MPT-1
Downey v. Achilles Medical Device Company
FILE
Memorandum to Examinee
File memorandum re: AMDC litigation
File memorandum re: Investigator’s interviews of AMDC employees
LIBRARY
Excerpts from the Franklin Rules of Professional Conduct 
Franklin Board of Professional Conduct, Ethics Opinion 2016-12
Mahoney v. Tomco Manufacturing, Franklin Court of Appeal (2010) 
FILE
BETTS & FLORES
Attorneys at Law
300 Stanton St.
Franklin City, Franklin 33705
MEMORANDUM
To: Examinee
From: Hiram Betts
Date: February 25, 2020
Re:         Downey v. Achilles Medical Device Company
Our client, Achilles Medical Device Company (AMDC), is the defendant in a case in which the plaintiffs allege that AMDC manufactured and sold defective walkers during the years 2010–2015. The plaintiffs are attempting to bring the case as a class action; we intend to oppose the motion for class certification.
This case presents a professional responsibility issue regarding contacts with represented persons. Despite the fact that we represent AMDC, the plaintiffs’ lawyers are seeking to speak with one former AMDC employee and four current AMDC employees regarding their knowledge of the manufacture and sale of the allegedly defective walkers. An investigator for the plaintiffs’ lawyers has contacted these individuals, without first obtaining our consent to speak with them.
Likewise, despite the fact that opposing counsel represents the named plaintiffs, we want to talk to people, including the named plaintiffs, who purchased and used the walkers in question. Doing so would help us prepare our defense.
We need to know whether the Franklin Rules of Professional Conduct (FRPC) permit these communications. (The FRPC are identical to the ABA Model Rules of Professional Conduct.) Please draft a memorandum to me analyzing two issues:
(1) Whether the plaintiffs’ lawyers or their representatives may communicate, without our consent, with the current and former AMDC employees regarding their knowledge about the manufacture and/or sale of the walkers. Discuss each individual separately and explain your conclusions.
(2) Whether we, as AMDC’s attorneys, or our representatives may communicate with any named plaintiffs or potential members of the class without the consent of opposing counsel.
Do not include a separate statement of facts, but be sure to incorporate the relevant facts into your analysis, discuss the applicable legal authorities, and explain how the facts and law support your conclusions. 
BETTS & FLORES 
Attorneys at Law
FILE MEMORANDUM
From: Hiram Betts
Date: January 23, 2020 
Re:         Downey v. Achilles Medical Device Company
I just received a call from Ron Gilson, president of Achilles Medical Device Company (AMDC). We represent AMDC in a class-action lawsuit and are in the early stages of litigation. The plaintiffs allege that AMDC negligently manufactured and then sold defective walkers. The plaintiffs claim that, due to manufacturing defects, the walkers collapsed when the plaintiffs tried to use them and that the plaintiffs were injured as a result. Five named plaintiffs, led by Marie Downey, are attempting to bring a class action “on behalf of themselves and all other persons who bought and used AMDC walkers (model 2852) manufactured in 2010 and marketed and sold between 2010 and 2015 and who were injured when attempting to use the walkers.” We intend to oppose the plaintiffs’ motion for class certification. We would like to contact as many potential members of the class as possible before class certification.
Gilson told me that one former employee and four current employees have been approached by an investigator employed by the plaintiffs’ law firm. The investigator has attempted to speak directly with the former employee and current employees without our consent. Gilson is very concerned about these contacts and wants to know if the plaintiffs’ lawyers are doing anything wrong.
Gilson provided a list of the former and current AMDC employees. Marilyn DePew, an associate with our firm, has spoken with each of these individuals about their interactions with the plaintiffs’ investigator.
Note that Gilson does not believe that there was a problem in the design or manufacture of the walkers. He would like us to contact as many purchasers as possible to find out about their experiences with the AMDC walkers. 
BETTS & FLORES
Attorneys at Law
FILE MEMORANDUM
From: Marilyn DePew
Date: January 25, 2020
Re:         Downey v. Achilles Medical Device Company: Interviews
Ashley Parks, an investigator employed by the law firm that represents the plaintiffs in Downey v. Achilles Medical Device Company, contacted one former employee and four current employees of AMDC. I have interviewed those former and current employees and, with their permission, recorded the conversations. What follows are the transcripts of the relevant portions of those interviews.
INTERVIEW WITH RON ADAMS
Q: Mr. Adams, are you a current employee or agent of Achilles Medical Device Company, commonly known as AMDC?
A: No.
Q: Have you ever been an employee of AMDC?
A: Yes, I worked for AMDC from 2003 to 2017. I was director of quality control during that time. Now I am happily retired.
Q: When you were at AMDC, what were your responsibilities as director of quality control?
A: I was in charge of the quality control department. Employees in my department, whom I supervised, inspected every product that left the manufacturing plant and was made available for sale. I am very proud of the work we did.
Q: So the department for which you were responsible would have inspected the walkers that were manufactured in 2010 and sold between 2010 and 2015?
A: Yes.
Q: Do you have any specific knowledge about the walkers that are alleged to have been defective?
A: No, not specifically. I do know that every piece of equipment that left the factory was inspected. If it did not meet company standards, it was rejected. I would like to know what the purchasers are complaining about.
Q: What do you mean by “rejected”?
A: The item was not released for sale and either was put in the trash or was refurbished and then inspected again to make sure it met company standards.
Q: Do you have any knowledge of what is happening in the quality control department at AMDC now?
A: No, not really.
Q: It is my understanding that you were contacted about the class-action litigation regarding the walkers. By whom were you contacted?
A: I received a phone message from Ashley Parks, who said she was an investigator employed by the law firm that represents the plaintiffs in the case of Downey v. AMDC. She said she wanted to talk to me about the quality inspection of the walkers.
Q: How did you respond to this request?
A: I haven’t called her back yet. Quite honestly, I am happy to talk with her. I didn’t do anything wrong.
INTERVIEW WITH GUS BARTHOLOMEW
Q: Mr. Bartholomew, how long have you been employed by AMDC?
A: I have worked there continuously since 2003.
Q: Have you had the same job during all that time?
A: Yes, for all that time, I have been employed as the executive assistant to the president of the company. We have had several presidents during my tenure, but I’ve stayed in my position.
Q: What are your responsibilities as executive assistant to the president of AMDC?
A: I am basically the president’s administrative assistant. I do word processing, answer the phone, organize the president’s schedule, get the president organized, and anything else the president wants.
Q: Do you attend meetings of the board of directors of AMDC?
A: Yes, I sit in on the meetings and take the meeting notes. I don’t say anything—I just record exactly what is said during the meeting and then provide my notes to the board secretary and president for approval.
Q: Have you taken notes on discussions between the lawyers for AMDC and the board?
A: Yes.
Q: Have any of those discussions involved AMDC’s response to the Downey litigation?
A: Yes.
Q: Do you have a vote on the matters before the board of directors?
A: No, I do not.
Q: Do you see or hear communications between the president of AMDC and counsel for AMDC?
A: Sometimes. I type and proofread all written letters sent by the president to the company’s lawyers. I also open and review any incoming mail from the lawyers. I have access to the president’s emails and frequently review them. I do not listen in on my boss’s—the president’s—phone conversations.
Q: Did anyone contact you about the litigation involving the walkers that AMDC manufactured in 2010 and sold between 2010 and 2015? These are the walkers at issue in the class-action lawsuit Downey v. AMDC.
A: I received a phone message from an Ashley Parks. She said she was an investigator who is employed by the plaintiffs’ lawyers in the Downey case. She said she wanted to talk to me about the case. I haven’t returned the call yet.
INTERVIEW WITH AGNES CORLEW
Q: Ms. Corlew, how long have you been employed by AMDC and what is your position with the company?
A: I have been employed since January of 2017, and I am head of the public relations department.
Q: What are your responsibilities as AMDC’s head of public relations?
A: I am responsible for the team that responds to all media requests, writes and publishes all written materials about the company, and answers public inquiries about the company. I am, in essence, the voice of the company. I don’t make the company’s policies, but I frequently communicate the official position of the company to the public.
Q: Is it your job to answer questions about pending litigation?
A: Yes, I answer questions from the press and the public about pending litigation.
Q: Do you play any role in decisions about the litigation?
A: No. I present only the information that has been provided to me and has been approved by the president’s office.
Q: Have you ever met with counsel for AMDC regarding the Downey case?
A: Absolutely not.
Q: Has anyone associated with the plaintiffs’ lawyers in the Downey case tried to contact you?
A: My assistant told me that I had a call from Ashley Parks, an investigator who works for the plaintiffs’ law firm. I haven’t returned the call.
INTERVIEW WITH ELISE DUNHAM
Q: Ms. Dunham, what is your job with AMDC and how long have you worked there?
A: I am the plant manager at AMDC. I have been employed in that position continuously since March of 2009.
Q: What are your responsibilities in that position?
A: I oversee all the manufacturing at the plant. I also make sure that every product meets our quality control standards. 
Q: So the director of quality control reports to you?
A: Yes, as does the director of manufacturing.
Q: So you were manager of the plant at the time AMDC manufactured the walkers, model 2852, that are alleged to have been defective in the Downey case.
A: Yes, although I honestly don’t remember anything about those particular walkers.
Q: Have you been contacted by any of the plaintiffs’ counsel or their representatives?
A: I received a note from Ashley Parks, an investigator with the plaintiffs’ law firm, saying that she wanted to speak with me. Since then, I’ve hired a lawyer, and I called Ms. Parks to give her my lawyer’s name and contact information.
INTERVIEW WITH PENNY ELLIS
Q: Ms. Ellis, I understand that you are employed by AMDC and have been employed by the company since 2008. But I also understand that your responsibilities have changed over that time period. Could you explain the different responsibilities you have had since you began working at AMDC?
A: Sure. From 2008 to 2016, I was director of marketing for AMDC. Essentially, I was responsible for all sales of all products. Of course, I had a staff that worked for me. In 2016, I changed positions and am now chief financial officer of the company.
Q: So, from 2010 to 2015, did your responsibilities include sales of the walkers that are at issue in the Downey case?
A: Yes, definitely.
Q: Do you remember anything specifically about the walkers?
A: No, we had a lot of products that were sold while I was head of marketing.
Q: Currently, do you have any responsibility for sales, marketing, or anything else regarding walkers or any other equipment?
A: No, I manage the company’s financial actions, including cash flow and budgeting, and help shape the company policy.
Q: As chief financial officer, are you a member of the board of directors of AMDC?
A: Yes, I serve as treasurer.
Q: Does the board have any involvement in the lawsuit?
A: The lawyers from your firm, Betts & Flores, consult with the board about the litigation and seek input from the board. I really don’t know anything about law, so I mainly listen when they discuss the litigation. I would be involved in the financial aspect only if there were a settlement or if there were a judgment against the company.
Q: Are you a voting member of the board of directors of AMDC?
A: Yes. I have a vote on every issue that comes before the board.
Q: Does that include voting on issues related to the Downey litigation?
A: Yes.
Q: Have you been contacted by anyone associated with the plaintiffs’ law firm in the Downey matter?
A: Yes, I was called by a woman named Ashley Parks. She told me that she was an investigator working for the plaintiffs’ law firm and that she wanted to speak with me about the walkers. I told her I would call her back. What should I do?
LIBRARY
Excerpts from the Franklin Rules of Professional Conduct
Rule 1.0(f)
“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
. . .
Rule 4.2 Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Comment [1]: This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.
. . .
Comment [3]: The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.
. . .
Comment [7]: In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. 
. . . 
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
. . .
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 
FRANKLIN BOARD OF PROFESSIONAL CONDUCT
Ethics Opinion 2016-12
We have been asked to give a formal ethics opinion on the interpretation of Franklin Rule of Professional Conduct (FRPC) 4.2. Specifically, we have been asked to provide some guidance as to the interpretation of Comment [7] to the Rule.
Franklin Rule of Professional Conduct 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter” without the prior consent of the represented person’s counsel. Rule 4.2 applies equally to organizations and to individuals. Comment [7] to Rule 4.2 states that such unauthorized communications with agents or employees of an organization are prohibited in three situations: (1) where the agent or employee of the organization “supervises, directs or regularly consults with the organization’s lawyer concerning the matter”; (2) where the agent or employee of the organization has “authority to obligate the organization with respect to the matter”; and (3) where the agent’s or employee’s “act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” Importantly, Rule 4.2 prohibits such unauthorized communication only with current agents and employees of the organization. Counsel may communicate freely with former agents and employees of an organization without the consent of the organization’s lawyer regardless of the role the agent or employee may have played in the matter.
The first prong to Comment [7] prohibits unauthorized communication (i.e., communication without prior consent of the organization’s lawyer) with a person in the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter. This generally includes the people who are giving and receiving information from the lawyer and directing the lawyer’s actions in the matter, as well as those who have power to compromise or settle the matter in consultation with the lawyer. In a corporation, persons under this prong would generally include the “control group”—that is, the board of directors and top management officials. However, the analysis under this prong is functional. One must determine whether particular members of the board and other top officials actually do consult with or direct the actions of counsel concerning the matter.
The second prong prohibits unauthorized communication with a person in the organization who has “authority to obligate the organization with respect to the matter.” This includes only those agents or employees who have authority to enter into binding contractual settlements on behalf of the organization. An agent’s authority may be actual or apparent. An agent can bind a principal when given actual authority to do so, either through express words or through implication. In addition, an agent may have apparent authority if it reasonably appears to an outsider that the agent has been given authority to bind the principal. Only those agents or employees who have either actual or apparent authority to settle litigation on behalf of the organization are covered under this prong. Obviously, this prong overlaps with the first prong, as it may include members of the board of directors as well as those agents and employees who have been given explicit authority by the organization’s rules or bylaws to settle the matter on behalf of the organization. But this prong, unlike the first, also covers those who have the apparent authority to settle the matter as well as those with actual authority.
