9
This statement satisfies the fie elements that are necessar! for fraud( 8.2 a material misrepresentation of
fact b! the defendant3 8-2 made with knowledge of its falsit!3 8+2 made with intent to deceie or induce
reliance3 842 reasonable reliance b! the plaintiff upon the misrepresentation, and 8<2 loss b! the plaintiff as
a proximate result of the misrepresentation"
Eer! element of the cause of action for fraud must be specificall! pleaded and the facts constituting the
fraud must be alleged with sufficient particularit! to allow a defendant to understand full! the nature of
the charges made"
Dhen Dilliams took the minian to Mission )odge, Mission informed Dilliams of the fact that )odge
has not circulated an! notification about an! problems with the transmissions in its -,,+ minians" Thus,
since )odge has neer issued a notification about a defect causing gears to grind down, defendant =iggs
made a material misrepresentation of fact 6s stated in &oster " Panera, a misrepresentation is material if a
reasonable person would consider it important in deciding to enter into the transaction" Clearl!, a warning
b! the carmaker - the da! before Dilliams was to take his famil! on acation in the car - would induce a
reasonable person to engage in the transaction, and thus this information was a material misrepresentation
of fact"
1ince there was no basis in fact at all of this statement, =iggs must hae known of its falsit!" :oweer,
while we will need to pursue additional eidence to establish that =iggs did in fact know this statement
was false, it should not be difficult to proe since there is no reasonable basis for him to beliee that
)odge did eer issue such a statement" @eertheless, we should ensure that we hae sufficient eidence to
proe =iggs' knowledge that )odge neer issued this warning"
$n making this false misrepresentation, =iggs intended to induce Dilliams to rel! on this statement, thus
spending more mone! on these unnecessar! tasks" 6s a reasonable person, and under the &oster " Paner
standard for reasonable reliance, it is clear that had Dilliams known that the statement about )odge was
false, he would not hae moed forward with the action" $n particular, Dilliams specificall! stated that he
belieed that the transmission was in good condition and did not think that there was an!thing wrong with
J567 !""2
it" $ndeed, the onl! reason that he belieed that the transmission needed work was because =iggs induced
him to rel! on the false statement about )odge" Dilliams did reasonabl! rel! on the statement from =iggs,
because =iggs held himself out to be an expert in cars and in possession of special knowledge on the
parts" Dhile Madison " =rooks established that endors hae the right to express an opinion, this was no
mere opinion - it was an expression of fact, and Dilliams was reasonable in rel!ing on this statement"
The fifth element of loss is easil! established since Dilliams had to cancel his famil! acation, paid
V.,55L to =iggs for unnecessar! work, and then had to pa! V.-5 to Mission to repair those unnecessar!
and damaging actions"
Cause of 6ction for &raud Pleading pursuant to 1tatement .(
." Dhen =iggs told Dilliams that )odge issued a warning about transmissions in -,,+ minians, he
engaged in a material misrepresentation of fact, since )odge has neer issued such a warning"
-" 1ince =iggs is the owner of a car repair shop and )odge neer issued a warning about -,,+
minians, =iggs made this statement knowing its falsit!"
+" Dhen =iggs made this false statement to Dilliams and knew of its falsit!, he intended to induce
Dilliams reliance on his expertise so that Dilliams would spend mone! on unnecessar! car repairs"
4" 1ince Dilliams is in possession of far less knowledge than Dilliams about cars and was
appropriatel! concerned for the safet! of his famil! in this car, he acted as a reasonable person in rel!ing
on the false statement from =iggs"
<" 6s a result of =iggs' knowingl! false statement and Dilliams' induced reliance, Dilliams suffered
damages including cancelling his famil! acation, V.-5 to Mission car dealership, and V.,55L to 6-.
6utomotie"
-" 1tatement -( 97our Transmission is going to fail and soonW9
This statement also satisfied the fie elements that are necessar! for fraud( 8.2 a material
misrepresentation of fact b! the defendant3 8-2 made with knowledge of its falsit!3 8+2 made with intent to
deceie or induce reliance3 842 reasonable reliance b! the plaintiff upon the misrepresentation, and 8<2 loss
b! the plaintiff as a proximate result of the misrepresentation"
Eer! element of the cause of action for fraud must be specificall! pleaded and the facts constituting the
fraud must be alleged with sufficient particularit! to allow a defendant to understand full! the nature of
the charges made"
The statement that the transmission is going to fail and soon should be treated as a material
misrepresentation of fact, though the defendant will likel! tr! to treat this as a protected opinion"
6ccording to Madison " =rooks, as a general rule, fraud cannot be predicated upon the mere expression
of an opinion which is understood to be onl! an estimate or a #udgment" The person to whom such a
statement is made has no right to rel! upon the statement and does so at his peril" :oweer, there is an
exception to this rule where the opinion relates to a sub#ect as to which the parties do not hae e/ual
knowledge or means of ascertaining the truth" Dhere the part! making the misrepresentation has special
knowledge of the facts underl!ing the opinion, or is possessed of superior knowledge respecting such
matters with a design to deceie and mislead, the positie assertion of a matter, which stated in another
form might be mere opinion, ma! be actionable if the statement was false" The statement from =iggs
certainl! meets these criteria, because there was a wide disparit! between the parties in their knowledge
and expertise about cars and transmission parts" =iggs had special knowledge of the facts underl!ing the
opinion because it was his emplo!ee that took the car out for a ride, and it was his supposed-inspection
that triggered the statement about the transmission failing" The certaint! that =iggs made this expression
with, and the speed with which he stated the failure would happen took this from a mere opinion to a
material misrepresentation of fact"
J567 !""2
1ince this expression that the transmission was going to fail was known to be false b! =iggs, it is clear
that it was onl! stated to induce Dilliams to engage in additional work and pa!ment to 6-l" $n making this
false misrepresentation, =iggs intended to induce Dilliams to rel! on this statement, thus spending more
mone! on these unnecessar! tasks" 6s a reasonable person, had Dilliams known that the statement about
)odge was false, he would not hae moed forward with the action" $n particular, Dilliams specificall!
stated that he belieed that the transmission was in good condition and did not think that there was
an!thing wrong with it" $ndeed, the onl! reason that he belieed that the transmission needed work was
because =iggs induced him to rel! on the false statement about )odge" Dilliams did reasonabl! rel! on
the statement from =iggs, because =iggs held himself out to be an expert in cars and in possession of
special knowledge on the parts" 6s a reasonable person, Dilliams relied on this statement, because
belieing that this transmission was imminentl! about to fail he took what he belieed to be the necessar!
precautions to preent a catastrophe befalling him or his famil!"
The fifth element of loss is easil! established since Dilliams had to cancel his famil! acation, pa! V.,55L
to =iggs for unnecessar! work, and then had to pa! V.-5 to Mission to repair those unnecessar! and
damaging actions"
Cause of 6ction for &raud Pleading pursuant to 1tatement -(
." Dhen =iggs told Dilliams that his transmission was about to fail and soon, he made a statement
that is an expression of opinion that is actionable as fraud gien his special knowledge of the facts
underl!ing the opinion in his position as owner of 6-l and the person who examined the car"
-" 1ince =iggs is the owner of a car repair shop and was the one who engaged in the inspection of the
transmission, he knew that his statement about the transmission was false, since as was established b!
Mission, there was no damage to the transmission and it actuall! was in good condition"
+" Dhen =iggs made this false statement to Dilliams and knew of its falsit!, he intended to induce
Dilliams' reliance on his expertise so that Dilliams would spend mone! on unnecessar! car repairs"
4" 1ince Dilliams is in possession of far less knowledge than Dilliams about cars and was
appropriatel! concerned for the safet! of his famil! in this car, he acted as a reasonable person in rel!ing
on the false statement from =iggs regarding the certaint! and speed with which his transmission was
about to fail"
<" 6s a result of =iggs knowingl! false statement and Dilliams' induced reliance, Dilliams suffered
damages including cancelling his famil! acation, V .-5 to Mission car dealership, and V .,55L to 6-.
6utomotie"

+" 1tatement +( 9$t would also help if we installed an extra cooler to keep it from running hot"9
This statement is likel! not actionable for fraud, because Dilliams did not act in reliance on it" To be sure,
this statement is also a false statement, and it is /uite likel! that =iggs was aware of its falsit!" Moreoer,
he made this statement intending to induce Dilliams to act in reliance on it" :oweer, Dilliams responded
that he did not want the extra cooler and stated that )odge would hae installed one if it were necessar!"
This statement b! Dilliams makes it clear that he did not rel! on the materiall! false statement from =iggs
in this particular instance"
4" 1tatement 4( 9$ guarantee this #ob"9
This statement might potentiall! be actionable for fraud, but is a much weaker ground than 1tatement .
and 1tatement -" The ke! issue with this statement is whether this promise - which =iggs clearl! had no
intention of following through on - constitutes a misrepresentation of fact"
;nder Rogers " 1tatewide $nsurance Co", the court concluded that when the promise is made with no
intent to perform, it constitutes a misrepresentation of fact" $f the other elements of fraud are present, a
cause of action for fraud exists" $f the maker of a promise honestl! intends to follow through on that
J567 !""2
intention at the time of the promise, the statement cannot gie rise to an action for fraud" :oweer, if at
the time of the promise, the promisor has no plans to perform, then he has misrepresented his present
intention, which is a misrepresentation of fact" That misrepresentation can be used to support a claim for
fraud" :oweer, he must proe that the promisor did not intend to perform at the time the promise was
made"
$t is readil! apparent that at the time that =iggs made the statement guaranteeing the #ob, he actuall! had
no intention of following through on it, because before he said it he had alread! prepared a receipt that
said 9@ot Guaranteed"9 Moreoer, =iggs later claimed that the reason he could not guarantee the #ob was
because Dilliams had not installed the additional cooler" :oweer, =iggs was alread! aware that Dilliams
was not going to be installing the extra cooler at the time he said 9$ guarantee this #ob"9 ?uite clearl!, this
was a promise that =iggs had no intention of eer following through on" This meets the Rogers "
1tatewide test for conersion of a promise to a material misstatement of fact"
:oweer, the difficult! that we face in establishing this cause of action for fraud is the reliance element"
Dhen =iggs stated this false promise, Dilliams had alread! re/uested the unnecessar! repairs 8under false
inducement and fraud2, and had alread! paid the bill" There were no further actions that Dilliams took in
reliance upon this false promise that caused him damages" The fact that =iggs did not tell him that 9$
guarantee this #ob9 until Dilliams was leaing the shop makes it difficult to establish the critical element
of reliance"
Therefore, $ would not recommend 1tatement 4 as a cause of action for fraud to pursue"
Conclusion
6s !ou can see from m! anal!sis aboe, $ beliee that we hae a er! strong case for establishing causes
of action for fraud under 1tatement . and 1tatement - gien that the! both satisf! all of the fie elements
that are necessar! to establish fraud" Dhile 1tatements + and 4 both inole a knowing, material
misrepresentation of fact, the! both fail on the elements of reliance" $t is clear that Mr" Dilliams has
suffered serious damages, and $ look forward to successfull! pursuing this claim on our clients behalf"
J567 !""2
Answer to MPT
MEM0
To( Tania Miller
&rom( 6pplicant
)ate( *ul! -K,-,,5
Re( Dilliams " =iggs dBbBa 6-l 6utomotie Center
$@TR0);CT$0@
7ou hae asked me to reiew the file for the potential claim of Dilliams " =iggs dBbBa 6-l 6utomotie
Center and specificall! to consider whether our client, Robert Dilliams 8hereinafter 9Dilliams92, has a
claim for fraud against =iggs and 6-l 6utomotie based on an! of four specific statements made b! 6aron
=iggs 8hereinafter 9=iggs92 to Dilliams" &or the reasons that follow, $ hae concluded that statements one
and two made b! =iggs would likel! be actionable under a theor! of fraud, but statements three and four
would not constitute fraud"
$11;E
$" )iscuss whether or not each of the four statements made b! =iggs would be actionable in an action for
fraud"
$$" &or each of the four statements determined to be actionable, draft a separate cause of action"
)$1C;11$0@
The elements for establishing a claim of fraud are( 8.2 material representation, 8-2 made with knowledge
of falsit!, 8+2 made with intent to deceie or induce reliance 842 reasonable reliance b! the plaintiff upon
the misrepresentation, and 8<2 damages" &oster " Panera 8-,,+2" To preail on a claim for fraud, the
plaintiff must specificall! plead each element for a cause of action for fraud, and the facts constituting the
fraud must be alleged with sufficient particularit! to allow the defendant to full! understand the nature of
the charges made" $d" $n determining whether a representation is material, the court will consider whether
the reasonable person would consider it important in deciding to enter into the transaction" $d" 6lthough
statements of opinion generall! do not constitute fraud, the court will make an exception and find fraud in
the case of an opinion, if the other elements of fraud are satisfied and if the statement relates to a sub#ect
to which the parties do not hae e/ual knowledge or means of ascertaining the truth" Madison " =rooks
8.KLK2" 'astl!, since fraud onl! applies to past or present statements, promises of future intent will not
constitute fraud, unless the plaintiff can establish that at the time the defendant made the statement he did
not intend to follow through with his future promise" Rogers " 1tatewide $nsurance Co" 8.KK<2"
The aboe rules and factors will be considered in determining whether each of the four statements in
/uestion would constitute fraud"
8.2 =iggs had 9found a notification from )odge about a defect causing the gears to grind down"9
This statement would likel! be actionable" This statement was false" =iggs knew the statement was false,
since he neer receied a notification from )odge" The fact that )odge neer sent these notifications is
confirmed b! the statements b! )odge Mission who informed Dilliams that )odge had not circulated an!
information about an! problems with its -,,+ minians" The statement was made with the intent to
deceie Dilliams because =iggs wanted to incur additional business and hae Dilliams replace or repair
his transmission" Dilliams did rel! on this statement when he decided to repair his transmission and
Dilliams incurred damages as a result of his reliance on the fraudulent statement because but for =iggs
statement Dilliams would not hae thought or known there were an! problems with his transmission and
thus he would not hae incurred the expense from 6utomotie of replacing his transmission, the expense
from )odge Mission of correcting the improper installation from 6-l or an! incidental expenses that
J567 !""2

resulted from him haing to cancel or dela! his acation plans" &urthermore it is likel! that a Court would
find these statements to be material because a reasonable person would rel! on the fact that a
manufacturer had notified automotie shops about problems with their transmissions in coming to the
conclusion that there was a problem with their transmission" &urthermore, the fact that =iggs was the
owner of an automotie shop made it reasonable for Dilliams to rel! on =igg's superior knowledge" Thus
it was reasonable for Dilliams to conclude that if there was in fact a problem with the transmission, that
=iggs rather than Dilliams would hae superior knowledge about this information"
8-2 97our transmission is going to fail and soon9
6ppl!ing the factors aboe, this statement would constitute fraud" This statement was false" The falsit! of
this statement was established b! the fact that when Dilliams took the minian to Mission )odge the da!
after =iggs had allegedl! replaced the transmission, the Mission )odge dealer informed Dilliams that the
transmission was in fact the original transmission and that an! damage was the result of 6-l's improper
reinstallation of the transmission" &urthermore, =iggs intended that Dilliams would rel! on this
misrepresentation because =iggs wanted Dilliams to hae 6-l either rebuild the transmission or repair his
transmission, and Dilliams did rel! on this misrepresentation b! haing 6-l 6utomotie install a rebuilt
transmission" Dilliams has sustained damages as a result of the fraud, including the mone! he paid 6-l
6utomoties to fix his transmission and the additional mone! he paid )odge Mission to correct the
mistakes that 6-l automotie made, none of which he would hae incurred but for =iggs'
misrepresentation, because prior to the misrepresentation Dilliams did not think or know he had a
problem with his transmission" 'astl!, although =iggs can argue that his statement 97our transmission is
going to fail soon9 is an opinion and therefore could not constitute fraud, this claim would likel! fail,
because =iggs, a car mechanic working in an automotie shop had superior knowledge about the failure
of transmissions than Dilliams" Dilliams went to 6utomotie seeking their expertise with cars to change
his oil and therefore it is reasonable that Dilliams would hae relied on =iggs' statements because =iggs
had superior knowledge than Dilliams concerning these matters relating to his car"
8+2 9$t would also help if we installed an extra cooler to keep it from running hot9
This statement did not constitute fraud because Dilliams did not take =iggs' suggestion, and therefore
Dilliams did not rel! on =iggs' false statement" This statement is probabl! false and =iggs most likel!
knew it was false at the time that he made the statement" :oweer, since Dilliams re#ected =iggs'
suggestion and responded, 9if the minian had needed an extra cooler the manufacturer would hae
installed one,9 Dilliams did not rel! on =iggs' false misrepresentation and as a result the statement is not
actionable"
842 9$ guarantee the #ob"9
This statement would not constitute fraud because it was not a statement that =iggs intended that Dilliams
would rel! on" This statement was false, since =iggs did not in fact guarantee the #ob" &urthermore, at the
time that =iggs made the statement he knew it was fraudulent because he had alread! stamped the receipt
8or had one of his emplo!ees stamp the receipt2 9@o Guarantee"9 :oweer the statement would not be
actionable because the statement was made after the work was alread! completed and therefore it was not
made with the intention of plaintiff rel!ing on the statement to induce plaintiff to use 6-l 6utomotie
Center to do the work on his car" 6t the time the statement was made, the work on Dilliams' car b! 6-l
6utomotie was complete and =iggs' statement did not induce Dilliams into haing an! subse/uent or
additional work done to his car"
C0@C';1$0@
J567 !""2
&or the foregoing reasons, statements one and two would most likel! be actionable, but statements three
and four would most likel! not be actionable" Please see below for the drafting of the causes of action for
statements one and two"
Cause of 6ction - 1tatement 0ne( 9=iggs had found a notification from )odge about a defect causing the
gears to grind down"9
." Dhen Dilliams brought his car in for an oil change to 6-l 6utomotie Center, he was informed b!
the owner of 6-l 6utomotie Center, =iggs, that there was a problem with the transmission in his )odge
Minian" =iggs informed Dilliams that )odge had sent a notification that there was a defect in their
automobiles causing the gears to grind down"
-" =iggs made this statement despite knowing that there had been no notification from )odge"
+" =iggs made the statement about the notification for the purpose of inducing Dilliams into pa!ing
to hae 6-l 6utomotie either repair or replace his transmission despite the fact that nothing was actuall!
wrong with the transmission"
4" Dilliams relied on =iggs' statement about the notification because =iggs was in the business of
automotie repair and therefore he would hae greater access to car dealerships and thus it would be
reasonable for Dilliams to conclude that =iggs would be likel! hae more information from
manufacturers about defects that existed in particular cars" $n reliance on this information, Dilliams had
6-l 6utomotie install a rebuilt transmission into his minian"
<" Dilliams sustained damages that resulted from him haing to replace the transmission with a
rebuilt transmission when in fact there was nothing wrong with his original transmission" &urthermore,
Dilliams sustained additional damages that resulted from him haing to hae )odge Mission fix the leak
in his transmission that 6-l improperl! reinstalled"
Cause of 6ction - 1tatement Two( 97our Transmission is Going to &ail and 1oon"9
." Dhen Dilliams brought his car in for an oil change he was informed b! the owner of 6-l
6utomotie Center, =iggs, that 9!our transmission is going to fail, and soon"9
-" =iggs made this statement despite knowing that there was nothing wrong with the transmission in
Dilliam's )odge Minian"
+" =iggs made this statement for the purpose of inducing Dilliams into pa!ing 6-l 6utomotie to
either replace or repair the transmission in Dilliams' car"
4" Dilliams relied on =iggs' statement about the failure of the transmission because =iggs was in the
business of automotie repair and therefore he had superior knowledge about problems relating to defects
and failure of transmissions" 6s a result of his reliance, Dilliams had 6-l 6utomotie install a rebuilt
transmission in his minian"
<" Dilliams sustained damages that resulted from him haing to replace the transmission with a
rebuilt transmission when in fact there was nothing wrong with his original transmission" &urthermore,
Dilliams sustained additional damages that resulted from him haing to hae )odge Mission fix the leak
in his transmission that 6-l improperl! reinstalled"
J567 !""2
FEBRARY !""2 - OBJE)T,-E MEMORANDM
$@ RE '$16 PEE' 8MPT--2
6pplicant's law firm represent 'isa Peel, a priate citi%en who operates an $nternet blog on which she
posts news stories about local goernment, as well as moie reiews and items about her famil! actiities"
&ollowing her post about a local school official taking V.,,,,, in audioisual e/uipment for personal use,
the district attorne! subpoenaed Peel to testif! before the grand #ur! and to produce all of her interiew
notes in an effort to get her to reeal the identit! of the sources for her stor!" Peel seeks the law firm's
adice on whether she can resist the subpoena" 6pplicants' task is to draft a memorandum anal!%ing
whether Peel would be considered a 9reporter9 under the &ranklin Reporter 1hield 6ct, and therefore be
protected from being compelled to reeal her confidential sources" The &ile contains the instructional
memorandum from the superising partner, the transcript of the client interiew, a cop! of Peel's school-
corruption post, a cop! of the subpoena, and a news article about the deelopment of blogs as the newest
form of #ournalism" The 'ibrar! contains excerpts from the &ranklin Reporter 1hield 6ct, arious
dictionar! definitions, and two cases"
Fe< !""2
Answer to MPT
To( :enr! =lack &rom( 6ssociate Re( Peel 1ubpoena )ate( &ebruar! -E, -,,L
?uestion Presented
The issue examined in this memo is whether 'isa Peel can successfull! moe to /uash the subpoena
duces tecum she has been sered with on the grounds that she and her blog are protected under the
&ranklin Reporter 1hield 6ct 8&R162"
1hort 6nswer
Ms" Peel bears the burden of establishing that the &R16's /ualified priilege applies to her and her blog"
;nder the facts she has presented, Ms" Peel will likel! preail in meeting her burden of establishing that
she is a reporter and her blog is a news medium"
6nal!sis
The &R16 precludes courts from compelling 9reporters9 to disclose the sources of their information or
unpublished materials, with seeral exceptions that do not appl! here" 8&R16 1ection K,-2" 6s the court
affirmed in =ellows, under the &R16, the burden of proing that the &R16's-/ualified priilege applies is
on the part! claiming the priilege" 1ee also Dehrmann " Dickesberg 8&ranklin 1upreme Court -,,-2"
The issue of whether Ms" Peel is protected under the &R16 turns on whether she will be considered a
9reporter9 and whether her biog can be considered a 9news medium9, within the meaning of the &R16" $
will address each of these issues in turn"
Reporter
The &R16 defines 9reporter9 to mean 9an! person regularl! engaged in collecting, writing or editing news
for publication through a news medium"9 8&R16 1ection K,.2" The &R16 does not address whether
bloggers such as Ms" Peel constitute reporters within the meaning of the 6ct" :oweer, courts hae
extended the term reporter to include indiiduals falling outside the most strict and traditional definition
of that term"
$n interpreting the &R16, the court will first look at the plain language of the statue" 81ee Tichenor -,,+2"
Dhere that language is unambiguous, courts must enforce the statute as drafted" &or example, as the
&ranklin 1upreme Court explained in Tichenor, where the statue enumerates arious coered actiities,
such enumeration implies the exclusion of all others" 6s applied here, that means that the definition of
reporter will be limited to those who are regularl! engaged in 9collecting, writing or editing9 news" Ms"
Peel has informed us that she engages in actiities similar to those that a reporter would in collecting
information in order to write and publish news stories" &or example, like a reporter, Ms" Peel attends
public meetings, reads agendas, minutes and budgets" 1he also places calls to releant indiiduals to
conduct inestigator! interiews" 'ike a reporter, Ms" Peel then uses the information that she has
collected to write summaries and comments for her blog that could be characteri%ed as 9writing9 news"
0n the other hand, Ms" Peel also posts agendas and minutes on her blog" Merel! posting these items does
not appear to constitute 9collecting, writing or editing"9 &urther, the &ranklin 1upreme Court held in 1t"
Mar!'s :ospital that simpl! pa!ing for newspaper ads does not fall within the protections of the statute"
:oweer, man! of Ms" Peel's blogging actiities, including those at issue here, range far be!ond merel!
Fe< !""2
posting information online and instead inole affirmatie efforts on Ms" Peel's part to gather and compile
information that she then posts" &urther, her posts do not constitute paid ads" 0n the whole, Ms" Peel's
actiities do seem to fall largel! within the scope of 9collecting9 and 9writing"9 Most importantl!, the
specific actiities at issue fall solidl! within the scope of 9collecting9 and 9writing"9
Ms" Peel must also demonstrate that she is 9regularl! engaged9 in the actiities of collecting and writing
news" Ms" Peel states that she generall! posts new items on &rida!s, or sometimes not until the weekend"
This implies that she onl! posts new items to her blog once a week" This is much less regular than an
ordinar! newspaper, which publishes items dail!" :oweer, as Ms"-Peel has informed us, her blogging
inoles a rural communit! town too small to support a dail! paper" $n fact, there is #ust one count!-wide
dail!-newspaper" Ms"Teel can argue that she posts to her blog with the fre/uenc! expected of a reporter in
a small communit! with no local dail! paper" &or example, her posting fre/uenc! could be compared to a
weekl! paper in a rural communit!" 6dditionall!, Ms" Peel publishes with a regular fre/uenc!, which
distinguishes her blog from internet bulletin boards, where users do not necessaril! post at regular
fre/uencies" 81ee :ausch2"
Ms" Peel must also demonstrate that she is engaged in collecting and writing 9news"9 @ews is not a
defined term in the statute" Dhere the language of a statute is unclear, the court can turn to external aids to
interpret the statute" 81ee Tichenor -,,+2" The Columbia 1upreme Court has held that defamator!
messages posted on sports internet bulletin boards are not 9news9" The actiities of Ms" Peel that gae rise
to the subpoena are of the t!pe that would ordinaril! be classified as news, as the! concern matters of
public concern about the expenditure of public funds at a public school" &urthermore, as discussed in the
article 9=logs Competing with @ewspapers and @etworks,9 blogs are increasing being used to coer the
topic of 9news"9 0n the other hand, Ms" Peel has said that in addition to using her blog to post articles like
the one presentl! at issue that touch on matters traditionall! considered news, she also uses her blog to
post personal items, such as pictures of her pets and traels, gardening tips, and the like" Dhile some of
these actiities could be characteri%ed as human interest t!pe stories that would be carried in a newspaper,
some of them are simpl! personal and non-newsworth!" :oweer, because the particular article at issue
here concerns a topic that is ordinaril! considered newsworth!, Ms" Peel should preail in establishing
that she is engaged in collecting and writing 9news"9
Characteri%ing Ms" Peel as a reporter, despite the fact that she is not a traditional reporter, is in line with
the &ranklin Court of 6ppeal's recent willingness to expand the term 9reporter9 to include photographers
of newsworth! items in the =ellows case" There, the court put a great deal of weight on the fact that the
purpose behind the &R16 was to encourage the 9free and unfettered flow of information to the public"9
The court found that een though the photographer at issue was not a t!pical reporter, she met the
statutor! definition of the term because she was regularl! engaged in collecting a certain form of news for
publication in a news medium" 'ikewise, courts hae recentl! found that a freelance writer for a maga%ine
and an author for a medical #ournal author constitute reporters within the meaning of the act" 81ee Iaiser
and :alliwell2" The court's willingness to look at the 6ct's purpose in construing its terms, and include
indiiduals be!ond those holding traditional reporter positions, will help Ms" PeelB $n addition, the fact
that Ms" Peel was coering a topic that is of great public interest, but which the onl! local count!-wide
dail! newspaper refused to coer, also supports characteri%ing Ms" Peel as a reporter, as this is consistent
with the &R16's purposes"
The fact that Ms" Peel is not paid like a regular reporter will not be determinatie, nor will the fact that her
blog is a hobb!, not a full time #ob" The court will primaril! be concerned with the nature of Ms" Peel's
actiities" 6s long as Ms" Peel can establish that her intent at the inception of gather the information about
the alleged corruption discussed in her article was to disseminate inestigatie news to the public, she will
Fe< !""2
be able to /ualif! for protection under the act" 1ee :oe!" :ere, once Ms" Peel receied the information
about the 1chool )istrict funds, she initiated an inestigation and the end result was a news-like stor!"
