Constitutional Law

Article III Judicial review

Arising under the Constitution, laws or treaties, cases in which US is a party Constitutionality of acts of other branches of government Originalambassadors, public ministers and consuls, state is a party Appeal3-judge federal district court panel decisions granting or denying injunctive relief (appeal, mandatory); Decisions of highest state courts on constitutionality or violation of federal law and decisions of federal courts of appeal (cert, discretionary) to establish lower federal courts to give concurrent jurisdiction to lower federal courts where SC has original jurisdiction to broadly regulate jurisdiction, except can't eliminate all judicial review of an entire class of cases and can't enlarge or restrict SC original jurisdiction

Jurisdiction

SC jurisdiction

Congress's power

(1) injury in fact (personal and specic, to right protected by Constitution or federal law); (2) causation; and (3) redressability When enforcing federal lawP must be in zone of interest which Congress intended to protect when passing the law to be enforced

Standing

Organizational standing (1) Members would have right to sue; (2) suit germane to organizational purpose, and (3) neither claim asserted nor relief requested requires participation of members Third-party standing (1) P's relationship with third party adversely affected, and (2) third parties would have difculty asserting own rights Taxpayer standingOnly for Establishment Clause challenge to expenditure based on taxing or spending power

Judicial review

Mootness Ripeness Political questions Review of state cases

Actual controversy required except where capable of repetition yet evading review; Class actions not moot where some class members have live suits Need genuine, immediate threat of harm; Where challenge to law not yet enforced, weigh hardship suffered without preenforcement review and tness of the issues for judicial review Committed to other branches of government by the Constitution or inherently incapable of judicial review Pullman abstentionFederal claim based on unsettled issue of state law Younger abstentionPending state criminal or contempt proceedings Adequate and independent grounds

State

11th Am. and sovereign immunityNo suit against state in state or federal court, except suit brought by US or where Congress has explicitly abrogated immunity under 14th Am. Can sue state ofcers for injunctive relief, for money damages to be paid personally, but not if state treasury will be paying retroactive damages Federal government can sue state without state's consent States can sue each other without consent and without 11th Am. and sovereign immunity constraints; SC original jurisdiction

Suing the government

Federal

Governmental immunityNeither state nor individual can sue without consent Can get specic relief against federal ofcer for acting ultra vires; Can't sue federal ofcers where judgment would be satised out of public treasury or would interfere with public administration; Can't sue President for actions taken while in ofce; Executive privilege for condential communications strong but not absolute; Can't sue legislators for conduct in legislative process Purely executive ofcersPresident can appoint alone and remove (even without cause) Ambassadors, public ministers and consuls, SC judgesPresident can appoint with advice and consent of the Senate and remove (good cause required for federal judges and xed-term executive ofcers) Inferior ofcersCongress can delegate appointment power to President or judiciary; Congress cannot itself appoint or remove; President can remove for cause ImpeachmentTreason, bribery, high crimes and misdemeanors; Need 1/2 vote in House to impeach and 2/3 vote in Senate to convict Congress can delegate legislative power to administrative agencies but not to itself or its ofcers Congress can't reject executive actions or delegate power to executive with the power to review resulting actions President can't delete portions of bill and pass the rest SupersessionFederal law trumps state law on same point PreemptionExpress and implied from comprehensive federal scheme Powers not delegated retained by the states Federal government can't commandeer state ofcials, but can condition grant of federal funds even where no enumerated power to legislate in that area

Separation and balance of powers

Appointment and removal of executive ofcers

Legislative Executive

Delegation No legislative veto No line item veto Supremacy Clause

StateFederal

10th Amendment Commandeering state ofcials

Commerce Clause Substantive Due Process Economic regulations Contracts Clause Takings

Congress has power to regulate channels, instrumentalities, or things or persons in interstate commerce; Cumulative effect considered only for economic activities All economic regulations valid if reasonably related to legitimate government purpose State or locality can't substantially impair rights under existing contract unless reasonably and narrowly tailored means of promotion of important and legitimate public interest Regulatory takingRegulation leaves no reasonable economically viable use for property States generally permitted to regulate interstate commerce where Congress has not otherwise regulated if the area is not preempted Discriminatory state regulations of interstate commerce(1) important, noneconomic state interest and no reasonable nondiscriminatory alternative,(2) state is market participant, OR (3) congressional approval Special deference to state regulation of corporate internal affairs Nondiscriminatory regulations of interstate commerceconsider burden on interstate commerce, promotion of legitimate local interests, and availability of less restrictive alternative Privileges and Immunities ClauseState can't discriminate against out-of-staters w/r/t important economic activities or constitutionally protected rights unless necessary to achieve an important government purpose

Dormant Commerce Clause

Privileges and Immunities

Dormant Commerce ClauseReasonable and nondiscriminatory tax on interstate commerce okay except no state tax on commodities in the stream of interstate commerce except at beginning and end of transit

State taxes
Taxation

Due ProcessFair apportionment and substantial nexus Federal government immunityStates can't tax or regulate federal government and its agencies, but nondiscriminatory and regulations taxes that do not unreasonably burden federal government are okay; Can't require state license for work on federal lands Plenary power to tax or spend for the general welfare Can attach strings to federal appropriations even where no enumerated power to legislate directly Tax is valid if main purpose is to raise revenue or Congress has power to regulate in that area Federal government can't impose a tax that only applies to state or local government activities

Federal

Congress
War

Power to declare war, raise and support army and navy, constitute military tribunals Commander in Chief of armed forces; Can act militarily in actual hostilities against US absent congressional declaration of war Regular federal courts have no power of judicial review over military tribunals Military tribunals can try enemy combatants and soldiers, all offenses of soldiers if member of armed forces at time of offense and when charged, american civilians only if actual warfare shut down federal court system Citizen enemy combatants entitled to meaningful opportunity to contest factual basis for detention before neutral decisionmaker

President

Courts

Individual rights
Selective incorporation Bill of rights protections incorporated by 14th Am Due Process Clause except right to bear arms, right to grand jury in criminal cases, right to jury trial in civil cases Public function State action requirement Signicant state involvement Performing activities traditionally and exclusively carried on by state (company town) Symbiotic relationship or situation where state facilities encourage or authorize discrimination One-person-one-vote requirement for state and local elections No property ownership requirements except special purpose elections

Protected rights
Taking for public use triggers right to FMV compensation

Property

Possessory takingConscation or physical occupation Regulatory takingRegulation leaves no reasonable economically viable use for property Marry, custody of children, keep extended family together, purchase and use contraceptives

Vote

At-large elections okay unless discriminatory purpose Election lines subject to strict scrutiny No counting uncounted votes without standards Interstate travelNo durational residency requirements for receiving medical care or welfare benets, but okay for in-state tuition, divorce, registering to vote International travelRational basis

Privacy

Abortionpreviability: no undue burden; postviability: where necessary to protect woman's life or health Refuse medical treatmentBut not right to physician-assisted suicide; State may require clear and convincing evidence Free ExerciseNo religious exemption required for neutral laws of general applicability, but can't deny benets to people who quit their jobs for religious reasons Establishment(1) secular purpose, (2) primary effect that neither advances nor inhibits religion, (3) no excessive government entanglement with religion

Travel

Religion

Government-sponsored religious activities in public schools unconstitutional Government aid to parochial schools available to all students at public and private schools can be used for religious purposes Religious displays in public places where no religion is favored constitutional Tax exemptions for religious propertyconstitutional Tax exemptions only for religious organizations and tax credits only for religious schoolsunconstitutional

Public employment and bar membership

Can't be denied based on group afliation unless knowing and active member of group with specic intent to further group's unlawful purpose Can require oath to support the Constitution and oppose overthrow of the government Strict scrutiny where disclosure would chill association

Association

Loyalty oaths Disclosure of group membership

Procedural Due Process

Entitled to process if intentional deprivation of liberty (constitutionally or statutorily protected right) or property (legitimate claim of entitlement) Process required determined by balancing individual's interest, government's interest, and the value of additional procedures Out-of-staters Race, national origin, alienage, exercise of fundamental right (travel, vote, privacy) Sex, legitimacy All other Privileges and ImmunitiesCan't discriminate w/r/t important economic activities or constitutionally protected rights unless necessary to achieve an important government purpose Strict scrutiny standard (necessary to achieve compelling government purpose) Intermediate scrutiny standard (substantially related to important government purpose) Rational basis standard (rationally related to legitimate government purpose)

Discrimination

Congress can legislate (even private conduct) to abolish "badges of slavery"

Speech
Facial attacks

OverbreadthIncludes substantial amount of constitutionally protected speech VaguenessPerson of ordinary intelligence must guess at meaning Unfettered discretionLicensing ofcial can't have unfettered discretion whether to deny or permit speech Prior restraintinvalid unless required by national security interests or regulation (with procedural safeguards) of obscene books and lms Clear and present dangerno protection Fighting wordsno protection Defamationno protection Directed producing and likely to produce imminent unlawful action; no protection very utterance inict injury or tend to incite an immediate breach of the peace; no protection (never applied) Public ofcials and public gures: must show malice + known falsity / reckless disregard for truth Matters of public concern: must show negligence and falsity (1) appeal to prurient interest in sex (community standard); (2) depict sexual conduct in patently offensive way (community standard); (3) lack serious literary, artistic, political, or scientic value (national standard) Can seize assets of business violating obscenity laws, but can't punish private possession of obscene materials except child for child porn If regulation is aimed at secondary effects of speech (crime, prostitution...) valid if (1) important / substantial government interest unrelated to suppression of speech and (2) no greater incidental burden on speech than necessary (can't prohibit all adult entertainment) Can regulate profanity Concerning illegal activity or misleadingno protection Commercial speech Otherwise, can restrict if (1) substantial government interest in restriction, (2) directly advances government interest, and (3) no more extensive than necessary (least restrictive means not required) (1) substantial government interest unrelated to suppressing expression, and (2) incidental burden on speech no greater than necessary

Obscenityno protection

Content-based regulations

Strict scrutiny, except...

Secondary effects (strip clubs)

Public airwaves, schools

Symbolic speech

Time, place, and manner

In public forums (streets, parks, sidewalks) (1) signicant government interest); (2) narrowly tailored; (3) leave open alternative channels of communication In nonpublic forums(1) viewpoint neutral; (2) reasonably related to legitimate government interest

Contracts

Creation

Offers

(1) Reasonable person would believe parties assented

(2) Intent to be presently bound

(3) Deniteness

Identify offeree Real estateLand and price terms GoodsQuantity and subject matter EmploymentDuration of employment

By offeror

Revocation

Termination Rejection Counteroffer Operation of law (1) Lapse of time (2) Death or insanity (3) Destruction (4) Supervening illegality

Acceptance or part performance can clarify vague terms; Can't agree to agree on material terms in the future Can revoke at will, EXCEPT... (1) Option contract (2) UCC rm offer (3) Detrimental reliance (4) Unilateral contract + started part performance Option contractsStay open despite rejection unless offeror detrimentally relied on rejection

By offeree

(1) Offeree with power of acceptance (2) Unequivocal terms of acceptance (objective standard) (3) Communication of acceptance Any reasonable meansUnless offer limits acceptance to particular means By unauthorized meansEffective if acceptance actually received by offeror while offer still in existence Unilateral contractsAcceptance by performance; Must be with knowledge of and motivated by offer CL UCC UCC: Unconditional acceptanceContract UCC: Expressly conditional acceptanceCounteroffer Mirror image ruleAcceptance with additional or different terms creates counteroffer Offeror objects within reasonable timeOffer terms Additional terms materially alter agreement Offer terms unless offeror expressly assents to additional terms Different termsSPLIT whether offer terms or different terms knocked out and replaced with UCC default terms Merchantnonmerchant New or different terms are mere proposals Merchantmerchant Additional terms become part of contract unless ...

Method of acceptance

Acceptance

Acceptance containing different terms

Timing (Mailbox rule)

Acceptances are effective at dispatch, EXCEPT effective when received if... Option contracts Improperly stamped or mailed Offer stipulates acceptance not effective until received Send rejection; then send acceptance; rejection received before acceptance Send acceptance; then send rejection; but rejection received before acceptance + offeror detrimentally relies on rejection

Legal detriment standard (Minority: legal benet to promisee also sufcient) Act or forbearanceIf benets promisee / Refrain from suitIf claim valid or claimant believed in good faith that claim is valid No gifts / No past or moral consideration

Consideration

If preexisting legal dutyDuty to perform under duty is sufcient only if ... New or different consideration / Preexisting duty owed to third person Honest dispute as to duty Unforeseen circumstances sufcient to discharge party / Ratication of voidable obligation

AdequacyNo inquiry into adequacy or fairness of consideration, but token or sham consideration insufcient

MutualityNeed consideration on both sides; No illusory promises

Mutual Mistake Unilateral Mistake in transmission

(1) Basic assumption on which contract was made (2) Material adverse effect on agreed-upon exchange (3) Adversely affected party did not assume the risk Only a defense if party knew or should have known of other party's mistake Message operative as transmitted unless receiving party should have been aware of mistake Contract void unless.. (1) P unaware of illegality + D aware of illegality (2) Parties not equally culpable (not in pari delicto) (3) Illegality is failure to obtain license and license requirement imposed for revenue-raising, not public safety Contract voidable by party that was (1) unaware of purpose OR (2) aware but did not facilitate purpose and purpose does not involve serious moral turpitude

Illegal consideration or subject matter Illegality

Illegal purpose Defenses to formation Ambiguity

Neither party awareContract if both parties intended same meaning Both parties awareContract if both parties intended same meaning One party awareContract based on what ignorant party reasonably believed Misrepresentation Fraudulent or nonfraudulent materialVoidable by innocent party if justiable reliance on misrepresentation Fraud in the factumVoid Lack of capacity Duress and coercion Contract voidable if Under 18 Insane Intoxicated + Other party has reason to know of intoxication VoidableMore than taking economic advantage of another K for goods worth $500 or moreExcept... (1) Specially manufactured goods, (2) Written conrmation of oral agreement between merchants, (3) Existence of contract admitted in pleadings or court, or partial pay (4) Partial payment or delivery made and accepted Performance not possible within 1 year Interests in landExcept... (1) Full or partial payment (2) Possession (3) Valuable improvements made after transfer K to answer for debt or default of another In consideration of marriage By executors or administrators to pay estates' debts out of own funds (2) Sufcient memorandum? Unconscionability Identity and signature of D Identify subject matter Terms and conditions of agreement Recital of consideration Need not be in one document

(1) Transaction within the statute? Statute of frauds Defenses to enforcement

So one-sided as to be unconscionable at time contract made

Impossibility Excuse of performance Impracticability Destruction of subject matter Frustration of purpose

Unforeseen event makes performance objectively impossible Unforeseen event makes performance extremely difcult for D Destruction must make performance impossible, not just more expensive Unforeseen event eliminates the purpose of the contract

Basic rules of construction Parole evidence (1) Integration? Intended as complete and nal expression of agreement

Written in or typed provisions prevail over pre-printed Construe ambiguities against drafter Where intent unclear look to custom and usage, and course of performance

Interpreting the contract (2) If no complete integration, admit parol evidence

Evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or vary contractual terms to show... Defects in formation (fraud, duress, mistake, illegality) Mistake in integration Existence of condition precedent Ambiguos termsto show parties' intent Consideration was sham Collateral agreement Subsequent modications PrecedentSatisfaction of condition creates duty ConcurrentPerformance mutually dependent SubsequentCut duty short

Categorize

Construction

If party intent is clearParty intent governs If party intent is unclearPresumption in favor of promise, not condition P has burden to plead and prove conditions precedent D has burden to plead and prove conditions subsequent Other party wrongfully prevents condition from occurring Indication that won't insist on condition Waiver Continuing under the contract despite unsatised condition Not for material conditions Does not waive right to damages

Conditions Excuse of conditions

Procedure

Modication Release Substitution Executory on both sidesMutual agreement to rescind Mutual Rescission Unilateral Only if proper defense to enforcement Fully performed on one sideAgreement to rescind not enforceable UNLESS (1) New consideration (2) Promissory estoppel ... most common scenario ... MistakeMutual mistake affecting basis of the bargain; Unilateral mistake if nonmistaken party knew or should have known mistake Parties enter into second contract immediately revoking rst contract Must be in writing and supported by new consideration or enforceable under promissory estoppel

Need mutual assent UCC: No new consideration for good faith modication

Changing the contract

Accord and satisfaction SatisfactionDischarge original debt

AccordAgreement to accept different performance

Agreement to pay less okay if (1) Agree to pay in different form, at a different time, or to a different person (2) Good faith dispute on claim

Novation

Previous valid contract required Agreement among original parties with new party creates new valid contract and immediately extinguishes duties between original contracting parties

Material breach? Test for materiality:

Breaching party: Negligent or willful? Nonbreaching party: How much benet received? Compensation for damages adequate? EffectDuty of return performance, but party with decient performance still liable for damages to compensate for incomplete performance Excuses return performance Immediate claim for damages for breach

Breach

Substantial performance

(1) No willfull failure to perfectly perform AND (2) Perfect performance not express condition of return performance Statement that repudiating party will not perform

Anticipatory repudiation

Third parties Incidental beneciary NO REMEDYCan't sue promisor or promisee TPB v. promisor Promisor can assert promisee's defenses, unless promise was absolute promise to pay as opposed to promise to pay what promisee owed TPB v. promisee (can sue) TPB v. promisor Promisor can assert promisee's defenses TPB v. promisee Only if gift enforceable under promissory estoppel theory Type of beneciary Creditor beneciary Promisee intends to pay off obligation to TPB Donee beneciary Promisee intends to make a gift to TPB Intended beneciary (1) Identied in contract (2) Receives performance from promisor (3) Relationship with promisee indicating intent to benet

Third party beneciaries Third party contemplated at formation

Promisor Time for suit Vesting of rightsRights must have vested before TPB can sue TPB manifests assent to promise TPB material and justiable reliance TPB sues to enforce

Promisee

TPB

Assignment New party gets rights to contracting party's performance

(1) Assignable contract?

(2) Formalities?

Obligor

Obligee Assignor

Assignee

(3) Enforcement

Not assignable: Asssignment would substantially changed obligor's duty or risk Future rights from future contracts Prohibited by law / contract (Provision prohibiting assignment of "contract" construed as barring only delegation of duties) Adequate description of rights assigned Writing not required Consent of obligor not required Gratuitous assignment effective but revocable Assignee v. obligor Obligor can assert defenses inherent to the contract only (not assignor's defenses against assignee) Assignee v. assignor Only for assignor's wrongful exercise of power to revoke; Can't sue if obligor incapable of performing

Successive assignments of same rights

First assignment prevails except if second assignee... Paid value Took without notice of the rst assignment Got judgment or payment of claim rst

Delegation New party obliged to render performance to contracting party

(1) Delegable duty?