The third prong of Comment [7] prohibits unauthorized communication with an agent or employee of the organization whose “act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” Whether an agent’s or employee’s conduct may be so imputed must be determined with reference to the specific facts and circumstances of the case; it is not simply a fanciful construct of potential liability. The focus is on the conduct of the agent or employee and whether, based on that conduct, a fair-minded person could foresee imputation of liability. Communication is prohibited only when the agent’s or employee’s act or omission is obviously relevant to a determination of corporate liability. In other words, the agent or employee has acted in the matter on behalf of the organization and, save for the separate legal character of the organizational form, would be directly named as a party in a lawsuit involving the matter. By focusing upon acts or omissions, this prong precludes unauthorized communications only with actors, not mere witnesses. If it is not reasonably likely that the agent or employee is a central actor for liability purposes, nothing in FRPC 4.2 precludes unauthorized contact with the agent or employee. Only those agents or employees whose actions or omissions are the subject of the litigation—or those individuals who supervised or approved the actions or omissions of those persons—are covered by the Rule.
Importantly, even if Rule 4.2 does not prohibit counsel from speaking with an employee or former employee of an organization, counsel must be careful not to speak with that agent or employee about any information that might be protected by attorney-client privilege. Attorney-client privilege protects any communications between counsel and client for the purpose of obtaining legal advice. For purposes of this ethics opinion, the client would be the organization. If a lawyer seeking to speak with an employee or former employee has reason to believe that the employee or former employee is privy to communications protected by the attorney-client privilege, counsel must make every reasonable effort not to breach that privilege. Indeed, counsel is prohibited from asking directly or indirectly about any of those communications. 
Mahoney et al. v. Tomco Manufacturing
Franklin Court of Appeal (2010)
Robert Mahoney and 12 other named plaintiffs filed a lawsuit on behalf of themselves and all other persons who purchased allegedly defective lawn mowers manufactured by Tomco Manufacturing. The motion for class certification has been granted, and notice has been given to all persons who purchased the allegedly defective lawn mowers during the applicable time period. The plaintiffs filed a motion seeking an order from the trial court preventing Tomco’s lawyers or their representatives from speaking with any current or potential members of the class without the permission of the plaintiffs’ counsel. At the time the plaintiffs filed this motion, the potential class members had been given six months to let the court know if they wished to be excluded from the class (typically referred to as “opting out”).
Although courts are not bound by the Franklin Rules of Professional Conduct in matters other than attorney disciplinary proceedings, the trial court relied on FRPC 4.2 in making its determination. Rule 4.2 prohibits a lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” This prohibition applies equally to agents of the lawyer or persons acting at the lawyer’s behest. See FRPC 5.3. Based on Rule 4.2, the trial court issued an order prohibiting Tomco’s counsel, or their agents or representatives, from communicating with any persons who purchased a Tomco lawn mower (model 350) during the period 2005–2007; that is, all persons who could have been members of the class.
While we find no error in the trial court’s reliance on Rule 4.2, we do find the order to be overly broad. Rule 4.2 prohibits communication only with persons the lawyer “knows” to be represented by counsel. “Knowledge” is a high standard. There must be more than “reason to believe” or “assumption.” There must be actual knowledge. Very clearly, the named members of the class are known by Tomco’s lawyers to be represented by plaintiffs’ counsel. Each of those named class members has an attorney-client relationship with the lawyers representing the class. Tomco’s lawyers know about that relationship. However, the trial court’s order is overly broad because it also prohibits Tomco’s lawyers from communicating with potential members of the class. Until the end of the “opt out” period, only the named plaintiffs are considered to be represented by the class counsel.
There is no way that Tomco’s lawyers could know whether the potential class members were represented by counsel. Indeed, those potential class members still had six months to decide whether to opt out of the class. To Tomco’s lawyers’ knowledge, these potential class members were not represented by a lawyer, nor had they entered into a lawyer-client relationship with plaintiffs’ counsel.
We therefore hold that the trial court’s order is modified to prohibit Tomco’s counsel, or their agents or representatives, from engaging in unauthorized communications only with the named plaintiffs in the lawsuit. Communication with potential members of the class, without the permission of the class counsel, is not prohibited by this order. Once the time period for opting out is completed, Rule 4.2 would prohibit Tomco’s lawyers from communicating, without opposing counsel’s consent, with any class member who has not chosen to opt out of the litigation.
Reversed in part and modified.
Sample Answer
To: Hiram Betts
From: Examinee
Date: February 25, 2020
Re: Downey v. Achilles Medical Device Company
Issues to be discussed: 
1- Whether the planitff's lawyers or their represenative may communicate, without our consent, with the current and former Achilles Medical Device Company (AMDC) employees regarding their knowledge about the manufacture and/or sale of the walkers.
2- Whether, as AMDC's attorneys; or our represenatives may communicate with any named plaintiffs or potential memebrs of the class without the consent of opposing counsel.
Issue 1: Whether the plaintiff's lawyers or their representatives may communciate, without our consent, with the current and former employees AMDC employees regarding their knowledge about the manufacture and/or sale of the walkers.
a: Ron Adams
Ron Adams is a former employee who worked for the company from 2003 to 2017. During this time, Mr. Adams was the Director of quality control. He was in charge of the quality control department and he supervised production and inspected every produc that left the manufacturing plant and was made available for sale. He was contacted by Ashley Parks about the class action and he has not yet responded to her. He stated that he is happy to talk to her because he did nothing wrong and he was very proud of the work that he and his department performed during his employement. 
With regards to whether the plaintiff's counsel is permitted to contact Mr. Adams, the FRPC 4.2 states that: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." (Page 9 of MPT). Comment 1 of Rule 4.2 clarifies that the goal is to protect against possible overrreaching by other lawyers who are participating in the matter and interference by those lawyers with the client-lawyer relationship and uncounselled disclosure of informaiton relating to the representation. Comment 7 states that Rule 4.2 prohibits the communications ith a constituent of the organization who supervises, directs, or regularly consults with the organizaiton's lawyer concerning the matter or has authority to obligate the orgnization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization. Consent of the organization's lawyer is not required for ocmmunication with a former constituent. If a constituent of the organization si represented in the matter by his or her own counsel, the consent by that cousnel to a communication will be sufficient for purposes of this Rule.
However, in Ethics Opinion 2016-12, the Franklin Board of Professional Conduct (FBPC) clarified that Rule 4.2 and specifically Comment 7, prohibits such "unauthorized communication only with current agents and employees of the organization". (Page 11) of Library. This means that counsel may communciate freely with former agents and employees of an organization without the consent of the organization's lawyer reglardless of the role the agent or employee may have played in the matter. 
Therefore, with regards to Mr. Adams, Rule 4.2 is inapplicable since Mr. Adams is no longer a current employee of the AMDC and the plaintiff's cousne lmay speak with him; however, the Ethics Opinion also states that even if counsel is not prohibited from speaking wiht an employee or former employee of an organization, counsel must be careful not to speak with that agent or employee about any informaiton that might be protected by attorney-client privilege. Attorney-client privledge protects any communicastions between counsel and client for purposes of obtaining legal advice. For purposes of corporations, the orgnization itself is the client and the counsel must make every effort not to breach that privilege when talking to an employee or former employee who is believed to be privy to communicaitons protected by attorney-client privilege. If a lawyer seekign to speak with an employee or former employee has reason to believe that the employee or former employee is privy to communciations protected by attorney-client privilege, counsel must make every reasonable effort not to breach that privilege and counsel is prohibited from asking directly or indirectly about any of those communications.
Therefore, even though Mr. Adams is a former employee and plaintiff's counse is permitted to speak with him about the litigation, the plaintiff's counsel (Ashley Parks) may not have reason to believe that Mr. Adams was privy to communications protected by attorney-client priviledge since he only oversaw the quality control department and he inspected every product that left the manufacturing plant and he was not and would not have been privy to communications between counsel and client for the purposes of obtaining legal advice. Since the facts do not suggest that Mr. Adams was privy to these conversations, Ms. Parks will be permitted to talk to Mr. Adams and will likely be able to ask questions regarding his work at AMDC. However, if there is reason to believe Mr. Adams was privy to attorney-client communications, Ms. Parks must make every reasonable effort not to breach that privilege and may not ask directly or indirectly about any of those communications.
b. Gus Bartholomew
Gus Bartholomew is a current employee of AMDC and has been employeed there since 2003. He is  employed as an executive assistant to the president of the company and performs such jobs as word processing, answering the phone, organizing president's schedule, and anything else president wants. Mr. Bartholomew attends board of directors meetings for AMDC and takes notes at the meetings and he has taken notes for meetings involving discussions about the Downey litigation. Sometimes hears communications between the president of AMDC and cousnel for AMDC. He also opens and reviews any incoming mail from the lawyers and type and proofread all written letters written by the president to the company's lawyers. He also frequently reviews emails of president, but does not listen in on phone conversations.
Under Comment 7 of FBPC Rule 4.2, the first prong to Comment 7 prohibits unauthorized communication with a person in the organization who supervises, directs ,or regularly consults with the organization's lawyer. This generally includes people who are giving and receiving information from the lawyer and directing the lawyer's actions in the matter, as well as those who have power to compromise or settle the matter in consultaiton with the lawyer.
The second prong includes agents or employees who have authority to enter into binding contractual settlements on behalf of the organization. An agent's authroity may be actual or apparent.
The third prong refers to employees of the organization whose "act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Whether an agent's or employee's conduct may be so imputed is determiend with reference to the specific facts and circumstances of the case and it is not simply a fanciful construct of potential liability.
As executive assisant, Mr. Bartholomew does not fall within the first prong of comment 7 since, as an exectuive assistnt to the president of the company, he does not supervise, direct, or regularly consults with the organizations lawyer. While Mr. Bartholomew does give and recieve information from the lawyers of AMDC, he is not the person responsibile for directing the lawyers actions in the matter and he does not have the power to compromise or settle the matter in consultation with the lawyer. Mr. Bartholomew also does not fall within the second prong of comment 7 because he does not have actual or apparent authority to enter into binding contractual settlements on behalf of the organization. The facts do not suggest that he has actual or apparent authority because his role is to assist the president of the company and he has not been given express actual authority or implied actual authority to act in this manner on behalf of the president and he does not have apparent authority since AMDC and the president have not held him out as their agent in this manner. Mr. Bartholomew does not fall within the third prong either because his acts or omissions may not be imputed to the organization for purposes of civil or criminal liability since no specific facts suggest that he would be liable for any of the issues that arise in the course of the litigation.
Therefore, since Mr. Bartholomew is not within one of the three prongs in comment 7 of Rule 4.2, Ms. Parks may talk to him, but even if 4.2 does not prohibit counsel from speaking with an employee or former employee of an organization, counsel must be careful not to speak with that agent or employee about any information that might be protected by attorney-client privledge. Attorney-client privledge protects any communications between counsel and client for purposes of obtaining legal advice. For purposes of corporations, the orgnization itself is the client. Counsel must make every effort not to breach that privilege when talking to an employee or former employee who is believed to be privy to communicaitons protected by attorney-client privilege. 
Here, Mr. Bartholomew regularly attends board meetings and takes notes on the matters discussed (and even discussions about Downey itself) along with reviewing and directing communcations of the president of AMDC through email, letter, and other methods of communications except for phone calls. Additionally, he also overhears communications between the president of AMDC and counsel for AMDC. Therefore, Ms. Parks must be careful not to speak with him about any information that might be protected by attorney-client privilege and any information obtained from these parts of his job will be protected since he regularly reads information between the president and counsel that is for the purpose of obtaining legal advice since the president is asking counsel about the liability such as Downey. 
c. Agnes Corlew
Agnes Corlew has been employeed at AMDC since January of 2017 and is the head of the public relations department. She frequently communciates the offical position of the company to the public, but does not make the company's policies. While Agnes has no role in the decision regarding the litigation, it is within Agnes' duties to answer questions from the press and public regarding pending litigation. Agnes has never met with counsel for AMDC regarding the Downey case. 
Under Comment 7 of FBPC Rule 4.2, the first prong to Comment 7 prohibits unauthorized communication with a person in the organization who supervises, directs ,or regularly consults with the organization's lawyer. This generally includes people who are giving and receiving information from the lawyer and directing the lawyer's actions in the matter, as well as those who have power to compromise or settle the matter in consultaiton with the lawyer.
The second prong includes agents or employees who have authority to enter into binding contractual settlements on behalf of the organization. An agent's authroity may be actual or apparent.
The third prong refers to employees of the organization whose "act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Whether an agent's or employee's conduct may be so imputed is determiend with reference to the specific facts and circumstances of the case and it is not simply a fanciful construct of potential liability.
Additionally, comment 7 states that communicaiton is prohibited when the employee's act or omission is obviously relevant to the determination of corporate liability. Essentially, if corporations did not have fictious personhood and were considered their own entity, the agent or employee would be directly named as a party in a lawsuit involving the matter. However, this only prohibits communication with actors and not mere witnesses. If it is not reasonabily likely that the agent or employee is a central actor purposes of liability purposes, nothing in FRPC 4.2 precludes unauthorized contact.
Ms. Corlew does not fall within prong 1 of 4.2 because she does not direct, supervise, or regularly consult with the counsel for AMDC. Ms. Corlew does not fall within prong 2 because the facts do not suggest taht she has the authority to enter into contractual settlements on behalf of the organization since she is only the head of public relations. However, Ms. Corlew does fall within prong 3 of the rule because she is the head of public relations and her acts or omissions in connection with the matter may be imputed to the organization for purposes of civil or ciminal liability because she regularly speaks on behalf of the company and frequently communicates the official position of the company in all manners. While she has no decision regarding the litigation, it is within her duties to answer questions from the press and the public regarding pending litigation. Therefore, under prong 3 of 4.2, Ms. Parks may not talk to Ms. Corlew because her acts or omissions will be imputed to the organizaiton for purposes of civil or criminial liability and, based on the specific facts that Ms. Corlew regularly communicates official positions, her conduct may be imputed in this manner.
d.Elise Dunham
Elise Dunham is the plant manager at AMDC and has been employed in that positon continuously since March of 2009. She ensures that every product meets our quality control standards and the directors of manufacturing and the director of quality control report to her.