Ms" Peel will likel! be able to carr! her burden in establishing that she is a reporter"
@ews Medium
$n addition to establishing that Ms" Peel meets the statutor! re/uirements for a reporter, Ms" Peel must
establish that her blog meets the definition of a 9news medium"9 This term is defined in the statute to
mean 9an! newspaper, maga%ine, or other similar medium issued at regular interals and haing a general
circulation"9
Tichenor tells us that where, as here, the statutor! language is unclear, canons of statutor! interpretation
can be used" 0ne such canon, e#usdem generis, tells us that when general words follow specific words, the
general words must be construed to include onl! similar kinds of things as indicated b! the specific
words" :ere, that means that the blog must be considered to be like a newspaper or maga%ine to be
coered" 6s the article 9=logs Competing with @ewspapers and @etworks9 explains, blogs are
increasingl! being used as a source of news, and een as a wa! for traditional news outlets to cone!
news" =loggers hae recentl! receied press credential at political eents" 6ll of these point to blogs being
increasingl! considered news mediums, especiall! where their content is news related"
:ere, Ms" Peel has told us that she uses her blog to post information about local goernment and local
goernment eents, and publishes her own commentaries about related issues" &urthermore, she has oer
+,<,, registered users in a town of +5,,,, people, and has oer .<,,,, hits on her blog" This means that
Ms" Peel is coering new-related topics in her blog and is reaching a wide audience gien her location and
target audience" 6lthough Ms" Peel sometimes uses her blog to coer non-news related items, she
consistentl! uses it to coer items related to local goernment, including the article at issue here" 6lthough
there is some risk that the court would focus on the personal and non-news related items in Ms" Peel's
blog, it is likel! that it would also consider that she is filling a oid that is left b! the death of local
newspapers coering similar topics of public concern"
Ms" Peel will likel! be able to carr! her burden in establishing that her blog is a news medium"
Conclusion
Ms" Peel will most likel! be able to establish that she and her blog /ualif! for protection under the 6ct
and, as a result, should preail in moing to /uash the subpoena"
Fe< !""2
Answer to MPT
To( :enr! =lack
&rom( 6pplicant
Re( 6pplication of &R16 to 'isa Peel
)ate( &ebruar! -E, -,,5
$ntroduction
This memo will anal!%e the applicabilit! of the &ranklin Reporter 1hield 6ct 8&R162 to 'isa Peel in her
actiities as a blogger" 6 court will anal!%e the application of the &R16 in light of the fact that competing
interests are at stake under the 6ct and must be addressed in determining the scope of the &R16"
8=ellows2 Therefore, it is necessar! to anal!%e the competing interests and also whether Ms" Peel in her
actiities will fall under the &R16" Each section will enumerate the competing sides of the argument and
the likelihood of Ms" Peel or her work falling under the &R16"
Conclusion
=ased on the competing interests at stake under the &R16, Ms" Peel's status as a reporter and that her
work through the blog can be construed as publishing information through a news medium, it is likel! that
Ms" Peel's subpoena can be /uashed and that she will not be re/uired to produce her sources" 6dditionall!,
because there is no controlling authorit! in the #urisdiction tending to show that the internet blog writer
will not receie protection under the &R16, it is likel! that Ms" Peel will not hae to produce the
identities of her sources"
:oweer, this is not a clear-cut case because of a lack of definitions in the statute and the facts of Ms"
Peel's working hours, status as a non traditional reporter and that she claims her blogging is a 9hobb!9"
These facts would ail be considered b! a court in determining application of the &R16"
6pplication of &R16( competing interests
The stated purpose of the &R16 is to 9safeguard the media's abilit! to gather news9" The 6ct is intended
to 9promote the free flow of information to the public9" $f the &R16 applies, the court will be unable to
compel a reporter to disclose 9unpublished news sources or information receied from such sources"9
8&R16 K,,2 Therefore, if the &R16 is applicable to Ms" Peel, the court's subpoena duces tecum which
re/uires her to produce all 9files, notes, reports and an! other documentation"""and all persons interiewed
for or sources described or /uoted"""9 will be /uashed" Ms" Peel explained that she does not want to reeal
her sources because she fears that insiders 9will neer talk to RherS9 if the! beliee that their identities will
be reealed and because the! fear that if the! talk to her and reeal information the! will lose their #obs"
8$nteriew2 Therefore, it seems at least that Ms" PeelTs interest in protecting the identit! of her sources is
so that she can publici%e information that the public wants to know" Ms" Peel's purpose does seem to be to
want to promote the free flow of information to the public and in this area, the competing interest of free
flow of information would likel! weigh in her faor"
Peel's status as reporter
Fe< !""2
$n addition to the free flow of information, Ms" Peel and her actiities must also fall under the 6ct in order
to /ualif! for protection under the &R16" The &R16 protects 9reporters9"
Reporter
9Reporter9 is defined in the &R16 as 9an! person RwhoS regularl! engaged in collecting, writing or editing
news for publication through a news medium"9 R&R16 K,. 8a2S Ms" Peel does collect and write and edit
news that she then posts on her blog" 9Collecting9 since it is not defined in the statute itself was
determined in =ellows to mean 9gather or assemble9" $n =ellows, the court found that taking photographs
of newsworth! eents was considered 9collecting9" 1imilarl!, b! posting minutes, summari%ing the
minutes and giing information and posting agendas about public meetings, Ms" Peel is also 9collecting9
such that she could fall under the statute" 6dditionall!, Ms" Peel is the one writing the primar! news
pieces that others comment on and she edits her own pieces"
Publication
Ms" Peel's work as a report must also fee for 9publication9" Publication is not defined in the &R16" ;nder
&ranklin's rules of statutor! interpretation, a court will look to a dictionar! to help interpret the plain and
ordinar! meaning of a word9 where the legislature does not define the word" [=ellows2 in this case, the
6merican :eritage )ictionar! defines 9Publication9 as """9the communication of information to the
public"9 :ere, Peel is intending to communicate information through her blog to the public" Taking the
dictionar!'s definition to help interpret the plain meaning of the word, Peel would likel! be seen to be
collecting and writing and editing work 9for publication9"
@ews Medium
$t will be of great importance whether or not Ms" Peel's blog constitutes a 9news medium9 under the
definition of the &R16" $f it does, then she is likel! to receie protection of the &R16" $f it does not, then
she will likel! be forced to produce the identities of her sources and compl! with the subpoena or face
contempt of court" 9@ews Medium9 is defined in the &R16 as 9newspaper, maga%ine, or other similar
medium issued as regular interals"""9 R&R16 K,.8b2S" 6n argument in faor of the fact that her blog is a
news medium is that 'other similar medium. is not defined in the act" 1tatutor! rules of interpretation in
the &ranklin courts will interpret a statute on its face and not gie it contrar! meaning if it is clear and
unambiguous" :oweer, when the language is unclear a court can use canons of statutor! construction
such as e#usdem generis ['ane2 to determine whether the actiit! fits in the list of enumerated actiities"
:ere, the issue is whether or not Ms" Peel's blog is considered in the same categor! as 9newspaper9 and
9maga%ine9" 6 blog could be considered such a medium because all three disseminate news and
information to the public through the written word"
6rguments against this use of e#usdem generis howeer include that both a newspaper and a maga%ine are
the printed word and printed on paper" The internet blog howeer is irtual and is not printed on paper"
This would weigh in faor of the blog not counting as 9news medium9"
The news medium must also be published at regular interals" Ms" Peel explained that she publishes about
once a week and usuall! on &rida!s, but sometimes on the weekends" This could be considered 9regular
interal9 howeer because she does not publish at the same time on the same da! eer! single week" $t
would be a factor counting against the blog as being a 9news medium9"
Fe< !""2
6dditionall!, the information must be in 'circulation'" Circulation is not defined in the &R16 so again,
resorting to a dictionar! to gie interpretation to the plain meaning of a word is acceptable" [=ellows2
Circulation under the dictionar! is defined as passing news from person to person" :ere, Ms" Peel is
passing 'news' from person to person because she puts the blog posting up on her website to which +<,,
are registered"
Dhether or not a blog counts as a news medium has also been considered generall! b! outside sources" $n
an article b! 6merica Toda!, the blog is understood to be no longer #ust a personal #ournal but is also used
as a news outlet and b! news sources and is a wa! to share news" :oweer, this perception is not held b!
all and some iew the blogger as simpl! a writerBpublisherBeditor who has no certaint! of truth" $f this
iew were to preail then because Ms" Peel is a blogger and does all of her own writing and editing and is
not emplo!ed b! another news source as are some bloggers, then this would weigh against the blog
counting as a 9news medium9"
$ntent to gather news
6lso at issue and must be considered is whether Ms" Peel had the intent at the inception of the
newsgathering process to disseminate inestigatie news to the public" 8=ellows2 $f she had such intent
when she gathered the news, then she is more likel! to be coered b! the &R16" Ms" Peel explained that
she goes to town meetings to learn of ital public information and disseminate that information to the
public" Dhen she began inestigating the possibilit! of corruption b! the Greenille 1chool )istrict
1uperintendent, she did so with the intent of bringing that information to the public" 8$nteriew2
Therefore, it is likel! that she meets this test of intent at the inception of the newsgathering" :er purpose
in reealing the information was to bring to light the corruption and reeal it"
0f note though is that she did intend to gather news when she set out to inestigate the corruption, but she
does not limit the postings in her blog to 'news. but also includes information about her personal traels
and her famil! pets" =ecause her blog is not entirel! deoted to news gathering, and when she gathers
information it is not entirel! for the news process will weigh against application of the &R16 to Ms" Peel
b! the court"
6pplication of the &R16 to a non-traditional reporter
6dditional factors that must be considered in determining whether or not the &R16 will appl! to Ms"
Peel's actiities are that what she is publishing through is a 9blog9 which is defined b! the 6merican
:eritage )ictionar! as an 9online personal #ournal9"
The &R16 has been found to appl! in situations of non-traditional reporters where the reporter was a
9freelance writer9 and where the reporter was an 9author in a medical #ournal9" 81ee =ellows citing Iaiser
and :alliwell2 Ms" Peel's actions could similarl! be construed to be like a freelance writer because she is
not paid b! an emplo!er for her work - she does it independentl! at her own choosing and on the topics of
her choice and additionall!, she is not working for a traditional newspaper but her own personal '#ournal'
in which reports newsworth! information" These cases will be persuasie in finding that the act applies to
Ms" Peel because all three are from the &ranklin courts"
:oweer, there is additional case law that might lead a court to find that the &R16 is inapplicable to such
non-traditional news reporting" The Columbia 1upreme Court found that a defamator! message on a
sports internet bulletin board was not news and was not published at regular interals such that the poster
of the message was not protected b! the &R16 8=ellows /uoting :ausch2" =ecause Ms" Peel's blog is
Fe< !""2
similarl! on the internet and could be claimed to not be published at regular interals because she does not
post at the same time each week or een eer! da!, this case ma! hae persuasie authorit! despite the
fact that it is not a controlling authorit!"

Fe< !""2
JLY !""0 - PERSAS,-E BR,EF1 DRAFT AR.MENT SE)T,ON
6CME RE10;RCE1, $@C" F" R0=ERT ='6CI :6DI ET 6'" 8MPT-.2
6pplicantsT law firm represents Robert =lack :awk and other members of the =lack Eagle Tribe who
hae sued 6cme Resources, $nc", a mining compan!, in tribal court seeking to recoer for damage caused
b! 6cmeTs mining coal bed methane from under reseration land, in addition to an in#unction ordering
6cme to cease its mining actiities" The Tribe members claim that their water wells are running dr!,
leaing them without water for liestock and crops, because 6cmeTs mining actiities are depleting the
water table" 6cmeTs answer to the tribal court complaint denies liabilit! for the alleged harm and also
denies that the tribal court has #urisdiction in this matter" 1ubse/uentl!, 6cme filed suit in federal court
re/uesting a declarator! #udgment that the tribal court lacks #urisdiction oer 6cme and seeking an
in#unction against the tribe membersT prosecution of the tribal court action" 6pplicants are asked to draft
the argument section of a brief in support of a motion for summar! #udgment in the federal action or, in
the alternatie, to dismiss or sta! the action on the grounds that the tribal court has #urisdiction and that
6cme has failed to exhaust its tribal court remedies before pursuing its complaint in federal court" The
&ile contains an instructional memorandum, a transcript of a client interiew, a cop! of 6cmeTs complaint
filed in ;"1" )istrict Court, a draft motion for summar! #udgment or, in the alternatie, to dismiss or sta!,
and affidaits from a tribe member and a geologist" The 'ibrar! contains excerpts from the tribeTs
constitution and tribal code and one case"
J567 !""0
Answer to MPT
." The =lack Eagle Tribal Court has #urisdiction oer this claim, and the defendants are entitled to
summar! #udgment, because this dispute arises from 6cmeTs consensual relationship with the Tribe and
the claim concerns the TribeTs political integrit!, economic securit!, and health and welfare"
6s the 1upreme Court has recogni%ed, $ndian tribes hae 9inherent soereign power to exercise some
forms of ciil #urisdiction oer non-$ndians on their reserations"9 Montana" This power extends een to
9nonmember fee lands,9 meaning those lands on $ndian reserations that are owned in fee simple b!
persons who are not members of the tribe" 60 6rchitects" This soereign power includes, in some
instances, the power to ad#udicate disputes arising on tribal land or in which the tribe has an interest"
6s the 1upreme Court recogni%ed in Montana, the tribes' inherent soereign power has limitations" 6s a
general rule, these powers do not extend to the actiities of nonmembers in the absence of express
authori%ation b! federal statute or treat!" This 9main rule,9 howeer, has two significant exceptions" &irst,
a tribe ma! regulate 9consensual relationships with the tribe or its members through commercial dealings,
contracts, leases, or other arrangements,9 and ma! do so b! regulation, taxation, licensing, or other means"
1econd, as the 1upreme Court has stated, 9RaS tribe retains inherent power to exercise ciil authorit! oer
the conduct of non-$ndians on fee land within its reseration when that conduct threatens or has some
direct effect on the political integrit!, the economic securit!, or the health and welfare of the tribe"9
;nder the first ground for tribal #urisdiction, a tribal court will hae #urisdiction oer consensual
relationships between the tribe and nonmember so long as there is a 9direct nexus9 between the
relationship and the claim, 8&unmaker2, and the issue is not of a 9distinctl! non-tribal nature,9 81trate2" &or
example, in &unmaker, a tribal court was held not to hae #urisdiction oer a productTs liabilit! action
arising from in#uries sustained b! a member of the tribe in a car leased from the defendant, a nonmember"
6lthough the nonmember had entered into a lease agreement with the tribe, there was no direct nexus
between the lease and the in#ur! to the member" 1imilarl!, in 1trate, the 1upreme Court held that a tribal
court did not hae #urisdiction oer a personal in#ur! lawsuit between two nonmembers whose sole
contact with the tribe was that the car accident between them occurred on a state highwa! running through
tribal land" 0n the other hand, the &ifteenth Circuit held in 60 6rchitects that a tribal court might be able
to exercise #urisdiction oer a wrongful death action b! the families of tribe members who were killed
when the roof of a building designed b! the defendants, a nonmember architectural firm, collapsed on
them"
;nder the second ground for tribal #urisdiction, a tribe ma! properl! exercise #urisdiction oer claims that
concern the political integrit!, economic securit!, or health and welfare of the tribe" This exception should
be interpreted in light of its purpose, which is to 9protect tribal self-goernment and control of internal
relations"9 Montana" That is, tribal #urisdiction is appropriate where the issue concerns 9the right of $ndian
reserations to make their own laws and be ruled b! them"9 1trate 8/uoting Montana2" Thus, in 1trate, the
1upreme Court held that a tribal court could not exercise #urisdiction oer a car accident between two
nonmembers on a state highwa! passing through tribal land" 6lthough the conduct of driers on roads
passing through tribal lands presented an issue affecting the health and safet! of tribe members, it did not
come within the second Montana exception because it did not present an issue touching on tribal self-
goernment or internal relations" 0n the other hand, the &ifteenth Circuit in 60 6rchitects held that a
tribal court might hae #urisdiction under this exception because the building in /uestion was used, as the
defendants knew, for tribal meetings inoling the tribe's goernance functions"
J567 !""0
:ere, both of the Montana bases for tribal #urisdiction are satisfied, and the =lack Eagle Tribal Court has
#urisdiction to ad#udicate this dispute" ;nder the first basis, there is a direct nexus between this claim and
the consensual relationship between the tribe and 6cme Resources, $nc" 86cme2, namel!, the tribe's
granting of a lease to 6cme to extract natural resources from the land" 6s )r" =ellingham's affidait states,
the depletion of the tribe's water supplies is the direct result of 6cme's actiities authori%ed b! the lease"
This case is unlike &unmaker, the in#ur! complained of was onl! incidentall! connected to the lease of a
car from the defendant" Moreoer, unlike 1trate, in which a tribe attempted to assert #urisdiction oer two
nonmembers who merel! were passing through the reseration on a state road, the issue here is of a
distinctl! tribal nature" 6s the =lack Eagle Tribal Constitution makes clear in its first section, 9RtShe land
forms part of the soul of the =lack Eagle Tribe"9 The same section makes clear that preseration of a
9clean and healthful enironment9 is of fundamental importance to the tribe" Thus, the tribe should be
able to assert #urisdiction oer this claim"
The second basis for tribal #urisdiction is also met because this issue intimatel! concerns the =lack Eagle
Tribe's self-goernance and control of internal relations" &irst, this lease was entered into b! the Tribe
itself, as a result of a decision of the Tribal Council" $t should be the Tribe's right to ad#udicate an!
disputes arising from its exercise of its core soereign powers" 1econd, as noted aboe, the =lack Eagle
Constitution makes the preseration of the reseration's natural enironment an issue of fundamental
importance, one going to the heart of the tribe's self-goernance and internal relations" Moreoer, )r"
=ellingham predicts that the water suppl! of the entire tribe will eentuall! be depleted b! 6cme's
actions" $f the collapse of a building used for tribal goernance could possibl! satisf! this exception, then
so should an issue inoling a fundamental issue of tribal goernance that affects the welfare of the entire
tribe"
&or the foregoing reasons, this court should hold that the =lack Eagle Tribal Court has #urisdiction oer
this case and grant summar! #udgment for the defendants dismissing 6cme's case for lack of #urisdiction"
-" $n the alternatie, principles of comit! dictate that this court should remand the case to the Tribal Court
to consider its #urisdiction"
6s the 1upreme Court and &ifteenth Circuit hae recogni%ed, principles of comit! re/uire that tribal
courts be gien the first opportunit! to address the /uestion of its own #urisdiction and explain to the
parties its conclusion" The 9tribal exhaustion doctrine9 reflects the 9polic! of supporting tribal self-
goernment and self-determination"9 60 6rchitects 8/uoting 1trate2" The onl! exception to this principle
is when it is clear that the tribal court has no #urisdiction and re/uiring exhaustion would sere no purpose
other than dela!"
$n this case, comit! clearl! dictates that if summar! #udgment is not appropriate at this stage, the tribal
court should hae the first opportunit! to determine its #urisdiction" This case does not present the narrow
case in which it is clear on the face of the complaint or the facts presented that the tribal court could not
possibl! alidl! exercise #urisdiction oer the tribe's claim" 6s discussed aboe, there is ample basis for
tribal #urisdiction here under 1upreme Court and &ifteenth Circuit precedent, or at the er! least a strong
argument for #urisdiction that re/uires further factual deelopment" There is simpl! no basis to conclude
that respect for the tribal exhaustion doctrine would sere onl! to dela!"
Thus, in the alternatie, this court should hold to sta! this action pending the =lack Eagle Tribal Court's
determination regarding its #urisdiction oer this case"
J567 !""0
Robert =lack :awk is entitled to summar! #udgment because there is no issue of material fact as to
whether there is #urisdiction oer 6cme Resources"
Pursuant to =lack Eagle Tribal Code H -+-<, which is specificall! authori%ed b! its own constitution, an!
member of the =lack Eagle Tribe ma! bring ciil action for in#unctie relief and damages against an!one
who pollutes or otherwise degrades the enironment of the =lack Eagle Reseration" Though ordinaril! a
tribal court ma! not exercise #urisdiction oer non members absent a treat! or federal statute, a tribal court
ma! exercise #urisdiction oer a non-tribal member in two instances" &irst, 9a tribe ma! regulate"""the
actiities of non-members who enter consensual relationships with the tribe or its members, through
commercial dealing contracts, leases or other arrangements"9 1econd, 9a tribe ma! retain inherent power
to inherent power to exercise ciil authorit! oer the conduct of non-indians on fee lands within its
reseration when that conduct threatens or has some direct effect on the political integrit!, the economic
securit! or health and welfare of the tribe"9 Montana"
J567 !""0
Answer to MPT
." The Tribal Court ma! exercise #urisdiction oer 6cme Resources because it entered into a consensual
relationship b! leasing mineral rights from the =lack Eagle Tribe"
6cme Resources entered into a ro!alt! contract with the =lack Eagle Tribe to remoe the methane found
in the ground below the Reseration" This contract was directl! negotiated between the Tribe and 6cme
Resources and proides the re/uisite connection between 6cme Resources and the Tribe in order to allow
the Tribal Court to exercise #urisdiction" This case is not like 60 6rchitects " Red &ox et al where the
conse/uences took place entirel! on lands that were owned b! a non-member of the Tribe" :ere though, it
is true that the lands directl! oer the minerals are owned b! someone who is not a member of the Tribe"
The true dispute is oer conse/uences that take place on other parcels of land, and in regards to the
mineral rights below that land" Een in that case, the court did not rule on the #urisdiction of the court and
remanded for further inestigation on a more complete record"
1tate " 6-. Contractors can be distinguished" $n that case, the court held that an accident between two
non-tribe members that happened on a state-owned right of wa! that ran through $ndian lands was not the
t!pe of oluntar! association that would allow the $ndian reseration to exercise #urisdiction" The court
reasoned that his land was essentiall! alienated b! the 1tate of @orth )akota and was non-$ndian land"
The onl! connection was a chance encounter between two motorists that happened to occur in the middle
of the reseration" That is not the case here" $n the present situation, there was an actual contractual
agreement between the Tribe and 6cme Resources inoling mineral rights that were held exclusiel! b!
the Tribe" Though it is true that the land from where the minerals are mined is not owned b! the Tribe, the
minerals underneath are" There is a direct connection between this contract and the rights of the =lack
Eagle Tribe"
&inall!, &ranklin Motor Credit Corp " &unmaker does not re/uire a different result" $n that case, the court
held that there was no 9direct nexus9 between a tribe member and a nonmember who were parties to a car
financing lease" 0n the contrar!, in this situation there is a direct nexus between the contract and the lands
and the members of the =lack Eagle Tribe" These mineral rights were owned b! the Tribe and the lease
was entered into to remoe mineral from within Tribal land" The relationship is much more direct than the
relationship in &ranklin" 6s such, gien that 6cme Resources freel! entered into a contract with the =lack
Eagle Reseration for mineral rights the! hae sub#ected themseles to the #urisdiction of the Tribal Court
despite the fact that an! mining was taking place on land that was not owned b! an! member of the Tribe"
-" The Tribal Court ma! exercise #urisdiction oer the 6cme Resources because their extraction of
minerals from within the reseration is dr!ing up the wells on the =lack Eagle Reseration endangering
economic securit! and general health and welfare of the people of the =lack Eagle Reseration"
The purpose of the second exception to the Montana rule is to protect tribal self goernment and allow the
Tribe to control their internal relations" $t expressl! authori%es the inherent power to exercise ciil
authorit! oer non-indians on fee lands within the reseration when the conduct threatens or has some
direct effect on the economic securit! or the health and welfare of the Tribe" $n Montana, the court held
that exercising #urisdiction oer an accident on a road running through tribal lands had no relationship to
the right of reseration $ndians to make their own laws and be ruled b! them" $n that context, howeer, the
safet! of tribal members was much more attenuated" There was #ust a general concern for the safet! of
tribe members who could hae been in#ured on the road" :ere the relationship is much different" The tribe
member's lielihood and wellbeing is being directl! threatened b! 6cme Resources" There is eidence
J567 !""0
that man! wells hae alread! dried up and that within the next fie !ears all wells will eentuall! dr! up"
The =lack Eagle $ndians are ranchers and farmers and directl! rel! on the water beneath the ground to
ensure their lielihood and their wellbeing" Dithout this water the! can not raise their liestock, water
their crops, or een lie on their land" This relationship is not attenuated like the general interest that was
present in Montana" There is a direct relationship between the actiit! that is the sub#ect matter of this
litigation and the =lack Eagle $ndian Reseration" The conduct of 6cme Resources is seerel! threatening
the entire lifest!le of the =lack Eagle Reseration and as such the tribal goernment should be entitled to
exercise #urisdiction oer 6cme Resources"
$n the eent that summar! #udgment is not granted, the district court should sta! proceedings until the
Tribal court has had a chance to assess its #urisdiction oer the claim against 6cme Resources"
The 1upreme Court has held that according to the doctrine of tribal exhaustion, a part! must exhaust its
remedies in a Tribal Court before it seeks remedies in a federal court" 9This )octrine is based on a polic!
of supporting tribal self goernment and self determination,9 and re/uires that ordinaril! a federal court
should sta! proceedings until the Tribal Court has had a full opportunit! to determine its own #urisdiction"
This doctrine is based upon comit! and should not gie wa! unless it is clear that there is no #urisdiction
or that it would sere no purpose other than dela!"
:ere, the Tribal Court has not been gien a chance to decide whether or not it has #urisdiction oer the
sub#ect matter of this dispute" The rule laid down in @ational &armers re/uires that the district court sta!
their proceedings until the Tribal Court has had an opportunit! to assess their own #urisdiction oer the
case" This is not a clear cut case where there is obiousl! no #urisdiction" There is a oluntar! relationship
between 6cme Resources and the =lack Eagle Tribe that is haing a direct effect on the economic securit!
and health and welfare of the Tribe" $t cannot be said that allowing the Tribe to assess their own
#urisdiction would 9sere no other purpose than dela!"9 6s such, in the eent that summar! #udgment is
denied, the proceedings should be sta!ed until the Tribal Court has a chance to rule on the issue"
J567 !""0
FEBRARY !""0 - PERSAS,-E LETTER
G'$CIM6@ F" P:0E@$J C7C'E1, $@C" 8MPT--2
The client, George Glickman, was demoted from his ice president position at Phoenix C!cles, $nc"
shortl! after returning to work after taking nine weeksT leae under the &amil! and Medical 'eae 6ct
8&M'62, -K ;"1"C" H -E,. et se/", to recoer from a stroke and to care for his newl! adopted bab!"
Glickman seeks legal adice regarding whether his emplo!erTs actions iolate the rights accorded under
the &M'6, specificall!, the right to be restored to a pre-leae emplo!ment or an e/uialent position" The
superising partner has alread! spoken to PhoenixTs in-house counsel in an attempt to resole GlickmanTs
claims without resorting to litigation" 6pplicantsT task is to draft a follow-up letter persuasiel! setting
forth the basis for GlickmanTs claims under the &M'6, discussing the specific &M'6 proisions that
Phoenix has iolated, explaining wh! the exceptions in the 6ct for ke! emplo!ees do not appl!, and
setting forth the forms of relief to which Glickman would be entitled should the matter proceed to
litigation" The &ile consists of the instructional memorandum, a transcript of an interiew with Glickman,
a Phoenix C!clesT press release, a letter to Glickman from the compan! regarding his &M'6 leae, and a
management consulting firmTs report on Phoenix C!cles" The 'ibrar! contains excerpts from the &M'6
and two federal cases"
7ou ma! order copies of the &ebruar! -,,L MPTs and their corresponding point sheets from @C=E, in
*une -,,L on the @C=E website, http(BBwww"ncbex"org, or telephone, 8E,52 -5,-5<<,"
Fe< !""0
Answer to MPT
)ear Ms" 1now
$ am writing this letter on behalf of our client George Glickman in regard to his potential claim against
Phoenix C!cles, $nc" under the &ederal &amil! and Medical 'eae 6ct 8&M'62"
Phoenix C!cles, $nc" has iolated Mr" GlickmanTs &M'6 rights subse/uent to his return to work on
*anuar! .<, -,,L" Mr" Glickman took nine weeks leae for his stroke and the adoption of his child
pursuant to &M'6 1ection -E.-8a28.28=2 and 8)2" 6s acknowledged b! the letter from *ohn Pearsall,
CE0 dated )ecember .K, -,,E, Mr" Glickman was eligible for such leae under &M'6"
Dhen Mr" Glickman returned from said leae, Phoenix C!cles iolated his rights under 1ection -E.48a2
8.2862 and 8=2 of &M'6 when the! demoted him from Fice President of =ic!cle Marketing to
Coordinator of =ic!cle Marketing" 1uch change was a demotion because it 9affected the essential
functions of pre-leae emplo!ment9 8Ridle!2" Mr" GlickmanTs position before his leae was not e/uialent
to his position after his leae and thus iolated the act" To be e/uialent, an 9emplo!eeTs new position
must be irtuall! identical to the emplo!eeTs former position in terms of pa!, benefits, and working
conditions, including priileges, pre/uisites, and status" $t must inole same or substantiall! similar
duties and responsibilities, which must entail substantiall! e/uialent skill, effort, responsibilit!, and
authorit!"9 8Ridle!2
Dhile Mr" GlickmanTs salar! is the same as before his leae, his responsibilities hae significantl!
decreased" The position of Fice President has been taken awa! resulting in a decrease in status, he has lost
support staff decreasing his priileges, and he now reports to his former peer, 1ue Cowen, resulting in a
decrease in responsibilit!" 6ll these changes were identified b! the court in Ridle! as proing a demotion
in iolation of &M'6" &urther, Mr" Glickman was not gien the right to een interiew for the new Fice
President position and such a denial would certainl! not happened had he been on the #ob" Mr" Pearsall
acknowledged in the &ranklin =usiness @ews what a great #ob Mr" Glickman does with marketing" &ailure
to een interiew him for the new Fice President position looks suspiciousl! like taking awa! a right that
Mr" Glickman would hae had before his leae which would also iolate the &M'6" =! demoting Mr"
Glickman due to his &M'6 leae, Phoenix C!cles iolated his rights under that act"
Dhile Phoenix C!cles, $nc" ma! argue that such a demotion was either necessitated b! legitimate business
reasons or that such demotion is acceptable under the 9:ighl! Compensated Emplo!ees9 section of
&M'6, neither theor! is supported b! the facts in this matter"
Phoenix ma! tr! to claim that the demotion was motiated b! legitimate business reasons but such a claim
is unsubstantiated b! facts" &M'6 onl! confers the #ob 9which the emplo!ee would hae been entitled
had the emplo!ee not taken the leae"9 8&M'62 :oweer, the timing of the restructuring and the
aailabilit! of the #ob of Mr" GlickmanTs raises serious /uestions about such a legitimate purpose" 6s
Ridle! noted, a relatiel! brief time between return from leae and the aderse emplo!ment action is
problematic" 8Ridle!2 :ere, onl! shortl! after Mr" Glickman returned from his leae, he was told that he
would be merged into Ms" CowenTs group" The Compan! cited a *une .<, -,,< Consulting Report as the
reason for the restructuring, but the dela! in discussion or enforcement of such restructuring coupled with
the seeming lack of incorporation of an! other suggestion from :utchinson Consulting seems to hint to
the fact that such restructuring was not based on a legitimate business decision and iolated &M'6"
Fe< !""0
6dditionall!, as stated in !our )ecember .K, -,,E letter to Mr" Glickman, !ou beliee !ou can eliminate
his position simpl! because he is a 9highl! compensated emplo!ee9 under &M'6" This is not an accurate
portra!al of the law" &M'6 allows highl! compensated emplo!ees to not be reinstated if a substantial and
grieous economic in#ur! will result from RE1T0R$@G such emplo!ee, not their absence" 8&M'6,
*ones2" The court in *ones, while ruling for the 1chool )istrict, ruled that in accessing the economic
impact, 9the emplo!er ma! consider the cost of reinstating the emplo!ee to an e/uialent position if hiring
a permanent replacement for the emplo!ee on leae was unaoidable" $n that case the district had to hire a
permanent replacement, had no e/uialent position for *ones, and was a public entit! which could not
raise prices to coer such in#ur!"