(2) Formalities

Not delegable: Duties involving personal judgment and skill Delegation would change obligee's expectancy Special trust in delegator Prohibited by contract No special formalities required Obligee v. delegateOnly if delegate assumes duty and receives consideration Obligee v. delegator (can sue)

Obligor Delegator

Obligee

(3) Enforcement

Delegate

Criminal Law

Inchoate offenses Act Attempt Specic intent

CL: Proximity testD came dangerously close to committing crime MODERN: Substantial step testSubstantial step (beyond mere preparation) in course of conduct planned to culminate in commission of the crime that strongly corroborates actor's criminal purpose Impossibility Factual impossibility no defense Legal impossibilityIf what D intended was not criminal
Note: SPLIT whether legal status of goods (stolen or not stolen) is legal or factual mistake

Defenses issues

Abandonment not a defense

MergerAttempt merges with completed offense ActIncite, counsel, adavise, urge, command to commit a crime Solicitation Specic intentthat solicited person commit solicited crime MergerSolicitation merges with attempt, conspiracy, or crime actually committed Scope of liabilitySolicitor liable for solicited's attempt, conspiracy, or crime actually committed CL: Agreement iself is act MODERN: (1) Agreement + (2) Act in furtherance of the conspiracy CL: Specic intent to (1) commit a crime or (2) engage in fraudulent or immoral conduct injurious to public health or morals MPC: Specic intent to commit a crime
SuppliersSuppliers of goods or services used in furtherance of the conspiracy liable if (1) encourage to commit crime or (2) have stake in success of criminal objective (e.g. charge inated price)

Act

Intent

CL: Need real agreementBoth parties must intend to agree; Party feigning agreement or lacking capacity to conspire can't be conspirator Conspiracy Parties to the conspiracy Need at least two MPC: Conspiracy liability possible even if no real agreement CL: Wharton's RuleCrime formally or logically requires more than one person (e.g. adultery) CL: Husbandwife immunity Defenses Legal impossibilityNo conspiracy liability where could not be held liable for crime itself CL: Acquittal of co-conspiratorsD can't be convicted if all co-conspirators were acquitted on the merits For all foreseeable offenses committed in furtherance of the conspiracy by all known / unknown coconspirators Liability Acts to cover up crime not included in conspiracy unless express cover-up agreement to among conspirators Chain vs. wheel structure of conspiraciesLiable in same chain, but not for unconnected spokes of the wheel No merger of conspiracy and crime itself Accomplice liability Act Liable for principal's crime if aid, abet, encourage or assist; Mere presence not enough, but "mere words" can sufce Don't have to be present at crime scene Irrelevant that aid, if given, was not crucial to commission of crime If attempt to aid, but fail, can be liable for attempt under accomplice theory Specic intent to bring about criminal result + Mens rea required for principal crime (1) all natural and probable consequences of conduct D intended to assist + CL only: (2) additional crimes committed in furtherance of original criminal objective Principal must be found guilty; Can't be liable if couldn't be held liable for principal's crime Can't be liable if crime logically requires second person and no direct punishment authorized Defense if undo effect of aid, make clear that no longer encourage; Notifying authorities is effective withdrawal; Need not actually thwart crime Assist criminal in avoiding apprehension Completed felony must have been committed Felon need not yet have been charged Assistance must be given personally Knowledge that felon has committed felony Not liable for principal's crime; Liable under obstruction of justice theory

Accomplice before the fact

Intent

Liability

Withdrawal

Act Accomplice after the fact Intent Liability

Homicide Voluntary Act Act Omission where duty to act Types of homicide and corresponding intent Intent to killPurpose and knowledge of substantially certain result Murder Intent to cause great bodily harm Intent to resist known lawful arrest Wanton and reckless disregard for lifeVoluntary intoxication no defense Felony murderIntent to commit felony murder (MAJORITY: must be forcible felony) Proof of underlying felony Murder must happen between time of attempt and immediate ight from felony MODERN: D or criminal accomplice must directly kill victim, and victim must be innocent person, not accomplice (1) Heat of passionWould cause reasonable ordinary person to lose self-control; More than mere words; Don't consider D's special propensity for anger irrelevant CL: Actual or threatened battery, or perceived indelity MODERN: Liberalized view of circumstances constituting adequate provocation (2) Insufcient time to cool off Intentional killing with mistaken justication (some jurisdictions) Belief that would justify killing were it not erroneous or unreasonable First degree murderIntent to kill + Deliberation and premeditation

Intentional killing with adequate provocation

Voluntary Manslaughter

If victim doesn't dieSPLIT whether liable for attempted voluntary manslaughter or felonious assault Ordinary recklnessConscious disregard for substantial and unjustiable risk of death or serious injury (less than wanton disregard for life) Involuntary Manslaughter Gross and culpable negligenceWanton disregard of risk of death or serious injury (more than ordinary negligence; must be aware of risk) Unlawful acts not triggering felony murder rule Intent to frighten or injure with adequate provocation Intent to frighten or injure with mistaken justication Quick comparison Intent to kill Intent to injure Murder, unless... Murder, unless... Adequate provocation/ Mistaken justication Adequate provocation/ Mistaken justication Wanton disregard of risk of death or serious injury Ordinary recklessness/ Gross and culpable negligence Forcible felony Misdemeanors and nonforcible felonies Voluntary manslaughter Involuntary manslaughter

Murder Involuntary manslaughter Felony murder Involuntary manslaughter

Negligence / Recklnessness

Intent to commit wrongdoing

Other offenses against the person Battery Assault Unlawfu, unconsented touching Attempted Battery Specic intent to put in apprehension of immediate battery

Property offenses Breaking and entering BreakingCreate or enlarge opening; MODERN MAJORITY: Overstaying welcome or privilege sufcient EnteringIntrusion into property w/ body or instrument that is used for criminal purpose other than entering Where one normally sleeps, including boats and trailers where people sleep Can be unoccupied at time of entry Includes structures immediatley surrounding or connected to the dwelling Between 30 minutes before sunset or after sunrise

Burglary

Dwelling

Nighttime Intent to commit a felony therein Take and carry away property of another Intent to permanently deprive

Larceny (Thief)

D must know property belongs to another; Claim of right is complete defense D can't intend to return identical property D can intend to pay for property or give it back if reward is offered

Take and carry away property of another Robbery From person By force or threat Intent to permanently deprive Threat to V, V's family, or V's property; Threats to accuse, charge, prosecute, expose to extreme humiliation sufcient Need not relate to immediate harm Claim of right no defense Threat must precede or accompany taking; Can be to V, V's family, or V's property

Extortion

Malicious threats Compel another to pay money / refrain from doing something

Acquire title to personal property of another False pretenses Representation of fact known to be false Owner reliance on false representation

Embezzlement

V's property entrusted to D's custody Improper use of property

Entrusted pursuant to special duciary relationship

Stolen property Receipt of stolen property Receiving possession and control Knowing that property was stolen Intent to permanently deprive owner of property Intentional destruction of or damage to property of another

Malicious mischief

Forgery

Making or altering writing so that it is false Intent to defraud

Includes fraud in the factum

Arson

Intentional or reckless burning Dwelling of another

At least charring; More than smoke or discoloration

Defenses Insanity

M'Nahgten(1) Not know nature and quality of act OR (1) Not know act was wrong DurhamCrime was product of mental illness Irresistible impulseUnable to conform conduct to law ALI/MPC(1) Not know nature and quality of act OR (2) Unable to conform conduct to law Intoxication VoluntaryOnly for specic intent crimes where negates intent InvoluntaryFor any crime if negates intent Under 7: Can't commit crime 7-14: Presumed incapable, but prosecution can rebut by showing child understood conduct was wrong Over 14: Tried as adults (s/t juvenile statutes) Factual Mistake Legal Specic intent crimesMaterial General intent crimesReasonable + material Can negate intent MPC: Reasonable reliance on statute judicial decision, ofcial interpretation or advice D not initial aggressor (Initial aggressor can regain right of selfdefense only after completely abandons aggression or in response to V's use of excessive force) No duty to retreat MINORITY: Duty to retreat (1) from home, If possible to retreat safely; (2) when making lawful arrest, or (3) when being robbed

Defeat mens rea Infancy

Self-defenseForce reasonably necessary to prevent imminent bodily harm

Defense of others Justication for use of force Defense of property

CL: Stand in shoes of victimPrivileged only if V would have been privileged to use same force in self-defense MODERN: Force reasonably believed justied Moderate force to prevent theft, destruction, or trespass No deadly force ever allowed Risk of mistake Police privileged as long as force appeared reasonably necessary Citizens bear risk of mistake

Arrest

Make arrestAny force necessary and proportionate to offense involved and resistance offered

Defend against unlawful arrestReasonable nondeadly force; D bears risk of mistake NecessityObjectively reasonable belief that commission of the crime necessary to avoid imminent and great public or private injury; D cannot have created the risk

Criminal Procedure

1. Evidence obtained in violation of 4th, 5th, 6th Am? Seizures Arrests = Reasonable person would believe that not free to leave PC + Warrant only for nonemergency home arrests Stop and frisk Stop and ask for ID if reasonable suspicion of criminal activity supported by articulable facts Frisk for weapons if reasonable suspicion detainee is armed and dangerous Seize property if reasonable suspicion Arrest if fail to identify Automobile stops Individualized stop if reasonable suspicion that law violated (pretext stop okay) Roadblock stops if neutral and articulable standard + trafc-related purpose

= Take person into custody against her will for prosecution or interrogation

Other detentions

Order occupants out after valid stop Frisk occupants and search passenger compartments if reasonable suspicion that armed and dangerous Prevent from going into home unaccompanied until obtain search warrant if PC to believe hidden drugs in house Detain occupants of premises being searched pursuant to valid search warrant Use deadly force to apprehend subject if PC suspect poses signicant threat of death or serious physical injury (but death caused by attempt to arrest not necessarily 4th Am seizure) Right to possession / Home / Overnight guestsYES 1. Reasonable expectation of privacy? Held out the publicNO (voice, handwriting, location of car on public roads and driveways, curtilage, land visible from public place (including yover), car paint, bank account records, garbage left for collection, smell of luggage) InformerIdentity, reliability, credibility, basis for (1) Afdavit establishing PC + knowledge need not necessarily be established (2) Submitted to neutral and detached Going behind face of afdavit magistrate+ (1) False statement + (3) Precise on its face (describing place to (2) Intentionally or recklessly included + be searched and items to be seized) (3) Material to nding PC Incident to lawful arrestPerson and wingspan into which person might reach to obtain weapons or destroy evidence; Protective sweep area if believe accomplices may be present Incident to incarceration / impoundmentInventory search of arrestee's belongings / vehicle 3. Exception? Automobile exception If PC that vehicle contains evidence of a crime, can search vehicle and any container that might reasonably contain item for which searching including occupants' belongings; Can also tow the vehicle and search later; If believe vehicle itself is contraband, can seize from public place without warrant Plain view(1) Legitimately on the premises + (2) Discover evidence of crime + (3) In plain view + (4) PC that item is evidence ConsentVoluntary and intelligent (but need not know right to withhold consent); If consent by person with apparent equal right to occupy, can use evidence found against other owners or occupants Frisk, stop andIf reasonable suspicion that detainee has weapon, patdown of outer clothing only unless specic information that weapon hidden in particular area; Reach in and seize item w/ 'plain feel" of weapon or contraband Hot pursuit of eeing felonEven follow into private dwelling Evanescent evidence / other exigencies (Contaminated food / drugs, children, burning res) Searches in foreign countries / at the border Searches in foreign countries / at the borderNo 4th Am protection Fixed checkpoint inside countryCan stop and disassemble vehicle even w/o reasonable suspicion Roving patrolsNeed reasonable suspicion of illegal aliens to stop and question International mailCan search, if reasonable suspicion of contraband Wiretapping and eavesdropping Wiretap: Need warrant(1) PC + (2) Name suspected persons + (3) Describe conversations to be overheard Pen registersNo 4th Am claim; Statute requires prior judicial approval Informer taping or wired for soundNo 4th Am claim where Limit to short period of time; Terminate when desired information obtained; Make return report to court

Searches

2.Valid warrant?

POs execute; Can detain but not search persons found on premises not named in warrant

Special search circumstances

VoluntarinessNo ofcial compulsion; Consider totality of the circumstances (14th Am) Confessions Effect of asserting Miranda rights PO: Can't question on charged crime; Can question on D: "Want to remain silent" unrelated crimes later (5th Am right to counsel not claimed; 6th Am right offense-specic) D: "Want lawyer" Miranda warnings (5th Am) PO: Can't question on any crime (5th Am right to counsel) Question rst, warn later, subsequent confession Subsequent confession admissible if original unwarned questioning unplanned and inadvertant (not PO scheme to get around Miranda) NO MIRANDA VIOLATIONS D does not know being interrogated by govt agent D not in custody (objective standard) Spontaneous confessions Routine booking questions w/o prior Miranda warning Grand jury Public safety exception (e.g. nd ticking bomb) 6th Am right to counsel Burden on PO to get waiver Unless waived, can't question concerning charged offense outside presence of counsel, but can question regarding unrelated (i.e. requiring proof of additional element), uncharged offense Right to counsel in: custodial police interrogation any post-indictment interrogation preliminary PC hearing arraignment post-charge lineups guilty plea and sentencing felony trials and misdemeanor trials where imprisonment actually imposed overnight recesses (not short recesses) appeals as a matter of right parole and probation revocation if involves imposition of new sentence or representation necessary to fair hearing

Right to counsel (5th & 6th Am)

Ineffective assistancePresumption of effectiveness; Must show (1) decient performance + (2) result would have been different, to get reversal Pretrial ID Right to counselAt post-charge lineup or showup only Due ProcessDP violation if (1) unnecessarily suggestive + (2) substantial likelihood of misidentication

2. Exclusionary remedyShould trial court exclude evidence? Govt has burden of establishing admissibility by preponderance; D can testify at suppression hearing w/o testimony being admitted against him at trial on issue of guilt Direct evidence Evidence obtained in violation of D's 4th, 5th, 6th Am rights excluded, EXCEPT Grand juries (except wiretapping), parole revocation proceedings PO Good faith reliance on law, defective search warrant, clerical error For ImpeachmentVoluntary confessions in violation of Miranda to impeach any W; Illegal search evidence to impeach D (not others) Fruits of unwarned confessionUnclear whether must be suppressed Derivative evidence Fruit from poisonous tree (from exploitation of illegally obtained evidence) excluded, EXCEPT Independent source Intervening act of free will by D Inevitable discovery

3. Harmless errorIf trial court should have excluded, should reviewing court overturn? On appealGovt burden to show beyond reasonable doubt that error was harmless In habeas corpusD has burden to show substantial and injurious effect or inuence of evidence on jury verdict NEVER HARMLESS: denial of counsel at trial exclusion of minorities from grand jury

FORMAL PROCEEDINGS / CHARGES

5th Am right to counsel Burden on D to claim right unequivocally If exercised, can't question regarding any offenses outside presence of counsel

Rights at Trial Speedy trial (6th Am)

Evaluation of totality of circumstances (length and reasons for delay / whether D asserted right / whether delay resulted in prejudice); Attaches when D arrested or charged; Reversal if favorable evidence withheld + prejudice resulted (willful withholding not required); POs not required to preserve all items that might be used as exculpatory evidence, but can't destroy in bad faith

Duty to disclose material, exculpatory evidence (DP)

Competency to stand trial (DP) Public trial

Lack rational and factual understanding of charges and proceedings + Lack sufcient ability to consult with lawyer; Can require preponderance (but not clear and convincing) showing by D of incomptency

Pretrial proceedings: presumed open, but can be overcome by overriding interest and no reasonable alternative to closure; Trial: press and public have independent 1st Am right to attend even if D and prosecutor agree to exclude public Violation only where actual malice / nancial interest in guilty verdict

Unbiased judge (DP)

TriggerFor offenses punishable by 6+ mos. imprisonment / 5+ ys probation; Not for juvenile proceedings NumberAt least 6; If 6, need unanimous verdict; If 12, don't need unanimous verdict Jury Discrimination in selection of jurors Venire (not jury itself) from cross-section of community No race- or gender-based peremptory challenges (D shows inference of race- or gender-based exclusion; Prosecutor gives raceneutral explanation (need not be reasonable); Judge determines whether prosecutor explanation genuine) Impartiality of jurors Can question potential jurors on racial bias if race bound up in case or accused of interracial capital crime Automatically reverse death sentence if juror excluded b/c of mere scruples about imposing death penalty; Must exclude juror who would automatically give death penalty regardless of mitigating circumstances If use up one peremptory challenge to strike juror who should have been excluded for cause, no constitutional violation D must notify prosecution of intent to use and give list of witnesses: Prosecution must give list of witnesses will use to rebut Important public purpose can override right to confront adverse witneses (e.g. protect witness from trauma) Can introduce Co-D's confession only to rebut D's claim that confession obtained coercively and if (1) all references to D eliminated from Co-D's confession + (2) Co-D takes stand and subjects himself to cross w/r/t truth of confession Hearsay evidence of unavailable H admissible only if D had opportunity to cross at time statement made Violation if require D to stand trial in prison clothing / expose jury to pro-prosecution inuence / preclude jury from giving evidence reasonable consideration EligibilityNatural persons, not entities; Privilege is person TriggerResponse might furnish link in chain of evidence needed to prosecute W; Violation occurs when compelled testimony used against W Procedure Criminal defendantRefuse to take the stand All other witnessesMust take stand, but can refuse to answer individual questions ScopeTestimonial evidence (not production or seizure of documents / physical evidence) Burden on assertion of privilegeProsecutor can't comment; No state penalties EliminationBy grant of use and derivative use immunity (Can still prosecute w/ evidence from independent source) Waiver Criminal defendantBy taking the stand All other witnessesBy testifying to issue Must claim in civil proceedings or issue deemed waived for criminal proceedings Factors vs. enhancementsJury must determine facts for enhancement beyond statutory maximum; Judge can determine presence of sentencing factors to determine which penalty in statutory range Sentencing Resentencing after reconvictionJudge must give reasons for imposing harsher sentence on D in reconviction after successful appeal Death penalty Only pursuant to statutory regime giving judge or jury reasonable discretion, full information on D, and guidance on how to make decision; Cruel and unusual punishment does not require similar punishment for similar cases If death penalty imposed based on prior conviction and prior conviction overturned, overturn death penalty imposed No death penalty for rape or felony murder (unless acted w/ reckless indifference to value of human life); No death penalty for mentally retarded (C&U) or murderers <16 y/o at time of crime Must be sane at time of execution Inconsistent verdicts not reviewable

Use of insanity defense

Confront witnesses

Prejudice (DP)

Privilege against self-incrimination

Standard:VoluntarinessJudge must advise D personally of (1) nature of charge; (2) maximum possible penalty and mandatory minimum; (3) right not to plead guilty; (4) plea waives right to trial; Need adequate record of taking pleas; Not involuntary just b/c prosecutor threatens to charge more serious offense if D doesn't plead Remedy for involuntariness is withdrawal of plea and plead again Pleas Specic enforcementAgainst prosecutor or D; Not against judge (not obligated to accept) Collateral attackOnly for (1) involuntariness; (2) lack of jurisdiction; (3) ineffective assistance of counsel; (4) failure to keep plea bargain No right to notice that grand jury considering indictment; No right to Miranda warnings that potential defendant; No right to counsel; No right to have excludible evidence excluded; No right to challenge subpoena Right not to have minorities excluded from grand jury (automatic reversal) Jeopardy attaches Jury trial: empaneling and swearing of jury Bench trial: rst witness sworn Not from civil proceedings other than juvenile

Grand jury

Double jeopardy

Can't retry for same offenseSame offense = same elements, unless legislative intent to have cumulative punishments First trial ended in hung jury

Lesser included offensesbarred Greater included offensesbarred unless greater offense (1) had not occurred at time of prosecution for lesser offense (2) evidence for greater offense was not discovered despite due diligence

First trial aborted due to manifest necessity First trial terminated at behest of a D on grounds not constituting acquittal on the merits First trial reversed based on weight (not sufciency) of evidence D breached plea bargain Subsequent civil actions Separate sovereigns (Municipality and state count as same sovereign) No atypical and signicant hardship; Right to adequate medical care; Reasonable access to courts; Regulations burdening 1st Am rights okay if reasonably related to penological interests; Can regulate incoming but not outgoing mail No reasonable expectation of privacy in cells

Exceptions

Cannot retry for greater offense; Can impose harsher sentence after giving reasons; Can't impose death if jury did not impose death at rst trial

Prisoners

Evidence

RELEVANCE + COMPETENCE Prior false claims of same bodily injury This claim likely false / condition attributable to prior injury Prior accidents or injuries caused by same event or condition Existence of condition / D's knowledge / causation Similar acts Motive / intent To rebut claim of impossibility Recent sales of similar property Value Habit / business routine Industry custom Standard of care