Under Comment 7 of FBPC Rule 4.2, the first prong to Comment 7 prohibits unauthorized communication with a person in the organization who supervises, directs ,or regularly consults with the organization's lawyer. This generally includes people who are giving and receiving information from the lawyer and directing the lawyer's actions in the matter, as well as those who have power to compromise or settle the matter in consultaiton with the lawyer.
The second prong includes agents or employees who have authority to enter into binding contractual settlements on behalf of the organization. An agent's authroity may be actual or apparent.
The third prong refers to employees of the organization whose "act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Whether an agent's or employee's conduct may be so imputed is determiend with reference to the specific facts and circumstances of the case and it is not simply a fanciful construct of potential liability.
Additionally, comment 7 states that communicaiton is prohibited when the employee's act or omission is obviously relevant to the determination of corporate liability. Essentially, if corporations did not have fictious personhood and were considered their own entity, the agent or employee would be directly named as a party in a lawsuit involving the matter. However, this only prohibits communication with actors and not mere witnesses. If it is not reasonabily likely that the agent or employee is a central actor purposes of liability purposes, nothing in FRPC 4.2 precludes unauthorized contact.
Ms. Dunham would not fall under the first prong because the facts suggest that she, as plant manager, does not supervise, direct, or regularly consult with the organization's lawyer. Ms. Dunham does not fall under the second prong of 4.2 because while she may have actual authority to ensure quality control of the manfacturing process, the facts do not suggest that she has the ability, as required in the second prong, to enter into contractual settlements on behalf of the organization. Additionally, she does not have apparent authority because AMDC does not hold her out as having the authority and the facts do not suggest that a reasonable third party would assume the plant manager would have the ability to enter into contractual settlements on behalf of the organization. Ms. Dunham may fall under the thrid prong since her acts or omissions in connection with the matter may be imputed to the organizaiton for purposes of civil or criminal liability since she would be named in the lawsuit for permitting these walkers to be sold even though they were defective if the corporation was not an entity itself.
Therefore, Ms. Parks will most likely not be able to talk with Ms. Dunham because her act or omission is obviously relevant to the determination of corporate liability. 
e. Penn Ellis
Penn Ellis has been employed with the company since 2008, but her responsibilities have changed over time.From 2008 to 2016, she was the director of marketing for AMDC and was in charge of all sales of all products. In 2016, she changed positions and is now the Chief Financial Officer of the company. Currently, she does not have any responsibility for sales, marketing, or anything else regarding walkers or any other equipment and instead she manages the company's financial actions including the cash and budgeting and helping shape the company policy. She is a member of the board of directors and serves as treasurer on the board. While she has not knowledge about the law, she sits in on the meetings between lawyers from our firm and the board. She mainly listens while they discuss litigation, but she would be involved in the financial aspect only if there were a settlement or if there were a judgment against the company. She is a voting member of the board of directors and would vote on issues related to the Downey litigation. 
The first prong of Comment 7 prohibits unauthorized communication with a person in the organization who supervises, directs, or regularly consults with the organization's lawyer. This generally includes people who are giving and receiving information from the lawyer and directing the lawyer's actions in the matter, as well as those who have power to compromise or settle the matter in consultaiton with the lawyer. For purposes of a corporation, such people would be the "control group" that generally consists of the board of directors and top management officials. However, merely being one of these directors or management officials does not necessarily mean that the individual actually consults with or directs the actions of counsel concerning the matter and it must be determined whether or not the individual actually do consult or direct counsel. 
Ms. Ellis was the director of marketing for years, but recently has become CFO of AMDC and she will fall under prong 1 of comment 7 since she, as a member of the board of directors, is regularly supervises, directs, and consults with the organization's lawyers. Ms. Ellis is responsibile for giving and receiving information from the lawyer as CFO. While Ms. Ellis says she only really listens to the board meetings with the lawyers because she does not know anything about law, she does recieve infromation from these meetings and she will give information to lawyers and the board with regards to financial information.
Therefore, Ms. Parks will not be allowed to meet with her without our consent.
Issue 2: Whether, as AMDC's attorneys; or our represenatives may communicate with any named plaintiffs or potential memebrs of the class without the consent of opposing counsel.
Under Mahoney et al. v. Tomco Manufacturing (Franklin Court of Appeal 2010), we will be permitted to talk with potential members of the class, but not members already named in the lawsuit.
In Mahoney, Robert Mahoney and 12 other named plaintiffs filed a lawsuit on behalf of themselves aand all other persons who purchased allegedly defective lawn mowers manufactured by Tomco Manufacturing.The plaintiff's class was certified and notice was given to all persons who purchased the allegedly defective lawn mowers. The plaintiffs field a motion seeking an order from the trial court preventing Tomco's lawyers or their representative from speakign with any current or potential members of the class without the permission of the plaintiff's counsel. 
Although not bound by the FRPC in matters other than attorney disciplinary proceedings, the trial court relied on FRPC 4.2 in making their determination and the trial court held that the prohibition applies equally to agent of the lawyer or persons acting at the lawyer's behest. (See FRPC 5.3). Based on FRPC 4.2, the trial court prohibited Tomco's counsel or agents from communicating with any persons wh opurchased a Tomco lawn mower (Model 350) during the period of 2005-2007, who were all potential members of the class. 
The Franklin Court of Appeal found the trial's court decision to be overly broad on the groudns that Rule 4.2 only prohibits communciaiton only with persons that the lawyer "knows" to be represented by counsel. The court determiend that there must be more than "reason to believe" or "assumption"; there must be actual knowledge. The named members have an attorney-client relationship and Tomco's lawyers know about that relationship. The trial court's decision was overly broad because it also prohibited Tomco's lawyers from communicating with potential members of the class. Until the end of the "opt out" period, only named plaintiffs are considered to be represented by the class counsel.
Therefore, since we are in the beginning stages of litigation, we will be permitted to talk with potential members of the class about their walkers as long as the "opt-in" period is not completed. Once this period ends, we will not be permitted to talk with people since we will "know" whether or not they are represented by counsel. Even though we can talk to these people, we should take care to see whether or not they are actually represented by counsel in this matter already so we do not face disciplinary action for talking to people that we should have known are represented by counsel and we failed to ask them about whether or not they were represented.  
Sample Answer
To: Hiram Betts
From: Examinee
Date: February 25, 2020
Re: Downey v. Achilles Medical Device Company.
INTRAOFFICE MEMORANDUM
I. Introduction
This Memorandum will examine: (1) whether the plaintiff's attorneys in the instant lawsuit, Downey v. Achilles Medical Device Company, can communicate with current and former employees of AMDC regarding their knowlege of the walkers; and (2) Whether we, as counsel for AMDC, or our representatives may communicate with any named plaintiffs or potential members of the class without the consent of opposing counsel.
II. QUESTION PRESENTED AND BRIEF ANSWER
 (1) Whether the plaintiffs' lawyers or their representatives may communicate without our consent, with the current and former AMDC employees regarding their knowledge about the manufacture and/or sale of the walkers?
 BRIEF ANSWER: The plaintiffs' lawyers may not speak to any current employee who: (1) supervises, directs, or regularly consults with the organization's lawyer concerning the matter in question; (2) has the authority to obligate the organization with respect to the matter in question; (3) whose acts or omissions in connection with the matter in question may be imputed to the organization for purposes of civil or criminal liability; and (4) has information that might be protected by attorney client privilege However, counsel may "communicate freely with former agents and employees of an organization without the consent of the organization's lawyer regardless of the role of the agent or employee may have played in the matter." See Ethics Opinion at 11 (citing and interpretating FRPC Rule 4.2)
 (2) Whether we, as AMDC's attorneys, or our representatives may communicate with any named plaintiffs or potential members of the class without the consent of oppossing counsel?
 BRIEF ANSWER: We may not speak to any named members of the class, as they are known to us to be represented by plaintiffs' counsel. However, we may contact potential members of the class before the "opt-out" period for class certification, provided that we do not have knowledge of a client-lawyer relationship.
III. ANALYSIS
 Franklin Rule of Professional Conduct ("FRPC") Rule 4.2 provides "...a lawyer shall not communicate about the subject of the representation with a person the lawyers knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order" FRPC 4.2. The Comments for the rule provide insight into its application in this matter.
Specifically, Comment 7 states:
"this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization's lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own consel, the consent of that counsel to a communication will be sufficient for purposes of this rule"
Importantly, Comment 3 notes that Rule 4.2 applies even though the represented person initiates or consents to the communication, and that a lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by Rue 4.2.
Essentially, Rule 4.2 prohibts opposing counsel from interacted with four classes of employees and/or agents: (1) those with power to direct or consult with the attorneys AMDC, likely being the board of directors and/or company officers; (2) those who are able to make settlement decisions, or impute liability on behalf of AMDC, also likely to be the board of directors and/or officers; (3) those who worked in manufacturing the subject walkers, or supervised the manufacturing as their actions and omissions may be imputed to the organization for purposesof civil liability; and (4) those who have information which is protected by attorney-client privilege, such as anyone who has been exposed to the communications between the organization and its attorneys. 
FRPC Rule 5.3 applies Rule 4.2 to a "nonlawyer employed or retained by, or associated with a lawyer". Rule 5.3(b) reads "a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer" and Rule 5.3(c) reads "a lawyer shall be responsibile for conduct of such a person that would be violation of the Rules of Professional Conduct if gnaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.." See FRPC 5.3(b) and (c).
The Franklin Board of Professional Conduct has issued Ethics Opinion 2016-12 to further clarify the rules. See Ethics Opinion 2016-12. The Board, in Ethics Opinion really hones in on Comment 7 to FRPC 4.2, supra and establishes three prongs of unauthorized communications. The prongs established in Ethics Opinion are listed above in the Brief Answer section of this Memorandum.
The Franklin Court of Appeal in Mahoney et al, v. Tomco Manufacturering clarified how Rule 4.2 applies specifically in class action lawsuits. The Court of Appeal in Mahoney established that Rule 4.2 prohibits communication only with persons the lawyer "knows" to be represented by counsel. The Court goes on to state that "[k]nowledge is a high standard" and "there must be more than "reason to believe or assumption" and "there must be actual knowledge". There is no way for lawyers defending a class action to know whether potential class members are represented by counsel if it is still within the opt-out period. Thus, it is difficult for defense counsel to have "actual knowledge" of representation until the opt-out period is over and all members of the class are solidifed. 
The Court further held "communication with potential members of the class, without the permission of the class counsel, is not prohibited by this order. Mahoney (empasis added). This ruling allows defense counsel in class action to communicate with potential members of the class as long as counsel does not have actual knowledge of the potential members legal representation. 
In this case, we must apply the above Rulings and Rules of Professional Conduct to the instant case. We will proceed by going through each employee or former employee contacted by plaintiffs' counsel and determine if any Rule has been violated. Rule 5.3 applies Rule 4.2 to the investigator retained by plaintiffs' counsel
Ron Adams
Questioning Mr. Adams is not an ethical violation under Rule 4.2. Mr. Adams is not currently an employee or agent of AMDC and therefore plaintiffs' counsel is not in violation of the Rules by communicating with him. Mr. Adams was in charge of the quality control department and oversaw the production of the walkers which would prohibit communication with him under prong 3 established in Ethics Opinion, if he was still an employee. However, Mr. Adams is not currently an employee and therefore plaintiffs' counsel may communicated "freely" with him regardless of the role he played in the matter. Id. Plaintiffs' counsel has not violated the rules in the case of Mr. Adams.
Gus Bartholomew
Questioning Mr. Bartholomew in regards to attorney-client communication would be an ethical violation. Mr. Bartholomew is the executive assistant to the president of the company. He is a current employee. Mr Bartholomew's job duties include administrative tasks such as word processing, answering phones, scheduling and attending to the needs of the president of AMDC. Mr. Bartholomew also sits in on all board meetings to take notes approved by the president, reads the president's email and reads all correspondance between the president and AMDC's attornies. At first blush, Mr. Bartholomew does not fall under the three prongs established in Ethics Opinion. He does not direct AMDC's counsel, he cannot obligate AMDC, and he was in no way responsible for the design or manufacture of the walkers. While Rule 4.2 may not prohibit counsel from speaking with Mr. Bartholomew, it is clear that Mr. Bartholomew is apprised of information protected by attorney-client privilege. If plaintiffs counsels' investigator were to ask any questions relating to information protected by attorney-client privilege, they would be in violation of the rule. 
Agnes Corlew
Questioning Ms. Corlew is not an ethicial violation under Rule 4.2. Ms. Corlew is a current employee who is the head of the public relations department. Ms. Corlew's duties include responding to media requests, publishing all written materials about the company, and answers public inquires about the company. Ms. Corlew describes her position as being "the voice of the company". Ms. Corlew specifically states that she answers questions from the press and the public about pending litigation but does not play a role in directing the litigaiton. In fact, Ms. Corlew only presents the information that has been provided to her and approved by the president's office. Ms. Corlew does not (1) have direction over AMDC's attorneys (2) cannot obligate the organization and (3) cannot impute liability. Although Ms. Corlew answers questions about the litigation and serves as the "voice of the company" all information is pre-approved by the president's office and therefore it would be the president whou would be imputing liability. Questioning Ms. Corlew would not be a violation of the rule.
Elise Dunham
Communicating with Ms. Dunham is a violation of the Rules unless Ms. Dunham's personal counsel has waived the rule. Ms. Dunham is the plant manager at AMDC she is responsible for quality control and manufacturing. Ms. Dunham's acts or omissions in connection with the walkers could potentially impute liability on AMDC, therefore prong 3 covers Ms. Dunham and communication with her by plaintiffs' counsel is a violation of Rule 4.3. Ethics Opinion However, Ms. Dunham retained her own counsel and her personal counsel can waive the prohibitation to communication. Id. It is only a violation of Rule 4.3 if Ms. Dunham's personal counsel did not waive the prohibition on communication.