Phoenix C!cles is completel! different" There is almost no cost in reinstating Mr" Glickman as Mr"
Pearsall did his work while he was gone and no additional labor was hired" &urther, Phoenix did not hae
to eliminate Mr" GlickmanTs position, and could raise prices to make up an! small amount of in#ur! the!
ma! hae had" )ue to these factors, there is substantial or grieous economic in#ur! that would result
from reinstating Mr" Glickman and thus, failure to do so was a iolation of his rights under the &M'6"
Mr" Glickman would like to be restored to his former position with all the benefits and bonus
opportunities that he had before his demotion" Dhile litigation is not Mr" GlickmanTs preference, he will
be forced to litigate if he is not restored" $f this matter is litigated Mr" Glickman will be entitled to an!
compensation he has been denied due to the demotion, li/uidated damages e/uall! the denied
compensation, and reinstatement"
Through such demotion Mr" Glickman is being denied his right to V-<,,,, in bonuses that are being gien
out to the new Fice President pursuit to the line which Mr" Glickman came up with and designed" :ad Mr"
Glickman not been demoted, the bonus would hae been paid to the person in his position, especiall!
considering the new line was his brainchild" 6s the court said in Ridle!, there is a strong presumption
toward li/uidated damages" 1hould this matter go to trial, Phoenix will be liable for V-<,,,, in lost
compensation, V-<,,,, in li/uidated damages, and reinstatement of Mr" Glickman to his prior position"
$ look forward to speaking in the near future"
Fe< !""0
Answer to MPT
)ear Ms" 1now(
$ am writing in regards to the matter concerning our client George Glickman, who beliees he has been
wrongfull! demoted b! his emplo!er, Phoenix C!cles, $nc", after he took leae from work under the
federal &amil! and Medical 'eae 6ct 8&M'62" Mr" Glickman has a strong case under the &M'6 for a
wrongful demotion b! Phoenix C!lces following his leae for medical and child-care reasons"
$n order to show a prima facie claim for a iolation of &M'6 rights, the .<th Circuit Court of 6ppeals has
held in Ridle! " 1antacroce General :ospital that a plaintiff must establish the following(
8.2 he was entitled to &M'6 leae3
8-2 he suffered an aderse emplo!ment decision3 and
8+2 there was a causal connection between the emplo!eeTs &M'6 leae and the aderse emplo!ment
action
The &amil! and Medical 'eae 6ct states that 9eligible emplo!ees are entitled to a total of .- work-weeks
of leae during an! .--month period for9 the placement of son or daughter for adoption and for a serious
health condition that makes the emplo!ee unable to perform his emplo!ment functions 8&M'6 -K ;"1"C"
H -E,.2" ;nder the &M'6, Mr" Glickman was entitled to leae due to the stroke he suffered on @oember
.<, -,,E and the subse/uent adoption of his daughter" Mr" Glickman took a total leae of nine weeks with
fie weeks for the serious health condition of the stroke and then four weeks for the preparation of his
adoptie daughter" These nine weeks fall under the .- weeks allocated b! the &M'6"
The second prong of a prima facie &M'6 claim re/uires that the emplo!ee suffer an aderse emplo!ment
decision" 6n aderse emplo!ment decision occurs if an emplo!ee is not restored to their pre-leae
emplo!ment or an e/uialent position" $n Ridle!, an e/uialent position is one that is e/ual or
substantiall! similar in the conditions of emplo!ment" &act finders consider the duties and essential
functions of the new position and whether the! are materiall! different from the pre-leae position" The
emplo!eeTs new position must be irtuall! identical to the former position in terms of pa!, benefits and
working conditions, including priileges, prere/uisites and status" $t also must inole the same or
substantiall! similar duties and responsibilities re/uiring the same skill, effort, responsibilit! and
authorit!" $t must also hae similar opportunities for promotion and salar! increase"
Mr" Glickman can also set forth a showing that he suffered an aderse emplo!ment decision upon his
return to Phoenix C!cles" Prior to his leae, Mr" Glickman was emplo!ed as one of the six diision ice
presidents in the area of bic!cle marketing" This position entailed him to be part of a number of marketing
pro#ects, superise market research, monitor retailers, coordinate product reiews, and industr! trade
shows" ;pon his return to Phoenix C!cles, Mr" Glickman was then placed as a Coordinator of =ic!cle
Marketing in the new combined diision of bic!cle and accessories marketing"
6lthough the salar! is the same, Mr" Glickman is no longer a ice president, has lost his support staff, and
has to report to 1ue Cowen" The taking awa! of managerial duties and superisor! powers was also
regarding as changing an emplo!eeTs position in Ridel!" Therefore, GlickmanTs loss of superising market
research and reporting to Ms" Cowen supports the conclusion that his new position at Phoenix was not
Fe< !""0
e/uialent to his former position" Mr" Glickman has lost out on the status of being a ice president and is
now a coordinator" Therefore, Mr" Glickman has suffered an aderse emplo!ment decision because his
new emplo!ment position is not e/uialent to his former one" Mr" Glickman might hae also lost out on
the V-<,,,, bonus for the retro bike line which he was gien the real credit for b! *ohn Pearsall in a
&ranklin =usiness @ews article"
Mr" Glickman can also show that the aderse emplo!ment action was causall! connected to his taking of
&M'6 leae" Mr" Glickman noticed the change in attitude from *ohn Pearsall following his re/uest to take
leae" Phoenix C!cles has argued there was a legitimate business reason for the change in emplo!ment
position" 6 legitimate business reason would not iolate the &M'6" :oweer, Mr" Glickman can show
that no legitimate business reason exists for the change in position" $n this case, the management
consulting report b! :utchison Consulting, ''C does recommend a possible merger for the two
marketing diisions of bic!cle and accessories" :oweer, this was the onl! change from the consulting
report that was implemented" The report was also issued more than .5 months ago and this change was
implemented after Mr" Glickman had re/uested his leae for his adopted daughterTs arrial" 6lthough the
report recommends these changes, it also recommends identif!ing a manager with the experience and
creatiit! to lead the new diision" Mr" Glickman has been at Phoenix C!cles longer than Ms" Cowen and
was credited b! Mr" Pearsall himself as haing 9a talent for knowing what will appeal to our customers"""9
8 9Phoenix C!cles Gearing ;p @ew Product 'ine, &ranklin =usiness @ews, @oember -4, -,,E2"
Therefore, Mr" GlickmanTs knowledge of the industr!, his length of the time with the compan!, and his
creatie success should hae allowed him to interiew for a position in leading the combined diision"
Een without the interiew, there was no legitimate business reason for Phoenix to merge these two
diisions from a report filed more than .5 months ago and from which no other recommendations had
been implemented" $t is also interesting to note that Mr" GlickmanTs position was the onl! one eliminated
in all of the departments and that Ms" Cowen herself has admitted to the stress underl!ing the creation of
one position for these two diisions"
6lthough Mr" Glickman is a 9salaried eligible emplo!ee who is among the highest paid ., percent of the
emplo!ees emplo!ed b! the emplo!er9 and therefore not entitled to immediatel! be restored b! the
emplo!er to his preious position of emplo!ment 8&M'6 -K ;"1"C" H -E,.2, the test for a 9substantial
and grieous economic in#ur!9 from *ones " 0akton 1chool )istrict is not met" The Court of 6ppeals
stated that a showing b! an emplo!er that reinstatement of an emplo!ee would result in 9substantial and
grieous economic in#ur!9 would permit the emplo!er to elect not to reinstate that emplo!ee under the
&M'6 exception for highl! compensated emplo!ees"
The court noted that the re/uisite economic in#ur! must result from restoring the emplo!ee to his prior
position or its e/uialent and not be caused b! his absence" The court defined a 9substantial and grieous
economic in#ur!9 to threaten the economic iabilit! of the emplo!er" 6 lesser in#ur! of minor
inconenience of costs would not be sufficient but a substantial, long-term economic in#ur! would be
sufficient"
Mr" GlickmanTs reinstatement to his former position would not impose a substantial and grieous
economic in#ur! to the corporation" Mr" Glickman has retained the same salar! leel as his old position"
Therefore, there would be no real economic in#ur! to Phoenix C!cles that would be so egregious as to
allow for him to not be gien his former position or an e/uialent one"
6s shown, Mr" Glickman will be able to proe a prima facie case for a iolation of his &M'6 rights and
Phoenix C!cles will then be liable for damages e/ual to an! wages, emplo!ment benefits, or other
compensation denied and an additional amount as li/uidated damages and e/uitable relief such as
Fe< !""0
reinstatement or promotion" $n Ridle!, the court also held that the amount of lost wages can be doubled
8as li/uidated damages2 unless the emplo!er can show the iolation was in good faith and that it
reasonabl! belieed that the act or omission did not iolate the &M'6" $n this case, Phoenix will be liable
to Mr" Glickman for an! benefits he lost, including the potential bonus for the Retro-line, and this award
will be doubled since there is no reasonable belief that PhoenixTs actions were in good faith" Mr"
Glickman will also be entitled to a reinstatement of his former position at Phoenix C!cles"
&rom the legal precedent and the facts set forth, it is clearl! shown that Phoenix C!lces iolated Mr"
GlickmanTs rights under the &M'6 and wrongfull! demoted him upon his return" Een as a highl! paid
emplo!ee not guaranteed reinstatement, Mr" Glickman can show that his new position was not e/uialent
to his former one, that no legitimate business reason existed for his new position, and that no substantial
and grieous in#ur! would be suffered b! Phoenix in possibl! reinstating him" $f Mr" Glickman is not
restored to his former position or an e/uialent one, Phoenix will be responsible for an! benefit losses to
him, possible li/uidated damages, and a reinstatement of his position"


Fe< !""0
JLY !""3 - OBJE)T,-E MEMORANDM
'6R10@ RE6' E1T6TE &$'E 8MPT-.2
6pplicants are associates at a law firm that represents Iaren 'arson, who has contracted to sell her home
in =anford, &ranklin, to Pierre and 'isa Meridien, residents of the neighboring state of Columbia" Dhen
the! entered into the sales contract, the Meridiens had not seen 'arsonTs house in person3 now, after
traeling to =anford to iew the propert!, the! are unhapp! about the condition of the house and hae
concerns about the neighborhood" The Meridiens are demanding a VE,,,,, reduction in the purchase price
as compensation for the conditions of the house and the enirons that 'arson allegedl! failed to disclose,
contrar! to &ranklin Real Propert! 'aw H +<,, which re/uires sellers to disclose 9material facts9 to future
bu!ers of residential real estate" 1ection +<, was recentl! enacted3 preiousl!, &ranklin was a strict 9bu!er
beware9 #urisdiction" Thus, this is a deeloping area of the law in &ranklin" 6pplicantsT task is to draft an
ob#ectie memorandum 8.2 discussing the disclosure re/uirements imposed on sellers of residential real
estate b! &ranklin Real Propert! 'aw H +<, and the common law3 8-2 anal!%ing whether, with respect to
disclosing the specific items listed b! the MeridiensT attorne!, 'arson complied with H +<, and the
common law3 and, 8+2 identif!ing what relief, if an!, the Meridiens are entitled to" The &ile contains the
task memorandum, the transcript of the client interiew, the letter from the MeridiensT attorne!, the real
propert! disclosure statement, and an article from The =anford Courier regarding a proposed
neighborhood group home" The 'ibrar! contains a =anford cit! ordinance on historic districts, &ranklin
Real Propert! 'aw H +<,, and two cases"
J567 !""3
Answer to MPT
T0( Elaine )r!er
&R0M( 6pplicant
)6TE( *ul! -<, -,,E
RE( 'arson Real Estate &ile
7ou asked me to prepare a memo regarding the obligation of Ms" Iaren 'arson 8hereafter, 9Ms" 'arson92
regarding the sale of her real estate propert! to Mr" and Mrs" Pierre and 'isa Meridien 8hereafter, 9the
Meridiens92, the extent to which she conformed to those obligations, and an! remedies the Meridiens
might hae" Please find below the information $ hae found"
$" The )isclosure 0bligations of a 1eller of Residential Real Estate ;nder &ranklin 1tatutor! and
Common 'aw"
The extent of disclosure that a real estate seller must proide to a bu!er is determined b! both the
common law and &ranklin Real Propert! 'aw"
6" 1ellerTs )isclosure 0bligations under the Common 'aw
;nder the common law, a sellerTs obligation to disclose in a real estate transaction was dictated b! the
doctrine of caeat emptor" ;nder that doctrine, which means 9let the bu!er beware9, the seller has no
affirmatie dut! 9to olunteer information about defectie conditions in propert! being offered for sale9
R:ernande% " Comfre!3 Dallen " )aniels 8both binding authorit!2S" ;nder this doctrine, as the
:ernande% Court explained, 9it is the bu!erTs responsibilit! to exercise due diligence b! inspecting real
propert! prior to purchase9" The 1eller is onl! liable in the eent of intentional misrepresentation or
fraudulent concealment"
=u!er has a claim for intentional misrepresentation if he establishes a misrepresentation of a material fact,
#ustifiable reliance, and in#ur!" 'ikewise, bu!er has a claim for fraudulent concealment if he can establish
concealment of a material fact with the intent to mislead, #ustifiable reliance, and in#ur!" &or this purpose,
a statement is material if it 9is one relating to the /ualit! of a propert! which might decrease alue9 and a
statement is not a fact if it is merel! opinion, puffer!, or a nonspecific utterance regarding the desirabilit!
of the propert! 8Dallen3 :ernande%2"
Therefore, in summar!, under the common law a seller has the obligation to refrain from intentional
misrepresentation or fraudulent concealment"
=" 1ellerTs )isclosure 0bligations under &ranklin Real Propert! 'aw H+<,"

;ntil -,,<, the &ranklin singularl! followed the common law" 6t that time, it passed &ranklin Real
Propert! 'aw H+<,, 9Residential Real Propert! N Re/uired )isclosures9" 1ection +<, applies to the sale
of residential propert! haing between one and four units regardless of whether it is sold in accordance
with a real estate broker" $t re/uires that a seller disclose known material facts relating to the propert! and
its enirons prior to entering into a contract of sale" &inall!, it maintains the common law remedies for
intentional misrepresentation and fraudulent concealment"
J567 !""3
)espite the re/uirements that H+<, imposes on a seller, the &ranklin Court of 6ppeals in Dallen, held that
H+<, 9does not go so far as to re/uire that sellers inspect their properties for latent material conditions or
defects to disclose9" Therefore, in summar!, a sellerTs obligations under &ranklin statutor! law is to
disclose all known material facts relating to the propert! and itTs eniron"
$$" Ms" 'arsonTs 0bligations to )isclose and :er Compliance 8or failure to compl!2
6" Ms" 'arsonTs 0bligation to )isclose the 0pening of the )rug Rehabilitation :ome"
=ecause the opening of the drug rehabilitation home was a material fact about the eniron, Ms" 'arson
had a dut! to disclose it to the Meridiens to the extent she knew about it" The opening of the home was a
material fact, gien that it was anticipated that the home would 9ruin propert! alues9 in the area 89Group
:ome 6pproed )espite Protests92 and possible increase crime rate" Ms" 'arson herself seems to
recogni%e that the home was a concern 8transcript2" $n :arris " Roth, the &ranklin Court of 6ppeals held
that seller iolated H+<, of &ranklinTs Real Propert! 'aw when it failed to disclose in its disclosure
statement that the propert! was located near a toxic waste dump" Dhile not eer!one beliees the home
will hae an aderse effect 8see 'i% FoorheesT statement in 9Group :ome9 article2" $f Ms" 'arson knew of
the opening of the neighborhood on *une .E, when she signed the disclosure form, she had a dut! to
disclose it on the form"
=" Ms" 'arsonTs 0bligation to )isclose the )esignation of the @eighborhood as a :istoric )istrict
Ms" 'arson did not hae a dut! to disclose the financial conse/uences of the historical designation of the
neighborhood" $n Dallen, the plaintiffs sued a seller for failing to disclose that the building was designated
in a fault %one and would cost more to make improements on the structure" The court held that the
material fact the sellers were re/uired was how the propert! was classified, not the ramifications of the
classifications" The court held that &ranklin law does not 9render a seller liable for nondisclosure of facts
that a bu!er could hae discoered with reasonable effort9"
$n this case, Ms" 'arson disclosed that the propert! was in a historical district" &ranklin H.."<, was
aailable to inform the Meridiens of the conse/uences of that"
C" Ms" 'arsonTs 0bligation to )isclose the Dater 1tains
Ms" 'arson had a dut! to disclose the water stains on the ceiling" The defect was material fact, since it
reduced the alue of propert!" Ms" 'arson knew it, as she had gotten an estimate from a roofer"
&urthermore, because she painted oer it to make it less noticeable, she is sub#ect to a claim for fraudulent
concealment so long as the Meridiens can show the! #ustifiabl! relied 8which might be difficult gien that
the! failed to inspect the propert!2"
)" Ms" 'arsonTs 0bligation to )isclose &ire )amage
Ms" 'arson was not obligated to disclose the fire damage" 6s stated aboe, Ms" 'arson onl! had an
obligation to disclose known defects" 6s Ms" 'arson made clear in her interiew, she was not aware of the
damage because it had been concealed b! the prior owner"
E" Ms" 'arsonTs 0bligation to )isclose Dearing to Fin!l &loor
J567 !""3
Ms" 'arson was not obligated to disclose the water stains" 6n! reasonable bu!er, upon inspection and with
minimum due diligence, could hae obsered the wear on the kitchen floor" =ecause the bu!ers, the
Meridiens, did not inspect the propert! or send =rad, their agent to do so, the! cannot now hold the seller
liable for what the! could hae discoered" The fact that the bu!ers felt pressure to bu! because of the
market will not excuse this dut!"
$$$" Meridiens Remedies 6gainst Ms" 'arson
;nder the common law, a seller is onl! liable for intentional misrepresentation or fraudulent concealment"
$n the eent sellers commit either of these infractions, the bu!er is entitled to actual damages, and if 9the
concealment or misrepresentation has seere financial or safet! implications9, punitie damages
8:ernande%2"
;nder statutor! law, the bu!er can be granted actual damages measured either b! the cost of repair, or
where repair is not possible, b! the difference in alue between the propert! as represented in the
disclosure statement and the independent appraisal that reflects the disclosed fact 8Dallen2, plus
reasonable attorne!Ts fees and court costs RH+<,8d2S"
Therefore, Ms" 'arson is obligated for the damage for failure to disclose the rehabilitation clinic and for
the water stains 8assuming the Meridiens proe reliance2" This will probabl! be V+,,,,, for the water
stains3 i"e", the cost to repair, and an! loss to the propert! alue that results from the rehabilitation home"
The Meridiens cannot oid the contract, under &ranklin H+<,8d2"
J567 !""3
Answer to MPT
T0( Elaine )re!er
&R0M( 6pplicant
)6TE( *ul! -<, -,,E
RE( 'arson Real Estate &ile
The memo will anal!%e Ms" 'arsonTs potential liabilit! under &ranklinTs new residential real estate
disclosure laws and the common law" The memo will further address the MeridiensT specific claims and
Ms" 'arsonTs duties to disclose in regard to each of them" &inall!, the memo will conclude b! stating Ms"
'arsonTs possible liabilities under both the statute and the common law"
." )isclosure 0bligations
6" )isclosure 0bligations ;nder Current &ranklin 'aw
The first step in determining Ms" 'arsonTs potential liabilit! in the sale of her home is to determine the
current law regarding mandator! disclosures upon the sale of real estate" $n -,,<, the &ranklin legislature
enacted a statute to reform the #urisdictionTs preious 9bu!er beware9 law" Toda!, H+<, of the Residential
Real Propert! 'aw in &ranklin re/uires sellers of residential real estate to issue a disclosure statement to
bu!ers including 9all known material facts relating to the propert! and its eniron9" $f the residential real
estate has between one and four units, his disclosure is mandator!" $n -,,E, the &ranklin Court of 6ppeals
defined a 9material fact9 as 9one relating to the /ualit! of the propert! which might decrease its alue9"
1ee Dallen " )aniels"
$n a case where bu!er sued seller for failure to disclose a %oning law that affected the cost of renoation,
the &ranklin court held that while the new law places an affirmatie dut! on the seller, it does not go so far
as to re/uire that sellers inspect their properties for latent material conditions or defects to disclose9" The
courts further stated that the statute did not re/uire sellers to inform bu!ers of defects that the bu!ers
9could hae discoered with reasonable effort9"
The court in Dallen ultimatel! held that the seller was not re/uired to disclose the full extent of the %oning
laws, since the bu!er could hae discoered the %oning laws from the public record" The court contrasted
the %oning laws with a case that decided that a seller had to disclose an abandoned toxic waste dump a
half mile from the propert! in /uestion that was contaminating the drinking water" Dallen 8citing :arris "
Roth2"
Dhile H+<, creates an affirmatie dut! for the seller to disclose known material facts, it also explicitl!
preseres all common law remedies" &ranklinTs courts hae continued to recogni%e the common lawTs
place" Dallens"
=" )isclosure ;nder the Common 'aw
Prior to the enactment of H+<,, &ranklin used the 9bu!er beware9 common laws" ;nder the common law,
a seller had no affirmatie dut! to disclose an! defectie conditions" :oweer, the seller could not
intentionall! misrepresent or fraudulentl! conceal a material fact regarding the propert!Ts condition" 1ee
:ernande% " Comfre!" $ntentional misrepresentation occurred if the seller misrepresented a material fact,
the bu!er #ustifiabl! relied on that fact, and the bu!er was in#ured" &raudulent concealment occurred when
J567 !""3
the seller concealed a material fact 9with the intent to mislead9" The bu!er #ustifiabl! relied on the
concealment, and the bu!er was in#ured 8citing &owles " :utchinson2" The courts defined material b!
ob#ectiel! looking to 9whether the purported fact would affect the decision making of the reasonable
home bu!er9"
The court re#ected a claim for intentional misrepresentation when a seller did not disclose an unknown
water damage condition" :oweer, another court found fraudulent concealment where a seller placed
furniture oer a hole in the floor 8citing &owles2"
-" Ms" 'arsonTs )isclosures
The bu!ers, the Meridiens, hae asserted a number of defects in Ms" 'arsonTs propert!" 1ince the statute
impacts each defect differentl!, this memo will anal!%e each in turn"
6" Group :ome
The Meridiens claim that Ms" 'arson was re/uired to disclose the possibilit! that a Group :ome for the
substance abusers could moe into the neighborhood" The Meridiens assert that the Group :ome will
hae a detrimental impact on propert! alues and #eopardi%e their childrenTs safet!"
To determine if Ms" 'arson had a dut! to disclosure the potential Group :ome, one must ask whether the
potential defect was .2 know and -2 material" $n the interiew, Ms" 'arson said that she was aware of the
Group :ome and its /uest to moe into the neighborhood" De should ask Ms" 'arson if she knew of this
when the contract to sell the house was signed" $f she did not, then the materialit! of the defect is not an
issue since, according to the decision in Dallens, Ms" 'arson is not responsible for searching out latent
defects"
$f Ms" 'arson did know about the Group :ome, then she would hae been re/uired to disclose it onl! if it
were material" 6s stated aboe, the &ranklin courts hae defined material fact as 9one relating to the
/ualit! of the propert! which might decrease its alue9" 1ee Dallen " )aniels" The court in Dallens,
howeer, made it clear that the new statute re/uiring disclosure of known material defects did not reliee
bu!ers of their dut! to detect defects through reasonable inspection" The court in Dallens contrasted its
case, where the %oning law in issue was on the public record, with the case where a closed toxic dump
was contaminating the water suppl!" $t seems like the Group :ome more resembles the %oning law than a
toxic dump" 6ccording to the article in the =anford Courier, the controers! of the Group :ome has been
9raging for oer six month9" The article further states that oer fift! residents showed up at the Council
meeting to contest the home on Ma! +., -,,E" This kind of communit! awareness most likel! made the
Group :omeTs moe readil! discoerable for the Meridiens" :ad the! read the newspaper or spoken to
an! neighbors, the! could hae found this defect b! themseles" Therefore, it is unlikel!, gien the ruling
in Dallens that preseres a bu!erTs dut! to do reasonable inspection, and that Ms" 'arson had to disclose
the Group :ome to the Meridiens" Ms" 'arsonTs position would be greatl! improed if we could obtain
preious newspaper reports from before the date of the contract"
=" :istorical )istrict 0rdinance
The Cit! of =anford has a %oning ordinance that re/uires all 9substantial changes to the exteriors of
properties9 located in Terrapin :eights 8where the house in /uestion is2 must be approed b! the
@eighborhood Preseration Committee, in addition to the =uilding and Moning =oard" The Meridiens
argue that this %oning ordinance places an undue burden on them because the! want to build an addition
J567 !""3
in the back of the house" The Meridiens argue that Ms" 'arson had a dut! to tell them about this
ordinance"
The Meridiens are incorrect" The court in Dallens specificall! said that %oning ordinances are in the
public record, and despite the new legislation, bu!ers still hae a dut! to reasonabl! inspect" The Dallens
court stated, 9De will not burden the seller to research local building codes and adise a bu!er as to their
effect on the realit! when the bu!er has alread! been accuratel! informed of as to the %oning"9 Ms" 'arson
disclosed that the %oning was 9Residential-:istoric9" This ordinance is on the books in the public record"
Public records aside, the historic nature of the neighborhood, as described in Ms" 'arsonTs interiew,
should hae gien rise to in/uir! notice" &inall!, Ms" 'arson reealed in her interiew that there are signs
designating the area as a :istoric )istrict all around the neighborhood" This clearl! should hae gien the
Meridiens notice of the possible statute" 6ccording to the Dallens decision, it was then incumbent upon
them to determine the cost of and abilit! to make renoations to the propert!" Therefore, Ms" 'arson was
under no dut! to disclose the full effects of the historic %oning statute to the Meridiens"
C" Roof
The Meridiens claim that there is extensie water damage on the ceiling in one of the bedrooms caused b!
a leak in the roof" Ms" 'arson should hae disclosed this defect pursuant to &ranklin statutor! law if she .2
knew about it and -2 it was material" Ms" 'arson admits she knew about the leaking roof because she had
roofers come in to estimate the cost of repair" Dhen the cost was too high, Ms" 'arson simpl! repainted
the ceiling" Therefore, it is clear Ms" 'arson knew that there was extensie roof damage"
The roof damage is material if it relates 9to the /ualit! of the propert! which might decrease its alue9"
1ee Dallen " )aniels" Clearl! a leaking roof relates to the /ualit! of the propert!" $t also decreases the
alue of the propert!, which is eidenced b! the high cost of repairing it"
1ince Ms" 'arson knew of the damage to the roof and the cost of repairing it is high, she should hae
disclosed this defect to the Meridiens" The form explicitl! includes boxes for ceiling and roof damage, but
she left them unchecked" =! failing to do so on the disclosure form, she iolated &ranklinTs statute"
Ms" 'arson also ma! be liable under the common law cause of action for fraudulent concealment"
&raudulent concealment occurs when the seller conceals a material fact 9with the intent to mislead9, the
bu!er #ustifiabl! relies on the concealment, and the bu!er is in#ured" 8Citing &owles " :utchinson2" Ms"
'arson painted oer the areas on the ceiling that showed the leaking roof" 1he admits she did it so that the
damage would be 9less noticeable9" The bu!ers relied on the repaired ceiling, but were in#ured when the
real condition of the roof was reealed 8and needed fixing2" Though there is a cause of action here, the
:ernande% ruling does not directl! address the full intent re/uirement or other elements" Thus, more
research on fraudulent concealment is necessar! to determine if the Meridiens could successfull! bring
this action against Ms" 'arson"
)" &ire
Ms" 'arson would hae been re/uired to disclose the fire damage if she .2 knew about it and -2 it was
material" $n her interiew, Ms" 'arson stated that she did not know about the fire damage until after the
Meridiens called it to her attention" There was no fire while she lied there and the preious owner had
coered up all signs of the fire" Therefore, she could not hae known" 1ince the court in Dallen made it
clear that homeowners do not hae to search out latent defects, Ms" 'arson could not be responsible for
disclosing a fact she did not know herself"
J567 !""3
E" &loor
Ms" 'arson would hae been re/uired to disclose the condition of the floor if .2 she knew about it and -2
it was material" Ms" 'arson admits she knew about the condition of the floor in her interiew" 1he called it
9worn in spots9"
The real /uestion is whether the condition of the floor is material and whether it is something that the
Meridiens could hae discoered if the! had bothered to look" Ms" 'arson sa!s the floor was worn" The
Meridiens sa! that the floor is seerel! worn" To determine if the defect in the floor is material, we must
know how much the state of the floor impacts the alue of the house" To determine that, we need to get a
better idea of the condition of the floor" De should ask Ms" 'arson for photos she ma! hae taken while
she lied there and ma!be seek an expert opinion from a contractor"
Een if the floor is in terrible shape, it ma! not be material if the Meridiens could hae discoered it for
themseles if the! had simpl! come to the house to look" The Meridiens bought the house after seeing a
few pictures on the internet" The! were in a hurr! to bu! the house before the new school !ear" $n their
haste, the! neer looked at the house before signing the contract" The court in :ernande% dismissed
argument b! bu!ers who said that market pressures made it too difficult to do a reasonable discretion"
Therefore, if the floor was obiousl! worn, and a reasonable inspection would hae shown it, then Ms"
'arson probabl! did not hae to disclose the condition of the floor in the disclosure statement"
+" Relief
The Meridiens ma! be entitled to relief for Ms" 'arsonTs failure to disclose the damage to her roof"
1ection +<, of the Residential Real Propert! 1tatute sa!s that a seller who does not disclose propert! will
be liable for actual damages 9suffered as a result of the conditions existing on the propert! or its enirons
as of the date of the executionYof the contract9" The seller ma! also be liable for reasonable attorne!Ts
fees and court costs" Thus, Ms" 'arson ma! be liable for the cost of repairing the roof 8approximatel!
V.-,,,,2 and the attorne!Ts fees paid to Mrs" Me!er, the MeridiensT attorne!" Though the Meridiens
threatened to oid the contract, H+<, states that a failure to disclose does not oid the contract"
$f Ms" 'arson is further guilt! of fraudulent concealment b! painting the ceiling to coer the water
damage, she ma! be liable for punitie damages in addition of the actual damages, if the concealment has
9seere financial misrepresentations or safet! implications9" 8:ernande%2 6gain, more research must be
done into this cause of action to determine the extent of liabilit!"