Relevance

Relate to time + event + person in present litigation, except

Liability insurance Not to show negligence or ability to pay Okay to show ownership, impeachment, admission Subsequent remedial measures Not to show negligence / defect / need for warning To show ownership or control / rebut claim of infeasibility / prove OP destroyed evidence Settlement offers and withdrawn guilty pleas Not to show liability for or invalidity of disputed claim Offers to pay medical expenses Not offer to pay itself / admissions accompanying offer admissible Judicial discretion to excludeUnfair prejudice / confusion of issues / misleading jury / undue delay / waste of time Real evidenceAuthenticated by W or substantially unbroken chain of possession Admission in pleading or by stipulation PAWO acted upon it as authentic Testimony by W who saw it executed / heard it acknowledged HandwritingVeried by nonexpert with personal (non-litigationrelated) knowledge of the handwriting / by expert or trier of fact by comparison to samples Ancient documents20 y/o + condition raises no suspicion as to authenticity + found in place where such writing would likely be kept Reply letterCommunication that document was in response to PhotographsW authentication / proper operation of unattended camera + lm from that camera X-rayAccurate process + machine in working order + qualied operator + custodial chain Oral statementWhere admissibility depends on identity of speaker... Competence Voice identicationAnyone who has heard voice at any time (even if heard solely for making identication at trial) Telephone conversationParty to call recognized X's voice / speaker had knowledge only X would / called X's number and person answered as X or X's residence / called X's business and talked to person answering about X's business

Public policy exclusions Note on abbreviations: H = Hearsay declarant W = Witness PAWO = Party against whom offered

Documentary evidenceProof sufcient to support jury nding that document is genuine, for example:

Self-authenticating documentsCertied copies of public records / ofcial publications / newspapers and periodicals / trade inscriptions / acknowledged documents / commercial paper and related documents / certied business records Best evidence rule If legally operative or dispositive document / W has knowledge only from reading document + trying to prove terms of the writing = have to offer original unless unavailable (lost, destroyed, unobtainable b/c outside jurisdiction in possession of third party, adversary failed to produce) OR PAWO admission of contents in testimony, deposition, or writing EXCEPT: facts exist independent of the writing / writing of minor importance / authenticated public records / duplicates Summaries of voluminous recordsSummaries okay if documents themselves would be admissible + opponent had equal access Jury issuesWhether original every existed / whether writing, record, photograph produced is original / whether evidence correctly reects contents of original

Wspersonal knowledge + declare that they will testify truthfully; Infants and insane not automatically disqualied; Judge determines capacity Dead man's acts (state law) prohibit parties with an interest in estate to testify to transaction or communication with deceased against representative or successor

Character evidence

Character is ultimate issue Always admissible Circumstantial evidence for how person probably acted

Civil casesNot admissible

If D ... Takes the stand

... Prosecutor can ... D's lack of credibility Cross examine D's Wes D's bad character V's good character D's bad character for same trait

Criminal cases

Reputation and opinion

Own good character to show innocence V's bad character where relevant to showing D's innocence

Specic acts of misconduct

Not to show only D's character or disposition to commit crime charged (except for sexual assault and child molestation) Admissible to show: (1) Motive for crime charged (2) Intent (3) Absence of Mistake or accident (4) Identity (5) Common plan or scheme Need (1) Sufcient evidence to support jury nding that D committed prior act AND (2) Probative value not outweighed by danger of unfair prejudice

ALTERNATIVES TO EVIDENCE Effect In civil casesconclusive In criminal casesjury instruction that may, but not required to accept as conclusive Judicial notice of laws Federal + state law / federal and forum state ofcial regulationsmandatory Muni ordinances / private acts / congressional and state resolutions / foreign lawspermissive Appropriate subject matter Adjudicative facts if (1) common knowledge OR (2) easily capable of verication Any legislative facts Legitimacy Against suicide Sanity Death when absent and not heard from for 7 years Driver is owner or agent of owner Chastity and virtue Regularity of public ofcials Continuance of persons or conditions as long as is usual with things of that nature Properly addressed, stamped, and mailed mail properly delivered Solvency Bailee's negligence from failure of bailee to return goods in original condition Solvency Marriage upon proof of marriage ceremony

Judicial Notice

Presumptions

Judicial controlTo avoid wasting time and protect Ws from harrassment No leading questionsExcept on cross-examination, to elicit preliminary or introductory matter, to help W who can't remember, is immature, or suffers from physical or mental weakness, when W is hostile Bad questionsMisleading, compound, argumentative, conclusionary, cumulative, unduly harrassing or embarrassing, assuming facts not in evidence Read testimony from prepared memorandumNO OP can demand production of writing at trial, Refresh present recollectionYES can cross W as to writing, and can introduce portions relating to testimony into evidence Read into evidence recorded recollection if (1)Had personal knowledge of facts in the writing but can't remember now (2)Writing by / under direction of / adopted by W when matter fresh on mind Lay W's opinion testimony okay for ... General appearance or condition of person Emotional state of person Something smelled, felt, heard ... Speed of moving object Value of own services Rational or irrational nature of another's conduct Intoxication Expert opinion testimony okay if ... (1) Expert knowledge would assist trier of fact + (2) Qualied as an expert + (3) Reasonable probability regarding opinion + (4) Proper factual basis (expert's personal observation / made known to expert at trial / type reasonably relied on by experts in eld) Opinion as to ultimate issue okay except mental state required for crime Can use treatise to cross / impeach if established as authority by expert, other expert, judicial notice

W testimony issues

W use of memoranda

Lay vs. expert testimony

Objections If don't object, waive objections and inadmissible evidence will be admitted

TimingAfter question, before answer; Otherwise motion to strike as soon as answer emerges as inadmissible At depositionsObjections to form should be made or else may be deemed waived; Objections to substance of questions can be postponed until deposition offered in evidence Review of evidentiary rulingsSustained general objection upheld on appeal if any grounds for objection; Overruled general objection upheld if any grounds for admissibility of evidence; Specic objections upheld if ground stated correct Opening the doorIf introduce evidence on a subject, can't object to other party introducing evidence on the same subject as irrelevant; If one party introduces part of a transaction or communication, other party can demand introduction of any other part that ought to be considered in fairness Unresponsive answerCan move to strike of own W only Offer of proofIf court rejects evidence, can make offer proof (W testimony, lawyer narration, tangible evidence) to persuade court to hear evidence / preserve issue of admissibility for appeal AttorneyClientAC communication + During professional consultation + In condence Corporate ofcials and employeesPrivileged where authorized by corporation to make the statements; Communications to third partiesIf necessary to transmit information between attorney and client; NO PRIVILEGE IF (1) Crime / fraud (services sought for); (2) Claim through same deceased client; (3) AC dispute DoctorPatientProfessional relationship + Course of treatment + Necessary for treatment NO PRIVILEGE IF (1) Wrongdoing (services sought for); (2) Patient puts physical condition in issue; (3) Docpatient dispute; (4) Contract waiver Not in federal law; In some states, only in civil cases (and maybe) nonfelony / nonhomicide criminal cases Psychotherapist / Social workerLike attorneyclient; Recognized in federal court Self-incriminationCan't be compelled to testify against self Spousal Immunity Criminal proceedings SpouseW must claim Statements made before or during marriage Claim during marriage only Condential Marital Communications Criminal and civil proceedings Either spouse can claim Statements during marriage only Claim before or after marriage

Testimonial privileges

Can't comment on claim of privilege WAIVER: Failure to claim, voluntary disclosure, contract; NO WAIVER: Eavesdroppers (Modern: even eavesdropper prohibited from testifying unless negligence by one claiming privilege)

Prior inconsistent statement W must be given opportunity to explain or deny statement; Hearsay rule does not apply Evidence of bias or interest

MethodBy examination or extrinsic evidence; Common devices:

Conviction of crimeEven if judiical review of the crime pending; For moral turpitude crimes, court has no discretion to bar; For other felonies, court has discretion to exclude if W is the defendant and the prosecution has not shown that conviction's probative value outweighs prejudicial effect, or if W is not defendant and court determines probative value substantially outweighed by prejudicial effect Not where 10+ years passed since conviction / release from connement (whichever later) Not juvenile convictions Not where conviction obtained in violation of D's consitutional rights Not where W has been pardoned and pardon based on innocence / no subsequent felony conviction Bad acts probative of truthfulnessInquiry must be in good faith; Judge has discretion to exclude; No extrinsic evidence Opinion or reputation evidence for truthfulness Sensory deciencyElicited on cross or through extrinsic evidence

Impeachment By any party

No impeachment on collateral mattersCan't introduce extrinsic evidence to show statement related to collateral matter to be untrue Impeach hearsay declarantIf declarant statement introduced, can attack and introduce evidence that would be admissible if declarant had testied as a W; No need to give declarant opportunity to explain or deny prior inconsistent statement

Can't bolster credibility of W before credibility attacked Can rehabilitate impeached W by showing good reputation for truthfulness; Prior consistent statement only to rebut charge of recent fabrication or motive to exaggerate, can show consistent statement prior to motive arising

HEARSAY

Nonhearsay?

Not offered to prove the truth of the matter asserted Legally operative facts / verbal acts Statements to show effect on the hearer or reader Circumstantial (NOT direct) evidence of H's state of mind Prior inconsistent statement under oath Prior consistent statementIf offered to rebut a charge that W is lying or exaggerating, and prior statement made before motive to lie or exaggerate arose Admission by party-opponent Need not have been against interest when made; May be in the form of an opinion; Personal knowledge not required; Formal judicial admissions are conclusive; Informal judicial admissions and extrajudicial admissions are not conclusive, can be explained; Silence can be an admission if party heard and understood statement, was physically and mentally capable of denying statement, and reasonable person would have denied accusation; Vicarious admissions by agent, partner, co-conspirator (opportunity to cross if testimonial admission) Criminal cases H unavailable + D had opportunity to cross when statement was made (Confrontation Clause) Former testimony (1) PAWO was party (or in privity with) a party to the former action + (2) Action involved same subject matter + (3) Former testimony under oath + (4) PAWO had opportunity to develop H's testimony Statement against interestKnew statement was against interest and had personal knowledge of the facts; If trying to show that H admitted the crime, need corroborating circumstances Dying declarationsBelieved death was imminent + Statement concerns cause or circumstances of believed impending death; Not required that H ultimately die Statements of personal or family historyConcerning births, marriages, divorces, relationships, genealogical status, if H member of or intimately associated w/ family in question and statements based on personal knowledge Statements offered against party procuring H's unavailability Present state of mindNot for facts concerning will; Not statement of memory or belief Excited utterancesRelating to startling event + Statement made while under stress of the excitement Present sense impressions Present bodily condition Past bodily condition made to medical personnel to assist in diagnosing or treating condition Past recollection recordedIf H cannot now remember Business records (or absence)Entry in regular course of business + near to time of transaction; Must authenticate record by custodian testimony or written certication; Within personal knowledge of entrant or within knowledge of someone with duty to transmit information to entrant; Ofcial records and writings (or absence)Made in scope of public employee's duty Records of activities of ofce or agency Recordings of matters observed pursuant to legal duty to observe In civil cases or against prosecution in criminal cases only, Records of factual ndings from authorized investigation JudgmentsFelony convictions, to prove fact essential to judgment Statements in 20+year-old document Statements in any document about interest in property Treatises ReputationEvidence of character, personal or family history, land boundaries, community's general history Family records Market reports

Hearsay, but admissible under exception? H unavailable Privilege Refuses to testify Lack of memory Death or physical or mental illness Absent and proponent unable to procure

Civil cases

Regardless of H availability

Catch-all exceptionCircumstantial guarantees of trustworthiness + Statement strictly necessary + Notice to adversary as to nature of statement

Property

Estates in Land Fee simple determinableDurational language Fee simple s/t condition subsequentConditional language Fee simple s/t executory interestFSD / FSCS which reverts to third party

Fee simple

Present estates

Defeasible fees

Fee tail

Life estate

Waste

Afrmative (using up the land)Exploitation of natural resources limited to when (1) necessary for repair or maintenance OR (2) land suitable only for exploitative use (open mine doctrinecan continue to mine from open mines) OR (3) express or implied grantor permission Permissive (letting things slide)Must preserve land and structures in reasonable state of repair, pay interest on mortgage, ordinary taxes, special assessments for public improvements of short duration (apportion for improvements of long duration); Not obligated to insure premises for remaindermen; Not liable for tort damages caused by third parties Ameliorative (improvements)Allowed if FMV not diminished and remaindermen don't object / substantial and permanent change in neighborhood conditions deprived property in current form of reasonable productivity or usefulness

Future interests

ReversionAfter life estate or leasehold

To grantor

Right of entryAfter fee simple s/t condition subsequent; Grantor must exercise for estate to revert

Possibility of reverterAfter fee simple determinable; Estate automatically revertes

Executory interestCut short / follow gap in preceding estate; Springing if follows grantor's estate / Shifting if follows third-party's estate

To third party

RemainderFollows natural expiration of preceding estate

DestructibilityIf condition not satised / person not born when preceding estate terminates ... CL: Estate reverts to grantor; Contingent remainder destroyed MODERN: Estate reverts to grantor; Contingent remainder converted to executory interest which divests grantor's reversionary interest when condition satised or person born MergerContingent remainder alone sandwiched between another person's present and future interest.... Contingent remainder destroyed; present and future interest merge (except where present and future interest created in same instrument, no merger) Rule in Shelley's CaseRemainder in grantee's heirs ... becomes vested remainder in grantee Doctrine of Worthier TitleRemainder in grantor's heirs ... becomes vested remainder in grantor (only in inter vivos transfers; not where contrary grantor intent)

Indefeasibly vested remainder Not s/t divestment or diminuition Vested remainder s/t to open S/t diminution by additional persons joining class Vested remainder s/t to total divestmentS/t condition subsequent Contingent remainderS/t condition precedent or created in unborn or unascertained person

... it rhymes, kind of... Transferability Vested remainders transferable, descendible, devisable; Contingent remainders and executory interest CL: not transferable inter vivos MODERN: transferable; Descendible and devisable unless survival is condition to vesting

"Rule of convenience": Class closes and rights vest when member can call for distribution

Applies toExecutory interest; Vested remainder s/t open; Contingent remainder; Options to purchase Executory interest following FSD or FSCS if condition or duration could exceed 21 years Open class gift w/ condition that members survive age beyond 21 Fertile OctogenarianReference to "children" of old woman + "children" take at certain age / someone takes after "children" die Unborn widowerReference to "widow" + "widow" takes at certain age / someone takes after "widow" dies Slothful executorReference to administrative contingency

Rule against perpetuities

The interest must vest or destroy w/in 21 years after "life in being"

Common applications

LandlordTenant CreationExpressly limited duration TerminationTerminates automatically Creation Implied where no set duration and rent paid in intervals Created by law after L holds T over to new lease Notice for terminationOne period advance notice, except only 6 months for year-to-year lease CreationExpress agreeement that L can terminate at any time; If lease grants L right to terminate at will, T's right to terminate at will implied, but not vice versa TerminationAt will, without notice CreationT wrongfully remains in possession; L has not elected eviction or holdover yet Notice of terminationrequired

Tenancy for years

Periodic tenancy

Types of Leaseholds

Tenancy at will

Tenancy at sufferance

Assignment

Assignee in privity of estate; Can enforce covenants that run with the land

Assignor in privity of contract

Sublease

Assignor stays in privity of estate and privity of contract

Residential sublessee may be able to enforce implied warranty of habitability MAJORITY: L duty to put T in actual possession (i.e. get rid of holdover) MINORITY: L only has duty to put T in legal posession (i.e. T has to get rid of holdover himself) Accept surrender Abandonment Reject surrender Treat as surrender and accept, thereby terminating T duty to pay rent (If L retakes possession, L is deemed to have accepted surrender) MAJORITYDuty to mitigate by trying to relate; Sue T for deciency MINORITYCan sue T for rent due without mitigating T remaining in possession (more than staying a few hours too long, leaving a few articles, overstaying on a seasonal lease) Holdover Remedies Evict OR

Delivery in possession

Moving in and moving out

No retaliatory evictions

Bind to new periodic tenancy Terms and conditions carry forward L can increase the rent if gives notice and T remains in possession (T need not agree to rent increase) Rebuttable presumption where T evicted within certain time after reporting housing code violations

CLRent due at end of leasehold Timing LeaseUsually provides rent due in advance ModernIf lease terminates early, T liable for proportionate amount Pay rent Termination L's remedies When lease expires or if T surrenders leasehold interest back to L CLAction for damages only; No right to terminate lease ModernRight to terminate lease and evict under unlawful detainer statute (Only issue is whether T has right to remain in possession; T can't raise counterclaims T's failure to repair; Not allowed T's improvements to property T liable for cost of restoration, EXCEPT if long-term tenant and changes reect changes in neighborhood

Permissive waste Waste Ameliorative waste

CLT has duty to repair, but not for ordinary wear and tear; L has no duty to repair Repairs If T expressly assumes duty to repairDuty to repair even ordinary wear and tear If L assumes duty to repairT has duty to notify when repairs are needed Destroyed premises Actual eviction Neither L nor T has duty to rebuild unless expressly assumed; Duty to pay rentCL: T duty to pay rent continues / Modern: T can terminate lease Exclusion from entire premises by L or paramount title holder Duty to pay rent terminates Exclusion from part of premises by L or paramount title holder Partial eviction If exclusion by LDuty to pay rent terminates If exclusion by paramount title holderApportion rent Constructive eviction (1) L does someting or fails to do something where under a duty AND (2) Premises uninhabitable as a result T's remedy Nonwaivable Implied warranty of inhabitability For residential tenants only L's duty determined by local housing code or independent judicial conclusion (1) Terminate and move out
Remember: IWHO: 4 words, 4 remedies

During lease

Quiet enjoyment (Implied covenant that L will not evict)

Terminate lease and vacate

(2) Repair and offset costs T's remedies (3) Abate rent (4) Remain in possession, continue paying rent, sue for damages CLNo duty to make premises safe Modern Disclose latent defects

Tort liability

If reason to know that T may admit public without repairing condition, duty to inspect and repair for dangerous conditions Short-term furnished housingliable for injuries from any defect Reasonable care in undertaking repairs and common areas

CONVEYANCING Need land sale contract + Deed to convey land Formalities

Statute of Frauds must be met, except if 2 of following 3

Possession Payment Substantial performance

Marketable title Land sale contract Time for performance

Free from unreasonable risk of litigation No defects in chain of title No encumbrances No zoning violations No adverse possession title Seller must provide marketable title at closing or when last payment made on installment contract (No duty beforehand, no duty after contract merges in deed) Presumption that time not of the essenceLate tender okay within reasonable time of agreed closing dat, but remain liable for incidental losses Time of the essence requirements Late party can't enforce contract Express Implied from circumstances From party's notice Sale of new construction (may also be able to sue builder directly despite lack of privity) Misrepresenation Intentional or negligent misrepresentation Buyer reliance Material effect on price Active concealment Failure to disclose Know or reason to know of defect Latent defect Defect so serious that would probably cause buyer to reconsider if known

Tender

Duty to pay and duty to convey are concurrent conditions

No implied warranty of quality or tness, EXCEPT...