Penny Ellis
Communicating Ms. Ellis is a violation of Rule 4.3. Ms. Ellis is the Chief Financial Officer of AMDC and serves as the treasurer on the Board of Directors. Before this, Ms. Ellis worked as the director of marketing for AMDC and was involved with selling the walkers at issue in this case. The Board of directors discuss the lawsuit and direct the attorneys, although admittedly, Ms. Ellis does not have legal experience and usually listens during these discussions, she is a voting member of the board. Ms. Ellis also can obligate settlements on behalf of the organization in her role as CFO. All three prongs established in Ethics Opinion cover Ms. Ellis. She has some authority to direct the litigation as a voting member of the board, she can olbligate the organization to a settlement as the CFO and she was involved in the sale of the walkers at issue. Additionally, Ms. Ellis is privy to attorney-client privileged information which may be reviewed at meetings held by the board of directors. Communicating with Ms. Ellis is a violation of rule 4.3.
Communication with Named Plaintiffs or Potential Members of the Class
We may contact any potential members of the class. We may not contact any named plaintiffs. After the opt-out period closes we may not communicated with any plaintiff as all potential members become named members of the class unless they have opted out. The opinion of the court in Mahoney makes it clear, knowledge is a prequisite for a violation of Rule 4.2. We do not have knowledge of the status of representation for potential members, so we may communicate with them. We do have knowledge of the status of represenation of named plainitiffs and therefore, any communication with them is in violation of Rule 4.2
MPT-2
In re Eli Doran
FILE
Memorandum to Examinee
Guidelines for drafting written closing arguments
Excerpts from hearing on February 24, 2020
LIBRARY
In re the Estate of Carla Mason Green, Franklin Court of Appeal (2014)
In re the Estate of Dade, Franklin Court of Appeal (2015) 
COOK AND STONE LLC
Attorneys at Law
872 N. Main Street 
Evergreen Heights, Franklin 33837
MEMORANDUM
To: Examinee
From: Robert Cook 
Date: February 25, 2020
Re: Eli Doran matter
We represent Carol Richards, the legal guardian of Eli Doran, her elderly uncle. Carol has regularly visited Eli since his wife, Janet, died four years ago. Eli is now 86 years old. Carol has observed Eli’s gradual decline in cognitive abilities and, about two years ago, helped him move into an assisted living facility operated by Paula Daws.
Three months ago, Carol was shocked to learn that Eli and Paula Daws had married in January 2019 and that Eli had signed a new will on October 7, 2019, leaving his entire estate to Paula. Carol asked for our help. On her behalf, we instituted guardianship proceedings, and two months ago, the court found Eli incompetent as of that date and appointed Carol as his legal guardian. However, that determination does not resolve the issues of Eli’s capacity to consent to marriage to Paula Daws more than a year ago or his testamentary capacity to execute a will four months ago.
We have filed, on Carol’s behalf as Eli’s guardian, two petitions: first, to annul the January 2019 marriage of Paula and Eli, and second, to set aside the October 2019 will. Yesterday the court held a hearing on both petitions. I attach excerpts of the hearing testimony. Instead of oral closing arguments, the court ordered the parties to submit written closing arguments.
Please prepare the written closing argument to be submitted to the court. Follow our office guidelines in drafting your argument. We will not have a chance for rebuttal arguments, so anticipate the arguments that Paula Daws will present and rebut them. Do not include a separate statement of facts, but be sure to incorporate the relevant facts into your argument.
COOK AND STONE LLC
OFFICE MEMORANDUM
To: All lawyers
From: Robert Cook
Date: September 5, 2017
Re: Guidelines for drafting written closing arguments 
Written closing arguments are delivered to a judge. They need to address the applicable law as well as the facts. Be convincing and persuasive but avoid theatrics or overly emotional arguments. Judges respond negatively to exaggerated or unsubstantiated arguments. Convince the judge, as the trier of fact, that we have satisfied all the elements or requirements for each of our claims and have done so by meeting the required burden of proof. Organize the closing argument one claim or issue at a time. 
For each claim or issue: 
• Draft carefully crafted subject headings that illustrate the arguments they cover. The argument headings should succinctly summarize the reasons the judge should take the position we are advocating and should be a specific application of a rule of law to the facts of the case. For example, improper: Petitioner Is Entitled to Receive Spousal Support. Proper: Because Petitioner Is Unable to Work Due to a Permanent Disability, She Is Entitled to Receive Spousal Support. 
• State the legal standards at issue.
• Marshal all the relevant evidence that has been admitted and show how the evidence satisfies the proof requirements for each claim.
• Demonstrate how the witnesses are credible and how those challenging our case are not credible.
• Do not summarize each witness’s testimony but refer to the testimony and other evidence to show how they support your argument.
Be clear as to the relief requested. Finally, convince the judge that the relief requested is fair and just. 
Excerpts from Hearing on February 24, 2020
Judge: This is a hearing on two matters I consolidated for the purpose of judicial economy. The petitions before me are first, to annul the January 15, 2019, marriage of Paula Daws and Eli Doran, and second, to set aside the will signed by Eli Doran on October 7, 2019.
In a previous ruling, I concluded that Eli Doran was incompetent as a matter of law and entered an order making his niece, Carol Richards, his legal guardian. A determination of incompetence is a legal finding that a person lacks the mental ability to understand problems and make decisions. Competence is similar to but not the same as capacity. The degree of capacity required for a legal transaction varies with the task at hand. Today I will hear evidence on whether Mr. Doran had the capacity to consent to marriage when he married Paula Daws in early 2019 and whether he had testamentary capacity when he signed the October 7, 2019 will.
Representing petitioner Carol Richards as guardian for Mr. Doran is Attorney Robert Cook. Representing respondent Paula Daws is Attorney Dee Andrews. The parties have stipulated that these items may be admitted into evidence: the January 15, 2019 marriage certificate, the October 7, 2019 will, and the will executed by Mr. Doran in 2016. As is the court’s practice, I will require counsel to file written closing arguments. Proceed.
EXCERPTS OF TESTIMONY
DIRECT EXAMINATION OF CAROL RICHARDS BY ATTORNEY ROBERT COOK
Q: How do you know Eli Doran?
A: I am Eli’s niece. Eli was married to my Aunt Janet, who died about four years ago.
Q: How often did you have contact with Eli?
A: After my aunt died, I regularly took Uncle Eli to the bank, to the barbershop, and on any other errands. We also went out for barbecue, his favorite, usually once a month. And about once a month, I took him to his church and then to dinner at my home. I also took him to his family doctor.
Q: What did you notice about Eli over time?
A: A bit over two years ago, I noticed that he asked questions that he should know the answers to—like where I worked, even though he knew I was retired, and whether I was married, even though he knew I was. He was not dressing well. He was forgetting to pay bills. I saw 
them stacked up on the table. I suggested to Uncle Eli that I help him with his finances and that we find someone to help out in his home. He agreed.
Q: Did you find someone who could help?
A: Yes, I hired Vera Wilson, a friend from his church, to cook and clean for him. That worked well. But his checkbook was a mess. Some entries missing, some entered twice or three times. In January of 2018, I asked Dr. Ricci, his family doctor, about Eli.
Q: What did you learn from the doctor?
A: Dr. Ricci said that I should place Uncle Eli in an assisted living facility. I had heard that Paula Daws had a home that might work out, so I called her.
Q: Did you meet with Paula Daws?
A: Uncle Eli and I went to Paula’s home. Two men lived there, and they seemed happy. Eli’s monthly pension could pay the monthly fee for the facility. Eli moved in almost two years ago. We were able to sell his home quickly. He had paid off the mortgage years ago and put the proceeds of the sale into his savings account. His pension went directly into his checking account. We arranged for monthly direct payments from his checking account to Paula so that he did not have to worry about his finances.
Q: At the time Eli moved into Paula’s home, were you his legal guardian?
A: No. I asked Uncle Eli if he wanted to live in a place where someone could help him, and he said yes. There was no court involved.
Q: After Eli moved in, did you continue to see him?
A: Yes. After he moved into Paula’s, I brought him to my home for dinner almost every Sunday. He was becoming ever more forgetful. He frequently asked me what day it was, when I had gotten the new car, when I had bought the house. A few minutes later, he would ask the same questions all over again, numerous times during the visit. He often did not recognize my husband or children, though he had known them for years.
Q: When did you learn of the marriage between Eli Doran and Paula Daws?
A: One Sunday, about three months ago, I called Paula to say that I would take Uncle Eli to my home for Sunday dinner. She told me they had married.
Q: Did she say when they had married?
A: Yes, she said some time ago. In fact, I later found out it was a year ago, in January 2019.
Q: Did you discuss this matter with Paula?
A: Not for a while. I was shocked and worried. Eli had once asked Vera, his cleaning lady and cook, to marry him. So I wasn’t sure what it meant that Eli and Paula were married. But I became quite worried when Paula told me that Eli had signed a will giving her everything.
Q: Why did that concern you?
A: For one thing, I knew that Eli had had a serious decline in his cognitive abilities and did not know what he was doing. Plus, I had seen Eli’s will from 2016. After my aunt died, Eli saw his attorney and executed a will leaving his estate to his church. He loved that church. And I knew that now, having sold his house, he had some savings that could benefit the church. That is when I called you.
Q: Did Eli ever tell you that he and Paula were married?
A: Not at all.
CROSS-EXAMINATION OF CAROL RICHARDS BY ATTORNEY ANDREWS
Q: Since Eli moved into Paula’s home, she has become more important to him than you, and you are jealous of Paula, aren’t you?
A: No. I wanted him to be safe and cared for and was glad to find a place for him until I learned how Paula was taking advantage of him.
* * *
DIRECT EXAMINATION OF DR. ANITA BUSH BY ATTORNEY COOK
Q: Dr. Bush, what is your specialty?
A: I have a Ph.D. in clinical psychology and practice as a forensic clinical psychologist. I work with patients who have cognitive or mental disorders.
Q: How do you know Eli Doran?
A: Eli Doran was referred to me by his family doctor, who asked me to assess Eli for cognitive functioning. I first saw Eli on May 3, 2018. I interviewed Eli, who was then 85 years old. He did not understand why he was seeing me. He said he was healthy and needed no medicine, though I knew that he took several medications to address some chronic conditions. Eli was not oriented to time. He did not know what day it was or what year it was. He said he lived in his home with his wife, Janet, though I knew she had died two years earlier. Later in the interview, he said he was married to Vera Wilson. I asked who Vera was, and he said she took care of him. I later learned that Ms. Wilson cleaned and cooked for him and that they had never been married. It appeared he equated marriage with being cared for. His niece Carol Richards came to the appointment with him. I asked who she was, and he replied that she was family and drove him places. I also relied on the medical records from Eli’s family doctor, Dr. Leon Ricci.
Q: What did you learn from the medical records that you relied on?
A: Dr. Ricci was Eli’s physician and had seen him regularly over 15 years. Dr. Ricci described Eli as a retired federal meat inspector, attentive to his medical conditions and usually accompanied by his wife until she died. Soon after her death, Dr. Ricci noticed that Eli was forgetting his medications. Then, about three years ago, Dr. Ricci had conducted the Mini–Mental State Exam, MMSE as we call it. The MMSE score for someone of Eli’s age, education, and health should be at least 23, but Eli’s score was 21, showing some cognitive deficiencies. About two years ago, Dr. Ricci learned from Carol Richards that Eli was becoming even more forgetful. Dr. Ricci diagnosed Eli as having dementia, type unspecified. Dr. Ricci recommended that Carol find a place where Eli could receive daily care and supervision of his medications.
Q: Did you conduct any assessments when you saw Eli on May 3, 2018?
A: I conducted several assessments that are recommended for testing intellectual capacity. I conducted the MMSE, and Eli’s score had declined to 19, a significant drop from when Dr. Ricci tested him. I also evaluated him on the Independent Living Scale. I found that Eli could not pay a bill or verbalize a reasonable understanding of a will. He did not know what it meant to call 911 in an emergency or what a fire alarm was.
Q: What did you conclude from these assessments?
A: Eli suffered from multiple cognitive dysfunctions. These included memory impairment that was severe. He had a significant disturbance in executive functioning, including no ability to plan, problem-solve, reason, or think abstractly.
Q: Doctor, can you explain what that means in terms of Eli’s ability to live and function?
A: Eli was incapable of any abstract thinking and incapable of ordinary judgment or reasoning. He lacked the ability to meet his most basic needs and provide for his safety and health. He could not live alone, drive, or manage his medicine or his money. Eli was significantly impaired in his ability to care for himself. He needed 24-hour supervision. I learned that he had moved into an assisted living home where he was cared for. That was a good idea.
Q: Did you continue to see him and assess him? 
A: Yes, I saw Eli again on June 21, 2019. I continued to assess his mental state, asking where he lived. He again said that he lived with his wife, Janet. He said that his parents lived in Ohio and that he might visit them sometime, but in fact his parents had been deceased for many years. I asked who had brought him to the appointment, knowing that it was Carol. Eli said that she was his driver. He denied that he was related to her.
Q: How did his performance compare with the first visit?
A: His memory was worse. His cognitive abilities had declined. I repeated the MMSE and his score had dropped to 17, another significant drop.
Q: Did your conclusion about Eli change from the first visit?
A: The only change was that Eli’s cognitive deficiencies were far worse. Eli has a permanent, progressive condition. It only gets worse.
Q: Does Eli have periods of being lucid?
A: I doubt that he has moments of lucidity but if he does, that is not the same as having the ability to exercise judgment.
Q: Doctor, considering Eli’s condition in January 2019, do you have a professional opinion as to whether Eli possessed the mental capacity to consent to marriage?
A: I have an opinion. He did not possess the mental capacity to consent to marriage. He cannot think abstractly about anything or make any rational judgments. Eli equates marriage with being cared for.
Q: Do you have a professional opinion, considering Eli’s condition on October 7, 2019, whether Eli had the capacity to execute a will?
A: He did not. 
Q: In October 2019, did Eli know who his relatives were or who might have a claim on his estate?
A: No. He did not know who his niece was. He thought he lived with Janet, his deceased wife.
Q: Doctor, in October 2019, did Eli know the nature and extent of his property, his estate?