Conclusion(
The new disclosure statute in &ranklin imposed a dut! on Ms" 'arson to disclose defects that were .2
known and -2 material" :oweer, the statute did not reliee bu!ers of their basic dut! to inspect the
premises" Most of the defects claimed b! the Meridiens were either unknown to Ms" 'arson at the time of
the contract or readil! isible upon inspection" The Meridiens cannot hold Ms" 'arson accountable when
the! failed to reasonabl! inspect" :oweer, Ms" 'arson probabl! iolated the statute when she did not
disclose the leaking roof, een though she had knowledge of it" 1he ma! be further liable for fraudulent
concealment because she painted oer the damage" &urther research must be done"

J567 !""3
FEBRARY !""3 - PERSAS,-E BR,EF
1T6TE 0& &R6@I'$@ F" =;T'ER 8MPT--2
The &ranklinTs 1tateTs 6ttorne!Ts 0ffice has subpoenaed &lora :ernande%, a mediator, to testif! in its
felon! case against *ohn =utler for illegall! dumping chemical waste" :ernande% presided at a mediation
between =utler and his former business partner, '!nn 'ong, during which =utler admitted to dumping the
chemical waste into the Green Rier" :ernande% and 'ong were the onl! witnesses to =utlerTs admission,
and 'ong has since died" :ernande% has filed a Motion to ?uash the 1ubpoena, arguing that her testimon!
is protected b! the mediation priilege of the &ranklin ;niform Mediation 6ct 8&;M62" :oweer, there
are seeral exceptions to &;M6Ts mediation priilege, and applicants, assistant stateTs attorne!s, are
asked to write a brief in opposition to the Motion to ?uash" The &ile contains a instructing memorandum
from the 1enior 6ssistant 1tateTs 6ttorne!, case notes, notes from a police officerTs interiew with 'ong, a
cop! of the 6greement to Mediate, and the Motion to ?uash" The &ile also contains instructions for
drafting persuasie briefs" The 'ibrar! consists of portions of &;M6 and two releant cases"
Fe< !""3
Answer to MPT
1tatement of &acts
The instant dispute arises in the context of a criminal proceeding against defendant, *ohn =utler, for
unlawful disposal of ha%ardous waste" Mr" =utler owns and operates =>' )isposal" $n *ul! -,,<, Mr"
=utler and his preious partner, '!nn 'ong, along with mediator &lora :ernande%, executed an
6greement to Mediate in connection with a business dispute oer Ms" 'ongTs share of the business, and
the mediation took place on 6ugust .<, -,,<"
0n 1eptember -, -,,<, Ms" 'ong approached the Elkhart Police )epartment and informed 0fficer Iein
Iell! that, during the mediation Mr" =utler stated that, during the preious month, he had dumped half of
the collectie chemicals on a couple of disposal #obs into the Green Rier near the Elkhart south
footbridge rather than disposing of them at the approed site with formal permits"
The Green Rier is a popular recreational site for ka!aking, fishing, and swimming" $n 0ctober -,,<, a
police reiew of records from the )epartment of @atural Resources reealed eleated leels of seeral
toxic chemicals and an unusuall! large number of dead bluefish #ust down rier from the alleged dumping
site during *ul! and 6ugust -,,<"
0n )ecember K, -,,<, as a result of Ms" 'ongTs statements and the eidence of eleated toxins, the police
charged Mr" =utler for the felon! of unlawful disposal of ha%ardous waste under 1ection ++," 'ess than
two months later, in late *anuar! -,,E, Ms" 'ong died of a massie heart attack" Ms" :ernande% thus is
now the onl! witness to Mr" =utlerTs alleged admission of toxic chemical dumping" The prosecution has
accordingl! subpoenaed Ms" :ernande%, who has subse/uentl! filed a Motion to ?uash such subpoena,
giing rise to the instant dispute"
$" The priilege under &;M6 H 4 is not applicable and the court should hold an in camera hearing in a
criminal prosecution for a felon! that implicates public health and safet! concerns and where the eidence
is not otherwise aailable"
The priilege under 1ection 4 of the &ranklin ;niform Mediation 6ct 8&;M62 is not applicable in a
criminal prosecution for a felon! where the eidence is not otherwise obtainable" 1ection E of &;M6,
which delineates the exceptions to the priilege against discoer! or admissibilit! of certain 9mediation
communications9 contained in 1ection 4, states that there is 9no priilege under 1ection 4 if a court finds,
after a hearing in camera, that the part! seeking discoer! or the proponent of the eidence has shown that
the eidence is not otherwise aailable, that there is a need for the eidence that substantiall! outweighs
the interest in protecting confidentialit!, and that the mediation communication is sought or offered in a
court proceeding inoling a felon! or misdemeanor"9 &;M6 H E8b2"
$n this case, the prosecution has clearl! established all three elements of the statutor! exception to the
&;M6 priilege" &irst, the eidence is clearl! not otherwise aailable" Mr" =utlerTs statement was made
in front of onl! Ms" :ernande% and Ms" 'ong" 6s Ms" 'ong passed awa! in late *anuar! -,,E, Ms"
:ernande% is the onl! potential witness who can testif! to Mr" =utlerTs statement" 1econdl!, Mr" =utlerTs
statement is sought to be offered in his prosecution for iolation of 1ection ++,, which is a felon!" &inall!,
because this is a prosecution for a felon! that implicates public health and safet! concerns, the need for
the eidence substantiall! outweighs the interest in protecting confidentialit!" Dhile courts generall!
recogni%e the public polic! in faor of confidentialit! of mediation proceedings, see Rinaker 8Col" Ct" of
Fe< !""3
6pp" -,,42, Retail 1tore 8.<th Cir" -,,42, such polic! is not absolute but can be outweighed b!
substantial counterailing interests" &or example, the goals of protecting the constitutional rights of
criminal defendants and presering the integrit! of the truth-seeking process of trial were recogni%ed as
examples of such counterailing interests in Rinaker, a case which, although not binding on this court, is
nonetheless persuasie since the Columbia ;niform Mediation 6ct 8C;M62 is identical to &;M6"
Rinaker 8Col" Ct" of 6pp" -,,42"
$n Rinaker, a criminal defendant in a misdemeanor andalism proceeding sought to compel the testimon!
of Rinaker" The mediator, who was present when the owner of the car that the defendant allegedl!
andali%ed, admitted that he did not see who threw the rocks at his car" The defendant sought the abilit! to
compel the mediator to testif! in the eent that the car owner testified otherwise on direct examination at
trial" :e argued that his right to due process and a fair trial would be iolated if he could not compel such
testimon! for impeachment purposes" The trial court denied the defendantTs motion without a hearing" 0n
appeal, the Columbia Court of 6ppeal oerruled the decision and remanded to the trial court with
instruction to conduct an in camera hearing to weigh the constitutionall! based claim of due process and
fair trial rights against the statutor! priilege" The court recogni%ed the polic! of presering mediation
confidentialit!, but noted that an in camera hearing preseres such confidentialit! b! disclosing such
information onl! if necessar!, probatie, and credible"
Dhile Rinaker is not binding or directl! on point, it does stand for the important proposition that
mediation confidentialit! is not absolute but can be outweighed b! substantial counterailing interests,
such as in that case, a criminal defendantTs need to present exculpator! eidence" :ere, public health and
safet! issues are implicated" 6s noted, there exists scientific eidence of eleated toxins in the rier and
unusuall! high numbers of dead fish" $f the defendant did indeed engage in illegal dumping in connection
with the business actiities of =>' )isposal, his actiities hae potentiall! affected public health and
safet! and will do so in the future because, while the chemical leels are back to normal, he has exhibited
his willingness to put his own interests ahead of societ!Ts and will likel! dump again in the future"
6ccordingl!, this court should, as found b! the Rinaker court, hold an in camera hearing to determine
whether Ms" :ernande% is competent to testif! regarding the statement, whether the statement is
probatie, whether Ms" :ernande% is credible, whether the eidence is necessar!, and whether competing
goals of public health and safet!, discussed further below, outweigh the polic! of protecting mediation
confidentialit!"
$$" The goals of protecting public health and safet! substantiall! outweigh the polic! of protecting
mediation confidentialit!"
The goals of promoting and protecting public health and safet! outweigh the public polic! of protecting
mediation confidentialit!, thus permitting a mediatorTs testimon! to be compelled if public interests are
implicated" $n Retail 1tores, the &ifteenth Circuit held that the public interest in maintaining mediation
confidentialit! outweighed the interests of two parties to a mediation to resole a dispute oer whether
certain issues had been agreed upon or were left unresoled" $n that case, a union and a compan! had
participated in mediation regarding four issues, two of which both parties agree were resoled b! the
mediation" :oweer, at the conclusion of the mediation, the union claims the last two issues were also
resoled, but the compan! maintained the union agreed to leae them unresoled" The union petitioned
the @ational 'abor Relations =oard 8@'R=2 to compel the mediatorTs testimon! regarding what the
parties resoled"
The &ifteenth Circuit recogni%ed that, in that case, the trier of fact was faced with directl! conflicting
testimon! from two aderse sources, and that a third ob#ectie source could present eidence that would
Fe< !""3
likel! resole the dispute" The court held that the polic! of maintaining mediation confidentialit!
outweighed the need for the eidence in that case" @otabl!, the court emphasi%ed that, our holding toda!
is limited to the facts before us and is based on the long histor! of mediation in the labor union context,
the sophistication of the parties, the sub#ect matter of this litigation, and the absence of an! compelling
public health or safet! issues" De could enision a situation where public polic! would lead us to a
contrar! result" Retail 1tores 8-,,42" Retail 1tores is distinguishable from the facts at hand" There, the
court deemed a priate dispute between the two parties to the mediation oer the results thereof did not
#ustif! oercoming the polic! protecting mediation communications, and thus refused to hold that the
@'R= erred in refusing to compel the mediatorTs testimon!"
:ere, the eidence is needed not in connection with a priate dispute between two sophisticated business
parties but in connection with a criminal prosecution for the felon! of illegal dumping of ha%ardous
materials which endangers public health and safet!" The Green Rier is a popular recreational site for
ka!aking, fishing, and swimming" Toxic chemicals would not onl! be directl! harmful to humans who
engage in actiities in the water, but also indirectl! harmful to an! others who consume fish from the
Green Rier that are contaminated with toxins" These are exactl! the 9compelling public health or safet!
issues9 the absence of which the &ifteenth Circuit found important to its holding in Retail 1tores"
Fe< !""3
Answer to MPT
1tatement of &acts
The Columbia ;niform Mediation 6ct 8C;M62 is identical to the &ranklin ;niform Mediation 6ct
8&;M62" 0n 1eptember +, -,,<, '!nn 'ong, the partner of *ohn =utler in =>' )isposal, a waste
disposal business, met with the Destern Count! Police, and told them that =utler had admitted in a
mediation conference that he had dumped toxic chemical waste into the Green Rier at the south
footbridge on the outskirts of Elkhart" The dumping was alleged to hae occurred in *ul! and 6ugust, at
which time man! bluefish died in the area of the dumping, and there were eleated leels of toxins found
in the water" 0n )ecember K, -,,<, =utler was charged under 1ection ++, of the &ranklin Criminal Code
for felon! unlawful disposal of a ha%ardous waste" 0n &ebruar! ., -,,E, Destern Count! 6uthorities were
informed that 'ong had died" The onl! parties present at the mediation where =utlerTs incriminating
statement was alleged to be made, were =utler, 'ong, and the mediator, Ms" &lora :ernande%" The police
hae uncoered no witnesses to the alleged dumping" Man! swimmers and ka!akers use the rier near the
alleged dumping" 0n &ebruar! +, -,,E, the Destern Count! 1tateTs 6ttorne!Ts office subpoenaed Ms"
:ernande% to testif! as to =utlerTs statement at the mediation" 0n &ebruar! .L, -,,E, Ms" :ernande% filed
a Motion to ?uash this subpoena through her attorne!"
6rgument
$" =ecause the testimon! in /uestion is the first-hand statement of a witness to an incriminating disclosure,
and there are no other witnesses to either the disclosure or the underl!ing conduct, the testimon! in
/uestion is not barred for lack of probatie alue, or being cumulatie"
6lthough the &;M6 proides that statements made during mediations are priileged and not admissible
in a proceeding, there is an exception where the proponent of the eidence alleges that the mediatorTs
testimon! is releant in a criminal matter inoling a felon! or misdemeanor, and the court determines
that the eidence is not otherwise aailable, and that the need for the eidence substantiall! outweighs the
interest in protecting mediation confidentialit!" &;M6 H E8b2" :ere, there is an attempt to subpoena a
witness who was a mediator to testif! in a felon! criminal matter, and therefore 1ection E of &;M6
applies" ;nder the case of Rinaker " 1uperior Court of 1an *oa/uin Count!, a case decided in Columbia
under C;M6, which is identical to &;M6, and is thus persuasie authorit!, the trial must determine
when there is a contest oer whether a mediatorTs testimon! ma! be used in a criminal matter, assuming
the mediator is competent to testif! 8has memor! of the statement, and that it was as alleged2, the court
must determine whether the eidence is probatie, and determine that it is not cumulatie and therefore
unnecessar!, before it undertakes a second in/uir! to determine whether the interests of disclosure
substantiall! outweigh the interests in protesting mediation confidentialit!" Rinaker, .+ 8Columbia Court
of 6ppeal -,,42"
6" =ecause Mr" =utler is charged with dumping waste into the rier, the same conduct he admitted to Ms"
:ernande%, Ms" :ernande%Ts testimon! on the issue is probatie of such conduct"
6 statement has probatie alue if the statement has a tendenc! to make a confidential fact or proposition
more or less probable than it would be without the eidence" :ere, =utlerTs statement that he dumped
waste, if admitted through the testimon! of Ms" :ernande%, makes it more probable that he dumped the
waste, and is therefore probatie" The first re/uirement of admissibilit! of the statement is thus satisfied"
Fe< !""3
=" =ecause there are no suriing witnesses to either the dumping or the admission of dumping, then Ms"
:ernande%Ts statement is not cumulatie"
The police hae been unable to find witnesses to =utlerTs alleged dumping" The onl! witnesses to his
statement that he did the dumping were 'ong and :ernande%3 and 'ong is dead" The testimon! of
:ernande% is necessar! to conict =utler, and is thus not cumulatie, satisf!ing the second re/uirement
for admission of a statement to a mediator"
$$" =ecause =utler denies the allegations, there is an interest in presering the integrit! of the truth-seeking
process at trial and preenting per#ur! through the introduction of the eidence, and because the crime
inoles the dumping of toxic substances there are compelling health and safet! issues, all of which
interests substantiall! outweigh the interest in keeping mediation confidential"
6" =ecause =utler denies the allegations, there is an interest in presering the integrit! of the truth-
seeking process at trial and preenting per#ur! through the introduction of the eidence, which
substantiall! outweighs the interest in keeping mediation confidential"
0ne of the re/uirements of probatieness and non-cumulatieness hae been met, the Columbia Court of
6ppeal has ruled that although statements to mediators will ordinaril! be excluded in order to protect the
mediation process, and encourage parties to be candid, this ma! be sufficientl! outweighed b! the
competing goals of protecting the rights of criminal defendants, preenting per#ur!, and presering the
integrit! of the truth-seeking process in order to warrant disclosure" Rinaker at .+-.4" Dhile disclosure in
this instance would not protect the interest of the defendant, it would clearl! promote the integrit! of the
truth-seeking process at trial because it would allow the use of a statement that goes to the essence of
whether it was true if =utler dumped toxic waste" 6nd although there is no indication that =utler will
necessaril! take the stand and sa! otherwise, the court in Rinaker found the preention of per#ur! to be an
interest in a similar situation, where a witness had not !et testified, and it was unclear what the! would
sa!" 6s in Rinaker, these interests substantiall! outweigh the interest in protecting the confidentialit! of
mediation"
=" =ecause the crime inoles the dumping of toxic substances, there are compelling health and safet!
issues, which interests substantiall! outweigh the interest in keeping mediation confidential"
$n Retail 1tore Emplo!ee ;nion 'ocal LK " @ational 'abor Relations =oard, 8.<th Cir" -,,42, persuasie
authorit! in this court, the court ruled that statements during mediation would not be disclosed b! the
mediator in order to resole the underl!ing labor dispute" 1tating that the issue was one of balancing
competing interests, including the interests in faor of disclosure such as 9the fundamental principle of
6merican law that the trier of fact is entitled to eer! personTs eidence" The court noted the important
counterailing interest in confidentialit! in mediation, including the promotion of priate settlements
through mediation, the encouragement of part! honest!, and the protection of mediator impartialit!" The
court was careful to note howeer that its holding was based on 9the absence of an! compelling public
health or safet! issues9, and that the court 9could enision a situation where public polic! would lead us
to a contrar! result"9 This is precisel! such a case" :ere, =utlerTs dumping endangered the swimmers and
ka!akers who used the rier, and ma! hae killed fish in the rier, which died at the same time there were
eleated chemical leels" Gien the health and safet! concerns, there is all the more reason to find that the
interests in protecting the confidentialit! of mediation were substantiall! outweighed b! other interest,
including public health and safet!, but also including the preention of per#ur!, and the integrit! of the
truth-seeking process" $n addition, the ruling against disclosure in Retail 1tore Emplo!ee ;nion LK should
Fe< !""3
not be gien significant weight b! the court relatie to Rinaker, because the former case did not inole
interpretation of legislation identical to &ranklin law"
Conclusion
&or the foregoing reasons, Ms" :ernande%Ts Motion to ?uash the subpoena should be denied"
Fe< !""3
JLY !""& - LETTER BR,EF
$@ RE =R$G:6M 8MPT-.2
6pplicants represent )r" =arbara and 'en =righam before the =a! Count! Moning =oard of 6d#ustment
8M=62 regarding their petition for a use ariance to moe =arbaraTs dental office into the =righamTs
home" )r" =righam speciali%es in geriatric dentistr!, deoting -,--<U of her practice to sering pro bono
patients" 1he will be unable to maintain her pro bono commitment and sta! in her current office due to a
substantial rent increase" 1he has #ust learned that the Count! 1uperisors recentl! passed an ordinance
re%oning a parcel near the =righamsT home from R-. to R-R 8multi-famil!, catering to senior citi%ens2"
The =righams are seeking to moe =arbaraTs dental office into their home, located in a R-. 8single famil!
residential2 %oned neighborhood" The! hae asked applicantsT law firm to file the letter brief to the M=6
in support of their petition for a use ariance" The &ile consists of the instructing memorandum, notes
from the partnerTs interiew with the =righams, a neighborhood map, letters from neighbors, and a
newspaper article about the re%oning ordinance passed b! the Count! 1uperisors" The 'ibrar! contains
excerpts from a Treatise on &ranklin 'and ;se Planning and the =a! Count! Code, as well as a case
bearing on the sub#ect"

J567 !""&
Answer to MPT
)ear Members of the M=6 =oard(
=arbara =righam, ))1, and her husband 'en =righam, seek a ariance to allow )r" =righam to moe her
dental practice into their home to meet the professional serice needs of the Rollingwood neighborhood"
)r" =righam speciali%es in geriatric dentistr!, and is the onl! specialist of the kind in Cooper Cit!" )r"
=righam, in response to her new economic conditions, as well as the opening of 1enior Citi%en Center on
the Rollingwood Parcel, wishes to moe her medical office to make it more conenient both for herself
and for the needs of the elderl!"
Currentl!, )r" =righamTs propert! is %oned R-. single-famil! residential" :oweer, )r" =righam wishes to
re/uest a ariance from this residentiall! %oned propert! and proes, b! a preponderance of the eidence,
wh! such ariance to a commercial-business is needed" =elow are the reasons and arguments wh! !ou,
the M=6 =oard, should permit the =righamTs ariance to allow for a dental office in their home"
$" Fariance DonTt Create )etriment To 6d#acent and @earb! Propert!
)r" =righamTs ariance will not create a detriment to ad#acent and nearb! properties because her dentistr!
is actuall! needed in the neighborhood and because all neighbors hae gien permission and support for
the ariance"
&irst, the dentist office is needed in Cooper Cit! due to the fact that a new senior citi%enTs home has been
built in the neighborhood" )r" =righam is a geriatric dentist, and is the onl! specialist within .- miles of
the new 1enior Citi%ens home" The senior citi%ens, according to a statement made b! Thelma 1tamp,
director of the 1eniors 6liance in Cooper Cit!, stated that the seniors need, 9a full range of medical
specialists3 a dentist speciali%ing in geriatricsY9" 6ll of the seniors will be able to obtain dentistr!
serices from )r" =righam" )r" =righamTs practice is t!picall! between -,U - -<U pro bono" Therefore,
man! of the elderl! patients, who cannot afford a dentist, will receie proper medical care" Therefore, it is
incumbent that the senior citi%ens hae a dentist close b!"
$n addition, preious M=6 decisions are releant to the current ariance decision being made" $n .KEK, the
M=6 issued a ariance in the Rollingwood neighborhood where the =righamTs home is located" There, the
area ariance granted on the re/uest of Parc << )eelopment, was for the purpose of building a single-
famil! dwelling of approximatel! <,,,, s/" ft" There, the M=6 relied on the written statements of four
contiguous propert! owners that the! had no ob#ections to the ariance"
:ere, the ariance will not create a detriment to the ad#acent and nearb! properties as eidenced b! the
letters written b! the neighbors" 6ll of the neighbors that lie immediatel! ad#acent to the =righamTs
propert! wrote the following( 90ur neighbors, )r" =arbara and 'eonard =righam, hae informed us that
the! are seeking a ariance to allow them to add a dental and an entranceBreception area for the office in
their home" De hae reiewed their plans and hae no ob#ection to the granting of the re/uested
ariance"9
$n addition, and most importantl!, the addition of the dentist office will actuall! hae a positie impact on
neighborhood propert! alues" 6ccording to 'en Mukor, owner of Cooper Realt!, the alues in the area
will rise about .,U" Mukor beliees that there is no chance for the propert! alue to decrease as a result"
J567 !""&
Therefore, it is clear that the ariance permitting the =righamTs to use their house as a dentist office will
not create a detriment to ad#acent propert!"
$$" Fariance Dill @ot 1ubstantiall! 6lter General Character of 6rea
The ariance will not substantiall! alter the general character of the surrounding area because the
=righamTs oluntaril! assured the town and their surrounding neighbors that the! will take the necessar!
steps to ensure to alteration" Principall!, in response to a letter of two neighbors who hae a concern about
the traffic due to the dentistr!, the =righamTs hae offered to pa! for new speed bumps to slow cars to the
present -< mile per hour speed limit or less"
0fficer )aid Dhite is a neighbor of the =righamTs, a .E-!ear eteran of the Cooper Police )epartment,
and is the sergeant in charge of the Traffic Control )iision" 0fficer Dhite beliees that excess speed, in
contrast to the amount of traffic, is the primar! cause of accidents" :e ferentl! beliees that mid-si%e
speed bumps, like the oneTs the =righamTs will bu!, will reduce the speed and actuall! help reduce the risk
of accidents"
Paul :ein%, a certified Traffic Engineer, anal!%ed the traffic patterns of the Rollingwood neighborhood,
and stated that the existing traffic in the area is due to the limited access and relatiel! few residences"
The aerage automobile speed on the street is -5"< MP:" The addition of the speed bumps will control the
speed of increased traffic to -+"< MP:" This is an obious decrease in speed"
&urther, according that a M=6 prior decision in .K5E, a ariance ma! be granted if the building blends in
with the residential neighborhood despite the intrusion on structure and parking setback limits" 6gain, the
M=6 relied on the statements of propert! owners" :ere, the dental office construction need not add on an!
s/uare footage to the existing house" $n addition, =arbara onl! works during the da!, and will onl! be
open on weekends for an occasional emergenc! isit 8to help elderl!2" &urther, =arbara on aerage onl!
schedules three patients a da!"
Thus, the dentistr! will do nothing to alter the general character of the neighborhood" The traffic will be
substantiall! curtailed, and the house will be the same, despite the improements"
$$$" Fariance $s $n :armon! Dith 0erall $ntent of Code
The ariance will be in harmon! with the oerall intent of the code" The oerall purpose of the residential
districts is to proide a ariet! of residences and complementar! uses that conform to the densit!
re/uirement, policies and ob#ecties of the Cooper Cit! 'and ;se Plan"
:ere, the ob#ectie of the Cooper Cit! 'and ;se Plan, when it allowed a senior citi%en center to be built
on R-. land, was to proide for senior citi%ens" Thus, the seniors must be proided with complementar!
uses" 0ne such complementar! use is to hae a local dentist to go to" Man! senior citi%ens lack the t!pe of
car necessar!, and man! cannot obtain dental care" )r" =righam is a solution to both" 1he will be able to
take care of the senior citi%ens, and will be able to proide proficient, and in some cases free, medical
care"
$n addition, the ariance is in harmon! with the proisions in the Code" The code allows home offices on
residential propert!" The =righamTs office is not most different than a standard home office" The office
will not take up more than -,U of the dwelling" Their propert! is <,,,, plus s/" ft", and the office will
merel! total 5,, s/" ft" 8less than -,U2" $n addition, onl! office e/uipment will be stored in the dwelling
J567 !""&
unit" &inall!, )r" =righam does not hae a partner, and her clientele will be limited in si%e3 presumabl! to
the elderl! in the senior citi%en house" 6lthough there will be incoming traffic due to the dental business,
the =righamTs will suppl! enough parking space for all customers, and will install speed bumps to /uell
future accidents"
$n addition, a commercial business district is intended to meet the personal and professional needs of the
local neighborhood" 6ll actiities of permitted uses are limited to the interior of the building, except for a
sign" :ere, the dental business would indeed meet the personal and professional needs of the local
neighborhood" $t would proide for all of the surrounding neighbors, and would increase the alue of their
propert!" Therefore, the ariance is in harmon! with the oerall intent of the code, and specificall!, the
home offices on residential propert!"
$F" 8a"2 ;ni/ue and Peculiar Circumstances Create Practicable )ifficulties or ;nnecessar! :ardships
The uni/ue circumstances of the =righamTs would certainl! create difficulties and unnecessar! hardships
to them if the ariance were not gien" The court in 6nton held that the difficulties must be found in the
land itself, and the test is whether the land as presentl! %oned cannot be used in an! economicall! iable
manner" :ere, the land is %oned as R-., merel! for the use as a residence" There is no economicall! iable
manner in which this house ma! be used" $n contract to the 6nton decision, where the court held that the
land could be used as agricultural land, here, the land cannot be used for agriculture, or an! other
business" $n fact, without using the land for a dentist office, there is no economic use to the land"
$n addition, it is economicall! necessar! for the =righamTs to build the dentist office" Their old landlord
gae notice of a +<U rent increase" The! cannot afford a rent increase" )r" =righam sees elderl! clients,
and man! times, does not charge them a fee" &urther, the saings in the office rent, plus additional alue if
the ariance is granted, would proide the =righamTs with an economic benefit" The land would thus be
economicall! iable"
$F" 8b"2 The Public $nterest Dill =e 1ered
The public interest will certainl! be sered b! granting a ariance to the =righamTs" $n 6nton, the court
stated that the ariance must further an important public interest that would otherwise go unmet without
the ariance" $n addition, in Fan Eer!, the court permitted a ariance that permitted a homeless shelter in
an industrial district where the shelter adocates presented substantial eidence of local need"
:ere, the dentist office will further an important public interest N that is the interest in proiding the
senior citi%ens with iable dentistr!" 6gain, )r" =righam is the onl! specialist in the area who can proide
the re/uisite care that is needed for an elderl! person"
$n addition, the nearest geriatric dentistr! is located oer .- miles awa!" 6s 1tamp stated, 9Cooper Cit!Ts
unreliable mass transit s!stem makes proximit! to serices all the more important to seniors with limited
mobilit!9" )r" =righamTs office is located within walking distance to the senior citi%en house" 1he will
install a handicap ramp to allow all seniors to en#o! the benefit of her care" 1he is a needed commodit! in
the cit!"
$n addition, although the court in Elw!n stated that the standard of reiew is not whether ariances hae
been granted to similarl! situated applicants, these prior ariances ma! proide insight into whether the
current re/uest meets the aboe listed factors" :ere, the Council allowed a ariance from an R-., to an RR
for the senior citi%ens house" Thus, although not conclusie eidence, this is prima facie eidence that the
J567 !""&
Council will allow a ariance if there is a public need" 6gain, there is a public need to ensure that all
seniors are cared for"
Therefore, the public interest, and in particular, the interest of the elderl!, will be sered b! allowing )r"
=righam to continue her dentistr! in her home"
F" Conclusion
$n conclusion, =arbara =righam, ))1, and her husband 'en =righam, hope that !ou will permit a
ariance to allow )r" =righam to moe her dental practice into their home to meet the professional serice
needs of the Rollingwood neighborhood"
Darm Regards,
6pplicant
J567 !""&
Answer to MPT
)ear Members of Cooper Cit! Moning =oard of 6d#ustment,
0n behalf of =arbara and 'en =righam of -,<, Maple 1treet, we are petitioning the =oard for a Fariance
to allow =arbara =righam, a geriatric dentist well-respected within Cooper Cit!, to see patients at a dental
practice within her own home" The ariance would allow the =righams, whose home currentl! is %oned
R-. for single-famil! residential use, to construct to small, 5,, s/" ft" office within their home for )r"
=righam to operate as a small dental practice" The =righams will not hae to expand their home in an!
wa!, and therefore are seeking onl! a use ariance"
The ariance we are seeking would sere the communit!Ts need for nearb!, affordable dentistr!, and be in
full harmon! with both the proisions of, and recent changes to, the Cooper Cit! Moning Code" The
=righamTs ariance would also satisf! all statutor! criteria for a ariance"
6" The Fariance Dill @ot Create a )etriment to 6d#acent and @earb! Properties
The =righams are seeking to conert part of their home into office space for administratie use and for the
purpose of seeing dental patients" The =righams alread! had planned a substantial renoation of their
house, and the office insertion would not extend the time that the renoations will inconenience an! of
the =righamsT neighbors" The Cooper Cit! Moning Code re/uires that a ariance 9not create a detriment to
ad#acent and nearb! properties9" Moning Code H +<8)28.2" $nstead of creating a detriment to ad#acent and
nearb! areas, though, the =righams planned use will benefit the area around them" 6ll fie of the
=righamsT ad#oining neighbors hae submitted @o-0b#ection letters to the =oard in which the! state that
the! hae no ob#ections to this =oard granting the =righamsT ariance" These neighbors see no detriment
resulting from the ariance"
1imilarl!, far from hurting the propert! alue of the neighborhood, Rob Mukor, the owner of Cooper Cit!