Defective property

Problems

General disclaimer insufcient to overcome liability for misrepresentation, active concealment, or failure to disclose Risk of loss MAJORITYon buyer MINORITYon seller until buyer takes title or possession THEORY: After contract signed, owner is equitable owner of real property and seller has personal property in right to payment Interest in purchase prices passes as personal property If seller dies Heirs or devisees hold legal title in constructive trust for buyer Interest in real property passes If buyer dies as real property

Party dies after sale, but before delivery of deed

Equitable conversion

Parol evidence admissible to resolve patent or latent ambiguities, but not to remedy inadequate description Presumption that land passes to rightof-way or water boundary Slow and imperceptible change of river or stream and accretion change legal boundaries; Avulsion does not Must provide "good lead" Priority where descriptions inconsistent Natural monuments Articial monuments Courses Distances Quantity Lawfully executed Void deeds GroundsForged, fraud in the factum EffectTransfer set aside, even if subsequent BFP GroundsLack of capacity, minority, fraud in the inducement, duress, undue inuence, mistake, breach of duciary duty EffectCan elect to set aside transfer, but BFP is protected Creditors can have conveyance set aside if (1) Actual intent to hinder, delay, or defraud creditors (2) No reasonably equivalent value received in return Possible remedy for mutual mistake, scrivener's error, unilateral mistake caused by misrepresentation or other inequitable conduct

Standard Adequate description of land

Voidable deeds

Deed Fraudulent conveyance

Problems

Reformation

Parole evidence admissible to show intent to deliver Delivery Delivery and acceptance Intent to make presently effective Can't retain control or interest Express condition okay, but oral conditions disregarded and can't be proved through parol evidence Give escrow agent instructions to deliver Giving deed to deed to grantee OR escrow agent is Escrow agent valid delivery if considered grantor's agent Escrow If conditions imposed on escrow agent's delivery to grantee and grantee wrongfully obtains deed from escrow agent without satisfying conditions, title does not pass and grantee cannot convey title

Acceptance

Presumed

If deed delivered in escrow, acceptance relates back For dedication (=transfer to public body), need formal resolution, approval of map or plat, or actual assumption of maintenance or improvmenets

Covenants for title

Seisin (Have title and possession to estate purported to convey) + Right to convey (Authority to make the grant) + Against encumbrances (No physical or title encumbrances) + Quiet enjoyment (No disturbance by third party's lawful claim of title) + Warranty deed Warranty (Defend against reasonable claims of title by third parties; Compensate for loss sustained by claim of superior title) + Further assurances (Acts reasonably necessary to perfect title conveyed Successive conveyancesCan sue anyone up the line; Recover consideration D received (but some states limit to what P paid) Special warranty deedWarrants that grantor has not conveyed same estate or interest in estate to another + free from encumbrances made by grantor; No warranty as to what predecessors did QuitclaimReleases whatever interest grantor has; marketable title still required for closing Estoppel by deedConveyance by warranty deed or deed claiming to convey particular estate + Grantor does not own that estate at conveyance, but acquires it later + Grantee can get after-acquired title from grantor (but not from BFP) or sue for damages for breach of covenant

Notice statutesSubsequent BFP prevails if no notice of prior conveyance Race-Notice statutes Subsequent BFP prevails if no notice of prior conveyance + recordation Recording Race statutesSubsequent BFP prevails if records rst Protection for BFPs, persons taking from BFPs (Shelter rule), purchasers from heirs; No protection for donees, heirs, devisees, judgment creditors (majority); Actual noticefrom any source Notice Record noticeCharged w/ notice of conveyances recorded and appearing in chain of title and instruments referred to by recorded documents; No record notice from wild deeds, deeds recorded late (after grantor parted w/ title); Recorder's mistakes: purchaser still charged w/ record notice, but has cause of action against recorder's ofce TimingAt time of conveyance; nding out later irrelevant

Transfers

Mortgages = debt secured by interest in property

Default

Foreclosure

Mortgage w/o noteSome states, presume note transferred too, transferee can le equitable action to compel transfer of note; Other states, transfer void Note w/o mortgageMortgage automatically follows unless rights in mortgage expressly reserved Holder in due course (i.e. take free of defenses against transferor) if note is negotiable + endorsed + delivered + pay value + taken in good faith (w/o notice that overdue / dishonored / s/t defense); Take from personal defenses, but s/t real defenses Transfer of mortgaged propertyTake s/t properly-recorded mortgage; Transferee not personally liable unless assume mortgage; If assume, original mortgagor remains secondarily liable Title theory (mortgagee owns property until debt paid off) / intermediate theory state (Can take possession before foreclosure Lien theory (mortgage = security interest)Cannot take possession before foreclosure Foreclosure by sale required; All states allow judicial sale; Many states allow nonjudicial sale; Lenders may bid at sale; Mortgagor may redeem property by paying amount due before foreclosure sale (some states for period of time after foreclosure sale)

Fixtures

Common ownershipObjective intention to annex chattel to land considering nature of article, manner of attachment, amount of damage caused by removal, adaptation of item to realty; Constructive annexation: uniquely adapted, but not physically annexed Divided ownershipPresumption that T lacks intent to permanently improve leased premises; Tenants and life tenants must remove afxed chattels before end of leasehold / tenancy; Trespassers lose annexations Mortgagee w/ interest in leased propertyNo right to tenant's afxed chattels except where mortgage made after the lease and mortgagee w/o notice of tenant's right Security interest in afxed chattelPrevails over mortgagee only if xture ling w/in 20 days of attaching chattel to land

Rights and duties relating to real estate

Creation

Express grant (signed writing, unless short duration) / Express reservation for grantor (majority: no reservation for third party) Implication From grant of prot; From existing use if division of single tract + apparent and continuous use on servient part + use reasonably necessary for enjoyment of dominant part + court determination that parties intended use to continue after division; From subdivision plat showing access roads across servient lots; By necessity, sale of land cuts off access to public road or utility line, servient parcel owner can locate easement PrescriptionOpen and notorious + adverse + continuous and uninterrupted; No prescriptive easement in public land AfrmativeHolder may use land NegativeRefrain from activity; Only for light, air, subjacent support, ow of articial stream ApurtenantEasement on servient tenement benets holder in enjoyment of dominant tenement; Benet passes automatically (no need to mention in deed); Burden passes unless BFP w/o actual or constructive notice In grossBenets holder not another piece of land; Transferable only if for economic or commercial interests, not if for personal pleasure Presumption of perpetual duration; Presumption easement intended to meet present and future needs of dominant tenement; If dominant parcel divided and new owners' use would overburden, no succession to easement; Under stated conditions; Merger (ownership of easement and interest in servient tenement of equal or greater duration), later separation of ownership will not automatically revive; Release (deed of release); Abandonment (intent to permanently abandon demonstrated by physical act); Prescription; End of necessity for easements by necessity; Condemnation (SPLIT whether easement holder entitled to compensation); Not by estoppel

Types EasementsProperty interest; = Right to use land for special purpose Scope

Termination

LicensesNot a property interest; = Privileges to go on land for delineated purpose, not interests in land; Revocableat will of licensor, but can become irrevocable by estoppel (licensee invests substantially in reliance on license, becomes easement by estoppel for duration such that holder can receive sufcient benet to reimburse for expenditures) or when license coupled with interest; TransferabilityInalienable, attempt to transfer results in revocation by law; Impliedwhen attempt to create easement in violation of Statute of Frauds;

ProtsProperty interest; = Right to take resources from the servient estate; Same rules for creation and termination as easements; Can be extinguished through surcharge (burdensome misuse) CreationReal covenants: written promise, usually in deed; Equitable servitude: also can be implied from common scheme of development (recorded plat / general pattern of restrictions / oral representations to early buyers) Real covenants Damages Equitable servitudes Injunction TerminationWritten release / Merger / Condemnation Burden runs if ... Benet runs if ... RCIntent + Notice + Horizontal privity + Vertical privity + Touch and concern ESIntent + Notice + Touch and concern RCIntent + Touch and concern + Vertical privity ESIntent + Touch and concern Intent = Covenanting parties intended burden / benet to run Notice = Actual, inquiry, or record notice at time of purchase Horizontal privity = Covenanting parties had shared interest in land Vertical privity = Successor party acquired entire interest covenantor held Touch and concern = Relates to use and enjoyment of land Specic situationsPromises to pay money to be used in connection of land and covenants not to compete run w/ the land; Racially restrictive covenants not enforceable

Concurrent estates Presumption that conveyance to multiple person creates tenancy in common Tenancy in common Characterization Joint tenancy

No right to survivorship Right of survivorship (survivors of deceased joint tenant get nothing) Unity of time, title, interest, and possession, otherwise tenancy in common SeveranceRight of survivorship terminated, tenancy in common results if (1) voluntary or involuntary conveyance by one joint tenant (judgment lienno severance until foreclosure sale; mortgageonly when foreclosed; leasesSPLIT whether severance) (2) contract to convey (executory contract by all joint tenantsSPLIT whether severance); Testamentary disposition ignored b/c interest terminates at death; (3) joint tenant murdering another joint tenant SPLIT whether murderer gets right of survivorship or constructive trust for decedent 's estate Joint tenancy for spouses; CL presumption that conveyance to H +W was tenancy by the entirety; Severance only by death, divorce, mutual agreement, execution by joint creditor; Deed or mortgage executed by only one spouse is ineffective

Tenancy by the entirety

Right to possessionOf all portions, but no right to exclusive possession of any part; Bring action for possession if one co-tenant ousts Rents and protsMust share rents from third parties and net prots gained from exploitations EncumbranceCan encumber own interest but not interests of co-tenants Rights and duties of co-tenants Partition Right to judicial partition in kind or by sale and division of proceeds; Restraints on partition valid if limited to reasonable time Preservation expenses Contribution for reasonable and necessary repairs (notify co-tenants) BUT not for improvements; At partition, credit for increase / liable for decrease in value due to partition Duty of fair dealing with co-tenants

Adverse possession For statutory periodDoesn't begin to run if owner disabled when cause of action accrued; Doesn't run against future interest holder until interest becomes possessory Open and notorioussufciently apparent to put true owner on notice that trespass is occurring Possession ActualOnly get adverse possession of portion actually occupied, EXCEPT if possess reasonable portion of parcel under color of title, deemed to have constructively possessed entire parcel ExclusiveNot sharing with the true owner or the public; If share with another co-adversepossessor, take title as tenants in common ContinuousContinuous use of the type that true owner would make; Can tack onto prior adverse possesor with whom in privity (=any non-hostile nexus) HostileEnter without owner's permission; Need not know that constitutes trespass; If possession starts out permissive, does not become adverse until make clear that acting hostilely (e.g. co-tenant has to oust other co-tenants before hostility element satised)

Torts

Battery

Unreasonable harmful or offensive contact Create reasonable apprehension of immediate harmful or offensive contact

Injury to person

Assault

False imprisonment Act or omission leading to connement to bounded area

Contact can be indirect Hypersensitivity not a factor P need not be aware Ability to actually make harmful or offensive contact irrelevant Words alone not enough Only apprehension, not fear, required Threat can sufce Omission can sufce where duty to release Can cause connement indirectly through third person P must have no reasonable means of escape P must be (1) aware of connement, OR (2) harmed by connement

Intentional trespass to chattels Conversion

Injury to property

Intentional trespass to land

Shopkeeper's privilegeCan detain suspected shoplifter in reasonable manner and for reasonable time if reasonable grounds to believe theft has occurred; Liable for actual injuries Liable for diminished value, reasonable rental value, Interference with use and enjoyment loss of use, and/or cost of repair of personal property Substantial interference with use Liable for FMV at conversion and enjoyment of personal property Need not know land belongs to P, as long as intend to enter Can enter land directly or indirectly Physical invasion of P's real property Invasion must be by tangible matter (otherwise consider under nuisance Anyone in actual or constructive possession can recover Public nuisance Unreasonable interference with health, safety, or property rights of the community (e.g. brothel) Substantial and unreasonable interference with use and enjoyment of P's land Only uniquely damaged plaintiff can recover Balancing testP can recover or enjoin if P's harm outweighs D's benet

Nuisance Private nuisance

Misrepresentation

Commercial torts

(1) Duty (2) Misrepresentation of material fact (3) Intent to deceiveIntentional misrepresentation NegligenceNegligent misrepresentation (4) Actual and justiable reliance (5) Economic damages

Interference with business relations

(1) Valid contractual relationship OR valid business expectancy (2) D knows of relationship or expectancy (3) Intentional interference (4) Economic damages (5) DefenseCompetition (especially fair competition)

Malicious prosecution

Torts involving judicial system Abuse of process

(1) P (other than prosecutor) institute criminal proceedings against P without probable cause (2) P prevailed (3) Improper purpose (4) Actual damages (1) Use of process for ulterior purpose (2) Act or threat against P to achieve ulterior purpose

More than insults (1) Extreme and outrageous conduct (2) Intent or recklessness (3) Resulting in severe emotional distress Don't need physical injury "Extreme and outrageous" easier to satisfy if repetitive conduct special plaintiff (children, elderly, pregnant women, known P hypersensitivity) special defendant (common carrier or innkeeper)

Intentional iniction of emotional distress

(1) Negligent act (b) Likely to cause such severe emotional distress as to lead to physical symptoms

(a) Threat to P directly

Negligent iniction of emotional distress (2) Physical injury Not mere opinion or epithet

Traditional: P must be in zone of danger (threat directed at P or person in immediate presence) Modern trend: P can also recover if (1) closely related to injured person, (2) present at scene of injury, and (3) observed injury

Presumed where (1) erroneous report of relative's death; (2) mishandling of relative's corpse

(1) Statement of fact adversely affecting P's reputation (2) Publication Reasonably certain to be heard or read Libel Damages presumed if ... (3) Damages Otherwise have to prove economic damages Public gure (4) Constitutional issues Private party but matter of public concern Truth (5) Defenses Consent Privilege (statement to protect own interest, interest of third party, common interest) False light Put P in objectionable + false or misleading + public light

P directly named or "colloquium (third persons understood statement to be about P)

Dignitary injuries

Defamation

Slander per se (1) Tending to injure trade or business (2) "P has loathsome disease" (3) "P committed crime of moral turpitude" (4) "P is unchaste" P has burden to show falsity and actual malice P has burden to show falsity and negligence

Statement need not be false If matter of public concern, P has to show malice

Public disclosure of private facts

Public disclosure of private facts + objectionable to reasonable person DefensesTruth, consent, privilege, public interest, newsworthiness, matter in public record (1) Deliberately intrude into area in which P has reasonable expectation of privacy (2) Highly offensive to reasonable person Appropriate P's name or likeness + for commercial advantage without authorization

Intentional intrusion on seclusion

Commercial appropriation

Scope of the duty: Who can sue? To any reasonably foreseeable plaintiff (Cardozo-Majority); To anyone (Andrews-Minority) Rescuers always foreseeable

(1) Duty

OrdinaryReasonably prudent person under circumstances; Consider physical characteristics but not mental deciency or inexperience ChildrenReasonably prudent child under circumstances ProfessionalsKnowledge and skill of member of profession in good standing in similar community Innkeepers and common carriersHighest duty of care to customers; Duty of reasonable care to non-customers Landlords Maintain common areas Disclose latent defects If land open to public, inspect and make safe dangerous conditions

Negligence Content of the duty: Standard of care Landowner

Undiscovered trespasserNo duty Discovered or anticipated trespasser To trespasser (1) Reasonable care in activities; (2) Warn of known, hidden, highly dangerous, articial conditions Infant trespasserLiable for harm to child trespassers if Owner should have been aware of dangerous condition Owner should have known children frequent vicinity Condition likely to cause injury b/c children are unable to appreciate the risk due to immaturity Cost of making safe is small compared to risk (1) Reasonable care in activities; (2) Warn or make safe known, hidden, dangerous, natural and To licensee articial conditions (1) Reasonable care in activities; (2) Inspect for and warn or make safe hidden, dangerous, natural To invitee and articial conditions For benet of bailorBailor must inform of known dangerous defects & Bailee has low standard of care For mutual benetBoth parties s/t ordinary standard of care For benet of baileeBailor must inform of defects of which he should be aware & Bailee has high standard of care

Bailee Bailor

Prove breach by direct evidence OR Res ipsa loquiturPresume negligence from circumstances of accident But for Factual

IndustrialIndustrial custom or usage admissible, but not dispositive to establish standard of care (1) Harm would not normally have occurred in absence of negligence (2) Instrumentality was in exclusive control of D at time of negligence (3) P was not himself responsible for harm

(2) Breach

Multiple Ds acting in concertSubstantial factor test; joint and several liability Multiple Ds, but can't tell whichShift burden to disprove causation; If don't disprove, joint and several liability Foreseeable results or foreseeable intervening forcesLiable (even if extent of damages not foreseeable Superseding forcesIntentional torts, criminal acts, acts of god: Probably not liable

(3) Causation Proximate

(4) Damages

Contributory negligence (traditional)Complete defense, except if D has last clear chance to avoid danger Comparative negligence (modern)Decreases liability to portion caused by D's negligence Assumption of riskNo implied assumption of the risk in comparative negligence; Express assumption of the risk still enforced

(5) Defenses

Ultrahazardous activities

(1) Cannot be made entirely safe (2) Risk of serious harm (3) Uncommon to local area (1) Defect (2) Defect existed when product left D's control Presumed if product traveled in normal commerce No subsequent substantial alterations Merchant selling or leasing product in regular course of business Express warranties Negligence Contractbased theories Implied warranty for particular purpose Privity not required Buyer relied on seller's judgment in recommending product for particular purpose Need privity to sue Merchant sellers warrant that goods sold are t for ordinary purpose, but can waive Need privity to sue (3) Merchant defendant (4) Foreseeability (5) Actual damages (6) Alternative theories Manufacturing defect Design defect (P must show reasonable alternative design) Warning defect

Strict liability

Wild animals and domestic animals with known dangerous propensities

Defective products

Implied warranty of merchantability Knowing and voluntary; No fraud, incapacity, or duress Self MAJORITY: Stand in shoes of other (no reasonable mistake allowed) MINORITY: Reasonable mistake allowed Force reasonable necessary to protect property from imminent harm (No deadly force) Force reasonably necessary to protect from imminent bodily harm No duty to retreat or comply with threats Must not be initial aggressor Not liable for accidental injury to third parties Not liable for reasonable mistake

Consent

Defenses Property

Defense

Others

IntrusionReasonable force to stop unprivileged intrusion Fresh pursuitCan use reasonable force in fresh pursuit Other dispossessionsHave to use legal process to get property back

Necessity Private necessityPrivileged, but liable for actual damages

Public necessityAbsolute privilege Liable for negligent acts of employees acting in scope of employment, but not during "frolic and detour" Employees Employers Independent contractors Not liable for intentional torts of employees EXCEPT if (1) use of force part of employment (2) employment likely to involve friction Not liable EXCEPT if (1) inherently dangerous activities (2) nondelegable activities Indicated by Express agreement Implied from common purpose / common pecuniary interest / mutual right and control Joint venture and partnership Acting in concert Can't tell who committed tort Liable for torts committed within scope and course of joint venture or partnership Joint and several liability Shift burden to show absence of fault to defendants; If don't prove jointly and severally liable

Vicarious liability & Indemnication

Whom to hold liable

Multiple defendants

Professional Responsibility

Duties to client Even if information acquired before or after AC relationship C need not indicate that information is condential Irrelevant whether disclosure would be embarrassing or detrimental or not Can't reveal anything related to representation Client informed consent Exceptions Reasonably necessary to prevent death or substantial bodily harm No nancial crime exception (CA) EffectClient can refuse to testify and can prevent attorney from testifying about condential AC communications ScopeCommunications pertaining to legal services; Can't turn over documents to attorney and then claim privilege DurationPrivilege continues after AC relationship terminated or if client dies, until estate settled (CA) A's services used to commit crime or defraud Exceptions Dispute between former joint clients Disclosure reasonably necessary to prevent crime resulting in substantial bodily injury or death Intention of client who attempted to dispose of property by will or inter vivos transfer AC dispute Implied authorization to carry out representation

Ethical duty of condentiality

Condentiality

Attorney Client privilege

Exercise independent professional judgment and give candid advice within scope of representation Client decides objectives of representation Lawyer chooses exercises professional judgment to achieve client's objectives, BUT can't assist in crime or fraud Lawyer may limit scope after client's informed consent if reasonable where ... Hates the client or the client's objective Lacking in time, interest, or competence Corporate clients Client states in writing that doesn't want a fee agreement Client has previously received and paid for similar services Emergency legal action Writing impractical for other reasons Avoid fee misunderstandings Reasonableness of fees Need written fee agreement if fees will exceed $1000, EXCEPT Fees can't be "unconscionable" considering time, labor, skill, customary fees for similar work (CA)

Competence

Scope of representation

Relating to fees

Written agreement explaining method by which fees are determined Contingent fees No prohibition against contingent fee arrangements in domestic relations and criminal cases (CA) If discharged by client, lawyer entitled to reasonable value of services performed if client wins the case Hold separately Keep records for 5 years (CA) Keep client informed Deliver funds or property Separate client property or disputed fees from third person's and lawyer's own property

Protect client's property

Duties to client (continued) Informed and in writing Note: May not be able to get informed consent where can't disclose enough information due to duty of condentiality owed to other client Reasonable lawyer wouldn't advise client not to consent Lawyer reasonably believes he can competently and diligently represent

Reasonable Client consent Not for dispute between two clients Need former client's consent if take on new client with materially adverse interests Need consent from former client of the rm if take on new client with materially adverse interests in same or substantially related matter if lawyer acquired material condential information from former client Full disclosure in understandable language AND Terms fair and reasonable to client AND Opportunity to get independent legal counsel AND Informed consent

Interests of another current or former client

CONFLICTING REPRESENTATION Can't take on or continue representation where conict of interest due to other representation, UNLESS ...