A: No.
CROSS-EXAMINATION OF DR. BUSH BY ATTORNEY ANDREWS
Q: Doctor, you did not see Eli on January 15, 2019, did you?
A: No. I saw him twice: May 3, 2018, and June 21, 2019. 
Q: And you did not see him on October 7, 2019, did you?
A: No. 
Q: You are not a medical doctor, are you?
A: No, I am not. His medical doctor sought my expertise to evaluate Eli’s cognitive status.
Q: Doctor, under Franklin law, if an elderly person is in danger of being abused or exploited, you are required to call Franklin Elder Protective Services, are you not?
A: Yes.
Q: You did not make that call, you did not report Eli as in need, did you?
A: No. He was getting the care he needed.
* * *
DIRECT EXAMINATION OF PAULA DAWS BY ATTORNEY ANDREWS
Q: When did you meet Eli Doran?
A: Almost two years ago, Carol Richards and Eli Doran came to my home to see if Eli could live there. I had two other men living there; they needed assistance in their daily living.
Q: Other than providing a room, what other services do you offer?
A: I provide a very clean home, three meals a day, and laundry service, and I supervise their medications. Each man has a bedroom, and there is a TV room where they eat, watch TV, and socialize.
Q: What did Eli and Carol tell you when you met with them?
A: Carol did most of the talking and said that Eli’s doctor wanted him to live somewhere where he would be sure to take his medicine. We discussed the fee, and Carol said he could afford that. Carol and Eli arranged for direct payment to me each month, and he moved in.
Q: Tell us about the marriage.
A: Eli was always very pleasant and kind to me. One night as I brought his laundry to him, he said, “You take good care of me. We should get married.” I laughed it off. But a few days later, he took my hand and said, “We should get married.” I asked if he was serious, and he said, “You are nice. I love you.” The next day, I called my minister and got a license, and we were married on January 15, 2019.
Q: And tell us about the will.
A: One day, I said, “Eli, you have a lot of stuff in your room,” and he said, “When I am gone, I want you to have it all.” Again, I laughed it off, but for several days, he said, “I want you to have what I have.” I asked him, “Do you want to make a will?” and he said, “Yes.” I went online and found a will kit for him, but he said, “You do it,” so I filled it in. My daughter and son-in-law witnessed Eli signing it—two witnesses as required! 
Q: Did you force Eli to make this new will?
A: Of course not. I have had several men living in my home, and none of them ever signed a will while they lived with me. Eli kept saying, “I want you to have what I have—you are so kind.”
CROSS-EXAMINATION OF PAULA DAWS BY ATTORNEY COOK
Q: Ms. Daws, isn’t it true that when Carol Richards first met with you, she told you that Eli had had serious memory loss and could no longer make his own decisions?
A: Well, I don’t remember that she said he could not make his own decisions, but she did say that he could not live on his own.
Q: You did not go to Eli’s minister for the wedding, did you?
A: I did not know who his minister was.
Q: You did not invite his niece, Carol Richards, to the wedding, did you?
A: No.
Q: In fact, you did not tell Carol or anyone about the marriage until very recently, correct?
A: Yes, that is correct. Eli is a private man and doesn’t like a lot of fuss about things.
Q: The will that you filled out for Eli on October 7, 2019, provided that all of Eli’s estate was to go to you, isn’t that right?
A: Yes. Like I said, Eli said he wanted me to have everything.
Q: You did not take Eli to his lawyer to have a new will drafted, did you?
A: I did not know he had a lawyer.
Q: Ms. Daws, you have quite a bit of credit card debt, don’t you? About $15,000 or so?
A: Yes, but so does everyone.
* * *
DIRECT EXAMINATION OF REV. JOSEPH SIMMS BY ATTORNEY ANDREWS
Q: Rev. Simms, how did you meet Eli Doran?
A: Paula Daws, a longtime member of my congregation, told me that she had met a gentleman who brought her much happiness and that she was in love. She said that she and Eli, the gentleman, wanted to marry. I met them on Wednesday in the church parlor. Eli seemed to be very pleasant and very much in love. I told them I would marry them.
Q: Explain what you mean.
A: After a few pleasantries, I asked Eli how they met, and he said that he was living at Paula’s and that she was taking good care of him and he loved her. I asked why they wanted to marry. He said that he loved her and the way she cared for him. Later that week I married them with my wife and my secretary as witnesses.
Q: Would you have married them if you questioned Eli’s mental capacity?
A: Of course not. Eli seemed to be very aware that he was getting married. Older people need companionship, and marriage can provide that.
CROSS-EXAMINATION OF REV. JOSEPH SIMMS BY ATTORNEY COOK
Q: Rev. Simms, you have not been trained to diagnose cognitive functioning, have you?
A: No, but I have counseled many folks and am aware of conditions associated with aging. Eli seemed to know what he was doing as well as many others I have married.
Q: You did not conduct any assessments to determine Eli’s cognitive abilities, did you?
A: No. I am not a doctor.
Q: The extent of your contact with Eli was these two visits in January of 2019, correct?
A: Yes. 
* * *
DIRECT EXAMINATION OF MARY DAWS JOHNSON BY ATTORNEY ANDREWS
Q: Were you present when Eli Doran signed his will?
A: Yes, I was.
Q: Was he aware of what he was doing?
A: I said, “Eli, do you want my mother to have your stuff when you die?” and he said, “Yes, she takes good care of me.”
Q: What, if anything, have you observed about your mother since her marriage to Eli?
A: She is very happy. She loves taking care of him. 
CROSS-EXAMINATION OF MARY DAWS JOHNSON BY ATTORNEY COOK
Q: If this will is valid and something were to happen to your mother after Eli’s death, you would inherit what your mother inherited from Eli, right?
A: I guess so. I don’t really understand this legal stuff.
* * * 
LIBRARY
In re the Estate of Carla Mason Green
Franklin Court of Appeal (2014)
Leslie Beck, the personal representative of the estate of Carla Mason Green (Mason), appeals from a trial court order denying her petition to annul the marriage of her sister Carla Mason and Michael Green.
On October 10, 2012, Carla Mason, age 50, was in the hospital with stage-IV cancer. That evening Mason married Michael Green. The only issue raised by Beck is whether Mason lacked the capacity to consent to the marriage because of the medications she was taking and their effect on her ability to make decisions.
A marriage that complies with the licensing and officiating requirements of the Franklin Uniform Marriage and Dissolution Act (FUMDA) is presumptively valid. This presumption comports with strong public policy favoring the validity of marriage. It can be overcome only with clear and convincing evidence. This is a more demanding standard than the standard for a preponderance of the evidence because the right to marry is constitutionally protected. Evidence is clear and convincing in a case such as this if it establishes that it is substantially more likely than not that a party lacked capacity to consent to marriage.
The capacity to consent to marriage, a requirement of a valid marriage, is defined as the ability to understand the nature, effect, and consequences of marriage and its duties and responsibilities. Each party to the marriage must freely intend to enter the marital relationship and understand what marriage is. Capacity to consent is measured at the time of the marriage.
The trial court appropriately ruled that the petitioner was required to present clear and convincing evidence. After a hearing, the trial court concluded that petitioner Beck had failed to present clear and convincing evidence that Mason did not possess the capacity to consent to the marriage. The reviewing court will overturn the trial court’s conclusions only if they are clearly erroneous. A summary of the testimony follows.
For several weeks, Mason, who had terminal cancer, had taken medications to control the pain from the cancer. On the morning of October 10, Mason and Leslie Beck met with Mason’s oncologist in Mason’s hospital room to discuss terminating treatment and beginning hospice care in her home. Mason was alert; she participated in the discussion and made the decision to terminate treatment.
On the evening of October 10, respondent Michael Green arrived at the hospital, along with a minister, who had a marriage license. Mason signed the license application, and the minister married Mason and Green, witnessed by a nurse and a medical assistant. These steps met the requirements of FUMDA. On October 11, Mason went home under hospice care. On October 12, Mason executed a Power of Attorney (POA) giving her sister, Leslie Beck, authority to make medical decisions for her. Green regularly visited Mason while she was in the hospital and while she was at home under hospice care. On November 1, Mason died.
Mason’s oncologist testified that the prescribed pain medication had a high probability of creating mental changes in any patient. These changes could interfere with the patient’s thought processes, including the decision to marry. On cross-examination, he admitted that while confusion can arise in patients receiving these medications, patients can and do have periods of lucidity and alertness. The oncologist also testified that on the morning of October 10, when he met with Mason and her sister to discuss transfer to hospice, he believed that Mason had the capacity to make decisions about her medical care and treatment.
The nurse on duty at the hospital on the evening of October 10 testified that Mason was “oriented to person, place, and time and that her mood was appropriate to the situation.” The nurse testified that Mason’s mood brightened when Green arrived and that Mason asked the nurse to witness the marriage.
The hospice nurse present when Mason executed the POA on October 12, two days after the wedding, testified that Mason was “alert and oriented.” Mason told the hospice nurse, “I want Leslie to make decisions so that I can die in peace.” Mason then signed the POA without any objection from Beck as to Mason’s capacity to consent to the POA.
To support her petition, Beck relies on In re Marriage of Simon (Fr. Ct. App. 2005), in which the court annulled the marriage of Henry and Nancy Simon after Henry married Nancy while she lived in a residential facility. Beck reads the Simon case as concluding that Nancy’s medication made her unable to consent to marriage. However, critical to the court’s decision in the Simon case was not the medication but the fact that three weeks prior to the marriage, Nancy suffered the fourth of a series of strokes. Her doctors determined that the strokes were disabling and that she was incapable of receiving or evaluating information and should not make any decisions for herself or others. The doctors testified to this at trial.
Unlike in Simon, the evidence here supported the trial court’s finding that Mason had the capacity to make decisions such as to consent to marriage. Mason’s oncologist believed she had the capacity to consent to stopping medical treatment and going home. Her sister, the petitioner here, apparently believed that Mason had the capacity to make decisions when Mason signed the POA. The trial court’s findings were not erroneous.
Also, in the Simon case, Nancy and Henry knew each other for only a few weeks prior to Nancy’s fourth stroke. Henry was a medical technician employed at the facility where Nancy lived; he administered a few treatments to Nancy before her final stroke when the doctors ceased these treatments. Nancy and Henry had no prior romantic or other relationship. Henry arranged for them to marry after Nancy’s fourth stroke and just two weeks before Nancy’s death. The court found that not only was Nancy incapable of consenting to marriage but at the time of the marriage, she had no understanding of what marriage is.
In contrast, Mason and Green had been engaged to be married for two years. They had planned for marriage and a life together. They had discussed where they would live in retirement. Mason broke off the engagement when Green was transferred to another town, but they stayed in contact. Later, Mason contacted Green for support when she learned of the cancer. The evidence supported the court’s finding that Mason understood what marriage was and what it involved.
Petitioner failed to present clear and convincing evidence that Mason lacked the capacity to consent to marriage. Therefore, the presumption that the marriage is valid is not rebutted.
Affirmed. 
In re the Estate of Dade
Franklin Court of Appeal (2015)
Petitioners Jill and Samuel Dade appeal from the trial court’s decision denying their petition to set aside the 2010 codicil to Matthew Dade’s will. As claimants, the Dades had the burden of proving that Matthew lacked testamentary capacity when he executed the codicil. 
In 1999, Matthew executed a will leaving his estate to his adult children, the petitioners. In 2010, he drafted a codicil to his will in which he provided bequests of $100,000 each to his nephew William Speck, his niece Ann Murphy, and his housekeeper Tanya Hall. The codicil did not disturb the gift in the will of the “rest and residue of the estate” to Samuel and Jill. Matthew died in 2012. The estate has been valued at $1,000,000; the three gifts created in the codicil were the only specific bequests. The Dades contended that Matthew lacked testamentary capacity when he executed the 2010 codicil due to a long history of alcoholism. They asked the court to set the codicil aside and probate only the 1999 will.
The law requires that the testator have testamentary capacity. That means that the testator must, at the time of executing the will, be capable of knowing the nature of the act he is about to perform, the nature and extent of his property, the natural objects of his bounty, and his relation 
to them. A will executed by a testator who lacks testamentary capacity is void. The time for measuring testamentary capacity is the time when the instrument, in this case the codicil, is executed. A party who seeks to prove the lack of testamentary capacity must do so by a preponderance of the evidence.
Jill and Samuel each testified at trial that Matthew had a history of alcoholism, beginning in 2000, two years after his wife (their mother) died. They testified that Matthew had a noticeable decline in cognitive ability, a loss of short-term memory exhibited by the inability to recall names, places, or events during periods of inebriation as well as abstinence from alcohol; that during the last 10 years their father often spoke to their mother as though she was present in the home, even long after she had died; and that their father forgot to pay bills and sometimes forgot to keep appointments such as for the doctor or oil changes for the car.
Dr. Rosemary Cooper testified that in 2005, she had diagnosed Matthew with alcoholism, primarily based on his report that for weeks at a time he would drink from noon until he fell asleep. She testified that Matthew reported that he had these drinking periods around holidays and his wedding anniversary. At other times, he did not drink at all. On cross-examination, Dr. Cooper stated that she was Matthew’s family doctor and was not an expert in cognitive decline. Dr. Cooper also testified that she did not question Matthew’s report of his long periods of sobriety.
Murphy and Speck did not dispute that Matthew was an alcoholic, but each testified to visits with their uncle when he was quite lucid. They each testified that they often visited with him, separately, between 1999 and 2012. During those visits, Matthew discussed his finances and correctly stated his worth, identifying the extent and value of his investments. Murphy testified that Matthew regularly provided updates about Jill and Samuel, and their spouses and children. Speck testified that on several occasions between 2005 and 2012, Matthew expressed the need to reward Hall, his housekeeper, for her years of service.
Matthew’s lawyer, who drafted both the 1999 will and the 2010 codicil, is deceased.