Realt!, is aailable to tell !ou how propert! alues in the area will rise b! about .,U as the sole result of
the =righams remodeling of their home" Mr" Mukor does not beliee, based on his long experience in the
Cooper Cit! real estate market, that )r" =righamTs dental office would negatiel! impact propert! alues
in an! wa!" 0ne of the =righamsT neighbors, 1ergeant )aid Dhite of the Cooper Cit! Police
)epartment, is eager for the =righams to open the dental office because of the increased propert! alues
in the neighborhood"
Dhile a possible concern has been raised that the office might increase traffic in the area and therefore
impact the abilit! of children to pla! in the street, we can assuage those fears b! installing speed bumps in
the area to control the speed of traffic down the streets leading to Maple 1treet" Most of the increased
traffic in the area would not, in fact, be due to the =righamsT dental office, but instead be due to the new
apartment complex between -,th and -.st 1treets, and 1tirling and Chestnut 1treets, and the new access
road from Palm 6enue" The =righams are willing to alleiate all of this increased traffic, though, and pa!
for the speed bumps recommended b! certified Traffic Engineer Paul :ein%, who will be aailable to
speak with !ou at the hearing" Moreoer, 1ergeant Dhite, who is the head of Cooper Cit!Ts Traffic
Control )iision in addition to being a neighbor of the =righams, is confident that the traffic impact of
the =righamsT office will be negligible, and completel! controllable"
=" The Fariance Dill @ot 1ubstantiall! 6lter the General Character of the 6rea
J567 !""&
Dhile the =righamsT home is currentl! %oned R-., areas around the neighborhood area alread! permit
arious uses, commercial and residential" )r" =righamTs office will be contained wholl! within her house,
which will still appear identical from the outside" The neighborhood will remain residential, in appearance
and function" The ariance will not substantiall! alter this residential character of the area, as re/uired b!
Moning Code H +<8)28-2"
C" The Effect of the Fariance is in :armon! Dith the Proisions and 0erall $ntent of the Moning Code
The =righamsT planned use of part of their home is in substantial compliance with two uses alread!
permitted in the Moning Code in or near residential areas" The ariance therefore would be in harmon!
with the Moning Code, as re/uired b! Moning Code H +<8)28+2"
Moning Code H -+L alread! allows :ome 0ffices, which restrict themseles to less than -,U of the
dwelling unit, which do not re/uire commercial ehicles, are not identified b! signage outside the home,
and which do not re/uire the delier! or dispensing of business merchandise or products other than
normal office e/uipment" )r" =righamTs office would compl! with eer! one of these re/uirements" :er
office would be small 8onl! .EU of the oerall home2, would not re/uire commercial ehicles or delier!
of non-ordinar! business merchandise, and would not need to be identified b! outside signage"
Moning Code H -K+ alread! allows =-. limited commercial business districts to sere the 9personal and
professional serices needs of the local neighborhood9" These districts are usuall! around local access
roads, and contiguous to residentiall! %oned properties" :oweer, the Maple 1treet area was neer near an
access road until now with the proposed road from Palm 6enue to -,th 1treet, and there is no aailable
land to re%one =-." The 9serices needs9 of the neighborhood can therefore onl! be sered b! a ariance
such as the =righamsT, which would be similarl! unobtrusie to its contiguous residentiall! %oned
properties" The =righamsT ariance would be in full harmon! with the Moning CodeTs allowance of small,
unobtrusie home offices, and commercial serice proiders next to residential areas"
)" The Fariance Dould 1ere the Public $nterest
Moning Code H +<8)2842 finall! re/uires that absent uni/ue and particular circumstances of the land,
which the =righams do not suggest here, the ariance sere the 9public interest9" This 9public interest9
ariance would hae to be approed b! -B+ of the =oard" )r" =righamTs office would ampl! sere the
public interest, b! furthering an 9important public interest that would otherwise go unmet without the
ariance9" 86nton " Cooper Cit! Moning =oard of 6d#ustment2"
The area around Maple 1treet is in dire need of dental serices, and particularl! geriatric dental serices"
)r" =righamTs current office is the onl! dental care proider within a +"< mile radius, and the onl! office
speciali%ing in geriatric dental care within .- miles" )r" =righam seres almost .B4 of her clients on a pro
bono basis" The Cit! Council has #ust approed .+4 new senior citi%en apartments in the Rollingwood
area, a mere block from the =righamsT proposed geriatric dental office" This decision was made, in part, in
reliance on )r" =righamTs geriatric dental practice, which will no longer be located in its current position
due to commercial necessit!" $f the =righamsT ariance is not granted, and )r" =righam is forced to moe
her practice nine miles awa!, these new residents will be unable to receie the dental care the! were
counting on" )r" =righamTs geriatric dental practice seres a large need, which will go unmet if )r"
=righam is unable to keep practicing in the area" This is surel! the kind of 9important public interest9,
which supports the granting of a ariance"
E" 0ther Fariances
J567 !""&
Dhile other ariances this =oard has granted in the area are not, of course, conclusie eidence that the
ariance is warranted here, this =oard is permitted to take notice of the fact that similar non-residential
uses hae been approed" 86nton " Cooper Cit! Moning =oard of 6d#ustment2" This =oard approed the
construction of a church on the edge of Maple 1treet, which includes parking for 4, cars, as well as
intrusion on structure and parking setback limits" The =righams are seeking none of these structural
changes N merel! a use ariance to allow a small office, without changing the oerall look of the
neighborhood"
De are confident that we will be able to show !ou, b! a preponderance of the eidence that the =righamsT
ariance should be granted" De look forward to answering an! /uestions !ou ma! hae regarding the
ariance"
1incerel!,
1tubbs, &riedland > 0glethorpe, P"C"
Two 1tirling Professional Center
Cooper Cit!, &ranklin ++,-4
J567 !""&
FEBRARY !""& - OBJE)T,-E MEMORANDM
$@ RE R01E I$@G1'E7 8MPT-.2
6pplicants' law firm represents 6ttorne! Rose Iingsle! in a fee dispute with 6ttorne! Iaren 1heats"
Iingsle! temporaril! hired 1heats to assist her in the Moreno case, a complex toxic tort case" The two
law!ers entered into a fee-splitting agreement whereb! 1heats would receie +,U of Iingsle!'s final fee
from the case" 1heats was also to be paid V<, an hour for her work on the case as an adance on the +,U
contingenc!" 6fter 1heats had deoted E,, hours to the case and been paid V+,,,,, for her work, she felt
that the case was too time consuming and was not going to succeed, so she /uit" Dhen Iingsle!
recoered a V., million fee for settling the Moreno case, 1heats demanded +,U of the V., million
settlement" 6pplicants are asked to draft a memorandum for the superising partner anal!%ing whether,
under Rule -,, of the &ranklin Rules of Professional Conduct, 1heats was Iingsle!'s partner or associate,
and whether the correspondence between Iingsle! and Moreno complied with Rule -,,'s disclosure
re/uirements for fee-splitting arrangements" The &ile consists of an instructional memo, a transcript of an
interiew with Iingsle!, a letter from 1heats' counsel, the Iingsle!-1heats fee agreement, a letter from
Iingsle! to *anice Moreno, and a memo from 1heats" The 'ibrar! contains Rule -,, of the &ranklin
Rules of Professional Conduct and two releant cases"

Fe< !""&
Answer to MPT
To( Thomas =urke &rom( 6pplicant Re( Rose Iingsle!
7ou hae asked me to look into two issues related to the application of Rule -,, of the &ranklin Rules of
Professional Conduct to the case of Rose Iingsle!" Rule -,, allows fee-splitting among its law!ers, onl!
if the law!ers are in a partner-partner or partner-associate relationship, or if the client is gien full written
disclosure of the fee splitting arrangements and the client gies informed written consent"
." Greene was not a partner or associate of Iingsle! for the purposes of Rule -,," The issue is whether or
not Iaren Greene and Rose Iingsle! were in a partner-partner or partner-associate relationship, in which
case Rule -,, would allow fee-splitting een absent client's informed written consent" 6s explained
below, Iaren Greene and Rose Iingsle! were not in either t!pe of relationship" ;nder the &ranklin Court
of 6ppeal decision in Chambers " Ia! 8-,,-2, which is binding precedent in this #urisdiction, a
partnership is 9an association of two or more persons to carr! on as co-owners, a business for profit,
connoting co-ownership in partnership propert!, with a sharing of profits and losses of a continuing
basis"9 $n this case, Iingsle!'s interiew transcript suggests that Greene was merel! temporaril! hired,
with no intention b! either part! of establishing a continuing association based on shared profits and loss"
Therefore, there was no partnership, and no partner-partner relationship between Greene and Iingsle!"
Chambers also contains a definition for when a temporaril! engaged law!er is an associate" The
determination hinges upon whether the law!er worked 9with9 or 9for9 the main law!er" 6 court will look
to 9the totalit! of the circumstances9, and consider two ke! factors( .2 the degree of the main law!er's
control or superision of the temporar! law!er, and -2 whether the temporar! law!er's compensation is a
fixed salar! or an hourl! rate, or is on a contingent basis" The Court of 6ppeal ruled that een if factor one
is ambiguous, factor two is 9the more indicatie eidence"9
$n this case, Iingsle! testified that she exercised considerable legal oersight and control oer Greene, for
instance, forbidding Greene from haing sole face-to-face contact with the client" 6dditionall!, Iingsle!
was the onl! attorne! or record" :oweer, Iinsle! also indicated that Greene had a 9relatiel! free hand9
on technical issues, due to Greene's engineering expertise" &rom these facts, it is somewhat more accurate
that Greene was superised, since the legal actions are more significant" To the degree this is true" This
would tend to suggest Greene was an associate" :oweer, these factors are ambiguous and not
determinate" Turning to the 9more indicatie9 issue of compensation, it is clear that Greene was working
on a contingent basis for +,U of an! legal fees" The V<, per hour she was paid was merel! an adance on
the contingent fee, according to the fee agreement between Iingsle! and Greene" Therefore, Greene was
not an associate, since associates are paid b! salar! or hourl! wage and not on a contingenc! basis, as per
Chambers"
Therefore, Greene was not a partner of Iingsle! because there was no association with profit sharing, and
Greene was not an associate of Iingsle! because she worked with 8not for2 Iingsle! as eidenced b! the
contingent fee agreement" Therefore, an!
fee-sharing agreement will be alid and enforceable onl! if it satisfies the elements listed in Rule -,,,
discussed in part two below"
-" Rule -,,'s fee-splitting re/uirements hae not been met" $n the absence of a partner-partner or partner-
associate relationship, which as discussed in part one is not applicable here" Rule -,, re/uires an! fee-
splitting arrangement between law!ers to( .2 be disclosed full! in writing to the client and consented to b!
the client in writing, and -2 not be increased solel! b! reason of the diision proision and not be
unconscionable" Margolin " 1hemaria, a -,,, &ranklin Court of 6ppeal case binding on this #urisdiction,
held that Rule -,, is 9satisfied onl! b! full compliance with the rule's written-disclosure and written-
consent re/uirements9" This is because Rule -,,'s 9purpose is client protection to the maximum extent
Fe< !""&
possible9" $n this case, the written disclosure in Iingsle!'s letter to the client, dated 0ctober -+, -,,-, is
clearl! insufficient because it does not contain an! of the releant terms of the fee-splitting agreement,
onl! that such an agreement existed" Thus, the client's written acknowledgement is oid" 6dditionall!, the
client's acknowledgement does not een purport to consent to the agreement, onl! that the client
understands the letter" Greene's subse/uent telephone conersation with the client about the agreement is
insufficient to cure the defect in informed notice, because it was not in writing" Margolin makes clear that
to protect the client, Rule -,, will be strictl! construed" Therefore, as in the facts in Margolin,
noncompliance with Rule -,, renders the fee-splitting agreement unenforceable" 0ur client, Iingsle!,
therefore will not hae to abide b! the terms of the agreement with"Greene, and does not hae to pa! what
Greene is seeking under the unenforceable agreement"
@ote( Rule -,, also re/uires the fee not to be increased solel! b! reason of a fee splitting agreement, and
not be unconscionable" @othing in the facts suggests Iingsle!'s standard ++U contingenc! fee was
increased solel! due to the retention of Greene's serices" 6dditionall!, a ++U contingenc! fee is standard
practice for man! trial law!ers, and therefore not unconscionable" Therefore, Iingsle! is not in breach of
this obligation under Rule -,,"
Fe< !""&
Answer to MPT
To( Thomas =urke &rom( 6pplicant Re( Rose Iingsle!
." Iaren Greene was neither a partner nor an associate for purposes of Rule -,, of the &ranklin
Rules of Profession Conduct" ;nder Rule -,,, a law!er shall- not diide a fee for legal serices with a
law!er who is temporaril! engaged and who is not a partner or associate of the law!er" 6s will be shown,
Iaren Greene is in neither relation to our client Rose Iingsle!"
6" Greene was not Iingsle!'s partner under &ranklin 'aw" 6ccording to the &ranklin Court of 6ppeal in
the case Chambers " Ia!, partners within the meaning of Rule -,, means an association of two or more
persons to carr! on, as co-owners, a business for profit, connoting co-ownership in partnership propert!,
with a sharing in the profits and losses of a continuing business" $n that case, the two law!ers shared an
office and maintained case files and shared staff" :oweer, the court held that this was not sufficient to
constitute a partnership" The! did not act as co-owners nor did the! share profits and losses of a
continuing business engaged in the practice of law"
:ere, our client retained Greene, in her words, 9to do the inestigation and discoer! because of her
engineering background9 to work on this particular Moreno case" Greene worked in the same office, but
onl! on a temporar! 9as needed9 basis" The facts een tell us that Greene was attempting to build her own
practice working out of her home and it was for that reason that she left the Moreno case before trial" 0n
the basis of these facts, it is clear that the! were not operating as partners since there was absolutel! no
sharing of profits and losses of a continuing business operation"" Greene was clearl! a temporar! worker,
the strongest eidence of this being her earl! resignation from her position" $t is unlikel! Greene will
argue otherwise" 1he ma! be more likel! to argue that she was in an associate position is-a-is our client"
=" Green was not Iingsle!'s associate under &ranklin 'aw" 6ccording to the court in Chambers, for the
Purposes of Rule -,,, an associate is a law!er who works for rather than with, another law!er" The court
applied a totalit! of the circumstances test looking to a continuum from close superision and non-
contingent compensation at one end, to loose superision and a contingent fee on the other" The factors
bearing on the ealuation for how closel! a temporaril! engaged law!er is superised are( .2 the direct
and indirect control of the superision3 -2 oersight of the temporaril! engaged law!er in legal and factual
aspects of a case3 +2 control oer the working enironment3 and 42 the relationship to the client" $n the
Chambers case, the court found that the superision was not particularl! close because Ia! was allowed
to conduct discoer! and appear in court on the client's behalf" $n the instant case, Iingsle! retained full
control oer the legal side of the case because Greene was a new law!er and that Greene was neer
allowed face-to-face contact with the client outside of her presence" Greene will argue that this is
indicatie of an associate relationship under Rule -,," $n the Chambers case, Chambers was gien more
freedom than this" :oweer we can argue that Greene was gien a lot of freedom on the technical side of
the case" The court in Chambers stated that the degree of superision is 9far from dispositie9 and that the
contributions of the law!ers in an! case will ar! according to the elements of the case and each law!er's
indiidual strengths and areas of expertise" :ere, we can point out that Greene's area of expertise was the
more technical side of things and that she was gien a 9relatiel! free hand9 in handling that side of the
case" Dhereas, Iingsle! was the counsel of record and the more experienced attorne!, so naturall! she
controlled the legal side of things"
The second and more indicatie eidence of the parties' relationship is the compensation agreement
between the law!ers" $n the Chambers case, the law!ers agreed that Chambers would be paid solel! on a
contingent fee basis, specificall!, as a percentage of an! contingent fee that Ia! receied from the client"
The court, iewing the eidence as a totalit! of the circumstances, combined the eidence of loose
Fe< !""&
superision and the contingent fee to hold that Chambers was not Ia!'s associate for the purposes of Rule
-,," Greene will argue that because she was being paid on an hourl! basis, in addition to the contingent
fee arrangement, that she thus /ualifies as an associate when the eidence is iewed together with the
closer degree of superision here than in the Chambers case" De can argue that the presence of an! form
of contingenc! agreement is wholl! contrar! to an associate relationship" 6n associate is onl! paid a
salar! for her work" &urthermore, on the facts, the fee-splitting agreement specified that the V<, per hour
paid to Greene was an adance on the contingent fee agreement" Therefore, the contingent fee was
predominatel! the intent of the parties and Greene cannot be considered an associate under Rule -,,"
-" The re/uirements of Rule -,, hae-not been met b! the fee-splitting agreement between Iingsle!
and Greene" The &ranklin Court of 6ppeal interpreted these re/uirements in the case Margolin "
1hemaria and is applicable to our case"
The court in Margolin stated that fee-splitting is prohibited between law!ers who are not related as
partners or associates unless the client has consented in writing to the fee-splitting agreement after a full
disclosure of the arrangement has been made in writing" The total fee charged b! all law!ers is not
increased solel! b! reason of the arrangement" The purpose of the Rule is to protect the client to the
maximum extent possible" The court emphasi%ed that the rule is a 9bright-line rule9 and full compliance
with the rule's written disclosure and written consent re/uirements are re/uired" The writing must contain
the extent of, and the basis for, the splitting of fees b! two or more law!ers" The client should not hae to
mentall! retain such information throughout the pendenc! of the case"
$n the Margolin case, the written disclosure re/uirement was not satisfied" The client onl! receied oral
disclosure of the fee-splitting agreement and gae oral consent thereto" 0ur case again presents a h!brid
situation" Iingsle!'s notice to Moreno of the fee agreement with Greene was deficient in that it failed to
disclose the terms of the agreement" The client's confusion is eident b! the memorandum from Greene to
Iingsle! in which she stated that she had explained the terms of the agreement orall! to Moreno and she
had consented orall!" This is the er! problem, which Rule -,, is seeking to aoid" $t seeks to protect the
client to the 9maximum extent possible9" This re/uires strict compliance with the written disclosure and
written consent re/uirements"
Greene will argue that this case is distinguishable from the Margolin case since Moreno consented in
writing to the fee splitting agreement haing been - - terms orall!" 1he ma! also tr! to argue that to den!
the enforceabilit! of the agreement would be unfair to her as a law!er" 1he will argue compliance with
Rule -,,8-2 in that Moreno was assured in writing that the fee would not be increased as a result of the
feesplitting agreement and that in fact it was not so therefore, there was no harm to the client" 6ll of these
arguments will fail" De can rel! on the Margolin case to argue that since the terms of the fee-splitting
agreement were not actuall! disclosed to Moreno in writing, instead being orall! transmitted to her b!
phone, that there was not full compliance with Rule -,," The fact that Moreno was not harmed is of no
conse/uence" &urthermore, the fact that Greene will lose out because of this is also irreleant since the
court in Margolin stated that the purpose of the rule is 9not law!er protection, but client protection to the
maximum extent possible9" Greene is a law!er and should hae protected her own interests b! ensuring
that Rule -,, was full! complied with"
Fe< !""&
JLY !""+ - )ASE PLANN,N. MEMORANDM
GR6:6M RE6'T7, $@C" F" =RE@)6 C:6P$@ 8MPT--2
6pplicants work in the &ranklin 'egal 6id 1ociet! representing =renda Chapin, a tenant in an apartment
building owned b! Graham Realt!, $nc" 8GR$2" GR$ has brought a summar! eiction proceeding against
Ms" Chapin for failing to pa! her rent" Ms" Chapin has been withholding her rent for seen months
because GR$ has refused to repair numerous defects in her apartment, notwithstanding her repeated
re/uests" To successfull! defend against GR$'s eiction action, Ms" Chapin will hae to proe that GR$
breached the implied warrant! of habitabilit!" 6pplicants' task is to draft a case planning memo that
identifies and ealuates Ms" Chapin's claims, counterclaims, defenses, andBor remedies in the eiction
action" The &ile consists of the 'egal 6id 1ociet!'s intake officer's interiew with Ms" Chapin, a letter
from Ms" Chapin to GR$'s building manager detailing the defects in her apartment, the 'egal 6id 1ociet!'s
case planning memorandum guidelines and examples, Cit! of 6on =uilding $nspector Fiolation Report,
and a newspaper article" The 'ibrar! contains sections of the &ranklin )istrict Court 6ct and the &ranklin
Real Propert! Code, as well as two cases"
J567 !""+
Answer to MPT
T0( *oseph Murra!, 1uperising 6ttorne!
&R0M( 6pplicant
)6TE( *ul! -L, -,,4
RE( Graham Realt!, $nc" " =renda Chapin
Claim( =reach of &ranklin Real Propert! 'awB=reach of $mplied Darrant! of :abitabilit!
'egal 6uthorit!( 1ection <,, of the &ranklin Real Propert! 'aw re/uires that landlords who lease
residential premises warrant that the premises and all common areas are safe, clean, and fit for basic
human habitation" This implied warrant! of habitabilit! cannot be waied" 1ubstantial iolations of
applicable housing codes are prima facie eidence that the landlord has breached the warrant! of
habitabilit!" 8Firgil " 'and!2
Element \.( The landlord failed to delier or failed to maintain premises that are fit for human habitation
and for the uses reasonabl! intended b! the parties"
Eidence aailable to show Graham Realt!, $nc" failed to delier premises that were fit for human
habitation(
- Testimon! b! =renda Chapin that the bathroom ceiling leaks and that chunks of plaster hae fallen in the
bathroom3 that there is a smell!, slim! green fungus spreading in the bathroom on the wall3 that there are
cracks and holes in the walls3 that the apartment needs painting and plastering3 that heat and hot water
sometimes do not work3 that there are rats in the apartment3 and that the eleator is sometimes out of
serice for three to four da!s"
- Cop! of the Ma! -., -,,4, letter written b! =renda Chapin to Mr" 'ondon, the building manager,
cataloging her complaints 8including the plaster falling, rats, and lack of heat2"
- Cop! of the iolation report from the 6on =uilding inspector"
Element \-( The tenant must show she notified the landlord of the deficienc! or defect not known to the
landlord and allowed a reasonable time for its correction"
Eidence aailable to show Chapin notified Graham Realt!, $nc" of the defects in her apartment and
allowed a reasonable time for correction(
- Testimon! b! Chapin that she left numerous messages for Mr" 'ondon on his answering machine and
with his secretar!" 6lso testimon! that she informed Fictor, the superintendent, of the needed repairs"
- Testimon! b! Mr" 'ondonTs secretar! that Ms" Chapin left seeral messages"
- Cop! of ChapinTs Ma! -., -,,4 letter to Graham Realt!, $nc"
J567 !""+
- Testimon! b! Fictor, the building superintendent, that Ms" Chapin notified him of the defectie
conditions"
Remedies(
6" Rent 6batement
'egal 6uthorit!( 1ection -4, of the &ranklin )istrict Court 6ct authori%ed the housing diision to fashion
an! remed! to enforce housing standards to accomplish compliance or to protect and promote that public
interest" This includes, but is not limited to, abatement of rent, remedial damages and punitie damages"
8H-4, &ranklin )istrict Court 6ct2" Rent abatement damages are e/ual to the difference between the alue
of the apartment as warranted and the alue as it exists in its defectie condition"
Elements( )etermine the percentage reduction of habitabilit! or usabilit! based on the area affected,
amount of time tenant is exposed to the defect, the degree of discomfort and anno!ance the defect
imposes, the health-threatening affects of the defect, and the extent to which the tenant finds the defect to
make the premises uninhabitable" This is deducted from the agreed upon monthl! rent for the premises as
properl! warranted" 8Firgil " 'and!2
Eidence of the reduction of habitabilit! based on the defects on the premises(
- Testimon! b! Chapin concerning the extent to which the defects interfere with her use of the premises,
make liing there uncomfortable or unsafe"
- Testimon! b! her daughter, Mar!, concerning the rats in the apartment and her fear of them" Mar! could
also testif! about her head in#ur! from the falling plaster"
=" Remedial )amages
'egal 6uthorit!( 1ection -4, of the &ranklin Real Propert! 'aw allows for remedial damages when a
tenant incurs out-of-pocket expenses to remed! a defect of which she has informed the landlord but the
landlord has failed to repair within a reasonable time" 8Firgil " 'and!2
Elements( The tenant must show that she incurred out-of-pocket expenses to correct a problem the
landlord failed to correct on notice"
Eidence in support of Ms" ChapinTs remedial expenses(
- Testimon! b! Ms" Chapin that she spent VLK on a space heater and that her electric bills hae greatl!
increased due to additional use of the heater and stoe to heat the apartment and water for bathing"
- Receipt for the space heater"
- Past and present copies of the electric bills"
C" Punitie )amages
'egal 6uthorit!( 1ection -4, of &ranklin Real Propert! 'aw allows a tenant to recoer punitie damages
to punish conduct that is morall! culpable, to deter repetition of the same action b! landlords" Dhen a
J567 !""+
landlord fails to make repairs, such that a showing of bad spirit and wrong intention is eident, punitie
damages are recoerable b! the aggrieed tenant" 8Firgil " 'and!2
Elements( Tenant must show that the landlord had notice of the defect and persistentl! failed to make
repairs that were essential to the health and safet! of the tenants"
Eidence that Graham Realt!, $nc"Ts persistent failure to repair was morall! culpable(
- Testimon! b! Chapin of her repeated attempts to inform Graham Realt!, $nc" of the defects"
- Cop! of ChapinTs letter to Graham Realt!, $nc" informing of the problems"
- Cop! of the 6on Ga%ette article indicating that =riggs is being gentrified and that landlords are tr!ing
to force current tenants out to allow newer, high class tenants to moe in"
There are additional damages aailable to Chapin that ma! not be pursued through the summar! eiction
proceeding" Chapin also has a claim for negligence against Graham Realt!, $nc" based on the in#ur!
sustained b! Mar!" Chapin ma! be able to recoer for the medical expenses she paid and her lost wages
from work due to caring for Mar!" :oweer, this claim will need to be filed in a separate action, as
summar! proceedings are resered for resolution of /uick cases inoling traditional landlord-tenant
disputes and housing standards" 8=ashford " 1chwart%2
J567 !""+
Answer to MPT
T0( *oseph Murra!
&R0M( 6pplicant
)6TE( *ul! -L, -,,4
RE( Graham Realt!, $nc" " =renda Chapin
Claim( =reach of &ranklin Real Propert! 'awBDarrant! of :abitabilit!
'egal 6uthorit!( H<,, of &ranklin Real Propert! Code proides that in eer! rental agreement for
residential premises, the landlord shall be deemed to warrant that a2 the premises are fit for human
habitation3 and b2 the occupants shall not be sub#ected to an! conditions that would be dangerous,
ha%ardous, or detrimental to health or safet!" 8Firgil " 'and!2
Element \.( 'andlord caused occupants to be sub#ected to dangerous conditions, detrimental to their
health and safet!"