BUSINESS TRANSACTIONCan't enter into business transaction with client, UNLESS ...

GIFTSCan't induce the gift, but can prepare the instrument (CA)

Lawyer's personal interests No agreements prospectively limiting malpractice liability without independent counsel No agreements to settle malpractice claim without independent counsel or advising client that independent counsel would be reasonable

MEDIA RIGHTSCan enter into agreement even before representation has ended, but trial judge must ensure that defendant fully understands the conict (CA)

Loyalty (Conicts of interest)

FINANCIAL ASSISTANCECan provide nancial assistance to client for any purpose if client gives written promise to repay, but can't "buy" a potential client by promising to pay personal or business expenses

MALPRACTICE

SEX WITH CLIENTSCan't demand sex as condition of representation, enter into sexual relations by coercion or undue inuence, or represent incompetently due to sexual relationship Written, informed client consent No interference with lawyer's independent professional judgment Condentiality preserved Where liability insurance is paying for representation, insurance company and policyholder are joint clients (CA)

Interests of a third person

THIRD-PARTY COMPENSATION Okay if ...

Conicts of one lawyer imputed to all other lawyers in same rm, corporate law department, governmental law ofce If a lawyer leaves the rm and no other lawyer in the rm worked with certain client, rm will not be conicted out based on that representation unless same or substantially related matter

Lawyer left the rm

Former government ofcer or employee (including former prosecutors, judges, and law clerks)

Imputed conicts

Can't represent client in matter in which lawyer personally and substantially participated as a government ofcer or employee where lawyer knows condential government information that could be used to the material advantage of the opposite person Disqualied lawyers is screened and government ofcer is notied of Other lawyers in the rm can handle screening the matter if... Disqualied lawyer does not share in the fee Can't negotiate for employment while serving as government ofcer or employee, as judge, EXCEPT law clerks to judges if rst notify the judge

Current government employees

Related lawyers representing opposite clients

Same rules regarding condentiality and conicts of interest PLUS must get written consent from government agency before taking on assignment involving matter in which lawyer participated while in private practice Each lawyer must also get informed consent from clients in same or substantially related matters if One lawyer is client of other lawyer Lawyers live together Lawyers are in intimate personal relationship

Communication at direction of superior Purpose to assist corporation in obtaining legal advice Report to highest authority in the organization Can't report to outsider unless necessary to prevent criminal act that will cause death or substantial bodily harm California Can withdraw Report to general counsel SarbanesOxley (for securities laws violations and breaches of duciary duty)

Organizational clients

Special clients

Duty to the organization, not the constituents Communications from employees covered by duty of condentiality if... Opposing lawyer has to get organization's consent before communicating with organization's constituents who have authority to bind organization or whose conduct may be imputed to the organization Explain to constituents that representing the organization, not them personally If representing organization as well directors, ofcers, or employees personally, conict of interest rules apply If person associated with the organization wants to harm the organization, must ...

Client with diminished capacity

Maintain normal attorneyclient relationship to extent possible May not seek appointment of guardian against client's wishes (CA) Emergency legal assistanceIf person with seriously diminished capacity threatened with imminent and irreparable harm, can take legal action on person's behalf even though unable to establish attorneyclient relationshp due to client's condition

General counsel investigates, makes "appropriate response" to any violations, and reports back to lawyer If no appropriate response, report to board of directors, aduti committee, or committe of outside directors May reveal condential information to SEC in order to ... stop client committing violation that will cause substantial nancial injury to investors; rectify nancial injury where lawyer's services were used to further violation prevent client form committing or suborning perjury in SEC matter or other federal case Note: Conict with California rules, because California has no exception for crimes causing only nancial injury; Unclear whether federal rules preempt.

No knowing false statements of material fact or law; Must correct previous false statements of material fact or law Disclose controlling legal authority directly adverse to position of client and not disclosed by opposing counsel If client insists on offering false evidence No offering false evidence Duties to the court Candor If criminal defendant insists on testifying false Lawyer must refuse and may seek court permission to withdraw Have to allow testimony because defendant has constitutional right to testify (1) Try to persuade client not to testify falsely (2) Seek permission to withdraw (3) Allow defendant to testify in narrative fashion and don't use false testimony in closing argument (1) Try to convince client to reveal falsity, (2) Seek permission to withdraw, (3) Disclose falsity to court (trumps duty of condentiality) Inform court of all material facts (even if adverse to client) No falsifying Evidence No destroying No obstructing access No asking third parties to refrain from giving relevant information unless third party is a relative or employee and lawyer reasonably believes interests will not be adversely affected by refusing to give information Discovery Cooperate No frivolous requests No alluding to matters not supported by admissible evidence Trial Duties to opposing party Judges and Jurors Trial Publicity No asserting personal knowledge of facts No asserting personal opinion as to justness of cause, credibility of witness, culpability or guilt/innocence of defendant Can't seek to inuence Can't communicate ex parte Can't disrupt No extrajudicial statements substantially likely of materially prejudicing trial except to prevent substantial prejudicial effect of other recent publicity not initiated by lawyer or his client Don't communicate with persons lawyer knows are represented by counsel without counsel's permission or court authorization Don't state imply that disinterested; Explain role in matter Don't give advice other than to obtain counsel Don't do things with the sole purpose to embarrass, delay, or burden third party Don't violate legal rights of third party in obtaining evidence

Reasonable remedial measures for false evidence already offered

In ex parte proceedings

Communication with represented person

Communication with unrepresented person

Duties to third parties

Respect for third-party rights Return documents relating to the representation of a client sent to lawyer inadvertently Don't make false statements of material fact or law to third persons

Duties to the profession and the public

No violation or attempted or assisting others in violation of Rules of Professional Conduct ("RPC"); No assisting judge or judicial ofcer in violating judicial ethical rules

No obligation to report other lawyers or judges for violation of ethical rules (CA)

Self-report if Sued for malpractice 3 times in past 12 months Found civilly liable for fraud or breach of duciary duty Sanctioned more than $1000 (except for discovery sanctions) Charged with felony Convicted of serious crime Disciplined in other jurisdiction

No crimes reecting adversely on attorneys' honesty or tness as a lawyer

No stating that could improperly inuence government agency or ofcial or achieve results by illegal or unethical means

No dishonesty fraud, or misrepresentation No professional judgment required (e.g. lling in blanks on form contracts) Representing oneself Association with local lawyer Exceptions Alternative dispute resolution If admitted in one state ... Pro hac vice (special permission from tribunal on caseby-case basis)

No conduct prejudicial to administration of justice Even if admitted nowhere ...

No unauthorized practice of law

Associating with nonlawyers

In-house attorney, if ... Register and pay dues Satisfy moral character andeducational requirements No court appearances No representing directors, ofcers, employees, or Salaries to employees shareholders as individuals Legal services attorney, if ... Register and pay dues 3 year limit Satisfy moral character andeducational requirements Close supervision by California lawyer Didn't fail the bar in past 5 years Temporary practice reasonably related to home-state practice Pensions to deceased partners' No sharing fees with nonlawyers, depends, even if based on protEXCEPT ... sharing In law rms, nonlawyer can't be Court-awarded legal fees to partner, corporate ofcer, or director nonprot who recommended or or otherwise control lawyers' employed professional judgment Usual fees to legal service plan or Can delegate tasks to law clerks, referral service student interns, and paralegals, if supervise closely and remain ultimately responsible Agreements concerning benets after retirement from law partnership Part of settlement between private parties

No noncompete agreements, EXCEPT ... Name Supervision Not misleading No name partner holding public ofce

Law rms

Responsible for rm member's ethics violation if approved action or knew about it but did nothing Notication to clients of sale and client's right to hire different lawyer or get client les back Seller need not stop practicing in the area (CA) Sale must be of all or substantially all of law practice; No spinning off of practice areas, but can retain clients who would create conict with buyer and with whom seller has long-term relationship

Sale of practice

Duties to the profession and the public (continued) Can't completely restrict Can prohibit false and misleading ads Constitutional restrictions

Advertising

Can regulate truthful, nondeceptive advertising, if (1) Substantial government interest (2) Regulation directly and materially advance interest (3) Regulation narrowly drawn True and not misleading

Presumption that false or misleading if Communication to potential client who is hospitalized or suffering physical or mental stress Mailings seeking paid jobs if not clearly labeled as advertising Testimonials or endorsements without disclaimer that not a promise about results in potential client's case

Requirements

No outcome guarantees; No promises of quick cash or quick settlements Impersonations and dramatizations must be disclosed Disclose identity of at least one lawyer responsible for content of ad In person or live telephone or electronic contact No prior professional connection For fee-based services To persons who are not lawyers or family members Targeted truthful and nondeceptive direct-mailings okay Can state Field of practice Admission to patent bar Certied specialist (either by ABA-accredited organization, or indicate that by non-ABA-accredited organization)

Scope

Solicitation

Regulations Label as "advertising material Can't use agent to circumvent regulations To nonlawyers

No harassing where person indicated he doesn't want to be solicited

Not allowed, except usual fees for advertising or referral services Nonexclusive Disclosed to client

Referral fees To lawyers

Divided in proportion to services performed or else lawyers must assume joint responsibility for representation Total fee not unconscionable

Pro bono

50 hours per year encouraged

Appointments

Must not seek to avoid appointment by tribunal UNLESS ... Good cause Would violate ethical rules Unreasonable nancial burden

Don't charge unless supported by probable cause Reasonable efforts that accused is advised of right to counsel and has reasonable opportunity to obtain counsel Don't seek waiver of important pretrial rights from unrepresented accused (e.g. right to preliminary hearing) Timely disclosure of all known evidence or information tending to negate guilt or mitigate the offense Don't make prejudicial extrajudicial statements; Reasonable care in preventing assistants from making such statements Don't subpoena lawyer to present evidence against a client unless prosecutor reasonably believes information is not privileged, is essential, and there is no feasible alternative

Special duties of prosecutors

Mandatory

Representation would violate law or ethical rules Lawyer unable to represent client due to physical or mental condition Lawyer discharged

Withdrawal Termination of representation

Permissive

Client persists in crime or fraud using lawyer's services after lawyer warned client Client doesn't pay (Lawyer must rst give warning) Unreasonable nancial burden to lawyer Can't withdraw based only on Absence of material adverse affect Fundamental disagreement or repugnancy of client's action

Corporations

Formation issues Defective formation

De jure corporationfull corporate privileges if le articles De facto corporationnobody but the state can attack if colorable compliance with statute, good faith attempt to comply, and business conducted in corporate name Estoppelhold corporation and contracting parties to deals entered into when acted as if corporation properly incorporated Disclosed to and approved by independent board Disclosed to all contemplated in initial nancing scheme and subscribers bought knowingly / ratied after purchase Before becoming promoterprot = price paid by corp FMV After becoming promoterprot = price paid by corp price paid by promoter

Transactions with each otherFiduciary duty of joint venturers (don't pursue personal gain at expenses of fellow promoters) "Secret"Prohibited "secret prot" unless ... "Prot"Corporation can recover; Amount depends on when promoter acquired asset

Transactions with the corporation Fiduciary duty of fair disclosure and good faith; No secret prots Promoters

Transactions with third partiesPersonal liability; Released only if novation; Right to reimbursement for benets corporation received; Contract expressly relieving promoter of liability construed as revocable offer to proposed corporation Issues concerning stock ConsiderationAcceptable forms are money, tangible, property, past services, promissory notes (modern), promises of future services (modern); Amount determined by directors in good faith Stock subscriptions AcceptanceUpon demand by board (can't make demand in discriminatory manner) RevocationPreincorporation, for six months unless otherwise provided in agreement or all subscribers consent; Postincorporation, any time pre-acceptance Classes Can divide into different classes Rights determined in articles or, if articles authorize, by board ("blank check preferred") Par value issues Par not required under RMBCA; Articles can still determine par Watered stock (stock sold below par)Directors liable if knew of sale; Original purchasers liable b/c charged w/ knowledge; Subsequent good faith purchasers not liable

Preemptive rights Restraints on alienation Corporate acts

= Right to maintain percentage ownership when corporation issues new (not treasury, sometimes not authorized-butunissued) stock for money (not property); Traditionally presumed; Modern: not presumed Must be reasonable; Binding on purchaser if conspicuously noted on certicate OR buyer knew restriction at purchase Directors have power to manage day-to-day affairs; Can delegate duty to manage to ofcers in bylaws or pursuant to bylaws NoticeNone required for regular meetings; 2 days for special meeting; Lack of notice waived by attending unless attend for sole purpose of protesting lack of notice QuorumMajority of directors; Can break quorum by withdrawing from meeting

Regular course of business decisions Procedure for acts requiring board approval Procedure for shareholder meetings In board meeting By unanimous written consent

Must be annual; 10-60 day notice before meeting, but can waive in writing or by attendance (if no notice or waiver, actions void) Special meetingsCalled by BOD or 10%+ SH; SH can't call special meeting except for proper SH purpose; Notication must state purpose, can't transact business outside stated purpose Presumption that one share, one vote (can provide otherwise in articles) Eligibility to voteSHs @ record date entitled to vote (record date presumed date notice mailed unless set by board, can't be more than 70 days before meeting); When amendment to articles of incorporation affecting one class particularly, class has right to vote even if class otherwise does not have voting rights Proxies For management-submitted proposals, full and fair disclosure of material facts required; For proxy solicitations, no material misstatements, omissions, or fraud Management must include SH resolutions if SH owned $2K stock or 1% issued securities for > 1 year

Shareholder voting

QuorumMajority of outstanding shares; Can't break quorum by withdrawing Required votesMajority of votes cast; For fundamental corporate changes, majority of shares entitled to vote; Directors elected by plurality (cumulative voting optional) Voting trustShares transferred to trustee who votes shares; Agreement led with corporation; Ends after 10 years unless extended Agreements to vote shares Voting agreementWritten, signed agreement agreement between SHs on how to vote shares; SPLIT on whether specically enforceable; No need to le with corporation; No time limit Corporate books, records, SH records5 days written notice stating proper notice; Can send agent; Traditionally: 6 mo. / 5% holding requirement, Modern: any SH Articles and bylaws, board resolution regarding share classication, SH meeting minutes from past 3 years, SH communications sent in past 3 years, names and addresses of current D&Os, last annual reportAny SH can inspect regardless of purpose

Shareholder inspecting books

Distributions Proper distributions

Directors sole discretion to determine distributions; (Can force distribution only if strong showing of abuse of discretion) EffectOnce distribution properly authorized, SHs treated as creditors with equal priority as other unsecured creditors InsolvencyNot able to pay debts as become due / Total assets would be less than total liabilities From stated capital (=par value received for stock issued)No distributions from stated capital From capital surplus (=amount received for stock in excess of par)Allowed, but must inform SHs of source Nimble dividend (paid out of current earnings regardless of liquidity)Minority of states allow If voted in favor, personally liable for excess over what could properly have been distributed Can rely in good faith on nancial statements, ofcers, employees, lawyers, accountants, committees of which not a member; Contribution from other liable directors Shareholdersue to enjoin proposed ultra vires act

Illegal distributions

Ultra vires acts Bad shareholders

Corporationsue ofcer or director for damages Statesue to dissolve corporation Alter egoSHs treat corporate assets as their own / fail to observe corporate formalities AND basic injustice results

Piercing corporate veil

UndercapitalizationNot enough unencumbered capital at formation to reasonably cover prospective liabilities Fraud and evasionPrevent SH from using entity to avoid existing personal obligations or to perpetrate fraud Easier to pierce in tort than in contract cases; Shareholder-creditor claims may be subordinated;

Bad directors Breach of duty of care

Business judgment ruleBurden of proof on challenger to show breach of duty of care (to act in good faith, informed, w/ reasonable belief that decisions in best interest of corporation and SHs Director or relative is party to transaction, has benecial interest in transaction, so closely linked to transaction that to be reasonably expected to inuence director's judgment Problem if ... Interlocking boardsTransaction likely to brought before board of other entity on which director also serves Uninterested directorsInterested directors counted towards quorum; Majority of (and at least 2) uninterested directors present at meeting after disclosure of all material facts Valid despite conicting interest if ... Uninterested SHsShares owned or controlled directly or benecially by director not counted towards quorum; Majority of uninterested SHs entitled to vote on matter after disclosure of all material facts FairnessTransaction fair when entered into

Conicting interest transactions

Breach of duty of loyalty

ConsequencesInjunction / set aside transaction and recover damages Opportunity in corporation's line of business? Corporation has interest or expectancy? Necessary to corporation? Corporate opportunity Corporation can recover prots or force conveyance of opportunity through constructive trust and can recover damages for harm MandatoryReasonable expenses and attorneys fees for D/O who prevailed in action against himself; Articles can limit duty to indemnify Ofcial capacityDirector believed act was in corporation's best interest Indemnication Discretionary Outside ofcial capacityDirector believed act was not opposed to corporation's best interests Criminal proceedingsDirector believed act was not unlawful ProhibitedDirector found liable in derivative action / found to have received improper benet Determination whether to indemnifyMust be made by disinterested majority of board or shareholders; If no disinterested board quorum, majority of disinterested committee or by legal counsel ExpensesCan advance expenses if director provides statement that he believes he met appropriate standard of conduct and will repay if found otherwise D&O insuranceCan purchase liability insurance to reimburse directors even where corporation could not have indemnied

Fundamental corporate changes ProcedureBoard resolution; Notice to SHs; SH approval by majority of shares entitled to vote; File amended articles SH vote in surviving corporation not required if ... Mergers Short-form merger (1) articles will remain the same; (2) SHs keep same number of shares with same preferences, limitations, and rights; (3) no more than 20% dilution OR Share exchange SH vote and board resolution of disappearing corporation not required if merging into parent owning at least 90% of outstanding shares

Disposition of all or substantially all of corporation's property outside usual and regular course of businessfundamental corporate change; May be treated as de facto merger for purchasing company Appraisal remedy AvailabilityEntitled to vote on plan of merger / disposition of all or substantially all of corporations property; Sub SHs in short-form merger; Bought corporation's SHs in share exchange; Material and adverse effect on SHs ProcessCorporation gives notice of action and right to demand appraisal; SH gives written notice of intent to demand payment (before vote); Within 10 days of approval of action, corporation gives notice including when and how to submit shares for repurchase; SHs demand payment according to corporation's notice; Corporation pays fair value of shares plus interest; If SHs dissatised with corporation's valuation, send corporation own estimate within 30 days; If corporation does not want to pay what SHs demand, must le court action within 60 days of receiving SHs demand; Court determines fair value Must le 14D schedule showing bidder identity, source of funds, past dealings w/ target, plans concerning target, bidder's nancial statements, arrangements w/ people in important positions with target Tender offers Widespread offer resulting in ownership of 5%+ Offer must remain open to all SHs for at least 20 days; SHs can withdraw tendered shares while offer remains open; If oversubscribed, bidder must purchase pro rata from shares deposited during rst 10 days of offer; If offer price is increased, higher price must be paid to all tendering SHs Management recommendationManagement of target must give recommendation on whether or not to accept the offer or explain why it cannot make a recommendation No false or misleading statements in connection with offer Dissolutions If shares not yet issued or business not yet commencedMajority of incorporators or initial directors can dissolve by delivering articles of dissolution to state; Must rst pay corporate debts If shares issued or business commencedFundamental corporate change; In some states, can dissolve by unanimous written SH agreement EffectContinues corporate existence to wind up and liquidate; Can still bring claim, even if arising after dissolution to extent of undistributed assets; If assets distributed can assert claim against SHs for pro rata share to extent of assets distributed to each SH; Can cut short time to bring claims from known claimants by giving notice of time limit of at least 120 days and from unknown claimants by publishing notice in newspaper By AGCorporation fraudulently obtained articles of incorporation OR exceeding or abusing authority Judicial dissolution By SHsDirectors deadlocked + irreparable injury to corporation threatened OR Director actions illegal, oppressive, or fraudulent OR SHs deadlocked and unable to ll at least one director position for at least two annual meetings OR Corporate assets wasted, misapplied, or diverted; Corporation may instead buy out SHs demanding dissolution By creditorsClaim reduced to judgment + execution returned unsatised + corporation insolvent OR Corporation admitted in writing that claim is due and corporation is insolvent GroundsBy state for failure to comply with formalities Administrative dissolution ProcedureMust serve corporation with written notice of failure; Corporation has 60 days to correct or dispute, or else state signs certicate of dissolution ReinstatementCan apply for reinstatement for three years after dissolution by showing no grounds for dissolution existed then or grounds eliminated now; Reinstatement relates back