The Dades argued that the diagnosis of alcoholism was sufficient proof of Matthew’s legal incompetence and inability to execute the codicil. This argument is unpersuasive. In In re the Estate of Tarr (Fr. Sup. Ct. 2011), the court held that a determination of legal incompetence alone was not sufficient to find that the testator lacked testamentary capacity. A determination of incompetence is a legal finding that a person lacks the mental ability to understand problems and make decisions. Competence is similar to but not the same as capacity. The degree of capacity required for a legal transaction varies with the task at hand. Thus, even if the testator was legally incompetent, the petitioner still had to prove that the testator lacked testamentary capacity.
Assessments of credibility are critical to determinations of testamentary capacity; we will defer to trial court determinations of credibility. The trial court made a credibility determination that because Samuel and Jill Dade were interested in protecting the original gift to them, their testimony about their father’s ability when he drafted the codicil was colored by their interest.
Here, the trial court did not err in finding that the Dades failed to show that Matthew did not know the natural objects of his bounty, that is, those individuals likely to receive a portion of his estate based on their relationship to him. While adding the new bequests, Matthew did not disturb the provision giving the majority of the estate to his children. The evidence also showed that Matthew was informed about his children and their families and aware of the value of his estate. The court found that even if Matthew was periodically disabled due to alcoholism, Matthew told his physician that he had long periods of sobriety between 1999 and 2010, and the physician’s testimony was credible. The trial court properly found that the Dades failed to meet their burden of proof.
Affirmed.
Sample Answer
To: Robert Cook
From: Examinee
Date: February 25, 2020
Re: Closing Arguments - Eli Doran
MEMORANDUM
Per your request of the same date, please find below my draft of the written closing arguments concerning our two petitions pending before the Court. Please do not hesitate to contact me should you have any questions or concerns.
============
As the Court is aware, this office represents Carol Richards, the legal guardian of Eli Doran, with regard to the above-referenced matter. Pending before the Court are two petitions: (1) to annul the January 2019 marriage of Paula Daws and Eli Doran; and (2) to set aside the October 2019 will. Having heard oral argument on both petitions, the Court has requested that the parties submit written closing arguments. Kindly accept this submission in response thereto.
(1) Because clear and convincing evidence demonstrates that Eli Doran lacked the mental capacity for Paula Daws to lawfully marry Eli Doran under color of the Franklin Uniform Marriage and Dissolution Act, the January 2019 marriage must be annulled.
The seminal case concerning annulment of marriage, In re the Estate of Carla Mason Green, (Fr. Ct. App. 2014), concerns the marriage of Carla Mason, aged fifty, to Michael Green and whether Carla lacked the capacity to marry Michael while under the influence of her medications for stage IV cancer. As upheld by the Mason Green Court, the Franklin Uniform Marriage and Dissolution Act ("FUMDA") finds marriages presumptively valid when they comply with FUMDA's licensing and officianting requirements: (1) the presence of an officiant; (2) possession of a marriage license; (3) at least two impartial witnesses to the wedding. Any marriage comporting with these requirements may only be overcome with clear and convincing evidence. Mason Green defines clear and convincing evidence as establishing that it is substantially more likely than not that a party lacked capacity to consent to marriage. The trial court concluded that petitioner failed to present clear and convincing evidence that Mason did not possess the capacity to consent to marriage. The appellate court affirmed, finding that the petitioner failed to meet its burden that the trial court's conclusions were clearly erroneous in light of the facts presented.
Notably, on the morning of the marriage in question, Carla was alert and actively participated in her discussions with her oncologist to terminate treatment via pain-management medications. Despite testifying that her medications could cause mental changes interfering with her capacity to marry, her oncologist, on cross-examination, also testified that a patient may have moments of lucidity and alertness such as those seen on the morning of the marriage, and the oncologist personally believed Carla had the capacity to make medical decisions during their meeting. Further, the attending nurse who also witnessed the marriage testified that Carla was alert and oriented both at the time of the wedding and at the execution of a Power of Attorney two days later regarding Carla's medical care in hospice. Finally, Carla and Michael had been engaged for two years prior to the marriage at controversy, clearly evidencing plans to marry.
The facts of Mason Green are distinguishable from the matter In re Marriage of Simon, (Fr. Ct. App. 2005), where the fourth of a series of strokes rendered Nancy Simon incapable of consenting to marriage. Further, Nancy Simon only knew her husband Henry Simon for a few weeks prior to the fourth stroke, and Henry's relationship to Nancy stemmed from his work as a medical technician at the hospital where Nancy was already treating, with no prior romantic or even platonic relationships to speak of.
The facts of the present matter are more analagous to Simon than Mason Green, and after a review of the facts in record, the Court must annul the marriage of Eli Doran and Paula Daws.
In a previous ruling, the Court found Eli Doran incompetent as a matter of law and entered an order making his niece, the petitioner Carol Richards, his guardian. While this level of incompetence may vary from the competence examined in the present controversy, it nevertheless goes towards the totality of the evidence examined by the Court in finding Eli's incapacity to marry Paula Daws.
In the direct examination of Carol Richards, the Court heard how over two years ago, Carol began to notice Eli could not remember the answers to questions he should already know, such as Carol's marital status and where she worked. Eli was beginning to struggle with his daily dress and timely payment of bills, and upon the advice of Dr. Ricci, Carol placed Eli in an assisted living facility run by Respondent Paula Daws. Every Sunday when Carol would visit Eli, she found him increasingly forgetful, unable to recognize family or even recall the prior week's visit. None of the following was challenged on cross-examination.
The direct examination of Dr. Anita Bush, a forensic clinical psychologist, revealed that Eli was unaware of why he was even seeing Dr. Bush, that he was not oriented at the time of his treatment, and that he denied needing medications despite the several medicationshe took for chronic conditions he was treating for. Eli did not even know what day or year it was. He incorrectly claimed to be married to Vera Wilson, his cleaning lady, and in Dr. Bush's professional opinion, Eli equated marriage to being cared for. In treating Eli, Dr. Bush reviewed Dr. Ricci's Mini-Mental State Exam, or MMSE, which suggested he should score 23 at his age but nevertheless scored 21, which had since declined to 19 and then 17 after Dr. Bush herself conducted further MMSEs. Further, Eli's Independent Living Scale revealed he could not pay bills or verbalize an understanding of a will, much less calling 911 in an emergency or what a fire alarm is. Dr. Bush concluded that Eli suffered from multiple cognitive dysfunctions, including severe memory impairment, significant disturbance in executive functioning, and no ability to plan, problem-solve, reason, or think abstractly. Eli further was found incapable of any abstract thinking and incapable of ordinary judgment or reasoning, lacking the ability to meet his most basic needs and provide for his own safety and health. In conclusion, Dr. Bush directly correlated her findings with Eli's lacking capacity to enter into marriage. The only cross-examination concerned when Dr. Bush saw Eli last, which was several months after the marriage, and yet Dr. Bush still concluded that Eli's condition was permanently degenerative and only solidifies his incapacity to the January marriage.
Even in the testimony of Paula Daws, Paula admits that she initially laughed off Eli's proposal of marriage, only waiting "a few days later" for his second proposal to take it seriously. Paula then contacted her minister and got a license to marry. Paula did not invite any of Eli's family despite knowing of, at bare minimum, Carol who came by every week. Paula did not ask Eli's reverend to officiate the wedding. Paula did not even mention her marriage to Eli for several months to Carol, hardly speaking of the romantic relationship found in Mason Green, but more to the sudden relationship in Simon.
Reverend Joseph Simms, who officiated the wedding, had as witnesses his wife and secretary, unlike in Mason Green where a nurse and medical assistant with no known connection to the officiant bore witness to that wedding. Reverend Joseph Simms would not have married Eli had he known of any mental incapacity to marry, but conveniently on cross-examination, Reverence Joseph Simms admitted to no training to detect such incapacity nor any attempts to identify mental incapacity with Eli.
In summation, there is credible and uncontroverted expert witness testimony by Dr. Bush that Eli was continuously decreasing in mental capacity, as evidenced by multiple MMSE findings, which makes his mental degradation more akin to Simons than Mason Green. Next, the degradation of Eli's capacity to marry was permanent in nature, supported by the facts presented in both the direct of Carol and Dr. Bush, unlike the temporary moments of lucidity found in Mason Green. Further, the length of engagement, while unclear, was not nearly as long as the two years in Mason Green, but more akin to Simons with a "sudden" proposal, which even Paula did not initially take seriously. Finally, no real efforts were undertaken at the time of the wedding by either the reverend's partial witnesses or the participants to determine Eli's capacity to marry. All the above present clear and convincing evidence of a lack of capacity to marry.
Accordingly, petitioner respectfully requests that the Court grant the petition to annul the January 2019 marriage.
(2) Because the preponderance of evidence shows Eli Doran lacked the requisite testamentary capacity recognized in the relevant Franklin case law, Eli Doran's Will leaving his estate to Paula Daws instead of his Church must be set aside.
The facts of this case are intertwined in such a manner that petitioner relies upon the first part of this argument and incorporates same as if set forth in full herein. Indeed, bearing only the burden of preponderance of the evidence instead of clear and convincing evidence, if the Court finds the first petition appropriate, it must also find the same evidence as dispositive in Eli's lack of testamentary capacity under color of the below-mentioned case law. However, such petitions are severable, and without conceding same, even if the Court does not find clear and convincing evidence, the Court must find by at least a preponderance of the evidence that Eli lacked the testamentary capacity to will.
In the seminal case of In re the Estate of Dade, (Fr. Ct. of App. 2015), petitioners Jill and Samuel Dade appeal from the trial court's decision denying their petition to set aside the 2010 codicil to Matthew Dade's will. Petitioners claimed that Matthew Dade, struggling with a history of alcoholism, led to noticable decline in cognitive ability, a loss of short-term memory exhibited by inability to recall names, places, or events during periods of inebriation as well as abstention from alcohol, forgetting to pay bills, and other such tasks expected of independent and functioning adults. Despite a diagnosis of alcoholism, Matthew was able to correctly state his worth during discussions of his estate, identifying the extent and value of his investments. Matthew regularly provided updates about his family and their states of being, and the lawyer who drafted the will is deceased and therefore unavailable. Matthew had not disturbed the majority portion of his will to his family, and alcoholism only periodically disabled his mental capacity. The trial court, finding controverted testimony and evidence presented, was not persuaded that the petitioners had met the preponderance of evidence burden, and the appellate court affirmed. Neither court was persuaded under the facts petitioners presented of In re the Estate of Tarr, (Fr. Sup. Ct. 2011), where legal incompetence determinations alone were not enough to find a lack of testamentary capacity.
Here, petitioner does not need to rely upon the finding of testamentary incapacity, though same was indeed found. The degraded psychological state of Eli was more than "periodic" as found with alcoholism, but permanent in nature as previously discussed in the uncontroverted testimony of Dr. Bush. Further, Eli was incapable of comprehending the nature of a will, much less the state of his finances or how his family was faring. 
Beyond the facts previously set forth at length, perhaps the most important consideration for the Court is the potential for Paula's motive to marry Eli. During the cross-examination of Paula Daws, it was revealed that Paula has about $15,000.00 in credit card debt. Just as Paula did not take Eli to his reverend for the wedding or invite his family (or even notify them), Paula also did not take Eli to his attorney for the new will. Paula was aware that Eli had sold his home, which he owned in full, to finance his time at her care facility, and that he did not have to worry about his finances with his monthly pension as a retired federal meat inspector. Based on testimony from Carol on Eli's prior 2016 will before Paula's lawyer helped Eli draft a new will, Eli no longer left money to the Church he loved, but to Paula. The only other testimony as to the signing of the will comes from Paula's daughter Mary, who was present at the signing of the will leaving Eli's estate to Paula. Mary was aware that if anything happened to Paula, she would likely inherit what Paula could get from Eli's estate, offering the perfect motive to look the other way while witnessing the signing of the new will in Eli's deteriorated mental capacity.
Because Eli's deteriorated mental estate is permanent in nature, more than mere forgetfulness about alone-inconsequential matters like timely payment of bills, and possibly the evidence of Paula's motive to wrongfully marry Eli in his lacking capacity, the petition to set aside Eli's will must be granted, instead reinstating his 2016 will when Eli possessed the requisite testamentary capacity.
Accordingly, petitioner respectfully requests that the Court grant both the petition to annul the January 2019 marriage of Paula Daws and Eli Doran and the petition to set aside the October 2019 will. Thank you.
Sample Answer
Outline: 
Issue 1: annul the January 2019 marriage of Paula and Eli
Issue 2: Set aside the October 2019 will
Cases:
In re the Estate of Carla Mason Green (Franklin Court of Appeal 2014)
A marriage that complies with the licensing and officiating requirements of the Franklin Uniform Marriage and Dissolution Act (FUMDA) is presumptively valid and this comports with the strong public policy favoring the validity of marriage. It can only be overcome by clear and convincing evidence. Evidence is clear and convincing in a case such as this if it establishes that it is substantially more likely than not that a party lacked capacity to consent to marriage.
The capacity to cosnet to marriage is a requirement of a valid marriage and is defined as the ability understand the nature, effect, and consequences of marriage and its duties and responsibility. Each party to the marriage must freely intend to enter the martial relaitonship and understand what marriage is. Capacity to consent is measured at the time of the marriage.
In In re Mason Green, the trial court ruled that the petitioner was required to present clear and convincing evidence and concluded that the ptetitioner had failed to meet his standard that Mason did not posses the capacity to consent to the marriage. Mason had terminal cancer and had taken medications to control the pain from the cancer. Mason was alert and had paricipated in the discussion and made the decision to terminate her treatment and begin hospice care in her home. The marriage met the requirments of FUMDA. Mason's oncologist testified that the prescribed pai nmedication had a high probability of creating mental changes in any patient and these changes could interfere with the patient's thought processes, including the decision to marry; however, the oncologist also admited that while confusion can arise in patients receiving these medicaitons, patients can and do have periods of lucidity and alterness and that, on the morning of October 10, he beleived that Mason had the capacity to make deicisons about her medical care and treatment. Mason and Green had been engaged to each other for two years and had planned for a marriage and a life together. Mason broke off the engagement when Green was transferred to another town, but they sayed in contact and Mason later contacted Green for support when she learned of her cancer. 
cites In re Marriage of Simon (Fr. Ct. App. 2005)
Court annuled the marriage of Henry and Nancy Simon after Henry married Nancy while she lived in a residental facility. The court's decision here was not based on the medication Nancy was taking in Simon, but ony the fact that three weeks prior to the marriage, Nancy had suffered the fourth of a series of strokes and the doctors determined the stroke was disability and that she was incapable of receiving or evaluating information and should not make any deicison for herself or others. Also, Henry was a medical technician employed at the facility where Nancy lived and he met her only a few weeks prior to Nancy's fourth stroke and they had no prior relationship-romantic or otherwise.The court ruled that Nancy was incapable of conseting to marriage at the time of the marriage and that she had no understanding of what marriage is.