Eidence aailable to show landlord caused =renda Chapin and famil! to be sub#ected to dangerous
conditions(
- Testimon! of =renda Chapin regarding condition of bathroom, loss of heat, non-functioning eleator,
and rodent problem"
- Testimon! of superintendent regarding rodent infestation and other conditions"
- Pictures taken b! =renda Chapin"
- Fiolation report b! building inspector"
'egal 6uthorit!( 6 substantial iolation of an applicable housing code shall constitute prima facie
eidence of breach of the warrant! of habitabilit!" 8Firgil " 'and!2
Element \-( 'andlord has documented iolations of the 9ha%ardous9 and 9immediatel! ha%ardous9 class
for conditions existing in =renda ChapinTs apartment"
Eidence aailable to show iolation of housing code(
- Fiolation report b! building inspector
'egal 6uthorit!( $n order to bring a cause of action for breach of implied warrant! of habitabilit!, tenant
must show that he or she notified the landlord and allowed a reasonable time for correction of the defect"
8Firgil " 'and!2
Element \+( Ms" Chapin notified landlord of dangerous conditions and allowed a reasonable time for
correction"
J567 !""+
Eidence aailable to show notice to landlord(
- 'etter from =renda Chapin to :erb 'ondon, Graham Realt!, $nc"Ts building manager, indicating her
numerous phone calls and messages"
- Testimon! of :erb 'ondonTs secretar! regarding Ms" ChapinTs numerous phone calls"
Remed!( Reduction of rent through abatement
'egal 6uthorit!( Remed! proided under H-4, of :ousing )iision of &ranklin )istrict Court 6ct for
enforcement of housing standards N remedies shall include the reduction of rent through abatement" The
measure of rent abatement damages shall be the difference between the alue of the dwelling, as it exists
in its defectie condition" 8Firgil " 'and!2
Element \.( Ms" Chapin is entitled to abatement of rent to the extent of the reduction in fair rental alue
due to defectie conditions"
Eidence aailable to show difference between alue as warranted and alue in defectie condition(
- Cop! of Ms" ChapinTs lease"
- Testimon! of Ms" Chapin and superintendent regarding defectie conditions"
- Pictures taken b! Ms" Chapin showing defectie conditions"
Remed!( Dithhold rental pa!ments
'egal 6uthorit!( 6 tenant ma!, where there has been breach of implied warrant! of habitabilit!, withhold
the pa!ment of rent" 8Firgil " 'and!2
Eidence aailable to show breach of implied warrant! of habitabilit!( 1ee aboe"
Remed!( Remedial )amages
'egal 6uthorit!( H-4, of :ousing )iision of &ranklin )istrict Court proides that remedies for
enforcement of housing standards include imposition of remedial damages" Remedial damages are
aailable for measures taken b! tenant when landlord is notified of defect but fails to remed! it within a
reasonable time, and tenant has incurred out-of-pocket expenses to remed! defect"
Element \.( 'andlord was notified of defects in Ms" ChapinTs apartment
Eidence aailable to show notice to landlord(
- Ms" ChapinTs letter to :erb 'ondon"
- Fiolation report b! building inspector"
Element \-( 'andlord failed to remed! defect within reasonable time
J567 !""+
Eidence aailable to show landlordTs failure to remed! defect(
- 'etter from Ms" Chapin to :erb 'ondon"
- Testimon! of superintendent"
- Testimon! of Ms" Chapin"
Element \+( Tenant has incurred out-of-pocket expenses to remed! defect"
Eidence aailable to show Ms" ChapinTs expenses(
- Electric bills"
- Receipt for space heater"
@ote( Ms" Chapin will probabl! not be able to recoer the damages incurred in Mar!Ts medical expenses,
or Ms" ChapinTs lost wages, as a result of the in#ur! Mar! suffered from the plaster falling on her head"
&ranklin case law states that 9where /uestions of negligence, proximate cause, and damages are contested
and re/uire discoer!9 that would dela! summar! proceedings, the claims should be brought separatel!,
rather than as counterclaims" 8=ashford " 1chwart%2
Remed!( Punitie )amages
'egal 6uthorit!( H-4, of :ousing )iision of &ranklin )istrict Court proides that punitie damages are
aailable" Punitie damages ma! also be awarded to punish conduct that is 9morall! culpable9, as where a
landlord, after receiing notice of a defect, persistentl! fails to make repairs that are essential to the
tenantTs safet!" Dhen such behaior points to the 9bad spirit and wrong intention9 of the landlord,
punitie damages ma! be increased" 8Firgil " 'and!2
Element \.( 'andlord receied notice of defects in Ms" ChapinTs apartment, and in common areas, !et
persistentl! failed to make repairs"
Eidence of notice to landlord(
- Ms" ChapinTs letter to :erb 'ondon"
- Fiolation report b! building inspector"
Eidence that landlord persistentl! failed to make repairs(
- Testimon! of Ms" Chapin and :erb 'ondonTs secretar! regarding numerous calls"
- Testimon! of superintendent that no action was taken or authori%ed to remed! defects"
- Pictures taken b! Ms" Chapin showing defectie conditions"
J567 !""+
FEBRARY !""+ - PERSAS,-E BR,EF1 E-,DENT,ARY BR,EF
1T6TE F" M$''ER 8MPT-.2
$n this item, applicants are emplo!ed b! the 1tateTs 6ttorne! and are assisting in the prosecution of the
defendant, Tom Miller, on two counts of aggraated assault inoling domestic iolence" Pursuant to the
&ranklin Eidence Code, the prosecution has gien notice that it intends to introduce eidence of three
prior acts of iolence committed b! the defendant against *an 6dams and her daughter, 1ara" Ms" 6dams,
1ara, and the defendant used to lie together" )efense counsel has ob#ected to the introduction of this
9other acts9 eidence and the court has ordered both sides to submit briefs on the issues raised in defense
counselTs ob#ection" The &ile consists of the instructional memo from the superising 1tateTs 6ttorne!,
which sets forth the three grounds of defense counselTs ob#ection, an office memo prescribing the format
and contents of briefs, and a transcript of a police interiew with *an 6dams" The 'ibrar! contains arious
sections of the &ranklin Eidence Code and the &ranklin Penal Code, as well as two appellate cases"

Fe< !""+
Answer to MPT
Memorandum of Points and 6uthorities
1tatement of &acts
*an 6dams met Tom Miller in *une -,,., when the! began what *an has described as an 9intimate9
personal relationship" 6lmost immediatel!, Tom showed signs of #ealous! regarding *anTs former
husband, Charles Iell!, the father of *anTs daughter, 1ara" 0n *ul! 4, -,,., Tom and *an were out with
friends and Tom became angr! and pushed *an after a friend asked Tom what it was like 9to date CharlesT
woman9" Tom pushed *an so hard that she fell" *an did not call the police or file charges"
6round the same time, Tom moed in with *an and 1ara" *an added Tom to her lease and began sharing
expenses with him" 6fter a little oer a !ear, *an and Tom planned to moe together3 the! split the cost of
the securit! deposit on a new lease and had ke!s made for them both"
=ut in 1eptember -,,-, *an decided to moe without Tom because of an incident inoling 1ara" 1ara
was sick, whin! and crank!, which angered Tom and caused him to !ell at her to shut up and then to push
her into a wall" *an beliees that TomTs anger towards 1ara is a reflection of his resentment towards
Charles, and that Tom intentionall! hurts 1ara because he knows it hurts *an to see her child harmed" *an
witnessed this incident and told Tom to pack his stuff and leae" This time, *an called the police and filed
charges" Tom later pled guilt! to assault"
Then, in &ebruar! -,,+, after *an and 1ara had moed, Tom entered *anTs apartment with his extra ke!
and angril! !elled at *an to change her stor! and retract the assault charges, threatening that *an would
lie to regret filing the charges, and then sticking his finger in her e!e, and hitting and choking her" 6fter
he left, *an called the police and filed charges" 1hortl! after the police left, a rock broke through her liing
room window" 1ara went to inestigate and saw TomTs car drie awa!" Tom later pled guilt! to assault
arising out of the &ebruar! -,,+ incident"
The incidents underl!ing the current charges of aggraated assault pending against Tom occurred on
0ctober -K, -,,+ and @oember <, -,,+" $n 0ctober, Tom once again let himself into *anTs apartment
with his extra ke! and went into *anTs bedroom, !elling and swearing at her about her ex-husband
Charles, with whom *an had recentl! been in contact" Tom told *an to sta! awa! from Charles or 9thereTll
be trouble9" :e then slapped her so hard she hit her head against the wall, and warned her that if she
reported him and he went to #ail, he would kill her and 1ara when he got out"
6 week later in @oember, Tom returned at one in the morning, pounding on *anTs door and window to let
him in" 6fter the apartment manager told him to leae, Tom left, but then started calling on the phone and
leaing messages" Tom said that he would neer allow *an to leae him because she was his woman until
he said so" &inall!, about two hours after the last phone call, *an heard a crash in 1araTs room and saw a
big rock and glass on the floor" Dhen she looked out she saw Tom standing outside"
*an has since sought counseling and has filed the pending charges against Tom" Tom now seeks to
suppress eidence of the three prior incidents of iolence against *an and 1ara" :oweer, for the reasons
stated below, the three incidents should be admitted"
6rgument
Fe< !""+
." =ecause Tom ph!sicall! harmed *an, who is another adult with whom he has had an intimate
relationship and co-habited, and intentionall! harmed 1ara knowing that harming her put *an in fear, Tom
engaged in domestic iolence, and eidence of such iolence is admissible in a subse/uent prosecution for
domestic iolence"
;nder &ranklin Rules of Eidence 4.5, 9in a criminal action in which the defendant is accused of an
offense inoling domestic iolence, eidence of the defendantTs commission of other domestic iolence
is not made inadmissible9 under
Rule 4,4, which excludes character eidence to proe conduct in conformit! therewith" 9)omestic
iolence9 is defined in &ranklin Penal Code <,. as 9abuse9 N meaning, intentionall! or recklessl! causing
or attempting to cause a person bodil! in#ur!, or placing a person in reasonable apprehension of imminent
serious bodil! in#ur! N committed b! an adult who is a 9former cohabitant9 or a person with whom the
indiidual 9has had a datingYrelationship9" Cohabitant means 9two unrelated adult persons liing
together for a substantial period of time, resulting in some permanenc! of the relationship9 and is
eidenced b! sexual relations between the parties, sharing of income of expenses, #oint use or ownership
of propert!, the continuit! of the relationship, and the length of the relationship"
:ere, it is clear that each of the incidences of iolence /ualifies as 9domestic iolence9 and should
therefore be admitted under Rule 4.5" &irst, *an and Tom hae had a 9dating relationship9, as eidenced
b! *anTs description of the relationship as 9intimate9 and also b! TomTs own statement that *an is 9his
woman until he sa!s so9" 1econd, *an and Tom were also cohabitants( the! lied together for oer a !ear,
a significant period of time" *an added Tom to her lease, which eidences sharing of propert! use, and also
shared expenses with him" The! later split the securit! deposit on the new apartment" Clearl!, then their
relationship falls under the re/uirements of 4.5"
&urthermore, TomTs actions also /ualif! as 9abuse9" &irst, in the *ul! -,,. and &ebruar! -,,+ incidents,
Tom directl! ph!sicall! in#ured *an" This er! clearl! fits under the definition" Regarding the 1eptember
-,,+ incident with 1ara, which was abuse because it was intended to put *an in immediate fear of harm"
6lthough *an herself was not harmed, she witnessed the attack on her daughter and was near, and
reasonabl! apprehended that in#ur! to herself was imminent"
Therefore, the three incidents should be admitted under Rule 4.5 as prior incidents of domestic iolence,
as this is a prosecution for offenses inoling domestic iolence, because in both incidences pending here
Tom directl! harmed *an"
-" =ecause the three prior incidences eidence both TomTs motie of #ealous! about Charles and his
identit! as the person throwing the rock through the window, the! should be admitted as non-character
eidence"
;nder Rule of Eidence 4,4= and Grubb, eidence of prior bad acts is admissible for purposes other than
proing a personTs character" &or example, it ma! be admitted to proe motie, intent, absence of mistake,
or identit! when those are in issue" $n Grubb, the 1upreme Court made clear that where a defendant puts
another purpose at issue, prior acts are admissible to disproe defendantTs allegations" There, the
defendant alleged that his wifeTs in#uries were accidental, and the court held that because the defendant
had put intent and mistake at issue, eidence of prior bad acts was admissible to disproe those
allegations"
Fe< !""+
:ere, Tom has stated that it was not him who threw the rock through the window in the @oember -,,+
incident" Therefore, eidence that he had thrown a rock through *anTs window on prior occasions would
go to identit!, because it would tend to identif! him as the one who threw the rock on this occasion"
Therefore, the &ebruar! -,,+ incident should be admitted"
The *ul! -,,. and 1eptember -,,- incidents should be admitted as eidence of TomTs motie for
harming *an" $n both of those instances, Tom was angered b! #ealous! of Charles, *anTs ex-husband and
1araTs father" $n the first, the mention of Charles was the direct precipitating eent" $n the other, *an has
stated that the reason Tom harms 1ara is because of his #ealous!" These two incidents would therefore
shed light on wh! Tom harmed *an in 0ctober -,,+ and @oember -,,+ and proide a motie"
Thus, the eidence should not be barred as inadmissible character eidence because it goes to other
purposes, which Tom has put at issue, and is therefore admissible under Rule 4,4= and Grubb"
+" =ecause the prior incidents displa! the same pattern of ph!sical abuse, were no more egregious than the
charged offenses, were definitel! committed, and will not confuse or mislead the #ur!, this court should
exercise its discretion to admit the prior incidents"
;nder Rule 4,+ and =eck, this court has discretion to determine whether the probatie alue of the prior
incidents is outweighed b! the probabilit! that their submission will create a substantial danger of undue
pre#udice, confuse the issues, or mislead the #ur!" The factors to be considered include the nature,
releance, and possible remoteness of the offenses, the degree of certaint! of the offenses commission, the
burden on the defendant of defending against an! uncharged offenses, the likelihood of confusing,
misleading, or distracting #urors, and the likel! pre#udicial impact on the #urors"
$n =eck, the Court of 6ppeals upheld the trial courtTs decision that two prior incidents of domestic
iolence against the same woman who had filed the pending charges against the defendant were
admissible" The prior incidents inoled slapping and hitting on the upper bod!, as did the charged
incident" The defendant had pled guilt! to both prior charges" The court held that the trial court had not
abused its discretion in finding that the incidents were of the same nature and displa!ed a pattern of abuse,
that the! were near in time, similar to and no more egregious than the charged crime, and that there was
no /uestion about their commission because the defendant had plead guilt!" There was thus 9little reason
to beliee that the #ur! will be confused, mislead, distracted, or undul! pre#udiced9 be the eidence"
The same holds true here" &irst, as to the 1eptember -,,- and &ebruar! -,,+ incidents, as in =eck, Tom
has pled guilt! to both charges" &urthermore, both incidents are extremel! similar and displa! a pattern of
abuse against *an and 1ara arising out of TomTs #ealous! regarding Charles" The incidents are no more
egregious than those charged here, and occurred within the past eighteen months" The &ebruar! incident is
especiall! probatie because it also inoles the rock through the window and similar ph!sical abuse"
Thus, under =eck, the incidents should be admitted"
Though the *ul! -,,. incident is uncharged and more remote in time, and thus poses a greater risk that
Tom will hae to defend against it, it too should be admitted as it is highl! probatie of TomTs motie and
#ealous! regarding Charles" $f an!thing, it is slightl! less egregious than the incidents charged here
because it inoles a pushing but not the same degree of !elling an abuse, therefore it will not be undul!
pre#udicial" Though it was not proen in court or charged, it would not undul! distract the #ur! because it
would be eas! to proe since there were so man! witnesses" =ecause of the important probatie alue of
this incident, the court should exercise its discretion to admit the eidence"
Fe< !""+
Conclusion
=ecause the three prior incidents were all 9domestic iolence9, eidence TomTs motie of #ealous! and his
identit! as the one throwing the rocks through *anTs window, and because their probatie alue is not
outweighed b! undue pre#udice or confusion, this court should admit the prior incidents"
Fe< !""+
Answer to MPT
1tatement of &acts
)efendant Tom Miller is charged with two counts of aggraated assault, which inoled domestic
iolence against *an 6dams, his former cohabitant" The charges result from actions he took .2 on 0ctober
-K, -,,+, the incident in which he slapped *an hard so that her head hit against the wall and threatened to
kill *an and her )aughter 1ara, and -2 on @oember <, -,,+, the incident in which he threw a rock and
broke the window in *anTs apartment" Miller denies the allegations and pleads not guilt! to the charges"
$n accordance with &ranklin Rule of Eidence 4.5E, we gae Miller timel! notice of our intention to
introduce at trial eidence of his three prior acts of iolence( .2 coniction of a prior assault upon *an on
&ebruar! .-, -,,+, which inoled Miller pushing *an against the wall, sticking his finger in *anTs e!e,
hitting *an in the face, choking *an and subse/uentl! breaking *anTs liing room window with a rock3 -2
coniction of an assault upon 1ara, a minor, in the presence of her mother *an, on 1eptember -., -,,-,
which inoled Miller !elling at and pushing 1ara against a wall, 1ara being sick on that da!3 and +2 an
uncharged assault upon *an on or about
*ul! 4, -,,., whereupon Miller, in a rage, pushed *an so hard that she fell in front of her friends in the
parking lot of a bar"
The defense counsel has ob#ected to the admission of the aboe-mentioned eidence, and at the re/uest of
the court, we hereb! set forth the arguments in response to those three ob#ections and supporting wh! all
of the eidence should be admitted"
6rguments
." The three prior acts, all inoling intentionall! inflicting bodil! in#ur! on *an or intentionall! placing
*an in reasonable apprehension of imminent serious bodil! in#ur!, constitute domestic iolence under
&ranklin Penal Code H<,. such that &ranklin Rule of Eidence 4.5 applies"
*an is a former cohabitant of Miller under &ranklin Penal Code H<,." Penal
Code H<,. defines domestic iolence as abuse committed b! one against an adult who is, among other
enumerated statuses, a former cohabitant" Cohabitant is defined to mean two unrelated adults liing
together for a substantial period of time, resulting in some permanenc! of the relationship" &actors to
determine cohabitation include a combination of circumstances, such as .2 sexual relations between the
parties while liing together, -2 sharing of income or expenses, +2 #oint use or ownership of propert!, 42
the partiesT holding themseles out as husband and wife, <2 the continuit! of the relationship and E2 the
length of the relationship"
$n the case at the bar, *an and Miller lied together for a significant length of time between *une -,,. and
1eptember -,,-" Dhile liing together, the! shared expenses, as eidence from their splitting the cost of
the securit! deposit for the new apartment" The! een had ke!s made for the both of them" &urthermore,
*an considered the relationship between her and Miller a close, personal one" Thus, *an should be
considered as haing 9cohabited9 with Miller under the statute"
Fe< !""+
The three prior acts, all inoling ph!sical in#ur! to *an or to 1ara, constitutes abuse under &ranklin Penal
Code H<,." Penal Code H<,. defines 9abuse9 as intentionall! or recklessl! causing or attempting to cause
a person bodil! in#ur!, or placing a person in reasonable apprehension of imminent serious bodil! in#ur!"
Miller has intentionall! caused bodil! in#ur! to *an or placed her in reasonable apprehension of imminent
serious bodil! in#ur! on all three occasions" 0n
&ebruar! .-, -,,+, Miller pushed *an against the wall, stuck his finger in her e!e, hit her in the face and
choked her" Moreoer, he threatened her b! sa!ing that she would lie to wish she had neer called the
police, thereb! intentionall! placing her in reasonable apprehension of imminent serious bodil! in#ur!,
which was further aggraated when Miller threw a rock breaking *anTs liing room window"
Miller has recklessl! placed *an in reasonable apprehension of imminent serious bodil! in#ur! on
1eptember -., -,,-, when he !elled at and pushed 1ara against a wall" 6lthough Miller did not directl!
in#ure *an, he should hae known that *an could not stand to see 1ara get hurt" $n fact, *an admits that
Miller knows how much *an cares for 1ara and that whateer in#ur! Miller inflicts on 1ara hurts *an"
Therefore, his actions towards 1ara recklessl! placed *an in reasonable apprehension of imminent serious
bodil! in#ur!" Miller also intentionall! caused *an bodil! in#ur! on *ul! 4, -,,., when he pushed *an so
hard that she fell onto the ground in a parking lot"
The three incidents, therefore, all inoled 9abuse9 as defined in the criminal statute" =ecause Miller has
committed abuse against a former cohabitant, *an, on all three prior occasions, the! constitute domestic
iolence under Penal Code H<,. and the Rule of Eidence 4.5 should appl!"
-" The three prior incidents of abuse are admissible under &ranklin Rule of
Eidence 4,46 because Miller denies the essential elements of aggraated assault and denies an!
responsibilit! for *anTs in#uries, making intent and identit! issues of the case"
Rule of Eidence 4,46 states the general rule that eidence of a personTs character is not admissible for
purpose of proing that the person acted in conformit! with his character on a particular occasion" Rule of
Eidence 4,4=, howeer, allows other prior acts to be admissible for other purposes, such as proof of
motie, intent, identit! or absence of accident" The 1upreme Court in 1tate " Grubb has applied the rule
to a case inoling assault and batter! on a spouse" $t held that where the defendant asserts onl! self-
defense and does not den! the essential elements of the charged crime, the state cannot use prior crimes or
wrongs to establish his intent or to demonstrate that the in#uries suffered b! the ictim were not the result
of accident" :oweer, where the defendant denies the ictimTs in#uries as being a result of an! intentional
conduct on his part, intent is at issue, in which case the state can use defendantTs prior assaults on the
ictim to proe that the defendant intended to in#ure the ictim and that her in#ures were not accidental"
$n the present case, Miller denies the charges and een blames another, Charles, *anTs former husband, for
being responsible for the broken window" =ecause Miller has raised both the issues of intent, b! den!ing
that *anTs in#uries and propert! damage were the result of his intentional conduct, and of identit!, b!
pointing the finger at Charles, Rule of Eidence 4,4= is triggered" The state should therefore be permitted
to submit prior acts eidence to show intent and identit! under Rule 4,4="
+" =ecause of the repetitie nature of the conduct, the closeness in time of the offenses, the unlikel!
pre#udicial impact on the #urors, and the certaint! of their commissions, the court should not exercise its
Fe< !""+
discretion under Rule of Eidence 4,+ to exclude the eidence of the three prior acts committee against
*an b! Miller"
Rule 4.5) makes the admissibilit! of eidence of prior domestic iolence under Rule 4.5= contingent on
whether the eidence is more probatie than pre#udicial under Rule 4,+" ;nder the Court of 6ppeal
decision 1tate " =eck, Rule 4,+ re/uires a weighing of the following factors( .2 examination of the
nature, releance, and possible remoteness of each offense, -2 the degree of certaint! of its commission,
+2 the burden on the defendant of defending against the uncharged offense, 42 the likelihood of confusing,
misleading or distracting the #urors from their main in/uir!, and <2 its likel! pre#udicial impact on the
#urors" The weighing process depends on the trial courtTs consideration of the uni/ue facts and issues of
each case 8=eck2" Dhere the incidents of prior abuse are of the same nature, displa!ing a pattern of abuse,
all within a short period of time prior to the crime being charged, and where the! are er! similar and no
more egregious than the charged offense, and there is no /uestion about their commission, the! should not
be excluded 8=eck2"
$n the present case, the prior incidents all occurred within a couple of !ears from the two incidents being
charged, and the! are all of the same nature in that Miller ph!sicall! abuses *an or breaks a window in her
apartment" There is also little doubt as to the /uestion about their commission, since Miller was conicted
on two of the acts and in the uncharged incident of *ul! 4, -,,., it occurred in the presence of a lot of
*anTs friends" The! displa!ed the same pattern of abuse N pushing *an and breaking her window and were
similar to the crimes being charged" 6lso, the! were no more egregious than the two incidents for which
Miller is being currentl! charged, thus there is little reason to beliee that the #ur! will be confused,
misled, distracted, or undul! pre#udiced b! this eidence" Thus, the court should not exclude the eidence
in it discretion under Rule 4,+"
Fe< !""+
JLY !""$ - TWO-PART MEMORANDM
$@ RE &R6@I'$@ &0R;M 8MPT--2
$n this performance test, applicantsT law firm represents the &ranklin &orum, a newspaper that is about to
publish an expos] on /uestionable sales practices used b! seeral local laser e!e surger! companies"
1ome of the information for the expos] was obtained b! three &orum reporters who took #obs with the
laser e!e surger! companies as 9patient counselors9 without reealing that the! were reporters for the
&orum" The &orumTs publisher has decided to publish the expos] but has asked applicantsT law firm for an
opinion on the legal protections and legal risks associated with publishing the expos]" 6pplicantsT task is
to draft a two-part ob#ectie memorandum to the superising partner anal!%ing 8.2 whether the &irst
6mendment protects the &orum from liabilit! for fraud, breach of dut! of lo!alt!, and trespass as a result
of the reportersT actions3 and 8-2 whether the &irst 6mendment protects the &orum from liabilit! to the
laser e!e surger! companies for damages to their reputations, i"e", publication damages" The &ile contains
the superising partnerTs instructing memo3 excerpts of the partnerTs interiew with the &orumTs
publisher3 and the reportersT memo to the &orumTs news editor describing their inestigation" The 'ibrar!
consists of two cases that bear on the sub#ect"
J567 !""$
Answer to MPT
To( Conrad Dilliams
&rom( 6pplicant
)ate( *ul! -K, -,,+
Re( &ranklin &orum
=rief &actual 1tatement
6s !ou know, we represent &ranklin &orum, a newspaper that has been publishing in &ranklin for about
three !ears" Recentl!, =arbara )ais, the publisher of the paper came to obtain adice about possible
liabilit! inoled with the publishing of stories obtained as a result of undercoer inestigatie reporting"
Three reporters from the &orum submitted applications for emplo!ment to laser e!e care centers
throughout &ranklin" 6ll were accepted and engaged in emplo!ment with the e!e surger! centers as
9patient-counselors9" @one reealed their concurrent emplo!ment with the &orum" =ased on these
undercoer experiences, interiews with patients, personal consultations as possible patients and
inestigations with the appropriate state agencies, the reporters from the &orum would like to publish their
findings concerning the e!e care industr!" The! seek legal adice through their publisher about possible
tort liabilit!" The following is the memoranda concerning the law in this area"
Tort 'iabilit!
0ur client ma! be held liable under three separate theories of tort liabilit!" Their elements are set forth as
follows"
." &raud - The plaintiff must establish a2 the defendant made a false representation of material fact3 b2 the
defendant knew it was false or made it with reckless disregard for truth or falsit! and c2 intended that the
plaintiff rel! on it" 6lso d2 the plaintiff must be in#ured b! reasonabl! rel!ing on the false representation"
The elements of fraud were defined b! the &ranklin 1upreme Court in the &ood 'ion case" The court in
the &ood 'ion case acknowledged that in an undercoer situation, where indiiduals do not reeal their
true intention, all of the first three elements of fraud are met" 0nl! the fourth standard is at issue" The
court, in looking at the fourth standard, determined that merel! l!ing on a #ob application did not cause
damage to the plaintiff, and found that the plaintiff was not entitled to wages paid because the emplo!ees
showed up and did the work re/uired of them"
The &ood 'ion case is determinatie here" The first three parts of the fraud standard are not at issue
because it is known that &ranklin &orum intended for the laser e!e surger! centers to rel! on their outward
appearance as mere prospectie emplo!ees" The fourth standard is not going to be successful for an!
possible plaintiff because it would be hard to show in#ur! in rel!ing on the misrepresentation" 6ll three
reporters applied for and were trained and paid for their patient-counselor positions" :oweer, the &ood
'ion case establishes that this is not enough" &urther, since the emplo!ees showed up and performed the
work, an! potential plaintiff would not succeed on a fraudulent inducement to pa! wages claim"
-" =reach of )ut! of 'o!alt! - The standard as defined b! the &ood 'ion case is that an emplo!ee owes a
dut! of lo!alt! to its emplo!er" The court in &ood 'ion stated that it is implicit in an! contract for
J567 !""$
emplo!ment that the emplo!ee remain faithful to the emplo!er and his interest throughout his term"
Emplo!ee acts are considered inconsistent with this interest when the! are on a pa!roll while acting
deliberatel! in an aderse interest to the emplo!er"
Through the arious inestigation techni/ues, the &orum reporters hae uncoered arious pieces of
information" $t is important to note the difference between the info obtained from talking to former
patients, and een from pretending to be a patient, from the information obtained while working
undercoer" The information obtained from pretending to be a patient and from other inestigation does
not iolate an! dut! of lo!alt!" The dut! of lo!alt! can onl! be iolated b! insiders working against the
emplo!er" Dhen the! became emplo!ees of the laser e!e care centers, the! undertook a responsibilit! to
be lo!al to their emplo!er" $nstead, the! entered with the intent to obtain information aderse to the
interests of their emplo!ers" The reporters here obtained emplo!ment in order to expose careless and
dangerous practices of the e!e care centers, which the! intended from the beginning" The &orum would be
liable for breach of the dut! of lo!alt!"
$t is important to note here howeer, that in the &ood 'ion case, the damages awarded for the breach of
lo!alt! claim were onl! V.",,, an amount upheld on appeal" 6s a result, een though this reporting ma!
breach this tort, the damages to the paper would be at a minimum"
+" Trespass - The last tort, also as defined in &ood 'ion is as follows( a2 it is trespass to enter upon
anotherTs land without consent3 b2 consent accordingl! is a defense3 c2 consent can be obtained een
through misrepresentation3 and d2 consent is canceled out if a wrongful act is done in excess of, and in
abuse of, authori%ed entr!"
The reporters in this situation did not use fraudulent names or backgrounds in obtaining their #obs" This
distinguishes an! possible claim from the settled case law which all deals with fraudulent resume
submissions" 0nce again, the method b! which the information is obtained is important" Pursuant to the
)esnick case, an agent with a concealed camera who obtained consent to enter a clinic b! pretending to
be a patient were not trespassers" 1imilarl!, when 'ois &it%gerald entered Enhanced FisionTs 1urgical E!e
Center pretending to be a patient of the clinic, she was not trespassing in that scenario because she was
entering a place open to the public" 6n! information obtained as a result of that consultation is not going
to iolate the tort of trespass"
0n the other hand, since this case is distinguishable from )esnick in other respects, it does not appl!
where the defendants are emplo!ees who gained false access rather than those pretending to be patients"
$nstead, since consent here was not based on resume fraud, the &orum would likel! onl! be accountable
on the ground of trespass sustainable due to a later breach of lo!alt!" 6s in &ood 'ion, the wrongful acts
that happened after consent was gien 8in this case because the emplo!er hired the emplo!ees, impliedl!
consenting to their presence on the premises2 go outside the scope of consent and exceed authorit! gien
b! the emplo!er to enter as an emplo!ee" 6s a result, liabilit! ma! result if the stor! is published"
Constitutional 'aw $ssues
Generall!, written thoughts and ideas are protected b! a heightened leel of scrutin! under the &irst
6mendment" 0ur client, the &orum, would like to know if the! too are entitled to the heightened scrutin!"
The ;nited 1tates 1upreme Court in Cohen held that generall! applicable laws do not offend the &irst
6mendment simpl! because their enforcement against the press has incidental effects" 6s the Cohen case
suggests, the heightened scrutin! is not automaticall! applicable to eer! case inoling newsgathering"
The media can do its #ob effectiel!"
J567 !""$
6ccordingl!, here the law of torts applicable to the &orum are of general applicabilit!" 6s a result, the
&orum will not be entitled to heightened scrutin! on these claims because the primar! effect is to neither
hurt nor help" These torts appl! to the dail! lies of citi%ens and as such will not lend more protection to
inestigatie reporting of the &orum"
The second issue of concern is whether the &orum will be liable for damages that laser e!e surger!
companies will hae to pa! in the form of publication damages" The primar! issue here will be if the laser
e!e surger! centers can proe the proximate cause elements of the damage" 6s stated in &ood 'ion, it was
the practices themseles 8reealed b! the reporters2, not the reporting that was the proximate cause of the
in#ur!" $f the damages incurred b! the publication were incurred because of a loss in confidence or due to
unhealth! practices, it was the compan! who had itself to blame"
$n the same respect, if the e!e care centers wish to recoer from the &orum for possible publication
damages, then the! must show the reporting as the proximate cause of the loss rather than the bad
practices reealed as the causation for loss in consumer confidence" 6s a result, the &orum would likel!
not be liable for an! publication damage brought as a result of a lawsuit" $t is important to note that the
&ranklin 1upreme Court in &ood 'ion did not get to the issue of proximate cause because it determined
that &ood 'ion was tr!ing to circument the process and collect damages for defamation without being
able to proe it since the reports were true" 1imilarl!, a court will likel! not allow suit here for the non-
reputational torts mentioned in this memo as a grounds for obtaining damages onl! aailable under a
traditional defamation action" The stricter &irst 6mendment standards re/uire a showing of actual malice,
which could not be proen in this case" 6ccordingl!, although our client ma! be liable if it breaches non-
reputational torts, the damages assessed against the &orum are not likel! to be staggering" 6s a result, the
&orum might consider publishing the stor! if it has a strong interest in doing so"
J567 !""$
Answer to MPT
To( Conrad Dilliams
&rom( 6pplicant
Re( &ranklin &orum
)ate( *ul! -K, -,,+
The issues that our client, =arbara )ais, publisher of the &ranklin &orum, has brought to us are twofold(
.2 whether the &irst 6mendment of the ;"1" Constitution shields an emplo!er from torts that hae
occurred during inestigatie reporting, and -2 whether the &irst 6mendment protects an
emplo!erBpublisher from publication damages relating to those torts" $n order to understand the
protections and potential liabilities, it is first necessar! to briefl! summari%e the facts concerning &ranklin
&orum and itTs reporting concerning sales tactics used in the laser e!e surger! industr!" Then, the
memorandum will anal!%e the scope of the &irst 6mendment is-a is the torts of fraud, breach of dut! of
lo!alt!, trespass and if those torts were een committed b! &ranklin &orum emplo!ees" &inall!, the
memorandum looks at the prospect of possible publication damages and the shelter of the &irst
6mendment"
1tatement of the &acts
This potential problem concerning the &irst 6mendment, scope of tort damages and publication damages
arises out of the inestigator! tactics of three reporters of the &ranklin &orum, a relatiel! new paper
situated in &ranklin Cit!" @o articles hae !et been published, though at least fie stores are expected to
emerge" De are adising the &ranklin &orumTs publisher, =arbara )ais, as to potential liabilit!"