Voluntary dissolution

Securities issues Omission where duty to disclose / Misrepresentation (e.g. misleading corporate press release, misleading statement or failure to disclose to buyer or seller) Fraud ScienterIntent to deceive, manipulate, or defraud / reckless as to truth In connection with purchase or sale of security (no liability where people decide not to trade) ReliancePresumed where material omission DamagesMust show damages; Limited to difference between price paid and average share price in 90day period after corrective information disseminated MaterialitySubstantial likelihood that reasonable investor would consider important in making investment decision

Instrumentality of interstate commerce

10b-5fraud in purchase or sale of security

Insider tradingTrading based on inside information Qualifying corporation$10M assets + 500+ SHs / listed on national exchange

Insiders w/ duty to not use inside information for personal benet can be held liableDirectors, ofcers, controlling shareholders, employees, accountants, attorneys, bankers, etc. Tippers and tippees can be held liableTipper, if tip made for any improper purpose; Tippee, if breached a duty and tippee knew it MisappropriatorsGovernment can prosecute person who trades on information in breach of duty of trust and condence owed to source of information Qualifying defendantDirector, ofcer, 10%+ SH (director / ofcer either when bought or sold; 10% SH must be both when bought and when sold) Timing6 mos. between sale and purchase Corporation recovers "prot"Prot = difference between highest sales price and lowest purchase price in 6 month period

Liability for shortswing profits

16(b) liability

Difference in requirements for Ddirectors and officers versus SHs reflects greater hesitation to hold SHs liable for insider profiteering (b/ c have to be 10% SH both at time when shares were bought and when shares were sold

SOX

Establishment of Public Company Accounting Oversight Boardestablish rules for auditing, quality control, ethics, auditor independence; accounting rms must register before preparing reports or issuing audits for registered companies Audit committeesregistered companies must form audit committee to oversee audit work and establish internal procedures; must not receive compensation other than for position on board of directors; must disclose in annual report whether audit committee members are nancial experts CerticationCEO, CFO, or similar person must certify that ofcer has reviewed report, that no material omissions, and that evaluated internal controls to make sure material information is made known to him ForfeitureCEO and CFO must reimburse for bonus or incentive-based comp and prot from sale of company securities received during 12 months after ling inaccurate reports w/ SEC No personal loans to executivesExcept where made in ordinary course of business and terms not more favorable than offered to general public (i.e. when company is in business of lending) Criminal penaltiesNo destruction, alteration of corporate records to impede federal investigation; Must keep audit records for 5 years;

Whistleblower protection

Civil Procedure

(1) Minimum contacts Foreseeability Suit arises out of D's forum contacts (specic jurisdiction) Systematic and continuous activity in forum (general jurisdiction) Due process limitation (2)Fairness"Traditional notions of fair play and substantial justice," considering... (3) NoticeBy reasonable method ConvenienceNot so gravely difcult and inconvenient that D severely disadvantaged Forum state's interests in providing redress to citizens P's interest in obtaining convenient and effective relief Interstate judicial system's interest in efciency Transitory presence enough Service by fraud or force invalid

Purposeful availment

Presence + service of process Domicile Citizenship (for expatriates) Consent Acts committed in jurisdiction Adjudicate rights of all parties in property Type 1 (Dispute over parties' rights in the property) Type 2 (Property as collateral) Statutory long-arm limitationMost statutes allow jurisdiction based on...

In personam

Personal jurisdiction

In rem

Quasi in rem

Connection of property to litigation satises minimum contacts Need proper personal jurisdiction over D

Subject matter jurisdiction P enforcing right or interest founded on federal law Federal question Well-pleaded complaint rule Individuals Domicile (1) State of incorporation AND (2) Principal place of business Foreign corporations considered alien, except if principal place of business in the US In shareholder derivative actionsRealign corporation as D to determine diversity Unincorporated associations Citizen of wherever any member is a citizen Citizenship of named members; Selecting named plaintiffs to create diversity okay Not resident of any state Residents of state where domiciled ... but subsequent joinder of nondiverse party does not destroy diversity P can aggregate all claims against D P can aggregate all claims against multiple Ds if Ds jointly liable Multiple Ps can aggregate all claims against D only if seeking to enforce right in which have common or undivided interest If federal law on point (FRCP, FRE)Apply federal if "arguably procedural" (In practice, FRCP always procedural) If no federal law on pointConsider Bright-line casesStatute of limitations and tolling rules,choice of law rules (1) Outcome-determinativeness (2) Balance of federal and state interests (3) Prevent forum-shopping One D resides in different state from accident location One P diverse from one D AND Any two Ds reside in different states Substantial parts of accident took place in different states (1) FQ dismissed early in proceedings (2) State law claim is complex (3) State law issues would predominate
State claim from same T/O PENDENT Plaintiff FQ claim Defendant

Permanent home to which intend to return; Permanent, genuine change of domicile for purposes of creating diversity okay "Muscle center" (place of physical operations) prevails over location of executive ofces "Nerve center" (location of executive ofces) prevails over dispersed operational activities

Corporations

Citizenship

Diversity Expats Aliens PDEvery P must be diverse from every D when action commenced Dismiss only if no legal possibility of recovering more than $75,000 Aggregation

Complete diversity

Class actions

Jurisdictional amount More than $75,000 in damages

ErieChoice of law in diversity case

Multiparty, Multiforum Trial Jurisdiction Act Plaintiff in FQ case joins a claim Claim arising from same T/O Court has discretion not to hear if ...

If at least 75 people died in single accident at discrete locationFederal jurisdiction, intervention of right, and nationwide service, if

Pendent

Supplemental jurisdiction

Ancillary

Person other than P joins Claim arising from same T/O

Plaintiff

FQ or diversity claim

Defendant

Third party

ANCILLARY

Individualwhere domiciled Corporationwhere s/t personal jurisdiction (not just domicile!) Unincorporated associationwhere doing business If all D's reside in same state, in a district where any D resides Where events or omissions giving rise to claim occurred OR where substantial part of property subject to suit is located (i.e., if suing over events that happened or property located abroad) Law of transferor court applies Law of transferee court applies IF NEITHER Action based solely on diversityWhere any D is s/t personal jurisdiction Action not based solely on diversityWhere any D can be found

Residence for venue purposes

Venue

Proper venue

Grounds Transfer Foreign forum much more appropriate Forum non convenience (Dismissal) Private factorsConvenience to parties... After dismissal and parties rele, transferee forum law applies WaiverMust make timely objection to improper venue, otherwise waived Factors to consider Public factorsWhich law should apply... Original venue improper To any district where proper personal and subject matter jurisdiction and venue

Convenience of the parties

If venue improper

Only Ds can remove; If multiple Ds, all must join in removal

GroundsCase could originally have been led in federal court (or remove based on diversity after nondiverse D dismissed)

Removal

Local D exceptionCan't remove based on diversity if a D resides in state where action led

VenueDistrict where state action was brought

Separate and independent claimsCourt may permit removal of separate and independent claims in multiple-claim-multiple-party suits

ProcedureFile notice with federal court and other parties; After notice of removal led, state court no longer has jurisdiction

Timing30 days after initial pleading or notice showing that case has become removable BUT NO LATER THAN one year after case commenced

MandatoryWhere no federal jurisdiction

Remand

DiscretionaryWhere federal claims resolved and only state claims left for which no diversity jurisdiction

Action Relation to original claim Original claim based on federal question + Pendent claim arising out of same T/O Pendent jurisdiction Ancillary jurisdiction Need independent basis for jurisdiction Ancillary jurisdiction Need independent basis for jurisdiction Need independent basis for jurisdiction Rule 22Need independent basis for jurisdiction Section 1335 Subject matter if minimal diversity + $500 claim Nationwide service Venue proper where any claimant resides Need independent basis for jurisdiction; Can't destroy jurisdiction or venue CompulsoryArising from same T/O against P PermissiveAny other claim against P Claim arising from same T/O against co-party Of rightThird party can join if (1) Interests would otherwise be harmed and (2) Interests are not adequately represented now PermissiveQuestion of fact or law in common Interpleader Original suit concerns some stake; Stakeholder can join others with adverse claim in stake to avoid inconsistent judgments Supplemental jurisdiction? Pendent claim Counterclaims Crossclaim

Adding claims Intervention

Compulsory (Necessary party)Join if (1) Needed for complete relief OR (2) Harm to absent party's interests OR (3) Risk of multiple or inconsistent obligations if not joined Joinder of parties If can't be joined, balance factors to decide whether to dismiss: (1) Prejudice to absent party or parties to suit (2) Feasibility of shaping judgment (3) Adequacy of judgment or remedy without absent party

Need independent basis for jurisdiction Ancillary jurisdiction

Impleader

Permissive(1) Same T/O (2) Question of fact or law in common with all parties D bringing in nonparty who may be liable for part of judgment; Third party can assert D's defenses

Federal rules of civil procedure Notice pleading only (Particular pleading only required for fraud, mistake, special damages,...) Commencement By ling complaint Pleading requirements Must state (1) Grounds for federal jurisdiction (2) Statement of claim showing that entitled to relief (3) Demand for judgment for relief Inconsistent or alternative claims permitted By whom By any non-party over 18 Personal service Service at D's usual place of abode Service on authorized agent How Service of process As provided by forum state rules By mailMail D process and request waiver Bulge ruleCan serve necessary third parties within 100 miles from courthouse Under federal nationwide-service provisions Federal Interpleader, Multistate Multiparty Trial Act 120 days after complaint led unless good cause for delay (otherwise dismiss) Parties, witnesses, and attorneys who enter state to appear in other action Never waived; Can even raise for the rst time on appeal Waived if not raised in rst thing led with the court (motion or answer) If D agrees to waive formal serviceGet 60 days (instead of 20) to reply; Doesn't waive any objections If D does not waive formal service Court will impose on D cost of formal service, unless D shows good cause for not waiving

When Immunity

Lack of subject matter jurisdiction Lack of personal jurisdiction Improper venue Pre-answer motion Insufciency of service / process Failure to state a claim upon relief can be granted Failure to join necessary party More denite statement

Can raise anytime before judgment Raise before answering

Specic denial, admission, or statement that without knowledge or sufcient information for each averment in complaint; Failure to deny constitutes admission Answer State any afrmative defenses Time limit20 days; 60 days if waive formal service of process; 10 days after denial of Rule 12 motion; 10 days after more denite statement Reply Only if answer contained counterclaims Time limit20 days Once as a matter of right (1) before responsive pleading led or (2) if no responsive pleading, w/in 20 days Thereafterby consent or leave of court (freely given) Same events involvedRelates back to original pleading Relation back Name new adverse partyRelates back if party knew or should have known that, but for mistake, party would have been named originally

Amendments

Supplemental pleadings

Relating to matters occurring after original pleading Need court permission

Rule 11

Good faithBy presenting to the court any pleading, motion, or other paper, certify that (1) No improper purpose (2) Legal contentions nonfrivolous (3) Evidentiary support for factual assertions (now, or likely after discovery) (4) Denials in good faith If suspect Rule 11 violation, serve motion for sanction on opposing party and give 21 days to correct If party doesn't correct, court discretion to sanction (to deter, not punish) (1) So numerous that joinder impracticable (2) Common questions of law or fact (3) Named parties' interests typical for class (4) Named parties will adequately represent member interests
either or or

(a) Risk of inconsistent results if pursue separate actions OR (b) seeking injunctive or declaratory relief OR (c) common questions of law or fact predominate and class action is superior to alternative methods of adjudication

Class action proper if

In deciding whether certify, court may consider (1) Interest in individual control vs. interest in joint trial (2) Extent and nature of litigation elsewhere (3) Difculties in managing class action Court should determine whether to certify at early practicable time, but can decertify at any time Notice to all members in common question cases stating (1) Nature of action (2) Denition of class (3) Class claims, issues, defenses (4) Binding effect of judgment Subject matter jurisdictionIf diversity, consider only citizenship of named plaintiffs; SPLIT whether claim of each class member must be over $75,000 SettlementGive notice to class members; In common question actions, court may give another chance to opt out; Hold fairness hearing; Need court approval Must show Shareholder derivative suits Shareholder enforcing right of the corporation Jurisdiction Venue

Class action rules

(1) Demand on directors or valid excuse for failure to make demand (2) Shareholder at time of transaction complained of (3) Can fairly and adequately represent interests of shareholders For jurisdictional amount, consider damages to corporation Proper wherever corporation could have brought same suit Prior to trial to preserve status quo

Injunctions

Opposing party entitled to notice and opportunity to be heard Preserve status quo until preliminary if irreparable injury will occur before preliminary injunction hearing injunction hearing Maximum 10-day period without Temporary restraining order notice Specic facts in afdavit or veried complaint stating irreparable injury party will suffer Preliminary injunctions Conditions Certication that tried to notify adverse party and reasons why notice should not be required Security bond for damages incurred by adverse party if TRO later found wrongful Only in "suits at common law" Right to jury trial Mixed trials Within 10 days after pleading led raising jury-triable issue, otherwise waiver Must object to jury instructions before jury retires, otherwise waiver Use of procedure formerly available only in equity (class suit, interpleader) won't defeat right to have facts determined by jury If legal and equitable claims joinedTry legal claim to jury rst; equitable claims to court second

Jury trial

Timely demand Jury instructions

Disclosure & Discovery Initial disclosures14 days after discovery-planning conference

Peoplelikely to have discoverable information Documentsthat may be used to support claims (unless solely for impeachment) Damagescomputation of damages and materials relied on InsuranceAny insurance agreements Experts to be used at trial, qualications, opinions, bases for opinions Witnessesthat may be called or whose testimony presented through deposition transcripts Documents and exhibitsthat might be offered Must object within 14 days of disclosure or else objection waived (unless irrelevant, prejudicial, or confusing) Scope Reasonably calculated to lead to discovery of admissible evidence / claim / defense; Information sought need not itself be admissible Oral deposition Written deposition Interrogatories (to parties only) Production of physical material Physical and mental examinationsIf party's physical or mental condition is in controversy Requests for admission (to parties only) Can withhold information, but must claim privilege expressly, describe nature of documents not disclosed so that opposite party can assess whether privilege applies Work productOnly discoverable where substantial need and to avoid undue hardship; Must protect against disclosure of mental impressions, opinions, and conclusions (Exception: Can always discover previously made statement w/o showing hardship) Testifying expertsCan depose Consulting expertsCan depose or serve interrogatories only if impracticable to obtain information through other means Duty to supplement required disclosures or amend interrogatories, requests for production, requests for admission if (1) later learn that response was incorrect or incomplete AND (2) new information not made known to other party in discovery or otherwise in writing Failure to provide complete disclosure or discoveryMove to compel compel; If party doesn't comply Treat matters as admitted Prohibit from supporting or opposing related claims or defenses Strike pleadings, stay or dismiss action, render default judgment Expenses or fees Hold in contempt Failure to show up for own deposition (or answer any questions on interrogatory)Move for immediate sanctions; Court will grant as just (same sanctionsexcept no contempt b/c no violation of court order) Failure to disclose under mandatory disclosure, supplement, or amendCan't use withheld information unless failure was "harmless"; Also, same sanctions, except no contempt Protective order To limit nature and scope or terminate examination in case of abuse of discovery

Disclosure

Expert testimony disclosure90 days before trial / 30 days if only to rebut opposing expert Pretrial disclosure30 days before trial

Procedures

Privileged information

Experts

Discovery Duty to supplement

Enforcement

Terminating trial Failure to state a claim Judgment on the pleadings Summary judgment Judgment as a matter of law Renewed motion for judgment as a matter of law Before or during trial After pleadings close or during trial After P presents evidence DAfter P presents evidence, and again after D presents evidence PAfter D presents evidence Within 10 days of judgment; Must have previously moved for JMOL at close of evidence Timing10 days after judgment No such cause of action No genuine issue of material fact Based on the complaint Based on the pleadings Based on pleadings, afdavits, and discovery Based on the evidence

No reasonable person could disagree Prejudicial error at trial New evidence which could not have been obtained with due diligence Prejudicial misconduct of opposing party, attorney, third party, juror Judgment against the weight of the evidence

Motion for new trial

Based on all evidence

General rule

Appeals only from nal judgments; All parties must wait until all claims are settled unless court enters nal judgment to fewer than all claims b/c (1) motion for entry of judgment and (2) no just reason for delay Interlocutory review of right Orders concerning injunctions, appointing receivers, affecting possession of property (1) Trial judge certies that controlling question of law for which substantial ground for difference of opinion AND (2) Appeals court allows appeal (1) Distinct from merits AND (2) Important legal question AND (3) Essentially unreviewable after nal judgment Denial reviewable at court's discretion within 10 days of order entered Appellate court compels trial judge to make or vacate order

Final judgment rule Interlocutory Appeals Act

Exceptions

Collateral order

Certication of class actions Res judicata Claim preclusion Can't sue for same claim twice Mandamus and prohibition (1) Same P; same D (2) Final judgment on the merits

(3) Same claimMajority: same transaction; Minority: same right (claim for property damages and claim for personal injury from same transaction would be okay)
found negligent A suit #1 B

Collateral estoppel Issue preclusion Can't litigate same issue twice

(1) Final judgment on the merits (2) Identical issue (3) Issue essential to judgment (4) Person against whom asserted was party to suit #1 (5) Person by whom asserted SPLIT TraditionalMutuality: only party to suit #1 can use collateral estoppel ModernNonmutuality

bring suit #2: nonmutual defensive CE "negligent!" C

Nonmutual defensiveokay if full and fair opportunity to litigate in rst trial Nonmutual offensiveokay if (1) Full and fair opportunity to litigate (2) Multiple suits foreseeable (3) Third party could not have been joined easily (4) No inconsistent judgments involving the issue
found negligent A suit #1 B

bring suit #2: "negligent!" using nonmutual offensive CE C

Remedies

GENERAL TYPES OF REMEDIES Compensatory

General(1) Causal; (2) Foreseeable; (3) Certain; (4) Unavoidable (Duty to mitigate) SpecialUnforeseeable (Must be specically pleaded) Willful, wanton and malicious conduct Must have fair notice of possible magnitude considering reprehensibility of conduct actual damages (probably not more than 10x multiple) available criminal or civil penalties

Punitive Damages Tort & K Due process limitation Nominal Interest and attorney's fees

Only if actual injury not required for prima facie case If provided for by statute

Restitution Tort & K

Constructive trustUse if property worth more Equitable lienUse if property worth less than claim, or if than claim property used only to make improvements, not acquire title Effect: Effect: Reconvey title; Get lien on property; Keep enhanced value of property; Can recover only to extent of claim; No claim for deciency Can bring claim for deciency (1) D has title to property (2) Title to property can be traced to property (2) ... OR property wrongfully acquired was used to make wrongfully acquired improvements (3) D did not make improvements to property (3) Okay if made improvements (4) D's retention of property would result in unjust enrichment (5) Inadequacy of legal remedy (most courts require) Quasi-contractUnjust enrichment ReplevinRegain possession of personal property EjectmentRegain possession of real property

Damages highly speculative (1) Inadequacy of legal remedy (2) Protected property right (some courts construe liberally) Injunction Tort & K (3) Enforcement feasible Multiple suits would be necessary b/c activity is continuous or repeated Irreparable injury b/c unique property Can't use contempt to enforce money decree (b/c can't imprison for debt) Where mandatory injunctions difcult to enforce, use negative injunctions Where decree requires performance in other state, sequester property to secure D's return to the jurisdiction At what stageNot at TRO stage, but at preliminary or permanent injunction stage MinorityOnly for nuisance / encroachment cases MajorityIn all cases except where D acted intentionally No injunction against defamation (5) No injunctions in these cases: No injunction against criminal prosecution (except irreparable injury to plaintiff) No jurisdiction to enjoin crimes or enforce criminal penalties b/c would deprive D of due process protections; EXCEPTION for public nuisance where criminal prosecution is inadequate remedy (6) Defenses to equitable remedies Laches Unclean hands (1) P unreasonably delayed bringing claim (2) Delay results in prejudice to P P's unfair dealing with respect to transaction sued upon