In re the Estate of Dade (Franklin Court of Appeal 2015)
-In 1999, Matthew executed a will leaving his estate to his adult children. In 2010 and then he drafted a codicil to his will in which he provided bequests of $100,000 each to his nephew William Speck, his niece Ann Murphy, and his housekeeper Tanya Hall. The Dades contended that Matthew lacked testamentary capacity when he executed the 2010 codicil due to a long history of alcoholism. The law requires that the testator have testamentary capacity, which means that the testator, at the time of executing the will, be capable of knowing the nature of the act he is about to perform, the nature and extent of his property, the natural objects of his bounty, and his relaiton to them. A will executed by a testator who lacks testamentary capcity is void. Testamentaray capacity is measured at the time when the instrument was executed. A party seeking to prove the lack of testamentary capacity must do so by a preponderance of the evidence. 
Two years after death of wife, Matthew had a noticeable decline in cognitive ability, a loss of short-term memory, inability to recall names, places or events during periods of inebriation as well as abstinence from alcohol, and that during the last 10 years of his life, Matthew often spoke to their mother as though she was present in the home even long after she died. Matthew also forgot to pay bill and sometimes forgot to keep appointments such as for the doctor and oil changes. However, the niece and nephew testified hat Matthew discussed his finances and correctly stated his worth and identified the extent and the value of his investments.
Natural objects of his bounty are those individuals likely to receive a portion of his estate based on their relationship to him. While adding new bequests, Matthew still did not disturb the provision giving the majority of his estate to his children. The evidence also showed that Matthew was informed aout his children and their families and was aware of the value of his estate. The court found that even if Matthew was periodically disabled due to alcoholism, he still had testamentary capacity to create the 2010 codicil.
Cites In re the Estate of Tarr (Fr. Sup. Ct. 2011)
the court held that a determination of legal incompetence alone was not sufficient to find that the testaor lacked testamentary capacity. A determination of incompetence is a legal finding that a person lacks the mental ability to understnad problems and make decisions. Competence is similar to, but not the same as capacity. The degree of capacity required for a legal transaction varies. Thus, even if the testator was legally incompetent, the petitioner still had to prove that the testator lacked testamentary capacity.
Facts:
Carol Richards:
-Asked questions that he should have known the answers to and he was not dressing well. Forgot to pay bills.
Checkbook was a mess. Some entries were missing, some entered twice or three times.
-After moving into Paula's facility, he still had dinner with Carol every Sunday, but became more forgetful. Asked what day it was, when she had bought a new car, when she had bought the house. He would then ask all of these questions again a few minutes later and would again ask the same questions again numerous times during the visit. He did not recognize Carol's husband or children even though he had known them for years.
-Eli had once asked Vera, his cleaning lady to marry him so Carol was unsure about the marriage with Paula. 
-Will in 2016 gave everything to a church and he loved that church.
Dr. Anita Bush
Ph.D. in clinical psychology and practice as a a former forensic clinical psychologist. She works with patients who have cognitive or mental disorders.
On May 8, 2018 Dr. Bush interviewed Eli and was not oriented to time. He did not know what day it was or what year it was. He said he lived in his home with his wife Janet even though she had died two years earlier. Later he said he was married to Vera Wilson. It appeared he equated marriage with being cared for. Previously, Eli scored of 21 on MMSE and should have been at least 23. Showed some cognitive deficienies. Two years ago, Dr. Ricci diagnosed Eli as having dementia, type unspecified. On May 8, 2018, Eli's score on the MMSE had dropped signifigantly to 19. Eli is incapable of any abstract thinking and incapable of ordinary jdugement or reasoning. He lacked the ability to meet his most basic needs and provide for his safety and health. He could not live alone, drive, or manage his medicine or money. He needed 24-hour supervision. 
June 21, 2019- still said he lived in his home with his wife Janet. He said that he was going to visit his parents in Ohio, but that have been dead for many years. Eli denied that he was related to Carol. MMSE score dropped even lower to a 17. Condition was far worse. He may have periods of lucidity, but even if he does, it is not the same as having the ability to exercise judgment. Professional opinion is that he did not posses the mental capacity to marriage because he cannot think abstactly about anything or make any rational judgments. Eli equates marriage with being cared for.
Professional opinion is that Eli did not have the capacity to execute a will because he did not know who his relatives were or who might have a claim to his estate because he did not know that Carol was related to him and he thought that he still lived with Janet, his deceased wife. He also did not know the nature and extent of his estate/property in October of 2019 according to Dr. Bush's professional opinion.
May it please the Court, I am Examinee and I represent Carol Richards. 
I. Because Petitioner lacked capacity to consent to marriage, the January 2019 marriage should be annuled.
Under In re the Estate of Carla Mason Green (Franklin Court of Appeal 2014), a marriage that complies with the licensing and officiating requirements of the Franklin Uniform Marriage and Dissolution Act (FUMDA) is presumptively valid and this comports with the strong public policy favoring the validity of marriage. The legal standard is that this presumptuion can only be overcome by clear and convincing evidence. Evidence is clear and convincing in a case such as this if it establishes that it is substantially more likely than not that a party lacked capacity to consent to marriage. 
The capacity to cosnet to marriage is a requirement of a valid marriage and is defined as the ability understand the nature, effect, and consequences of marriage and its duties and responsibility. Each party to the marriage must freely intend to enter the martial relaitonship and understand what marriage is. Capacity to consent is measured at the time of the marriage.
In In re Mason Green, the trial court ruled that the petitioner was required to present clear and convincing evidence and concluded that the petitioner had failed to meet his standard that Mason did not posses the capacity to consent to the marriage. Mason had terminal cancer and had taken medications to control the pain from the cancer. Mason was alert and had paricipated in the discussion and made the decision to terminate her treatment and begin hospice care in her home. The marriage met the requirments of FUMDA. Mason's oncologist testified that the prescribed pai nmedication had a high probability of creating mental changes in any patient and these changes could interfere with the patient's thought processes, including the decision to marry; however, the oncologist also admited that while confusion can arise in patients receiving these medicaitons, patients can and do have periods of lucidity and alterness and that, on the morning of October 10, he beleived that Mason had the capacity to make deicisons about her medical care and treatment. Mason and Green had been engaged to each other for two years and had planned for a marriage and a life together. Mason broke off the engagement when Green was transferred to another town, but they sayed in contact and Mason later contacted Green for support when she learned of her cancer. 
Additionally, In re Marriage of Simon (Fr. Ct. App. 2005) the court annuled the marriage of Henry and Nancy Simon after Henry married Nancy while she lived in a residental facility. The court's decision here was not based on the medication Nancy was taking in Simon, but ony the fact that three weeks prior to the marriage, Nancy had suffered the fourth of a series of strokes and the doctors determined the stroke was disability and that she was incapable of receiving or evaluating information and should not make any deicison for herself or others. Also, Henry was a medical technician employed at the facility where Nancy lived and he met her only a few weeks prior to Nancy's fourth stroke and they had no prior relationship-romantic or otherwise.The court ruled that Nancy was incapable of conseting to marriage at the time of the marriage and that she had no understanding of what marriage is.
Here, Eli did not have the capacity to conset to marriage because Carol Richards testified to how Eli did not fully comprehend what marriage was because he had once asked Vera, his cleaning lady to marry him so Carol was unsure about the marriage with Paula. Eli's previous will in 2016 gave everything to a church and he loved that church. 
Additionally, Dr. Anita Bush, who has a Ph.D. in clinical psychology and practice as a a former forensic clinical psychologist and works with patients who have cognitive or mental disorders said that, in her professional opinion, Eli did not posses the mental capacity to marriage because he cannot think abstactly about anything or make any rational judgments. Eli equates marriage with being cared for.
On May 8, 2018 Dr. Bush interviewed Eli and was not oriented to time. He did not know what day it was or what year it was. He said he lived in his home with his wife Janet even though she had died two years earlier. Later he said he was married to Vera Wilson. It appeared he equated marriage with being cared for. Previously, Eli scored of 21 on MMSE and should have been at least 23. Showed some cognitive deficienies. Two years ago, Dr. Ricci diagnosed Eli as having dementia, type unspecified. On May 8, 2018, Eli's score on the MMSE had dropped signifigantly to 19. Eli is incapable of any abstract thinking and incapable of ordinary jdugement or reasoning. He lacked the ability to meet his most basic needs and provide for his safety and health. He could not live alone, drive, or manage his medicine or money. He needed 24-hour supervision. 
In order to rebut the presumption of FUMDA, the petitioner needs to show by clear and convincing evidence that the presumption does not apply. Again, evidence is clear and convincing in a case such as this if it establishes that it is substantially more likely than not that a party lacked capacity to consent to marriage. 
Here, it is substantially more likely than not that Eli lacked capacity to consent to marriage because the professional opinion of Dr. Bush is that Eli exhibited severe cognitive deficiency because he was unable to understand what marriage actually is. His proposals to Vera and Paula may have sounded like actual proposals, but it is clear that he believes marriage is equated to being taken care of and he does not understand that marriage, as an institution, is signifigantly more than that. Paula argues that Eli asked her multiple times about marrying her, but the facts supporting Eli's cognitive deficiens substantially outweigh reptitive proposals. It is clear that Eli lacked capacity to consent to marriage. Therefore, the marriage of 2019 should be annuled and it is fair and just because caregivers like Paula should not take advantge of mentally deficient people like Eli.
II. Because Petitioner lacked testamentary capacity, the will of October 2019 should be set aside. 
Under In re the Estate of Dade (Franklin Court of Appeal 2015), the court held that a will should be invalidated if the testaor does not know the natural objects of his bounty. 
In 1999, Matthew executed a will leaving his estate to his adult children. In 2010 and then he drafted a codicil to his will in which he provided bequests of $100,000 each to his nephew William Speck, his niece Ann Murphy, and his housekeeper Tanya Hall. The Dades contended that Matthew lacked testamentary capacity when he executed the 2010 codicil due to a long history of alcoholism. The law requires that the testator have testamentary capacity, which means that the testator, at the time of executing the will, be capable of knowing the nature of the act he is about to perform, the nature and extent of his property, the natural objects of his bounty, and his relaiton to them. A will executed by a testator who lacks testamentary capcity is void. Testamentaray capacity is measured at the time when the instrument was executed. A party seeking to prove the lack of testamentary capacity must do so by a preponderance of the evidence. 
Two years after death of wife, Matthew had a noticeable decline in cognitive ability, a loss of short-term memory, inability to recall names, places or events during periods of inebriation as well as abstinence from alcohol, and that during the last 10 years of his life, Matthew often spoke to their mother as though she was present in the home even long after she died. Matthew also forgot to pay bill and sometimes forgot to keep appointments such as for the doctor and oil changes. However, the niece and nephew testified hat Matthew discussed his finances and correctly stated his worth and identified the extent and the value of his investments.
Natural objects of his bounty are those individuals likely to receive a portion of his estate based on their relationship to him. While adding new bequests, Matthew still did not disturb the provision giving the majority of his estate to his children. The evidence also showed that Matthew was informed aout his children and their families and was aware of the value of his estate. The court found that even if Matthew was periodically disabled due to alcoholism, he still had testamentary capacity to create the 2010 codicil.
Additionally, in In re the Estate of Tarr (Fr. Sup. Ct. 2011), the Supreme Court of Franklin held that a determination of legal incompetence alone was not sufficient to find that the testaor lacked testamentary capacity. A determination of incompetence is a legal finding that a person lacks the mental ability to understnad problems and make decisions. Competence is similar to, but not the same as capacity. The degree of capacity required for a legal transaction varies. Thus, even if the testator was legally incompetent, the petitioner still had to prove that the testator lacked testamentary capacity.
While Eli is incompetent to consent to marriage, we, as the petitioner, must prove that he lacked testamentary capacity by a preponderance of the evidence. 
It is clear that Eli did not have testmantary capcity because, in discussions with Dr. Bush, he still said he lived in his home with his wife Janet. He said that he was going to visit his parents in Ohio, but that have been dead for many years. Eli denied that he was related to Carol. MMSE score dropped even lower to a 17. Condition was far worse. He may have periods of lucidity, but even if he does, it is not the same as having the ability to exercise judgment. Professional opinion is that Eli did not have the capacity to execute a will because he did not know who his relatives were or who might have a claim to his estate because he did not know that Carol was related to him and he thought that he still lived with Janet, his deceased wife. He also did not know the nature and extent of his estate/property in October of 2019 according to Dr. Bush's professional opinion.
In conversations with Carol, Eli would also ask questions that he should have known the answers to and he was not dressing well and how he forgot to pay bills. Eli's checkbook was a mess. Some entries were missing, some entered twice or three times. After moving into Paula's facility, he still had dinner with Carol every Sunday, but became more forgetful. Eli would ask what day it was, when she had bought a new car, when she had bought the house. He would then ask all of these questions again a few minutes later and would again ask the same questions again numerous times during the visit. He did not recognize Carol's husband or children even though he had known them for years.
While Paula may argue that Eli was insistent that she has whatever he had when he died, Eli said he wanted her to have it all when he was gone when Paula asked about all of the stuff he had in his room. He said it again and she asked him if he wanted to make a will, he said yes. Paula filled the will in online when Eli said "You do it". Paula's daughter and son-in-law witnessed Eli signing it. Eli kept saying, "I want you to have what I have- you are so kind".