Three reporters of the &ranklin &orum, Ted Morrison, 'ois &it%gerald and Iein Clark, who focus on
health and safet! issues, decided to inestigate the aggressie and manipulatie sales tactics of the laser
e!e industr! upon receiing an anon!mous call from a 9patient counselor9 at Enhanced Fision, a ma#or
proider of laser e!e surger! in &ranklin" 1pecificall!, these reporters decided to look into the biased,
unprofessional 9patient counselor9 position, manipulatie sales tactics and complicated, discombobulator!
rate structures used b! laser e!e care companies that negatiel! affect consumers"
The reporters initiall! tried traditional tactics to gain information about the industr!, isiting care centers
as potential patients, talking to former emplo!ees, discussing industr! concerns with experts, and writing
to state and federal agencies" $n order to gain more information, Ted, 'ois and Iein took actual positions
as 9patient counselors9 at three different laser e!e centers( Enhanced Fision, 'aser Dorld and E!e Care
1pecialists, respectiel!"
$t is important to note that each reporter submitted accurate resumes with correct names and background
information" The onl! information left off the application was their emplo!ment with the &orum" Each
went through the training program, was neer asked about their emplo!ment plans and worked for seen
weeks, gaining information to be used in the forthcoming articles on the wa!"
6rgument
J567 !""$
." )id the &ranklin &orumTs reporters commit the torts of fraud, breach of dut! of lo!alt!, and trespass^ $f
so, is the paper protected b! the &irst 6mendment^
The general rule is that the press is not gien an! additional protection from generall! applicable laws
under the &irst 6mendment" 6s the 1upreme Court noted in Cohen, 9generall! applicable laws do not
offend the &irst 6mendment simpl! because their enforcement against the press has incidental effects on
its abilit! to gather and report the news9" 1ee Cohen " Cowles Media 8.KK.2" Enforcement of the criminal
laws, cop!right protection laws and common law of torts, if taking the form of a generall! applicable law,
9is not sub#ect to strict scrutin! than would be applied to enforcement against other persons or
organi%ations9" =ecause inestigatie reporting is not inherentl! expressie as an act itself, reporters are
still sub#ect to generall! applicable tort laws" $f Ted, 'ois, and Iein committed torts in their inestigatie
reporting, the! and their publisher, &ranklin &orum, will be held liable" 1ee &ood 'ion " 6=C, $nc"
8.KKK2"
6" )id the reporters commit the tort of fraud^
To proe fraud, the plaintiff must establish that the defendant3 .2 made a false representation of material
fact, -2 knew it was false 8or made it with reckless disregard for truth or falsit!2, +2 intended plaintiff rel!
upon it, and 42 the plaintiff must hae reasonabl! relied upon it"
:ere, it is not clear at all that Ted, 'ois and Iein made an! misrepresentations" The! gae their correct
names and correct backgrounds, and there is an argument that failure to discoer that the! were reporters
was solel! due to their emplo!erTs negligence" Thus, unlike defendant 6=C in &ood 'ion, &ranklin
&orumTs reporters took no affirmatie steps in misrepresenting" :oweer, a court might find that the
omission of their present emplo!er, the paper, was sufficient to be a 9false representation of a material
fact9" Een so, #ust as was the case in &ood 'ion, plaintiffs will be unable to proe costs incurred were
caused b! reasonable reliance on misrepresentations"
Rather, while Ted, 'ois and Iein had no experience, no experience as a 9patient counselor9 was
re/uired" The! completed the training as re/uired, and there is no eidence that the! performed at a leel
unsuitable to their status as new emplo!ees 8though none recoered bonuses, there is no eidence of
reprimand2" Thus, although the! are not protected from the torts of fraud b! the &irst 6mendment, the!
will be found 9not liable9 under an! suit b! potential plaintiffs 8the e!e care centers2 because the cause of
action for fraud cannot be met"
=" )id the reporters breach the dut! of lo!alt!^
6s explained b! the court in &ood 'ion, 9an emplo!ee owes a dut! of lo!alt! to the emplo!er" $t is in an!
contract for emplo!ment that the emplo!ee shall remain faithful to the emplo!erTs interest throughout the
term of emplo!ment9" Moreoer, 9emplo!ees are dislo!al when their acts are inconsistent with promoting
the best interest of their emplo!er at a time when the! were on the pa!roll and when the! deliberatel!
ac/uired an interest aderse to their emplo!er9"
:ere, like 6=C in &ood 'ion, Ted, 'ois and Iein owed their emplo!er e!e care centers a dut! of lo!alt!"
:oweer, their interest was to expose the e!e care centers to the public" The! sered &ranklin &orumTs
interest at the expenses of the e!e care centers b! gathering negatie facts ia inestigator! reporting"
Thus, because the! had the re/uisite intent to act against the interests of the e!e centers, the! and &ranklin
&orum are liable, in all likelihood, for the breach of dut! of lo!alt!"
J567 !""$
C" )id the reporters commit a trespass^
$t is a trespass to enter upon land without the consent of the owner" :oweer, consent is a defense, een if
obtained ia a wrongful act, unless it is done in excess of and in a breach of authori%ed authorit!"
:oweer, the court has adopted the 1eenth CircuitTs anal!sis in )esnick, finding that consent based on a
resume misrepresentation does not turn a successful #ob applicant into a trespasser" Rather, trespassing
occurs if the reporters made wrongful acts in excess of their authorit! to enter the premises as emplo!ees"
;nlike &ood 'ion, the reporters here did not take an! extra steps that an otherwise alid emplo!ee might"
There was no secret ideotaping" Rather, the &orumTs reporters onl! acted within the alid parameter of
their #obs" Thus, een though the! breached the dut! of lo!alt!, the! cannot be found liable of trespass
because the! sta!ed within the re/uisite breach of consent, een if illegitimatel! obtained"
-" $s the &orum protected b! the &irst 6mendment from publication damages^
Dith &ood 'ion and :ustler Maga%ine, the court has held that plaintiffs cannot use generall! applicable
tort law to 9make an end run9 around the &irst 6mendment" $nstead, when publication is on a matter of
public concern, the @7 Times " 1ullian 9actual malice9 standard for defamation must be met to gain
publication damages like lost good will and loss of sales" That is, plaintiff must proe 9a false statement of
fact made with actual malice, that is, with knowledge that it is false or with reckless disregard for the truth
or falsit! of the statement9"
:ere, potential plaintiffs will not be able to meet the high standard b! clear and conincing eidence"
$nstead, because the article is true and truth is an absolute defense, no publication damages will be
forthcoming" Thus, :ustler and the @7 Times will protect, using the &irst 6mendment, from an end run
using generall! applicable law"
Conclusion
The &orum should be concerned about liabilit! for the breach of the dut! of lo!alt!" 1uch liabilit! is not
protected b! the &irst 6mendment, because it is a alid, generall! applicable law" :oweer, the paper is
probabl! protected from fraud and trespass changes because of applicable tort law and failure to make out
a prima facie case" &inall!, the &orum is protected from an end run around the &irst 6mendment and from
possible publication damages because of the @7 Times 9actual malice9 test"
J567 !""$
FEBRARY !""$ - LETTER TO OPPOS,N. )ONSEL
$@ RE 1;6REM 8MPTN.2
$n this performance test item, applicantsT law firm represents Carmen 1uare%, who operates a restaurant in
a building owned b! Eli%abeth Murph!" )uring 1uare%Ts tenanc!, the cit! ordered that existing
commercial buildings, including the building housing 1uare%Ts restaurant, undergo mandator! seismic
retrofitting as part of the cit!Ts earth/uake ha%ard reduction program" Murph! undertook and paid for the
retrofitting and now is demanding, ia a letter from her attorne!, that 1uare% reimburse her for the
V+-,,,, she paid to hae the retrofitting done" Murph! claims that as the tenant, 1uare% is liable for the
costs associated with the cit!-mandated repairs" 6pplicantsT are asked to draft a letter to Murph!Ts
attorne! explaining wh! 1uare% is not liable for the cost of the retrofitting and will not reimburse Murph!"
The &ile contains the lease, a commercial lease form entitled 9@et 'ease,9 to which the parties made
extensie reisions, so that it differs substantiall! from its original form" The &ile also includes the cit!Ts
seismic retrofitting order, a lease renewal letter, Murph!Ts attorne!Ts demand letter, and a newspaper
article on the cit!Ts earth/uake ha%ard reduction initiatie" The 'ibrar! contains two &ranklin cases on the
sub#ect"
Fe< !""$
Answer to MPT
*ohn Erbes
0T@eill, Erbes > Crenshaw
.-4+ )ouglas )r"
Carterille, &ranklin +++.4
)ear Mr" Erbes(
De represent Ms" 1uare%, tenant of !our client Eli%abeth Murph!" De hae receied a cop! of !our
&ebruar! -<, -,,+ letter, and we are authori%ed to inform !ou that Ms" 1uare% does not intend to pa! the
V+-,,,, cost of redesign and upgrade of !our building at -K,E 1unset =ld", Carterille"
Ms" 1uare% is not liable to !ou for the costs of these improements" &irst, Ms" 1uare%Ts lease is not a 9net
lease9, as !ou hae preiousl! stated, because it does not essentiall! turn oer full ownership of the
building to Ms" 1uare%" 1econd, her use of the propert! did not inite application of the ordinance"
&inall!, Ms" 1uare% is not responsible for the repairs after considering the six factors enumerated in
=rown " Green"
&irst, !ou stated that Ms" 1uare% has a 9net lease9" 6 net lease is an arrangement, usuall! in relation to a
long-term lease, in which it is presumed that the tenant will act as the owner of the building, and the
landlord will be absoled from an! cost for repair or maintenance" &or a net lease, the landlord must
essentiall! turn oer control of the entire building to the tenant for a long term" Eight !ears is not a short
time, but it ma! not be long enough to be counted as a net lease" 6lso, Ms" Murph! has retained some
control b! maintaining insurance on the propert!, and owning all fixtures of the propert!" 6bsolute control
has not been turned oer to Ms" 1uare%, and therefore there is no net lease"
1econd, the re/uired repairs are not related to Ms" 1uare%Ts use of the premises" The operation of a
restaurant is not related to earth/uake ha%ard reduction" $n 1ewell " 'oerde, the &ranklin 1upreme Court
stated that propert! owners are generall! liable for failure to compl! with local regulations, unless the
tenant expressl! assumes liabilit! under those regulations, or a tenantTs use of the land leads to the
application of the regulations to the land" @othing that Ms" 1uare% has done during her use of the propert!
has caused this ordinance to be applied to Ms" Murph!Ts building" 6ll buildings in Carterille are re/uired
to be refitted for compliance with this measure" ;nder 1ewell, Ms" Murph!, as the landlord, is re/uired to
pa! for these improements to compl! with law, unless the lease specificall! states that Ms" 1uare% will
assume this liabilit!"
The lease is silent as to the liabilit! of each part! for goernmental regulations inoling %oning or other
building ordinances" There is one clause that ma! specificall! appl!, dealing with 96ssessments affecting
improements9 81ection K2, but this clause has been struck through" $t would re/uire the tenant to pa! for
9all special assessments, leies, or charges made b! an! municipal or political subdiision for local
improements9" The implication of striking through this clause is that the parties do not intend for the
tenant to be responsible for such improements" 1ection 4-, 9Compliance with 'aw9, deals onl! with
statutes or regulations as to the use of the propert!" The ordinance in /uestion is not concerned with the
use of the propert!, and therefore this proision does not appl!" 1ection .-, 9Repairs and )estruction of
Fe< !""$
$mproements9 deals with keeping the building in good repair" :ere, Ms" 1uare% has kept the building in
good repair" 1ection .- does not re/uire Ms" 1uare% to keep the building in line with non-use related
goernment regulations"
&inall!, absent an explicit proision as to which part! is liable for repairs due to a goernment ordinance,
the court will look to the tenantTs use 8explained aboe2, or the factors enumerated in =rown " Green, a
case decided b! the &ranklin 1upreme Court" The first factor is the relationship of the cost of the repair to
the rent resered in the lease" $n this case, rent for the eight !ears of the lease is VL.,4,,, and the repairs
cost V+-,,,," That is almost half of the rent that Ms" 1uare% would be re/uired to pa!" This is large in
proportion, and it is therefore assumed that the landlord will get a greater benefit from undertaking the
repairs than the tenant would"
The second factor is the term of the lease" 6 long-term lease will show more benefit to a tenant for making
the repairs" This lease was a three-!ear lease, extended to eight !ears" This is not an exceptionall! long
time, and Ms" Murph! will most likel! gain more benefit from an! repairs"
The third factor is the amount of benefit the tenant will derie as compared to the benefit the landlord will
derie" Ms" 1uare% would, or course, derie the benefit of being able to continue her business b!
undertaking the repairs" Ms" Murph! will hae the benefit of continuing to rent out a building to tenants
for a long term" This lease is in its fourth !ear, so the benefit to Ms" 1uare% is reduced een further, as she
ma! be re/uired to acate the premises at the end of the term, and would then lose all benefit" Ms"
Murph! deries more benefit from an! repair"
The fourth factor is whether curatie action is structural or nonstructural" :ere, the action is structural"
1tructural cures are assumed to be more of a benefit to the owner of the building, although it still benefits
the tenant of the building" 1tructural improements are long term improements, while tenants tend to be
more transient and cannot derie as much of a benefit from structural repairs"
The fifth factor is the degree to which the tenantTs use of the premises is interfered with during the
improements" :ere, Ms" 1uare% was not re/uired to leae the building during the time of the
improements" De thank Ms" Murph! for her consideration in making the improements in such a wa! as
to accommodate Ms" 1uare%, but this factor alone does not control who is held responsible for the
improements"
The sixth factor is the likelihood that the parties contemplated the application of the ordinance" :ere, the
ordinance was enacted in -,,," Ms" 1uare%, who does not own an! buildings, had no reason to know that
such an ordinance would be passed" Ms" Murph!, howeer, ma! hae had reason to be put on notice, since
there was nearl! fie !ears of debate regarding this ordinance before it was passed, and two !ears between
when it was passed and when the Earth/uake :a%ard Reduction 0ffice asked Ms" Murph! to make the
repairs" Ms" Murph! likel! had some notice as to the possibilit! of the ordinance, and the importance of
her compliance" $f the ordinance had passed when it was first debated, Ms" Murph! would hae been
re/uired to make the improements then, before Ms" 1uare% een signed a lease" Ms" Murph! ma! hae
had her 9head in the sand9, but Ms" 1uare% will not be made to pa! for her denial of liabilit!"
Ms" 1uare% would like to continue her relationship with Ms" Murph!, but she is not liable for the mone!
spent on improements to Ms" Murph!Ts building due to the goernment ordinance" The lease states onl!
that she is liable for keeping the premises in good condition, and that she is liable for repairs resulting
from goernment ordinances that are use related" :ere, there is no relationship between the use of the
propert! and the ordinance, nor is the premises in an!thing other than good repair" This is a ma#or
Fe< !""$
renoation that Ms" 1uare% should not hae to make, since she is not the propert! owner, and she does not
derie the same benefit from the repairs as the propert! owner, Ms" Murph!, does" =rown " Green affirms
this theor!, and we are prepared to argue this in court"
1incerel!,
Rui% and Rui%
6ttorne!s at 'aw
Fe< !""$
Answer to MPT
*ohn Erbes, Es/"
0T@eill, Erbes > Crenshaw
.-4+ )ouglas )r"
Carterille, &ranklin +++.4
Re( 'ease of -K,E 1unset =ld", Carterille, &ranklin
)ear Mr" Erbes(
De are in receipt of !our letter to Carmen 1uare% regarding Ms" 1uare%Ts lease of the aboe-referenced
propert! from !our client, Eli%abeth Murph!" Ms" 1uare% has asked us to respond to !our letter on her
behalf"
=ased on the terms of the lease and related materials, as well as the releant case law, we are writing to
adise !ou that Ms" 1uare% is re#ecting !our demand of V+-,,,, for the reasons set forth below" &or these
same reasons, we beliee an! suit against Ms" 1uare% will be unsuccessful"
The case of =rown " Green, decided b! the &ranklin 1upreme Court in .KK4, is most instructie here"
That case, like this one, inoled a non-use related goernmental order" :ere, like in =rown 8and unlike
the 1upreme CourtTs earlier 1ewell " 'oerde case2, there is nothing about Ms" 1uare%Ts use of the
propert! that triggered the cit! of CarterilleTs order of seismic retrofitting at the leased propert!" 1uch an
order would hae been forthcoming no matter what the use of the propert!"
=ecause the literal terms of 1ection 4- of the lease agreement between Ms" Murph! and Ms" 1uare%
re/uires compliance with 9all applicable statutes, ordinances, rules, regulations, orders and re/uirements
regulating the use of the premises in effect during the term or an! part of the term of the lease9 8emphasis
added2, that section alone does not establish how Ms" Murph! and Ms" 1uare% intended to allocate the risk
of compliance with goernmental orders mandating correctie action as to propert! conditions unrelated
to a particular use b! Ms" 1uare%"
6ccording to =rown, in this situation we must look to the lease as a whole and then consider six specific
factors" &irst, it is clear that despite how this lease is titled, the parties do not intend to treat it as a t!pical
net lease and thus did not intend to transfer from Ms" Murph! to Ms" 1uare% the ma#or burdens of
ownership of the propert! oer the life of the lease" 6s !ou know, a net lease presumes that the landlord
will receie a fixed rent, without reduction for repairs, taxes, insurance or other charges" $n this case,
howeer, Ms" Murph! continued to pa! taxes and also maintained casualt! insurance on the propert!"
&urther eidence of the intent of the parties that Ms" 1uare% would not be responsible for non-use related
legal compliance such as the order b! the cit! of Carterille ma! be found b! looking toward seeral of
the six factors courts use in determining the allocation of repair and maintenance obligations in
commercial leases"
." The relationship of the cost of the curatie action to the rent resered in the lease" :ere the curatie
action cost is V+-,,,,, which represents a substantial portion 8oer EEU2 of the entire rent due for the
fie-!ear term of the lease 8V45,,,,2" $n cases where the term of the lease is relatiel! short and the cost
of the repair in percentage terms is large in relation to the tenantTs rent oer the life of the lease, courts
Fe< !""$
will almost uniersall! refuse to gie effect to een relatiel! clear language imposing the repair dut! on
the tenant, which is not the case here"
-" The term of the lease" $n this case, een with the fie-!ear term, it is highl! unlikel! that Ms" 1uare%
would hae expected to take on ownership obligations for such costl! repairs"
+" &inall! the likelihood that the parties contemplated the application of the particular order inoled" $n
this case, Ms" 1uare% was not an experienced tenant and the condition was unforeseeable to her" :oweer,
the condition was foreseeable to an experienced landlord like Ms" Murph! gien that the passage of the
cit!Ts program came after fie !ears of debate and a reasonable landlord would hae made specific plans
to accommodate it" Ms" Murph! had eer! opportunit! to specificall! address this in the lease, but did
not"
Ms" 1uare% is also generall! pleased with her business relationship with Ms" Murph! and would like it to
continue" :oweer, Ms" 1uare% will not pa! Ms" Murph!Ts demand of V+-,,,," De hope !ou see the
futilit! of pursuing this matter at trial"
Please do not hesitate to contact me if !ou hae further in/uiries"
1incerel!,
6ttorne! at 'aw
Fe< !""$
JLY !""! - PERSAS,-E MEMORANDM
1T6TE F" TDEE)7 8MPT-.2
6pplicants, assistant district attorne!s, are asked to draft a persuasie memorandum to the district attorne!
conincing him that there is sufficient eidence to seek a felon! indictment against *ames Tweed! on two
counts of endangering the welfare of a child" 6pplicants are also asked to identif! additional facts that
would assist in prosecuting Tweed! for the death of his two !oung children in an apartment fire" 0n the
night in /uestion, Tweed!, a single parent, put the children to bed, secured the bedroom door, locked the
apartment door, and went out with friends, leaing the children alone" Dhile Tweed! was out, a fire
started in a defectie TF set that he had left on" 6n unidentified isitor tried to rescue the children, but
couldnTt enter the bedroom because of the wa! Tweed! had secured it" Tweed! claims that a neighbor had
agreed to watch the children" The neighbor is reported at one place in the record to hae said she declined
Tweed!Ts re/uest, and in another place that Tweed! neer asked her to watch the children on the night in
/uestion" 6s part of their inestigation, the police learned that there was a small electrical fire in Tweed!Ts
same apartment four !ears earlier, which started when Tweed!Ts late wife left a curling iron on" @o one
was home at the time of that fire" The &ile contains police and fire marshal reports, a memorandum from
the Count! Medical Examiner assigning the cause of death, and a transcript of a police interiew with
Tweed!" The 'ibrar! consists of excerpts of the &ranklin 9endangering9 statute as well as excerpts from
the &ranklin Rules of Eidence and two cases"
Fe< !""!
Answer to MPT
To( 1hirle! Cla! 1cott, 6ssistant )istrict 6ttorne!
&rom( 6pplicant
Re( *ames 6" Tweed! N Child Endangerment Charges
)ate( *ul! +,, -,,-
The following is a two-part memorandum for !our signature for submission to the )istrict 6ttorne!" The
first part addresses the sufficient admissible eidence to proe the elements in order to obtain a
coniction" The latter part discusses an! conflicting or incomplete facts in our file and proposes releant
inestigatie steps the )istrict 6ttorne!Ts office should take to deelop these additional facts"
." Eidence to obtain a coniction
;nder Penal Code H 4+,4, a parent, guardian or other person superising the
welfare of a child under .5 !ears of age commits an offense if he knowingl! endangers the welfare of the
child b! iolating a dut! of care, support or protection" 1ection 4+,4 contemplates endangerment either
b! act or b! omission to act" Thus, in order to proe this element of the crime, we need to show that Mr"
Tweed! 9knowingl!9 put his children in danger or failed to act which thus put his children in danger" 1tate
" Miller sets forth the three-part Cardwell 1tandard to test the sufficienc! of eidence of the intent
element under H 4+,4" 6ll three of the prongs must be met to satisf! the intent standard and if proof fails
on an! one of these prongs, the eidence will be found insufficient" Eidence is sufficient to proe the
intent element of the offense of endangering the welfare of the child when the accused .2 is aware of his
or her dut! to protect the child, -2 is aware that the child is in circumstances that are reasonabl! likel! to
result in harm to the child, and +2 has either failed to act or has taken actions so lame or meager that such
actions cannot reasonabl! be expected to protect the child from ph!sical or ps!chological harm"
6s to element one 8awareness of dut! to protect the child2, we hae sufficient admissible eidence to
satisf! this prong" Mr" Tweed! is obiousl! aware of his dut! to protect his children" $f he was not aware
of such a dut!, he would not hae asked Mrs" England to watch the children while he was out" $n the
transcript of Tweed!Ts interiew with 0fficer :iggerson, Tweed! states that he asked Mrs" England to
watch the children" &urthermore, asking Mrs" England to watch the children is a regular practice of
Tweed!" $n the statement gien b! :arr! Dirthin, owner and superintendent of the building occupied b!
Tweed!, he states that Mrs" England occasionall! watched the children for Tweed!" Thus, this eidence
satisfies the first part of the three-part Cardwell test" &urthermore, as to the eidence stated aboe, it
satisfies the general releanc! standard promulgated b! the &ranklin Rules of Eidence 8i"e" it has a
tendenc! to make the existence of an! fact that is of conse/uence to the determination of the action more
or less probable than it would be without the eidence2" &urthermore, the probatie alue of such eidence
is not outweighed b! the danger of unfair pre#udice, confusion of the issues, etc", enunciated in Rule 4,+
of the &ranklin Rules of Eidence" 'astl!, eidence of Tweed! leaing his children in the care of Mrs"
England often is closer to habit eidence, than character eidence, and as such, would not be excluded
under &ranklin Rule of Eidence 4,4"
Fe< !""!
De are also able to satisf! the second prong of the Cardwell test to show that Tweed! was aware that his
children were in circumstances likel! to result in their harm" $n his interiew with 0fficer :iggerson,
Tweed! stated that he #ammed the bedroom door closed because 9this is not a safe neighborhood9" $f
Tweed! did not feel safe enough to leae his children alone een for a few minutes until Mrs" England
made it to their apartment, he was certainl! aware that the! were in circumstances likel! to cause them
harm" &urthermore, in the same interiew, Tweed! stated that he een left the TF on so that people would
think he was home" 0ne can onl! surmise that these 9people9 Tweed! is referring to are robbers or
thiees, which ma! hae infiltrated his 9unsafe neighborhood9" 'astl!, Tweed! knows the results of
leaing an! t!pe of electrical e/uipment on when no one 8or helpless !oung children2 are home"
6ccording to 0fficer :iggersonTs interiew with Mr" Dirthin, a small electrical fire occurred in Tweed!Ts
apartment approximatel! four !ears ago, when his wife 8now deceased2 left a curling iron on in the
apartment when no one was home" 6ll of the aboe eidence is also releant and, as such, is admissible"
The final prong of the Cardwell test inoles proing that Tweed! either failed to act or has taken actions
so lame or meager that such actions cannot reasonabl! b! expected to be effectie to protect the child
from ph!sical or ps!chological harm" $n this case Tweed! did not fail to act, but instead took actions so
lame and meager which, in the end, did not protect either of his children from ph!sical harm" :ere,
Tweed! #ammed two table knies between the bedroom door and #am" $f Tweed! was so concerned about
his safet! and that of his children, he should hae changed the locks on the apartment door and bedroom
door" Tweed!Ts defense that the landlord does not keep the place in the best shape is not a alid defense"
Emplo!ing the Cardwell test, we hae sufficient admissible eidence to satisf! a felon! indictment
against Mr" Tweed! for endangering the welfare of his children"
-" Conflicting or $ncomplete &acts
The most obious conflicting fact, and one essential to this case, inoles the statement of Tweed! where
he alleges that he asked Mrs" England to watch out for his children" 0n the other hand, 0fficer :iggerson,
in her report of :arr! Dirthin, states that she spoke with Mrs" England who indicated that she had been
asked to watch the children on the night in /uestion, but had declined" The )istrict 6ttorne!Ts 0ffice
should make a further in/uir! into Mrs" EnglandTs statement and perhaps hae her sign an affidait"
$n addition, we also hae incomplete information regarding the code iolations of the building Tweed!
and his famil! lied in" 6lthough, the &ire Marshall Report states that the fire was caused b! a defectie
teleision set, it would be useful to know if the fire was aggraated b! an! fault! wiring in Tweed!Ts
apartment" 6 further check on the )e1oto 'icensing and $nspection Records would also let us know if
Tweed! had eer complained 8regarding fault! wiring2 to this cit! agenc!" :oweer, it should be noted
here that if the fire was furthered b! such fault! wiring, Mr" Dirthin ma! also be held liable for the
childrenTs deaths" 6ccording to 1tate " 1houp, criminal responsibilit! is properl! addressed against one
whose conduct was a direct and substantial factor in producing the results een though other factors
combined with that conduct to achiee that result"
&inall!, the medical examinerTs report found that both children died of smoke inhalation" The report also
indicates, howeer, that the !ounger female child had a congenital heart malformation, which if remained
untreated, would be life threatening" The )istrict 6ttorne!Ts office should contact Tweed!Ts famil!
ph!sician in order to determine what, if an!, action was taken or would hae been taken in the future to
fix this heart defect"
Fe< !""!
1hould !ou need an! additional information or re/uire an! additional clarification, please do not hesitate
to contact me"
Thank 7ou"
Fe< !""!
Answer to MPT
To( )istrict 6ttorne!