(4) Balancing of hardships

(1) Valid contract (2) All conditions satised ...or failure of condition is partial or immaterial Okay to refer to custom or business usage to infer minor terms (3) Denite and certain terms (4) Inadequacy of legal remedy (5) Feasibility of enforcement Valid liquidated damages clause does not preclude grant of specic performance, unless construed as true alternative to performance (1) P unreasonably delayed bringing claim Laches (2) Delay results in prejudice to P P's unfair dealing with respect to Unclean hands transaction sued upon Sharp practices Grossly inadequate consideration Inadequate consideration in unconscionable contract

Specic performance K

(6) Defenses to equitable remedies

Disproportionate hardship to D or the public Mistake or misrepresentation that could result in hardship or could be basis for rescission

Types

Legal rescission (by parties, no court involvement)Prompt notice + tender back consideration received Equitable rescission (court intervenes to grant rescission) Mutual mistakeaffecting basis of the bargain Mistake Misrepresentation Unilateral mistakewhere other party knew or should have known of the mistake (Modern trend: also unilateral mistake where affecting the basis of the bargain and hardship to mistaken party outweighs detriment to other party's expectations)

Rescission K

Grounds

(1) Valid, complete, denite original contract (w/o any grounds for rescission) Scrivener's errors (2) Proper grounds: Mistake as to legal meaning incorporated Instrument fraudulently represented as incorporating prior agreement Cannot use reformation to ll in vague or ambiguous terms, or terms requires by Statute of Frauds

Reformation K

Modify written agreement to reect parties' true intentions

SPECIFIC SCENARIOS Misappropriation of money Damages Restitution Destruction of chattel Injury to chattels Quasi-contract Constructive trust Equitable lien DamagesValue when destroyed salvage + loss of use if income producing DamagesDiminution in value OR Cost of repair + loss of use ExceptionIf chattel value uctuating: highest value between time of wrong and reasonable time to cover Major dispossession Value when destroyed + cost of pursuit Minor dispossession Nominal damages Don't have to mitigate by accepting chattel back, but if do accept chattel back, damages are reduced by chattel's value when returned Successive convertersIf A converts from P, and B converts from A, B liable to P for chattel's value when B converted it

Injuries to personal property

Damages

Dispossession of chattels

Restitution

Self-helpReasonable force to recapture ReplevinRecover specic chattel Quasi-contractUnjustly obtained benet Constructive trust Equitable lien Specic restitutionPaid pursuant to mandatory injunction DamagesNominal damages

Simple trespass

EjectmentRestore possession of real property Injunction Damages Diminution in value of land OR Conversion damages (Value when destroyed - salvage + loss of use if income producing) (at P's election)

Trespass causing severance (carting off timber or minerals) Putting stuff on other person's land

Restitution Injunction Injunction Damages

ReplevinRecover specic chattel Quasi-contractValue of severed property, but if willful D, value of property as improved

DamagesCost of removing OR Rental value of land As continuing trespassRental value of occupied land As permanent trespassMarket value of occupied land Ejectment If building is damagedCost of repair + loss of use If crops or trees destroyedDiminution in value of land OR value of crops and tress If land destroyedDiminution in value of real estate If building destroyedValue when destroyed Easement destroyeddiminution in value of land Easement interfered withCost of restoration plus loss of use

Encroachment (structure invades P's land or airspace) Injuries to real property

Restitution Injunction Damages

Destruction of real property

Interference with easements Voluntary waste Waste Permissive waste Ameliorative waste

Damages Injunction Injunction

DamagesDiminution in value of land OR cost of repair DamagesCost of repair No legal damages Injunctiononly for short-term tenants

Nuisance

Damages Injunction

Loss of use and enjoyment Cost of abatement Emotional distress Future damages

Damages Personal injuries Injunction

General damagesPain and suffering, emotional distress, loss and enjoyment of life Special damagesEconomic losses: Past and future medical expenses, loss of earnings and earning capacity (Majority: can't consider ination)

SurvivalEstate can sue for damages accrued up to time of death (Most jurisdictions) Damages Injunctions rarely grantedConstitutional problems b/c unconstitutional prior restraint on speech (except for trade libel, where harm to P outweighs free speech considerations) DamagesMental anguish Injunctionfor continuing conduct General damages Special damages Fraud Damages Rescission Consequential damages Punitive Inducing breach of contract Business torts Interference with prospective advantage Non-impossibility cases Impossibility cases DamagesProximately caused losses Restitution or injunctionGenerally not available Damagestoo speculative Restitution Quasi-contract Quasi contractvalue of performance, even in excess of K rate Quasi contractvalue of performance, not in excess of K rate By sellerbenet of the bargain / out of pocket (depends on jurisdiction) By buyerProximately caused damages

Defamation

Right to privacy

Unenforceable contract Material breach

Quasi contractvalue of performance, even in excess of K rate If contract wholly executory Owner breach If performance has begun DamagesLost prots DamagesContract price cost of completion RestitutionBenet conferred (not limited to contract price)

Construction contracts Builder breach

If builder substantially performsCost of restoration, but if that would cause economic waste, diminution in value Material breachCost of completion + cost of delay payments due DamagesCost of replacement Restitution (1) Employer: paid but unearned wages; (2) Employee: value of services rendered (limited to contract rate) employer damages (1) Inadequacy of damages Specic performance only (2) Noncompete has signicance if services are unique independent from employment contract (some courts required) During (3) Feasibility employment (4) Conditions satised

Employee breaches

Specic enforcement of noncompete agreements After employment

Modern courts will imply noncompete in full-time or exclusive contract Damagesadequate, except if services are unique, or trade secrets or goodwill involved Injunctive relief (1) Inadequacy of damages (2) Reasonable scope (Some courts blue pencil contracts w/ unreasonable scope; Other courts will invalidate contracts)

Personal services

Employer breaches

DamagesWages due avoidable damages (Tort damages for wrongful dismissal) RestitutionValue of services rendered (not limited to contract rate)

Damages

Seller breach Buyer breach

Out of pocket loss / benet of the bargain (depending on jurisdiction) Difference between market price and contract price

Restitution

RescissionIf fraud or material breach of contract Quasi-ContractRestore benets conferred

(1) Need valid contract

Seller has to show marketable title at time for performance Statute of frauds must be satised, except if buyer took possession and paid or took possession and made improvements Can't get specic performance if there is a time-of-the-essence clause and contract is wholly executory Court may grant relief where contract is partly executory to prevent forfeiture if payment is (1) within reasonable time, (2) seller's loss is slight, (3) full compensation is tendered for delay, (4) enforcing time condition is unconscionable If seller suesSpecic performance only if defect in performance is immaterial and buyer can be compensated for deciency considering buyer's Partial performance intended use of land with abatement (If seller cannot fully If buyer suesCan get specic perform / satisfy performance with abatement in conditions) purchase price (unless deciency is so large that court would be "making a new contract") Plaintiff who is late Okay to refer to custom or business usage to infer minor terms Land always unique Valid liquidated damages clause does not preclude grant of specic performance, unless construed as true alternative to performance Enforceable only by levy of execution and only if buyer is in the jurisdiction Can't enforce by contempt (b/c can't imprison for debt) If land in jurisdictionCourt can effect conveyance If land out of stateCourt can enforce through contempt

(2) All conditions satised (or failure of condition is partial or immaterial)

Breach of real estate sale contract Specic performance

(3) Denite and certain terms (4) Inadequacy of legal remedy

Forcing buyer to buy (5) Feasibility of enforcement Forcing seller to sell

If party dies equitable conversion issues

Equitable conversion After land sale contract executed, buyer is equitable owner of real property and seller is owner of personal property in right to payment secured by title to land

If a party diesInterests in title and payment pass separately; Other party has to join both administrator and heir in suit If property destroyed or damagedBuyer liable for purchase price (b/c already is equitable owner of the property); If seller recovers insurance proceeds, constructive trust in favor of buyer; Minority view: Risk of loss does not shift until buyer takes possession or legal title

Community Property

Marriage Common law marriagesonly from jurisdictions recognizing them Unmarried cohabitantshave contract rights only Can waive property rights but not support rights Must not promote divorce Adequate disclosure of other party's wealth 7 days deliberation Independent legal counsel or waiver thereof in separate writing Not unconscionable at enforcement Transmutations changing characterization after marriage Prenupschanging characterization before marriage Agreements

Prerequisite:

Begins at marriage; Ends with permanent physical separation where intent not to resume marital relation OR death

Need marriage recognized under CA law

Putative spousewhere good faith belief based on objectively reasonable grounds that lawfully marriage (ends when learns marriage is invalid)

except indicated otherwise in ...

General Presumption: Property acquired during marriage is CP

Transmutation by oral agreement or inferred from conduct okay for transmutations during life and personal gifts of insubstantial value Transmutations testamentary dispositions of more than insubstantial value must be in writing and signed or accepted by spouse whose interest is adversely affected

except indicated otherwise in ... Title

Joint tenancyUndivided half interest; Survivor automatically becomes owner of whole at death of joint tenant Tenancy in commonProportional ownership interest; No right to survivorship [presumed if conveyed to "A and B" before 1975]

Specic categories

Hard-to-categorize items

Wages

Retirement pensions

Stock options

When earned?

Business and professional goodwill

Personal injury recovery

When did cause of action arise?

Disability pay and workers comp

Severance pay

Intended to replace what? Intended to function how?

Education and training

Life insurance

Whole life

Term life

Premiums paid from what? Last premium paid from what?

Married Woman's Special PresumptionIf pre-1975 title in W's name alone, W presumed to own entire property; If tenancy in common with no reference to marital relation, W presumed to own 50% as SP, but H 50% as CP (i.e. owns 75% when H dies); Presumption irrebuttable against BFP relying on pre-1975 title, otherwise rebuttable by showing lack of intent to make gift to W At divorce, court can order employer Affected by preemption (or spouse, if public employer) to pay other spouse CP share of pension Military and DivorceSP when working spouse continues to veterans benets Deathaccording to state law work when entitled to retire and draw Civil service and benets foreign service According to state law If elect disability in lieu of pension, retirement During marriageCP treat as pension benets Can't dispose of spouse's CP Before or after marriageSP ERISA-regulated interest in testamentary Reimburse community for expenses pensions transfer; Otherwise according paid on account of injury to state law Replace marital earningsCP Reimburse community where Replace postdivorce SP earningsSP education enhances earning capacity Function as pensionCP AND education or educational loans Tide over divorc for short timeSP community-funded UNLESS Always SP community already substantially beneted from education, other spouse also received community% premium paid from CP% CP funded education, or education % premium paid from SP% SP reduced need for spousal support Last premium paid from CPCP No value at divorce Last premium paid from SPSP Casualty to CP propertyCP Casualty to SP propertySP

Property casualty insurance payout

What is the property insured?

Rights of spouses, creditors, and others

Real propertyJoint execution required for of instrument selling, conveying, creating security interest, or leasing for more than 1 year

Fiduciary duty limitationSpouses have duty of highest good faith and fair dealing w/r/t managing and controlling CP; Gross negligence or recklessness is breach If property titled in one spouse's name and spouse misrepresents marital status to BFPPresumption that transfer to BFP valid; Nonconsenting spouse has 1 year to overcome presumption by showing lack of consent and then can void the transfer and return purchase price Security interest in CPSpouse can void security interest (except for family law attorney real property lien)

Management of CP during marriage

Equal management and control of CP; Can buy, sell, spend, or encumber all CP acting alone, except ...

GiftsCan't make gifts of community personal property w/o written consent of other spouse; Nonconsenting spouse can revoke gift during lifetime; After donor's death, gift treated as testamentary disposition, and nonconsenting spouse can recover half interest in unauthorized gift from donee or donor's estate Spouse-operated businessOperating spouse has primary management and control; Must give prior notice to other spouse before sale, lease, or exchange of all or substantially all property of the business; Otherwise other spouse has remedy if managing spouse substantially impaired other spouse's half interest in CP, but nonmanaging spouse can't void the transfer Dwelling, furnishings, spouse and children's personal belongingsCan't transfer without consent; Nonconsenting spouse can recover at any time, during or after marriage and need not return purchase price Bank accounts in name of married personHeld for exclusive benet of accountholder; Creditors can't reach

to CPliable for debts of either spouse incurred before or during marriage, except ...

Creditors rights Debt incurred for necessaries

to debtor spouse's SPliable

Nondebtor spouse's earnings not liable for debtor spouse's premarital obligations if earnings held in separate deposit account for which debtor spouse has no right to withdrawal Tort liabilitiesif based on activity for the benet of the community resort rst to CP, then to debtor's SP; if based on other activity, resort rst to debtor's SP, then to CP Tort liability based on activity for the benet of the community, but only after CP and debtor spouse's SP is exhausted Deliberate misappropriation of CP share Where liabilities exceed assets (equitable), taking into account parties' relative ability to pay Unpaid educational debts are separate debt Tort liability separate debt unless based on activity for benet of the community Personal injury damages entirely to injured spouse, unless justice requires otherwise, but in no event less than half to injured spouse

to nondebtor spouse's SPnot liable for debts of debtor spouse, except ...

Division at divorce

Equal division requirementIn-kind division (asset-by-asset) unless equity requires otherwise substantially equal division; No equal division if... Valuation of assets as close to trial as possible, but spouse-managed business where accounts receivable are primary asset should be valued at permanent separation CP not listed in divorce pleadings and not distributed by decree s/t future litigation

Decree can be set aside if extrinsic fraud or mutual or unilateral mistake

50% can dispose of by will; 50% goes to surviving spouse

Distribution at death

Unauthorized gifts of CP during lifeIf not challenged before death treated as testamentary transfer of donor's half interest in CP

Designation of third party in community-funded life insurance policyTreated as testamentary transfer of half interest in CP

Widower's electionT attempts to transfer more than 50% of CP, surviving spouse has to choose between taking under the will or taking against the will

Property acquired in non-CP jurisdiction that would have been CP if acquired in California is QCP

Quasi-CP

Treated as SP during marriage, except creditor may reach; Treated as CP at death or divorce

Out-of state realtyAt divorce, either give spouse CP of equal value, require parties to execute conveyances (personal jurisdiction over ownerspouse), or award money value of interest; At death, ancillary administration of probate where real estate located

Things that create confusion between SP and CP during marriage

SP contributions to family expensesGift presumed absent reimbursement agreement SP contributions to property held in joint titleGift presumed [Lucas], but reimbursement (without interest) of SP contribution at divorce [statute]

... of SP to CP

Contributions CP payments towards SP purchase price (e.g. pay off SP house mortgage)Proportional CP interest in SP One spouse uses CP to improve other spouse's SPSPLIT whether gift presumed

Acquire asset with funds from SPCP commingled accountAsset presumed CP unless trace funds to CP by exhaustion ("community funds already used up to pay for family expenses") or direct tracing ("separate funds were available and I intended to use them to purchase an SP asset"), but not recapitulative accounting ("total family expenses during marriage exceeded total community income during marriage, therefore assets must be SP")

... of CP to SP

Spouses uses CP to improve own SPPresumed not a gift; community right to reimbursement of greater of cost of improvement and SP's increase in value from improvement

Business prots Business started before marriage of from spouse's SP

Van CampProts due to character of the business; FMV of spouse's services - family expenses paid out of business earnings = CP PereiraProts due to spouse's personal skills and effort; SP capital + fair rate of return on capital = SP, rest is CP

Debt

Credit acquired by one spousePresumed community credit unless shows lender relied primarily on spouse's SP; Reliance on one spouse's earning power is still CP

Trusts

Express Private Trust Creation (by inter vivos transfer, inter vivos declaration of trust, or by will) ManifestationBy written or spoken words or conduct of settlor; No need to communicate creation of trust to beneciary; Delivery of deed to trustee sufcient, but if settlor also trustee must segregate trust assets Intent to create trust Timing of intentManifest intent when own property and prior to conveyance Intended effectIntend trust to take effect immediately; Trust of future interest okay Precatory expressionExpression of hope, wish, suggestion that property be used in certain way; Presumption that does not create trust, but inference can be overcome by denite and precise directions, directions addressed to a duciary, resulting unnatural disposition of property, extrinsic evidence that settlor previously supported intended beneciary Death or refusal to accept appointmentCourt will appoint unless clear settlor intent that trust continue only so long as particular trustee served AbsenceMay cause failure of inter vivos trust for lack of delivery DutiesMust at a minimum have duty to deliver title QualicationsCapacity to acquire and hold property for own benet + Capacity to administer trust Trustee RemovalBy court if continuation in ofce would be detrimental to trust, but if settlor knew grounds for removal when created the trust, court may choose not to remove; By beneciaries only if power to remove specically granted in trust DisclaimerTrustee can disclaim or refuse appointment for any reason, but no partial acceptance; Relation back of testamentary trust to settlor's death ResignationNeed court permission or consent of all beneciaries unless trust provides otherwise Merger of titleIf sole trustee and sole beneciary are same individual and hold precisely same interests, titles merge and trust terminates No trust propertyTrust fails Existing interest in existing propertyInterest must be in legal existence; No mere expectancy; No unenforceable, gratuitous promise Res Power to conveySettlor must have power to convey property to create a trust for it SegregationMust be identiable and segregated; Fractional or undivided interest in specic property okay DebtTrustee can hold debt or property from which debt is to be paid; BUT Cannot hold own debt in trust Need beneciariesotherwise trust fails and resulting trust in favor of settlor or successors presumed CapacityTo hold title to property Distinguish incidental and indirect beneciaries (trust does not operate directly to benet person) Beneciaries NoticeNot essential to validity, but may imply lack of intent to create trust AcceptancePresumed; May be express or implied; Has reasonable time to renounce rights to trust DenitenessMust be denite; Not yet ascertained okay as long as ascertainable by time interests are to come into enjoyment; Trustee can have discretion to select members of class gift or can dene requirements for membership in class gift, but very broad powers or categories may create power of appointment rather than trust Can't be illegal, require criminal or tortious act, or be contrary to public policy Purpose ConditionsIf conditions fail, use settlor's expressed alternative, strike out condition subsequent but leave trust, strike out condition precedent but leave trust, unless evidence that settlor's wish would be to void beneciary's interest altogether absent condition Statute of fraudsNeed writing for trust of land, not for personal property Parol evidenceExtrinsic evidence where ambiguity on face of writing Formalities Secret trustTestamentary trusts; Absolute gift on its face, but in fact made in reliance on beneciary's promise (even made after will executed) to hold property in trust for another; Can present extrinsic evidence of promise to create constructive trust in favor of intended beneciary Semi-secret trustTestamentary trusts; Will makes gift but doesn't name beneciary; No extriinsic evidence to show who intended beneciary is; Resulting trust held by trustee for testator's heirs

Charitable trusts
Charitable purposeRelief of poverty, advancement of education or religion, promotion of health Indenite beneciaries EnforcementBy attorney general Rule of perpetuitiesDoes not apply to invalidate / shift benecial interest Cy presWhen charitable purpose selected is impractical, courts select alternative suitable to general charitable intent

Honorary trusts
PurposeBenet of pets or maintenance of burial places ValidityUpheld as long as named trustee is willing to perform duties, otherwise resulting trust EnforcementNobody can enforce, trustee is on her honor Rule of PerpetuitiesApplies, but courts may save gift where personal to trustee or where fund necessary will be exhausted within the perpetuities period

Trustee
Powers

Express powersImperative powers (trust instrument requires trustee to exercise them); Discretionary powers (trust instrument allows trustee to exercise them); Court may review uncontrolled exercise of discretion Implied powersNecessary to operate trust (sale, invest, pay expenses, lease land ... ) Joint powersTraditional: need unanimous agreement of trustees to act; Modern: need majority only General standardDuty of care, skill, and caution that would be exercised by reasonably prudent person in managing own property; If greater or special skill, held to higher standard LoyaltyUndivided loyalty to trust and beneciaries; No transactions with trust in individual capacity without express waiver in trust instrument or court approval AccountKeep and render accounts Separate and earmarkNo commingling of trust assets with other assets; Trust property must be titled in trustee as trustee; If trustee commingles with own property, presumption that portion of property not adversely affected is trust property Perform personallyNo delegation of duties unless would be unreasonable to require personal performance; Can never delegate entire administration of trust; Investment decisions can be delegated if prudent trustee of comparable skills could properly delegate; If improper delegation, trustee becomes guarantor and responsible for actual losses regardless of cause Defend from attackMust defend from legal attack unless examination reveals challenge is well-founded InvestPreserve trust property and make productive Can't buy or sell trust assets Can't sell property from one trust to another trust of which trustee Can't borrow from or lend to trust Can't use trust assets as collateral on personal loan Can't personally gain through position Can't invest in own stock unless stock part of original res No self-employment, but entitled to additional compensation for extraordinary services Evaluate individual investment decisions in context of entire portfolio and part of overall investment strategy and light of facts and circumstances at time investment made Consider economic conditions, effect of ination / deation, tax consequences, overall portfolio, expected return and appreciation, need for liquidity, special relationship or value to purpose of trust or beneciaries, diverging interests of income beneciaries and remaindermen Must diversify Permitted investment vehicles Uniform Prudent Investor Act: any prudent investment; "Legal list" jurisdictions: only approved investments (government bonds, rst mortgages, land) unless otherwise expressed in trust document, trustee must still exercise reasonable care, skill, and caution in choosing among permitted investments ContractPersonally liable on contracts made in course of trust administration unless contract expressly states otherwise, but entitled to indemnication as long as contract w/in powers and trustee acted with reasonable prudence TortsPersonally liable including torts committed by agents; Indemnication only if not personally at fault or tort occurred as normal incident to activity in which properly engaged; If indemnication proper, creditors can reach trust assets to satisfy claims

Duties

Exculpatory clausesStrict construction; Enforceable where no bad faith, intentional breach, recklessness; Can't absolve of all liability direct / permit / acquiesce in act conceal act fail to compel agent to redress wrong improperly select improperly delegate fail to reasonably supervise participate / approve / acquiesce negligent disregard own duties conceal breach fail to take steps to compel redress improperly delegate authority knew or should have known of breach + fail to compel redress negligent in determining which property should have been delivered

...for agents if

Acts of others trustee liable...