&rom( 6pplicant
Re( Tweed!, *ames 6"
)ate( *ul! +,, -,,-
." There is sufficient admissible eidence to indict *ames Tweed! for two counts of endangering the
welfare of a child under Penal Code H 4+,4"
6" &acts
0n the eening of *ul! .E, -,,-, the two children of *ames Tweed!, &red and 6lma, were killed from a
fire in Mr" Tweed!Ts apartment" Mr" Tweed! went out for the eening and left the children in their
bedroom" :e locked the main door of the apartment and inserted two knies into the bedroom door
between the door and the #am" Mr" Tweed! claims that he asked his neighbor, Mrs" England, to watch the
children, which she denies" The fire, which was probabl! caused b! a defectie teleision in Mr" Tweed!Ts
apartment, ended up killing Mr" Tweed!Ts children who were home alone and locked in their bedroom,
unable to be rescued" Dhen Mr" Tweed! returned from his night of fun with friends he discoered that his
children had been killed"
=" Elements of H 4+,4 - Endangering Delfare of a Child
1ection 4+,4 Endangering Delfare of a Child 84+,42 is defined as 9a parent, guardian or other person
superising the welfare of a child under .5 !ears of age commits an offense if he knowingl! endangers
the welfare of the child b! iolating a dut! of care, protection or support" This must be proen with
admissible eidence in accordance with the &ranklin Rules of Eidence"
*ohn Tweed! was in fact a parent because he was the father of 6lma and &red" The children lied with
him and he was responsible for superising their welfare solel!, as his wife had died" 6dditionall!, his
children were under .5 as &red was three and 6lma was -, month old"
6s stated in H 4+,4, this offense must be committed 9knowingl!9" 1ection +,-8b2 of the Penal Code
defines knowingl! and 1tate " Miller 8Miller2 states from this definition that H 4+,4 contemplates
endangerment either b! act or omission to act"
1tate " Cardwell established a three-part test for this intent element( .2 the accused is aware of hisBher
dut! to protect the child3 -2 aware that the child is in circumstances that are likel! to result in harm to the
child3 +2 either failed to act or taken steps so lame that the! cannot reasonabl! be expected to protect the
child"
&irst, Mr" Tweed! was aware of his dut! to protect &red and 6lma because he was the sole parent and
made or claimed to make some efforts for their care" 1econd, Mr" Tweed! was aware that &red and 6lma
were in circumstances that could harm them" $n Miller, the court found that Mrs" Miller was not aware she
had placed her child in dangerous circumstances because she belieed Green when he told her 0rr was
Fe< !""!
watching her child" :oweer, in this case it is not clear that Mr" Tweed! asked Mrs" England to bab!sit or
belieed that she would" Mrs" Miller left the door to the hallwa! open whereas Mr" Tweed! put knies in
the door #am eidencing his knowledge" Third, Mr" Tweed!Ts actions were unreasonable to protect his
child" The Miller court found that Mrs" Miller was reasonable in belieing Green 8that 0rr was
bab!sitting2 because she had a relationship with him and there was no eidence he was a dishonest
person" :ere, Mr" Tweed! did not hae such a relationship with Mrs" England"
*ust like the Cardwell defendant, where the court found she had taken ineffectie remedial measures, so
too did Tweed! b! recogni%ing the danger, that Mrs" England had not left her apartment and putting
knies in the door" This case is different from 'ouie in which the parents were not culpable because the!
did not allow their child to remain in a potentiall! dangerous situation, whereas here, Tweed! allowed his
children to remain in the apartment" Eidence that Tweed! knew of the dangerous conditions in his
apartment and preious fire and citations are releant under Rule 4,. b! making the fact of Tweed!Ts
knowledge more probable than without the eidence" Inowledge of the dangers of leaing his children
alone could also be inferred from Tweed! leaing his children alone before" Rule 4,4 prohibits the use of
this eidence to proe conduct in conformit! therewith but other acts are admissible under 4,48b2 to proe
knowledge or mistake or accident" $n addition, the 9unreasonableness9 element caused b! Mr" Tweed!Ts
drinking might be releant but excluded under Rule 4,+ because it is more pre#udicial than probatie"
Causation must also be proen" 1tate " 1houp held that the state must proe that a personTs conduct was a
9direct and substantial factor in producing the result9" $n 1houp, the court found that een though the
parking of the dump truck contributed to the accident, Mr" 1houpTs conduct started the 9unbroken chain of
causation9" 1imilarl!, een though the fire caused the accident, Mr" Tweed! leaing his children alone
with the door #ammed with knies was the substantial factor producing the result" The fault! electrical
wiring was foreseeable and Tweed!, like 1houp, cannot escape the conse/uences of his act"
-" &acts for &urther $nestigation
6" De should inestigate if Mrs" England reall! did decline to bab!sit and how man! times she had
bab!sat before b! interiewing her, Tweed! and neighbors further to establish the 9reasonableness9 of
Tweed!Ts conduct"
=" De should look into 6lmaTs heart malformation through interiews with doctors and Tweed! to
establish his knowledge of such" De ma! hae a possible H 4+,4 claim for failing to treat"
C" De should inestigate how often Tweed! left his children unattended b! talking to neighbors and
friends" This eidence could establish a pattern but might be excluded under Rule 4,4"
)" $nestigate whether Tweed! knew of Mr" DirthinTs citations to establish knowledge of the condition"
This can be done through interiews"
6ll the foregoing can be obtained through discoer!, depositions and interrogaties"

Fe< !""!
FEBRARY !""! - OP,N,ON LETTER1 TO .O-T A.EN)Y
$@ RE &R6@I'$@ C0@1TR;CT$0@ 8MPT-.2
6pplicants work in a law firm that has been retained b! Ralph )irksen, the CE0 of &ranklin Construction
Compan! 8&CC2 to adise if &CC has an! financial obligations as a result of a failed #oint enture with
M)$ to build a V+< million hotel" $nitiall!, &CC obtained an exclusie right to negotiate with a
Redeelopment 6genc! 86genc!2 to build the hotel, but &CC was unable to secure financing before its
exclusie right was about to expire" &CC then sought M)$Ts expertise in securing financing" The 6genc!
granted &CC an extension of its exclusie negotiation right proided that &CC deposit V+<,,,,, with the
6genc!" M)$ adanced &CC the V+<,,,,, deposit in consideration of an 6ssignment 6greement in which
&CC assigned its exclusie negotiation right to M)$" M)$ and &CC then signed a *oint Fenture
6greement that detailed how profits would be distributed, but was silent on how losses would be shared"
The #oint enture was unable to secure loans, thus prompting the 6genc! to terminate &CCTs exclusie
negotiation right and keep the V+<,,,,, deposit, which it deemed non-refundable" M)$ terminated the
#oint enture agreement and demanded that &CC recoer the V+<,,,,, from the 6genc! and pa! it back to
M)$" 6pplicants are asked to draft an opinion letter adising )irksen, a non-law!er, what &CCTs
obligations are under the *oint Fenture 6greement and the 6ssignment 6greement" The &ile consists of an
instructie memo, an excerpt from the superising partnerTs interiew with )irksen, the 6ssignment
6greement, documents regarding the exclusie negotiation right, the *oint Fenture 6greement and M)$Ts
notice of termination of the *oint Fenture" The 'ibrar! contains portions of the &ranklin =usiness
6ssociations Code and two cases"
Fe< !""!
Answer to MPT
Ralph )irksen
Chief Executie 0fficer
&ranklin Construction Compan!
.-<4+ Drangel Rd"
=o!ceille, &R +++-4
Re( @ew Millennium :otel Fenture 89Fenture92
)ear Mr" )irksen(
Regarding our meeting earlier this week, $ hae done extensie research into the issues presented b! !our
inolement in the Fenture and hae the following answers for !ou"
&actual 1tatement
&ranklin Construction Compan! 89&CC92 obtained the exclusie right to negotiate for the ac/uisition and
deelopment of the Third and Market 1treet propert! with the =o!ceille Redeelopment 6genc! 8the
96genc!92" )ue to difficulties in obtaining funding for the pro#ect, &CC agreed to assign its right to
negotiation to Millman )eelopers, $nc" 89M)$92 in exchange for M)$Ts transfer of V+<,,,,, to the
6genc! as a deposit, and VE,,,,, to &CC as consideration" M)$ and &CC then formed a #oint enture into
which M)$ contributed the exclusie right to negotiate and the V+<,,,,,, and &CC contributed its
expertise and serices" M)$ and &CC agreed to share profits K,B., and agreed that M)$ would hae
exclusie management and control of the Fenture"
1ubse/uentl!, the 6genc! terminated the exclusie right to negotiate on the basis of an unlikelihood that
M)$ and &CC would obtain the necessar! loan commitments" M)$ has demanded that &CC pursue with
the 6genc! recoer! of the V+<,,,,, and return the mone!, whether or not &CC is able to recoer it from
the 6genc!"
." &CC is not obligated to either M)$ or the Fenture for an! part of the mone! demanded b! M)$ under
the 6ssignment 6greement or the *oint Fenture 6greement"
The 6ssignment 6greement is essentiall! a contract between M)$ and the &CC under which the &CC
assigns its exclusie right to negotiate with the 6genc! for the pa!ment of VE,,,,,, and the transfer of
V+<,,,,, to the 6genc! as a deposit" The 6greement does set forth seeral conditions precedent which
must be met" &irst, the parties must execute a definitie agreement regarding formation of the Fenture
within +, da!s from the date of the 6ssignment 6greement" This condition precedent was met when the
*oint Fenture 6greement was signed on )ecember -E, -,,." 1econd, the 6genc! had to accept M)$ as an
authori%ed part!, which it did in Resolution @o" 4+-KK on @oember +,, -,,." Dhile the Resolution onl!
makes mention of M)$Ts inolement in the financing, this will be construed to include the ac/uisition
and deelopment as well" Therefore, nothing in the 6ssignment 6greement re/uires &CC to return the
V+<,,,,, to M)$"
Fe< !""!
The *oint Fenture 6greement does not re/uire &CC to return the V+<,,,,, either" This agreement sets
forth the V+<,,,,, as M)$Ts capital contribution to the Fenture" $t is in no wa! a loan to &CC that must be
repaid" $n addition, the agreement sets forth profits that are to be shared, but not losses" The 6greement
states that if the exclusie right to negotiate is terminated b! the 6genc!, M)$ has the right to terminate
and withdraw from the *oint Fenture" $t does not mention return of the V+<,,,,,"
-" &CC is not obligated b! statute or case law to pa! either M)$ or Fenture an! part of the V+<,,,,,
deposit"
The first issue is whether the Fenture will be considered a #oint enture or some other sort of agreement"
$n 1tilwell " Trutanich, the &ranklin Court of 6ppeals held that the elements of a #oint enture are( a2 a
communit! of interest in the enture, b2 a sharing in profits and losses, c2 an e/ual right or a right in some
measure to control the conduct of the other and d2 a fiduciar! relationship" :ere, there is a shared interest
in the hotel enture b! M)$ and &CC" The! both hae an interest in ensuring that the enture is
successful" $n addition, the! hae agreed to share profits K,B.," Dhile there is no right on the part of &CC
to control M)$Ts conduct, the court also held that if the parties hae delegated their authorit!, there is no
need for an! control" :ere, &CC has delegated its authorit! to M)$" Therefore, the Fenture meets all of
the elements of a #oint enture"
*oint entures are goerned b! partnership laws of the 1tate of &ranklin" 1ection 4,. of the &ranklin
=usiness 6ssociations Code states that in the absence of a contrar! agreement, partnership losses are
shared in proportion to partnership profits" Therefore, under partnership law, &CC would be liable to .,U
of the losses, which includes the V+<,,,,,"
:oweer, in Ioacik " Reed, the &ranklin 1upreme Court held that where one partner contributes mone!
and the other contributes serices, neither part! is liable to the other for contribution for losses" :ere,
M)$ has contributed mone! and &CC has contributed its serices" Therefore, &CC will not be liable to
M)$ for its losses"
$f the #oint enture continued and the parties completed the ac/uisition and deelopment, this ma! not be
as strong an argument for &CC because M)$ would hae contributed more than #ust mone!, but at this
stage, that is where it stands between the parties"
+" &CC does not hae an! obligation to recoer the mone! from the 6genc!" ;nder the enture
agreement, &CC onl! agreed to contribute its serices and assistance during the construction phase of the
contract" 1ince that phase has not been reached, &CC is under no obligation under the enture agreement
to recoer the mone!"
;nder partnership law, partners 8and #oint enturers2 owe the partnership a dut! of care, which consists of
refraining from engaging in an! conduct that is grossl! negligent, reckless, intentional misconduct or a
knowing iolation of the law" $n Ioacik, the court also held that it is the dut! of the managing enturer
to take action to recoer debts of the #oint enture" M)$ was the managing enturer because the #oint
enture agreement gae them sole control oer the pro#ect" Therefore, if an!bod! has a dut! to recoer the
V+<,,,,,, it is M)$" Certainl!, &CCTs failure to pursue recoer! of the mone! from the 6genc! would not
be considered grossl! negligent or reckless" &CCTs inolement was to be limited to construction serices
and expertise, not debt collection" Therefore, &CC has no obligation to recoer the mone! from the
6genc!, nor does it hae an! obligation to return the mone! out of its own pocket"
Fe< !""!
Answer to MPT
Mr" Ralph )irksen
Chief Executie 0fficer
&ranklin Construction Co" 89&CC92
.-<4+ Drangel Rd"
=o!ceille, &R +++-4
)ear Mr" )irksen(
This letter is in response to !our re/uest for an opinion regarding !our #oint enture with Millman
)eelopers, $nc" 89M)$92 and their subse/uent demand letter"
&CC entered into a #oint enture with M)$ in an effort to secure a pro#ect with the =o!ceille
Redeelopment 6genc! 896genc!92 to construct a Class 6 hotel on propert! located at Third and Market"
&CC obtained an exclusie right to negotiate the pro#ect for six months with the 6genc!" The deal
re/uired that a Class 6 hotel be built for at least V+<,,,,,,,," &CC was unable to secure financing" 6s
such, &CC approached M)$ to enter into a partnership" Dith M)$Ts backing the exclusie negotiating
rights were extended for K, da!s" &CC and M)$ agreed to set up a #oint enture" &CC assigned all its
rights to M)$ and in exchange, M)$ would put up V+<,,,,, 9front mone!9" This mone! was .U of the
pro#ect price and was re/uired b! the 6genc!" The 6genc! would appl! this 9deposit9 to the oerall cost
of the pro#ect upon approal" The 6genc! had the right to terminate the deal if it was likel! &CC would
not obtain the necessar! loan commitments" The 6genc! did not state this amount was nonrefundable"
&CC and M)$ executed an 6ssignment 6greement" &CC assigned its rights to the exclusie negotiating to
M)$ and paid VE,,,,," M)$ in turn transferred V+<,,,,, for &CC" $n the *oint Fenture agreement, M)$
assigned as its capital contribution to the Fenture, its negotiation rights and the V+<,,,,, paid to &CC" 0n
&ebruar! .+, the 6genc! terminated the negotiations and kept the V+<,,,,,, as it was nonrefundable"
6lso, in the Fenture agreement, M)$ was gien exclusie management control of the Fenture" The profits
would be shared as K,U to M)$ and .,U to &CC" @othing is mentioned regarding losses" M)$ had
demanded that &CC recoer the V+<,,,,, from the 6genc! or repa! the sum itself to M)$ and M)$
terminated the Fenture"
7ou asked for our opinion on these issues(
.2 &CC is not obligated to pa! M)$ under the 6ssignment agreement because the return of the mone! was
contingent onl! on the failure of two occurrences" 1ince both occurrences materiali%ed, &CC does not owe
M)$ the mone!" &urthermore, &CC does not owe the mone! to the Fenture because the Fenture
agreement does not re/uire this result"
-2 ;nder statutes and releant case law, &CC is not obligated to pa! the full V+<,,,,, to M)$ or the
Fenture because &CC did not contribute the capital" &urthermore, an! losses must be shared in the same
proportion as profits"
+2 &CC does not hae an! obligation to undertake efforts to recoer the mone! from the 6genc! because
that is the dut! of M)$ as the managing enturer"
;nder the 6ssignment 6greement, M)$ agreed to transfer the V+<,,,,, to be used as the re/uired option"
This mone! was to be refunded to M)$ onl! if the parties failed to enter into a #oint enture in +, da!s
Fe< !""!
and upon the 6genc!Ts acceptance of M)$" The 6genc! approed M)$Ts inolement in Resolution 4+-
KK" &urthermore, on )ecember -E, -,,., M)$ and &CC executed their *oint Fenture 6greement" 6s such,
since both eents occurred, &CC is not re/uired to refund M)$ the V+<,,,,," &urthermore, M)$ assigned
its rights to the V+<,,,,, to the *oint Fenture as M)$Ts capital contribution" The agreement stated that
profits would be allocated K,U to M)$ and .,U to &CC" @othing was stated as to losses, nor does the
agreement state an! obligations on &CC to refund the V+<,,,,, to the Fenture" M)$ did resere the right
to terminate under 1ection M in the eent the 6genc! terminated the exclusie negotiation rights"
:oweer, no mention is made as to the V+<,,,,, contribution" Thus, under neither contractual
undertaking, is &CC obligated to pa! either M)$ or the Fenture"
M)$ and &CC did form a alid #oint enture, which is treated as a partnership under the law" Parties to
#oint entures ma! hae an une/ual distribution of profits and une/ual control of operation 81ee 1tillwell
" Trutanich2" &urthermore, the &ranklin Court of 6ppeals held that an omission for sharing losses in a
#oint enture is immaterial since, in absence of an agreement, the laws implies that losses are shared in the
same proportion as profits" Thus, if the V+<,,,,, is treated as a loss b! the Fenture, it should be allocated
according to the K,U - .,U split agreed to" &CC would onl! be obligated for .,U or V+<,,,," :oweer,
in the Fenture, onl! M)$ contributed capital to the partnership" Dhere one part! contributes capital and
the other #oint enturer onl! contributes skill and labor, the case law unanimousl! holds that neither part!
is liable to the other for contribution for an! losses sustained" Thus, since &CC onl! contributed labor and
serices, the law does not re/uire &CC to contribute to this loss" M)$ contributed the mone! and must
bear this loss"
M)$ treated the V+<,,,,, as its contribution to the Fenture and assigned all its rights to it to the Fenture"
Thus it is incorrect that M)$ is attempting to treat this mone! as a loan" ;nder the ;niform Partnership
6ct, a partnership is onl! obligated to reimburse a partner an amount in excess of its capital contribution
81ection 4,. ;P62" 6 partner shall also reimburse a partner an! pa!ments that the partner incurs in the
ordinar! course of business" @either situation is releant to !our case" The entire V+<,,,,, was treated as
a contribution b! M)$" &urthermore, this mone! was not incurred in the ordinar! course of business, but
rather was the partnerTs initial capital contribution to the Fenture" ;nder case law and states law, &CC is
not obligated to reimburse either M)$ or &CC"
&inall!, &CC is not obligated to undertake efforts to recoer the V+<,,,,, from the 6genc!" The &ranklin
1upreme Court has held that it is the dut! of the managing enturer to take action against debtors of the
Fenture to presere and recoer #oint enture assets 81ee Ioacik " Reed2" &urthermore, in absence of an
agreement, one #oint enturer is not obligated to protect the other from loss of an inestment or to take
steps to assist him in an! recoer!" 6dditionall!, losses recoered as enture propert!, not the enturers"
:ere, M)$ was the sole managing enturer" M)$ is obligated to seek recoer! from the 6genc!, not &CC"
$f the mone! is recoered, it will be Fenture propert!" $f the Fenture is terminated, the mone! must first be
used to pa! the debts and obligations of the Fenture" 6n! remainder will be returned to M)$ as a return of
their contribution" 6n! profits or losses will be allocated between M)$ and &CC K,B., respectiel!"
Fe< !""!
JLY !""# - PERSAS,-E BR,EF1 ,N SPPORT OF A MOT,ON
1T6TE F" D:$TE 8MPT-.2
6pplicants are attorne!s in the Public )efenderTs 0ffice, which represents *ames Dhite, who is being
prosecuted for homicide for killing his brother with a knife" 'ess than a !ear before the homicide, Dhite
had attacked the same brother with a knife and was charged with aggraated assault" The Public
)efenderTs 0ffice also represents Dhite on the assault charge, which is pending" 6 Public )efender staff
social worker interiewed Dhite after his arrest for the assault" )uring that interiew, Dhite made
admissions, denials, and related statements about the assault and his feelings toward his brother" :e also
told the staff social worker about his mental health problems and treatment histor!" The social worker
wrote a report based on her interiew and gae it to DhiteTs public defender, who relied on the
information in the report to get Dhite released to a treatment facilit!" The prosecutor has now subpoenaed
the social workerTs report in the hope of using DhiteTs statements about the assault to support an
indictment for homicide" 6pplicants are instructed to write an in camera brief in support of a motion to
/uash the subpoena arguing that the communications between Dhite and the social worker are priileged
under the social worker-client andBor attorne!-client proisions of the &ranklin Eidence Code" The &ile
includes a memorandum on how to write persuasie briefs, the subpoena, the motion to /uash, the
attorne!Ts notes, and the social workerTs report" The 'ibrar! contains two cases and portions of the
&ranklin Eidence Code"
J567 !""#
Answer to MPT
." 1tatement of the &acts
The defendant, *ames Dhite, was arrested for the murder of his brother, with whom he resided" Mr" Dhite
is an arm! eteran who has been diagnosed as haing a nerous condition and receies disabilit!
compensation from the FeteranTs 6dministration"
Mr" Dhite was arrested once before and was charged with assaulting his brother" :oweer, the matter
neer was resoled, as it did not go to trial" Dhile the assault matter was pending, Mr" Dhite met with Ms"
Grace Peterson, a social worker emplo!ed b! the public defenderTs office" 1he was asked b! Mr" Carlos
Espino%a, Mr" DhiteTs attorne!, to meet with his client and ealuate him for purposes of preparing a bail
reduction motion and possibl! for disposition" 1he met with Mr" Dhite and made obserations based on
their meetings and submitted them in a report to Mr" Espino%a" The report contained seeral
communications made b! Mr" Dhite to Ms" Peterson that the prosecutor now seeks to obtain" Mr" Dhite
has made a motion to /uash the prosecutorTs subpoena"
-" Ms" Peterson is an intermediate agent of Mr" Espino%a, and an! communications made between Mr"
Dhite and Ms" Peterson are protected b! the law!er-client priilege"
Ms" Peterson was an emplo!ee of the office of Mr" Espino%a" :e asked her to interiew the client in order
to interpret the clientTs mental state and communicate it back to him in the course of his representation of
Mr" Dhite" 6n issue arises then, whether these communications are protected b! the law!er-client
priilege"
;nder HK<+ of the &ranklin Eidence Code, the client has a priilege to refuse to disclose and preent
another from disclosing a confidential communication between the client and law!er" 6 law!er cannot be
examined as to an! communication or the law!erTs adice gien in the course of professional
emplo!ment3 nor can a law!erTs secretar!, stenographer or clerk be examined, without the consent of the
law!er, concerning an! fact the knowledge of which has been ac/uired in such capacit!"
$n 1hea Cargo " Dilson, the &ranklin Court of 6ppeal determined that a ph!sician who examined a
patient at the direction of an attorne! to aid the attorne! in the preparation of a lawsuit was an
intermediate agent for communication between the client and his attorne!s and that the client ma!
therefore inoke the law!er-client priilege under HK<+" 'ike that case, here, Ms" Peterson was acting as
an intermediate agent of Mr" Espino%a and the sole purpose of the examination of Mr" Dhite was to aid
Mr" Espino%a in his preparation of Mr" DhiteTs defense"
The priilege is grounded on the polic! that ade/uate legal representation in the defense of litigation
compels full disclosure of the facts b! the client to his law!er" 6 client should not fear that his law!er
would be forced to disclose an! unfaorable facts reealed to the attorne!" &orcing the attorne! to do this
would conert the law!er into a 9mere informer for the benefit of the opponent9" This is what the
prosecution is intending to do in this matter" =! attempting to disclose the statements made b! Mr" Dhite
in Ms" PetersonTs report, the! are seeking to compel Mr" Espino%a to reeal confidential client
communications protected b! the priilege" &or, as the court stated, 9it is no less the clientTs
communication to the law!er when it is gien b! the client to an agent for transmission to the law!erYa
communication, b! an! form of agenc! emplo!ed or set in motion either b! the client or the law!er is
within the priilege9" The communication b! the client to the law!er regarding his mental condition
J567 !""#
re/uired his attorne! to seek the assistance of Ms" Peterson to interpret that condition to the law!er" Thus,
the! are priileged, as Ms" Peterson was an intermediate agent"
+" Mr" DhiteTs statements made to Ms" Peterson about his brother, during their meetings, is priileged
under H5+< of the Eidence Code, a dul! licensed social worker is prohibited from disclosing information
ac/uired from persons consulting the social worker in a professional capacit!" Mr" Dhite consulted with
Ms" Peterson in this wa!" :oweer, there is an exception which the prosecution stating that a social
worker is not re/uired to treat as confidential a communication that reeals the contemplation or
commission of a crime or harmful act in H5+<8b2"
$n 1tate " Guthrie, the &ranklin 1upreme Court determined that under exception 8b2, a social worker is
onl! re/uired to reeal admissions of criminal actiit!" 1he is not re/uired to reeal a defendantTs alleged
denials of wrongdoing and false statements, as the! do not reeal the commission of a crime" The contents
of Ms" PetersonTs report are nothing but a conglomerate of Mr" DhiteTs statements den!ing wrongdoing
8i"e" 9he was sure he didnTt do what his brother said he did92 and false statements 8i"e" Mr" Dhite changed
his stor! seeral times2" The onl! admission was to an attempt he allegedl! made once to poison his
brother, which is not on trial here"
The court recogni%ed the important polic! consideration of encouraging indiiduals who need help from a
social worker to seek that help b! ensuring the confidentialit! of their communications" Thus, the! said
that an! exception should be narrowl! construed"
J567 !""#
Answer to MPT
=rief in 1upport of Motion to ?uash
." &acts
0n 1eptember -L, -,,,, *ames Dhite was arraigned on charges of aggraated assault arising from an
incident between Mr" Dhite and his brother, 1tephen Dhite, at the home shared b! the two men" Mr"
Dhite cut his brother with a knife, but the court and the prosecution agreed to seeral continuances on the
case based on Mr" DhiteTs mental condition" Mr" Dhite, an arm! eteran, who sered in the Gulf Dar,
receies compensation for his nerous condition, was ealuated b! a social worker at the direction of his
appointed attorne!, in order to ealuate his mental condition and in the course of the representation of the
client on the aggraated assault charge"
$n the course of the ealuation, Mr" Dhite reealed to the social worker confidences concerning his
wrongdoing" Mr" Dhite discussed the facts and circumstances of his relationship with his brother to the
social worker and made statements about the incident on which he was charged" The social worker was
not able to make a full diagnosis" :oweer, the social worker suggested that Mr" Dhite could be suffering
from Post Traumatic 1tress )isorder or schi%ophrenia" $n the process of her ealuation, the social worker
created a report on 1eptember -K, -,,, detailing the communications with the client, which precipitated
from the law!erTs re/uest that she meet with the client"
$n *ul! -,,., Mr" Dhite was arrested for the murder of his brother, 1tephen Dhite" The indictment is
pending before the grand #ur! and the prosecution seeks to hae the social workerTs report of 1eptember
-K, -,,, produced" The report contains confidential communications regarding the aggraated assault,
Mr" DhiteTs mental condition, his feelings toward his brother, and seeral statements about specific
actions that he took toward his brother including denial of wrongdoing, inabilit! to remember the
incident, and admissions of certain emotions to 9teach his brother a lesson9" 1pecificall!, Mr" Dhite
reealed in confidence that he feels anger toward his brother and that 9he was not sure he didnTt do what
his brother said he did9" &urther, he reealed in confidence that he once attempted to poison his brother
with rat poison, but the social worker specificall! noted that his statement was of /uestionable eracit!"
-" 6rgument
6" The attorne!-client priilege extends to the ealuation of Mr" Dhite b! the social worker and need not
be reealed in whole or in part" 1ection K<+ of &ranklinTs Eidence Code protects confidential
communications between a law!er and a client" The protection precludes a law!er from disclosing such a
communication without the clientTs permission" The statute specificall! extends the priilege to others
working under the law!er, such as the law!erTs clerk or secretar!" $n 1hea Cargo, this priilege was also
extended to 9an! form of agenc! emplo!ed or set in motion b! the client or the law!er9"
$n the instant case, the social worker, Ms" Peterson, was emplo!ed b! the office of the public defender and
was assisting Mr" DhiteTs law!er in his case" Therefore, she was acting as an agent of Mr" Espino%a when
she interiewed Mr" Dhite"
The court in 1hea made clear that communications b! a client to a law!er
J567 !""#
regarding the clientTs ph!sical or mental condition that re/uiresY, assistanceYto interpretY8should be
made b! client2 without fear that the communication will be compelled" Therefore, it would be
detrimental to the foundation of attorne!-client priilege to compel the report of Ms" Peterson and the
subpoena should be /uashed as to the entire report because it was prepared full! b! Ms" Peterson as an
agent of Mr" DhiteTs law!er" $t does not matter that she is a social worker rather than a ph!sician because
she was acting as an agent for the law!er as the basis for the 1hea decision rests s/uarel! on the grounds
of agenc!"
=" Mr" Dhite belieed all communications priileged and it would undermine the strength and purpose of
the attorne!-client priilege to reeal them"
The court in 1hea pointed out that a client should be able to disclose unfaorable facts without fear that
the law!er will reeal the information" The fact that the law!er explained the priilege to Mr" Dhite on
1eptember -L, -,,, and then arranged a meeting with the social worker on the two da!s following
indicates that Mr" Dhite relied on that priilege" 1ection K<- of the &ranklin Code defines a confidential
communication as one which arises in a confidential relationship andYwhich is not disclosed to third
persons" :ere, Mr" Dhite likel! belieed the information he reealed to Ms" Peterson would be coered
b! that priilege"
C" The entiret! of the communications between Mr" Dhite and Ms" Peterson need not be disclosed
because the exception to confidential communications with social workers does not appl!"
1ection 5+< of the &ranklin Code protects communications with a licensed social worker during
professional consultation" Ms" Peterson is a licensed social worker" The Code, in H5+<8b2 howeer makes
an exception for 9communication that reeals contemplation or commission of a crime or harmful act9"
Mr" DhiteTs statements arguabl! do not fall within this exception" $n 1tate " Guthrie, the 1upreme Court
ruled that subsection 8b2 does not extend all information that might be releant to a crime, but onl! to
subpoenaed communications that directl! relate to the facts or circumstances of the crime" $n addition, the
court noted that denials of wrongdoing and false statements to the social worker do not reeal the
commission of a crime"
$n the instant case, all of the communications b! Mr" Dhite to Ms" Peterson can be categori%ed as denials
of wrongdoing, rather than facts that reeals commissions of a crime" Mr" Dhite onl! said that he 9wasnTt
sure he didnTt 8do it29 and that his brother was 9luck! he didnTt do it9" These statements are
distinguishable from admissions" The! are mere denials of wrongdoing or showing of a 9consciousness of
guilt9" Guthrie is not enough to constitute an exception to the statute" Moreoer, the rat poison statement,
which is clearl! unreliable, cannot be reealed" The entiret! of the statements should be excluded under
H5+< of the Code" :oweer, een if an! of the statements must be included the! should be extremel!
limited so as to preent a fishing expedition on the part of the prosecution"
)" The defendant at no time waied his priilege because he did not put the communication with Ms"
Peterson or his attorne! at issue"
1ection 5+<8d2 states that a defendant will waie his priilege b! bringing charges against a social worker"
;nder HK<<, no priilege exists if a law!erTs serices were obtained to commit fraud" Mr" Dhite has not
raised an! charges against Ms" Peterson, nor did he hire his attorne!, who was in fact appointed for the
purpose of committing fraud" Therefore, he has not waied"
+" Conclusion
J567 !""#
The subpoena should be /uashed because it fits s/uarel! within the attorne!-client priilege as a
confidential communication" Moreoer, it should be /uashed under H5+< for social worker confidentialit!
as well" Een if it is not /uashed as a whole, the court should select few of the communications in order to
preent a fishing expedition and further the important public polic! protected b! these confidence
priileges"
J567 !""#