...for co-trustees if

Liabilities to third parties

...for trustee predecessor if

Remedies against trustee DamagesLosses, lost prots, interest from time of breach Removal of trustee No offset of losses from one breach against gains from other breach

Remedies against third parties Can recover from knowing participant in breach; Can't recover from BFP Beneciaries can't sue third parties directly unless...

trustee participated in breach trustee left jurisdiction and no successor appointed trustee fails to sue third person liable in contract or tort

Absent express restriction in trust, beneciary can transfer and creditors can attach Spendthrift trustsRestriction on voluntary and involuntary alienation valid; Restriction on involuntary alienation only probably invalid; Cannot shield own assets in spendthrift trust; Special creditors (dependents, furnishers of necessities) may be able to reach despite restraint on alienation Discretionary trustsBeneciary's creditors have same rights as beneciary unless settlor is the discretionary beneciary, in which case creditors can compel payments Support trustsTrustee to pay only as much income or principal as necessary for beneciary's support; Beneciary's interest cannot be assigned or reached by creditors; Settlor's intent determines whether beneciary's other resources should be considered in determining amount payable Settlor's powerPower to amend or revoke only where right expressly reserved; Power to revoke implies power to amend Beneciary's powerOnly where all beneciaries consent and modication or termination will not frustrate material trust purpose; If all beneciaries consent, trustee not liable for distributing trust assets; If beneciaries have right to terminate but settlor objects, objections are not a bar, but may indicate that termination would violate settlor's intent Trustee's powerNo power to terminate except where provided in trust Judicial powerMay prematurely terminate where trust's purpose has become impossible, illegal, or completed; May modify administrative terms to accommodate unanticipated by settlor and achieve trust purpose, but may not deprive beneciaries of interest in income or corpus

Transfer of interests

Modication and termination

Allocation between income and principal (Uniform Principal & Income Act) Receipts from entitymoney: income unless characterized as capital gain or received in partial or total liquidation; property: principal Traditional trust accounting rules Trustee must follow for allocating between income and principal Insurance proceedslife insurance: principal; loss insurance: income; dividends allocated to account from which premiums paid Patents and copyrights10% income, 90% principal Deferred compensation10% income, 90% principal Trustee compensation, expenses for accounting, judicial proceedings, other expenses affecting both income and remainder interests50% charged to income, 50% charged to principal Ordinary expenses and insurance premiums covering loss of principalcharged to income Trustee has duty to administer trust impartially unless trust expressly requires one beneciary to be favored Payments on principal of trust debt, cost of proceedings concerning primarily interest in principal, estate taxes, environmental expensescharged to principal Trust: nature, purpose, and expected duration of trust People involved: settlor's intent, identity and circumstances of beneciaries Distribution of payout: need for liquidity and regularity of income vs. need for preservation and appreciation of capital Trust property: nature of trust property; net amount in trust Trustee discretion: power given trustee by trust to invade principal or accumulate income Outside factors: economic conditions, tax consequences

Power to adjust between principal and income Trustee (as long as not also beneciary) has power to adjust to extent necessary for trust purpose considering...

Inter vivos trustsNot a will if transfer of present gift; Settlor may retain powers, including power to revoke; Split whether can defeat spouse's forced share through revokable trust Life insurance trustsUpheld even though no signicant res prior to death Will substitutes (avoid probate) Totten trustBank account depositor declares self trustee of account for other person to receive money at depositor's death; Depositors retains full control; Revocable by withdrawal of funds, lifetime act indicating intent to revoke, or contradictory provision in will; Creditors can reach; Terminates if beneciary predeceases depositor Gift causa mortisGift made in contemplation of immediate death; Delivery (actual or constructivedo everything possible to effect delivery + no issue of fraud or mistake) DeedMust be delivered while T alive; T may reserve life estate; Can deliver to escrow agent with instructions (even oral instructions) to deliver to B when T dies, but escrow can't be revocable or condition on B surviving

Trusts imposed as remedy

Resulting trust

Purchase money resulting trustRebuttable presumption where beneciary furnishes consideration for purchase (not improvement or rent) of property with title taken in trustee's name except where parties closely related; Failure of express trustTrust void or enforceable, beneciary dead or absent; Settlor becomes beneciary of resulting trust; No resulting trust where trust provides for disposition of trust property should trust fail, if settlor received consideration for transfer in trust, settlor created trust for illegal purposes, or cy press applicable to charitable trust Excess corpusIf purpose fully satised or clear that trust property will remain when purpose satised, create resulting trust in favor of settlor Theft or conversionUse stolen property to acquire other items Fraud or duressProperty acquired by fraud or duress or under forged or fraudulent will; BFPs protected Breach of duciary dutyProperty acquired by breach of duciary duty HomicideAny property acquired from killed person by will or intestacy in favor of whomever would have taken had killer predeceased killed; If joint tenancy between killer and killed, split whether constructive trust imposed with respect to half or all of property interest Note: Usually can't use to save promise unenforceable (e.g. because of Statute of Frauds).

Constructive trust

Wills

Applicable Law Intestacy Personal propertyLaw of decedent's domicile Real propertyLaw of where property located Validity of willsAdmissible to probate if valid under laws of

California OR State where executed OR State where T domiciled at execution

Intestate succession Community Property 50% of community property and quasi-community property

[Effect: Spouse owns 100% of community property (owned 50% of community property when spouse was alive) and 100% of quasi-community property (got 50% of quasi-community property at death due to quasi-community property statute and 50% of quasi-community property through intestate succession)]

Separate Property No issue100% Spouse

if none, then to

1 children50% 2+ children33%

Descendants
if none, then to

Heirs of predeceased spouse or domestic partner if ...

if none, then to

(1) Predeceased spouse / domestic partner died 5 years or less before T (2) Predeceased spouse / domestic partner gave T

Parents
if none, then to

Real property w/in 15 years of decedent's death Personal property worth > $10K or with record of ownership from predeceased spouse / domestic partner

Issue of parents
if none, then to

Grandparents
if none, then to

Issue of grandparents
if none, then to

Issue of predeceased spouse or domestic partner

if none, then to

Next of kin
if none, then to

Parents of predeceased spouse or domestic partner

if none, then to

Issue of parents of predeceased spouse or domestic partner

if none, then to

Escheat

Creation of will

In writing Signature of or on behalf of TSigned by T, third person at T's direction, or court-appointed conservator [No particular order of signing required, witnesses can sign before T Witnesses' signatureMust understand they are signing a will; signs; Can sign anywhere on the will, need not be at the end of the Need not sign in each other's presence document] Witnesses presentSimultaneous presence of two witnesses at signing or acknowledgment of signature or acknowledgment of will; Sight presence (see T sign) or conscious presence (hear T acknowledge) "Publication" not requiredT need not declare "this is my will" "One continuous transaction" not requiredNo need for signing by T and witnesses to be part of "one continuous transaction" as long as no issues of fraud T's signature Material provisions handwrittenGifts made and beneciaries' names Date not required, but... If inconsistent with other will and can't tell which is more recent, holograph invalid to extent of inconsistency; If holograph might have been executed when T lacked capacity, presume that it was executed without testamentary capacity (entirely invalid) unless established that T did have testamentary capacity Statement of testamentary intent ("this is my last will") not required; Okay if part of preprinted form List of names and corresponding assets / Series of lettersAdmit extrinsic evidence to see if testamentary intent

Formal Will

Holographic (handwritten) will

What documents are included IntegrationProvisions of will on several pieces of paper IntentT intended all papers to be part of the will (inferred from physical or logical connection among papers) physically present PresenceAll papers were at execution Incorporation by reference

In writing In existence when will was executed Clearly identied in will Intent to incorporate Referred-to document need not be otherwise valid instrument (e.g. defective deed)

Changing the will Interlineations

Increasing the giftInvalid holographic codicil; Original (smaller) gift saved by dependent relative revocation Decreasing the giftDependent relative revocation will not be applied; entire gift canceled unless valid holographic codicil (no new signature required VoidingWriting "void" or the like on formal will is not a valid holographic codicil, but is a valid cancellation Cancel one gift to increase anotherCanceled portion goes to residuary devisee or by intestacy

Codicil

Testamentary instrument executed in compliance with with statute of wills that modies, amends, or revokes will No republication unless expressly stated

Crossing things out

Act done by T or in T's presence (sight presence or conscious presence) at T's direction By physical act By codicil By subsequent will Revocation By law Codicils Duplicate copies Dependent Relative Revocation Simultaneous intent to revoke Burned (even slightest singeing; revokes entire will), torn (must touch material part of will), cancelled (cross out, write "void" across will, deface signature), destroyed, obliterated (erased; must touch material part of will) Express or implied from subsequent will disposing of all of testator's estate Annulment or nal dissolution of marriage; Termination of domestic partnershipDevise to former spouse or domestic partner is revoked except if will expressly states otherwise; Devise is reinstated if T remarries spouse or reestablishes domestic partnership to same person Destruction of codicil revokes codicil only; Destruction of will revokes codicil and will Destruction of one of two executed duplicate copes revokes the will T revokes will in mistaken belief that a new will valid If revocation is by physical act and terms of new will are substantially the same as terms of old will, disregard mistaken revocation If will #1 is destroyed or lost due to revocation can probate as long as one witness (not necessarily attesting witnesses) testies to terms
Situation: Execute will #1; Revoke will #1, execute will #2; Revoke will #2 Does will #1 go back into force?

Revival

Revocation by physical act + T manifests intent to revive Revocation by subsequent instrument + terms of instrument indicate T's intent to revive

Interpretation Facts of independent signicance Parol evidence admissible where the fact has independent signicance, i.e. was not done for testamentary purposes alone

Specic deviseGift of particular item; Uniqueness; T intended B to take this particular thing Types of gifts General deviseNot unique or special; Payable out of general assets of the estate Demonstrative deviseGift out of particular fund Decedent If intestacy, will, or trust calls for distribution to "issue," determines right to take where unequal degree of kinship. Works like this: A 50% D 25% B [deceased] by representation C 25%

Rules of construction "To issue": right to representation

Half bloods

Take same as whole blood

"Children"

Adopted childrenIncluded; relationship with biological parent severed unless adoption by spouse or domestic partner of natural partner or adoption after death of biological parent Stepchildren or foster childrenNot included unless relationship began during child's minority and continued throughout parties' lifetime + established by clear and and convincing evidence that stepparent or foster parent would have adopted but for legal barrier (e.g. biological parents would not consent) Non-marital childrenMarital status irrelevant; Test: parent-child relationship established by (1) birth; (2) born during marriage or domestic partnership; (3) named as parent on birth certicate; OR (4) payment of child support Posthumous childrenConceived during lifetime, but born after death; included as if born

Anti-LapseIf B predeceases T, B's successors get nothing, except...

Dispositions to "kindred" (blood relatives) of T or of T's spouse or domestic partner (dead or alive, even if divorced or relationship terminated) don't lapseIssue of B step into shoes of B
[Applies to wills and revocable trusts]

Simultaneous DeathUnless clear and convincing evidence that B survived T, B presumed predeceased and takes nothing, except... After-acquired property Increase during lifetime

Joint tenantsSever joint tenancy; Half passes under A's will, half under B's will Intestate successionNeed clear and convincing evidence that heir survived intestate by 120 hours, otherwise deemed predeceased; Does not apply if property would escheat

Property acquired after execution also passes under will Stock dividends and splits paid during T's lifetime go to B if stock owned by T at T's death, regardless of whether stock is general or specic devise Specic devisees get dividends, stock splits, rents, interest on debt General devisees do not get increases 1. Take from property not passing by will or trust 2. Take from all beneciaries of will or trust in proportion to value of gift Generally no distinction between specic, general, and residuary gifts, but court can exempt specic gift if abatement would defeat T's obvious intent apparent from specic devise or general terms of the will No distinction between relatives and non-relatives

Increase after T's death AbatementReducing gifts to other devisees to pay pretermitted child, spouse, or domestic partner ExonerationNo automatic exoneration

Devisee takes specic gift s/t encumbrance unless will indicates that other estate funds should be used to pay off encumbrance (need more specic provision than general direction to use estate funds "to pay all my debts")

Special provisions Pour-over willsT creates trust, then wills part or all of estate to trustee of trust, to be administered pursuant to terms of trust; valid pursuant to any of these three theories

Incorporation by referenceTrust instrument incorporated into will Facts of independent signicance Determine who is the trustee and what are the terms of the trust Uniform Testamentary Additions to Trusts Act (UTATA)Validates pourover provisions where trust was in existence at time of execution

Joint willsWill of 2+ people in one document

Provisions do not have to be reciprocal Will probated repeatedly, after each person dies Separate wills with reciprocal dispositions Probate will only if condition satised ("This is my will if I die on my Europe trip")

Mutual / reciprocal wills Conditional wills

Restrictions on dispositions T can dispose of only 50% of CP and QCP Community property Widow's electionIf T attempts dispose of more than 50% of CP or QCP, surviving spouse must choose between taking under the will (take testamentary gift) or taking against the will (take share of community property and quasicommunity property) Felonious and intentional killing + proof of conviction or guilty plea / probate court determines guilt by preponderance of the evidence Killer Killer deemed to have predeceased decedent; anti-lapse does not apply Joint tenantsSeverance of joint tenancy; Killer has no right to survivorship, but keeps his 50% interest Insurance beneciariesKiller beneciary takes no benet Various problems CapacityOtherwise entire will invalid 18+ years old Understand extent of property Know natural objects of bounty (spouse / domestic partner, issue, parents, those affected by will) Know nature of act (no need to understand legal technicalities) Insane DelusionAffected part invalid False belief that is the product of a sick mind and for which there is no evidence at all

Fraud in the executionEntire will invalid Fraud Fraud in the inducementAffected part invalid; Constructive trust (maybe) in favor of intended heirs (e.g. X fraudulently induces T to not give to Y; constructive trust for Y possible) Fraudulent prevention of will or revocation of will Constructive trust (maybe) in favor of intended heirs

Susceptible T Prima facie case Inuencer has opportunity to inuence Inuencer exercises undue inuence (more than pleading, begging, nagging, cajoling) Provisions of the will are unnatural Undue inuence Affected part invalid; Constructive trust (maybe) in favor of intended heirs Common law (modern)Disposition to person in condential relationship (attorneyclient; doctorpatient, etc.) or relationship of trust, who participated in execution of will Presumptions StatutoryDisposition to drafter or person associated with drafter (relative, cohabitant, employee, co-partner, coshareholder, employee of owned partnership or corporation), to duciary with T or person associated with duciary (relative, cohabitant, employee), or to care custodian of dependent adult (except if person is a relative) Affected part invalid; Constructive trust (maybe) in favor of intended heirs Rebuttable with clear and convincing evidence that transfer not the product of fraud, menace, duress, or undue inuence Person deemed predeceased; Intestate share (if any) preserved

Interested witness presumption that secured gift by wrongdoing Mistake in execution

If two disinterested witnesses (i.e. at least three total witnesses), no presumption If interested witness takes only in duciary capacity (e.g. as trustee), no presumption Can rebut presumption Entire will invalid, except reformation (maybe) if reciprocal or mutual wills (e.g. H and W executing mutual wills sign wrong document) No consequence, except if apparent from face of the will what T would have wanted beneciary to get but for erroneous belief Court may strike out accidental additions but will not pencil in accidental omissions or deletions No extrinsic evidence to explain T's mistake as to legal effect of terms of will Dependent Relative RevocationT revokes will in mistaken belief that a new will valid; If revocation is by physical act and terms of new will are substantially the same as terms of old will, disregard mistaken revocation; If will #1 is destroyed or lost due to revocation can probate as long as one witness (not necessarily attesting witnesses) testies to terms

Mistake

Mistake in inducement (gift based on T's mistaken belief) Mistake in content Mistake as to legal effect

Ambiguity

Extrinsic evidence admissible to clarify patent ambiguity or show and clarify latent ambiguity (traditionally, no extrinsic evidence for latent ambiguities)

Children Pretermission

Surviving children born or adopted after execution of will or inter vivos trust not provided for in the instrument take intestate share, except ... Child treated as pretermitted if parent did not know child existed or thought child was dead Surviving spouse who married T after execution of will or inter vivos trust but are not provided for in the instrument take intestate share, except ... Spouse can't take more than 50% of separate property

Devised substantially all of the estate to pretermitted child's parent Intent to disinheritMust be apparent from face of will or trust; Extrinsic evidence admissible to show lack of intent Provided for outside willDecedent provided for spouse / child outside will or trust and intended that transfer to be in lieu of inheritance (show intent by statements of T or infer from amount of transfer or other evidence)

Spouse

If die before 1998inter vivos revocable trusts not s/t pretermission rules Ademption by extinctionSpecic gift fails b/c T didn't own property at T's death, except... Ademption Securities changing form b/c of reorganization, merger, stock split, stock dividends Conservator selling off assetsB gets net sales price Eminent domain award, casualty award, installment paymentsOnly if proceeds are traceable (B argues T intended specic gift to survive by making proceeds traceable) Express provision in will for deduction of inter vivos gifts Ademption by satisfactionPaid the devise before death Contemporaneous declaration in writing with gift that gift is a satisfaction Beneciary acknowledgment in writing that gift is satisfaction (at any time) Gift is same property as specic gift (also ademption by extinction) If B predeceases TIf issue of predeceased B take under anti-lapse statute, treat as if issue had received satisfaction, i.e. reduce amount of testamentary gift Value of satisfactionValue stated in contemporaneous value is conclusive, otherwise use fair market valuation Contract and will in same document"In consideration of X, I promise to devise Y to B and hereby do devise Y to B" Will refers to contract"Pursuant to my contract, this is my will"; Extrinsic evidence (including oral) admissible to establish terms of K, promisee, consideration, effect of K Contract to devise Signed writing evidencing contract Clear and convincing evidence of agreement enforceable in equity (also with promisee as beneciary or TPB as beneciary) Cause of action does not accrue until T dies, except if T engaging in fraud that would irreparably harm Remedyspecic performance or constructive trust in favor of beneciary indicated by contract

Good luck!