Paula did not invite Carol, use Eli's minister, or tell Carol or anyone about the marriage or will until very recently. Paula filled out the will and everything went to her. Paula did not take Eli to his lawyer to have a will drafted. Paula has about $15,000 in credit card debt too. 
Reverand Joseph Simms said he would not have married them if he questioned Eli's mental capacity, but he is noot trained to diagnose cognitive funcitoning and only visited Eli twice in January of 2019. Mary Daws Johnson is also the Daughter of Paula and she would get everything from Eli when her mother dies so it is suspicious that she agreed and she lacks credibility.
The witnesses for Paula lack credibility and the witnesses for Carol demonstrate by a preponderance of the evidence that Eli clearly was unaware of the extent of his bounds since he did not know what money he had in his estate and he clearly had no idea who his realtives were since he was unable to recognise Carol, her husband, or his grandchildren. Therefore, the will should be invalidated and it is just.
MEE Question 1
A homeowner entered into two separate contracts with a contractor for the renovation of her kitchen and the remodeling of her bathroom. The homeowner has refused to pay the contractor on both contracts because of dissatisfaction with his work.
Under the kitchen contract, the contractor had agreed to renovate the homeowner’s kitchen for $50,000, payable in installments. The final installment of $8,000 was due 10 days after completion of the project. The kitchen contract called for repainting the cabinets, installing new appliances bought by the homeowner from a third party, and replacing the flooring in the kitchen with linoleum, which is a floor covering made from natural materials. When the contract was negotiated, the contractor had asked the homeowner why she wanted “such old-fashioned flooring instead of more modern resilient flooring like vinyl.” The homeowner had responded, “We are a green household, and it is very important to us to use linoleum, which is a green product, unlike vinyl. Moreover, I grew up in a house with a linoleum floor in the kitchen, and I really want to be reminded of my youth when I walk into the kitchen.”
Despite the clear contract language, the contractor installed vinyl flooring in the kitchen. The vinyl flooring looks similar to the contractually required linoleum but is not as durable. Before the final payment was due, the homeowner discovered that the flooring was vinyl rather than linoleum and confronted the contractor. The contractor stated, “I knew that you wanted linoleum, but that’s a crazy idea. Vinyl was a lot easier for my workers to install, and it looks as good as linoleum. So I made an executive decision to go with vinyl.” The homeowner announced that she would not make the last installment payment unless the contractor removed the vinyl flooring and replaced it with linoleum. Removing the vinyl flooring and replacing it with linoleum would be labor-intensive and would cost the contractor approximately $10,000. The market value of the house, however, would be the same whether the kitchen had vinyl flooring such as that installed by the contractor or linoleum flooring as called for in the contract.
Under the bathroom contract, the contractor had agreed to remodel the homeowner’s bathroom for $25,000. The contract called for the existing bathtub to remain along one wall and a new vanity (cabinet and sink) to be installed along the opposite wall. The contract called for a 30-inch space between the vanity and the bathtub (so that a person could easily walk between them).
After the contractor said he was finished, the homeowner measured the space between the vanity and the bathtub and discovered that it was only 29 inches. The homeowner then announced that she would not pay the last installment of the contract price ($10,000), which was due upon completion of the remodeling, unless the contractor “did something” to make the space at least 30 inches wide. The only way to make the space at least 30 inches wide would be to remove either the vanity or the bathtub and to obtain and install a smaller custom-made model. This would cost the contractor about $7,500. The market value of the house with only a 29-inch space between the vanity and the bathtub, however, would be $500 less than with a 30-inch space.
The homeowner had selected the contractor because of the contractor’s reputation for high-quality installation. In both contracts, the price was based mostly on labor costs because the cost of materials and fixtures was relatively small.
Assuming that the contractor will do nothing to address the homeowner’s concerns:
1. How much more, if anything, is the homeowner required to pay the contractor under the kitchen contract? Explain.
2. How much more, if anything, is the homeowner required to pay the contractor under the bathroom contract? Explain.
Sample Answer
Question 1: Kitchen Contract
C: The homeowener will not be required to pay the contractor more under the purchase price because the contractor materially breached the contract for the renovation of the kitchen.
I: The issue is whether the contractor's installation of vinyl flooring instead of linoleum is a material breach of contract.
R: The common law of contracts is appliciable here because this is a contract for services and regardless of the determination approach used, the contract is a service contract since the majority of the contract price was based on labor costs because the cost of materials and fixtures was relatively small. Under the common law, when there is a valid contract, a party is bound to the terms of that contract. A breach occurs when one of the parties does not comply with the terms of the contract.When a breach occurs, damages may be awarded if the breach is determiend to be a material breach of the contract. A material breach is a breach under which the nonbreaching party does not receive the substantial benefit of the bargain and can receive compensatory damages or, in some cases specific performance. A minor breach may result in damages, but a minor breach will not invalidate a contract since the nonbreaching party has already received the substantial benefit of the bargain if the breach is minor. Compensatory damages are damages that will put the nonbreaching party in the same position that they would have been in if not for the breach by the breaching party. However, specific performance may be imposed in certain circumstances where the subject of the contract is unique such as land or, in some cases, a very unique service such as painting done by a famous artist. Additionally, specific performance is usually not awarded when the court will have to force a party to act because the courts cannot compell citizens to act against their will; construction contracts are generally not unique and specific performance is not likely to be awarded since construction can be completed or fixed by a different party. Therefore, in construction contracts, compensatory damages are more likely to be awarded. However, with regards to construction contracts, courts generally will not permit recovery in some circumstances where there is not substantial change in value of the property since it may create waste.
A: Here, the homeowner requested linoleum floor in the kitchen for very specific reasons such as: the fact that it contributes to a "green household" and that it is very important to her for the contractor to use linoleum, and that she grew up in a hosue with a linoleum floor in the kitchen and she wanted to be reminded of her youth when she walked into the kitchen. The clear language of the contract requires linoleum flooring, but the contractor installed vinyl anyway without the homeowner's consent. This constitutes a breach of contract.
The homeowner will argue that this was considered a material breach since the homeowner specifically requested linoleum and the contractor knew the reasons above for why the homeowner was adament about having linoleum flooring installed. While the vinyl was much easier for the contractor's workers to install and the contractor believed that the vinyl looked as good as the linoleum, this is still a breach of contract.
The contractor may try and argue that it was not a material breach of contract because the homeowner received the substantial benefit of the bargain and the difference between the vinyl and the linoleum is not very different and is evidenced by the fact that homeowner did not even know that there was a different. However, the court will still likely find that this is a minor breach of contract even though the homeowner specifically requested the linoleum and, under the facts provided, the contractor breached the contract by using his own discretion and installing the vinyl, the value to the homeowner was really the same since the market value of the house did not change. 
With regards to damages, the homeowner should not be required to pay any more to the contractor under the kitchen contract since the contractor materially breached the contract, but the homeowner will also not receive any money back from the contract price. The homeowner should be put in the same position that she was in had the contractor not breached, but the court will apply the doctrine of waste because the difference in value of the home itself is not substantially effected by the different flooring and requiring the contractor to pay $10,000 to replace a perfectly good vinyl floor with linoleum would be unjust and create waste. Additionally, the contractor cannot be forced by the court for specific performance because it is not approprate in most service contracts.
C: In conclusion, the homeowner should be entitled to compensatory damages; however, the court will determine the extent to which these damages would commit waste if the homeowner were to rip up and replace the floor. It is likely the homeowner will not have to pay any more money on the the contract price of $50,000 and she will not have to pay the final installment of $8,000. Therefore, she will not have to pay any more of the purchase price. 
Question 2: Bathroom Contract
C: The court will most likely make the homeowner pay $9,500
I: The issue is whether the homeowner is entitled to damages for the contractor's breach caused by only having a 29 inch space instead of a 30 inch space.
R: As stated above, a breach occurs when one of the parties does not comply with the terms of the contract. When a breach occurs, the nonbreaching party is entitled to damages, which generally take the form of compensatory damages that put the nonbreaching party in the position they would have been in if not for the breach. Additionally, the ruels regarding whether a breach is material or minor are above. However, a nonbreaching party may also receive expectation damages, which is the difference in value of the contract price and value actually received under the contract. Additionally, the rule for the doctrine of waste is also above.
A: Here, the breach by the contractor is a minor breach since the homeowner received the substantial benefit of the bargain even though the contract stated that the gap be 30 inches and the actual gap was 29 inches. The approprate damages would be for the contractor to compensate the homeowner for the difference in her expectation and the value received. This would be calculated by the value of the house if it had a 30 inch space versus the current value and the facts indicate that the difference would be that the house would be worth $500 more if the space was $30 inches. This means that the homeowner will have to complete the purchase price and then she will given $500 back for the difference in expectation.
C: The homeowner will have to pay $9,500 of the final installment of the $10,000 to the contractor. 
Sample Answer
Common Law 
A contract for services, including the renovation and remodeling of a home, is governed by common law. Unlike contracts for goods, which is governed under the uniform commerical code (UCC), services contracts have a particular set of rules when parties perform a contract or breach a contract.
1. Material Breach; Damages by Contractor 
The issue here whether the contractor materially breached the contract by installing vinyl flooring in the kitchen as oppose to linoleum, which was explicitly called for by clear contractual lanuage and communications by the homeowner. 
As rule of law, a material breach of a services contract occurs when the performing party fails to fulfil a material term or obligaiton under the contract. Material terms are terms or provisions of the contract which are clear, procise, and  serve as the purpose of the contract. In other words, the performing party is required to meet or fulfil material terms of the contract, which serves as the purpose of the contract, especially when the purpose is made clear and unambigous during the time of contracting. The performing party must in good faith fulfill the obligations of the performance. When a material breach occurs, in which the performing party breaches, the non-breaching party's perfomance is excused. It is irrelevant whether the dimunition of value between the expected performance and actual performance is slight or non-existent. Further, in determing whether the non-breaching party is obligated to pay, it is irrelevant whether it would have benefited the performing party in costs to not meet the material. In fact, such facts may give rise for the non-breaching party to seek damages, including unjust enrichment. 
Here, the purpose of the contract was to remodel the kitchen, which included replacing the floors with limoleum. The replacement of the floor was a material term and the purpose of the contract, given that it constituted one-third of the contractror's performance and perhaps the most expensive part of the contract. Further, term for the floor was provided in clear contractual lanuage, and the homeowner made it emphatically clear that she wanted linoleum floors based on her lifestyule preference and youth. When the contractor consciously decided to not install the linoleum but use vinyl instead, he materially breached the contract and it was inbad faith based on his decision that it would save the contractor money. Therefore, by matrerially breaching the contract, the homeowner as the non-breaching party was excused from performing, i.e. paying for the floors. Further, if the cost of replacing the vinyl floors with linoleum exceed the the $8,000 withheld, the homeowner may actually pursue damages against the contractor for costs of replacing the floors and installing the linoleum floors. 
Therefore, the homeowner is not required to pay contractor under the kitchen contract. 
2. Substantial performance; Dimunition in Value; Unjust Enrichment of Non-Breaching Party 
The issue here is whether contractor substantially performed under the contract to remodel the bathroom despite the minor breach and slight dimimunition in value. 
Unlike the UCC perfect tender rule, which requires that the performance be perfect date of delivery, common law recognizies that when a performing party substantially performs in which a minor breach may occur, the non-breaching party is nevertheless obligated to perform. Although performing party might have committed a minor breach, the breach is considered minor if it does not matrerially affect the contract or otherwise substantially affect the value of the contract. In other words, if the performing party fulfils the material obligations of the contract in good fatih and a breach occurs that does not materially affect the performance or value of the contract, than the non-breaching party is obgliated to perform. However, although the non-breaching party is required ot perform under the contract, the non-breaching party may entitled to the dimunition in value as a result of the minor breach. A diminution in value is the difference between the performance received and the performance expected, as value in the relevant market place. If the diminution is slight and the breach is minor, the performing party has substantially performed and is entitled to payment, although it may be responsible for such diminution. If the performing party substantially performs but the non-breaching party fails to perform (pay), than the non-breaching party has breached and will be unjustly enriched. 
Here, the remodeling of the bathroom cost $25,000. The contract called for the contractor to install a cabinent, sink, and bathtub. The fact that the contractor created a 30-inch space as oppose to a 29-inch space does not materially affect the material terms of the contract.Further, the market value of the house with only a 29-inch space and a 30-inch space would only result in slight diminution in value of $500. Plus, it would be more costly to have the contractor perform the change costing $7,500. Compared to the the value of the contract and considering the contractor's good faith and substantial performance, the contractor has substantially performed, although he may owe the $500 diminution in value to the homeowner. In other words, the homeowner would be unjustly enriched if it did perform under the contract, given that she received the benefit the benefit of the bathroom and would be unjustly enriched by withholding the remaining installment payment. 
Therefore, the homeowner is required to pay the contractor the last installment of $9,500, while the homeonwer is entitled to $500 in the diminution in value.  
MEE Question 2
Ten years ago, a woman and her husband purchased a one-story commercial building in a city in State A “as joint tenants with right of survivorship and not as tenants in common.” They had a “commuter marriage.” The husband lived in an apartment in State A. The woman, who worked for an international corporation, lived in a rented apartment overseas. They met one weekend each month.
Three years ago, the husband borrowed $150,000 from a friend and granted the friend a mortgage on the commercial building to secure repayment of the loan. The husband used the $150,000 to purchase a yacht. The certificate of title for the yacht was issued in his name alone.
Two years ago, the husband leased the building to a commercial tenant for a 10-year period at an annual rent of $9,000, “payable in equal monthly installments solely to” the husband.
The woman did not know about either of these transactions, and she did not join in the mortgage or the lease.
Last year, following the husband’s unexpected death, the woman first learned of the mortgage and the lease.
State A applies the title theory of mortgages, and its courts strictly apply the common law four-unities test. State A does not recognize tenancies by the entirety.
1. Did the husband’s execution of the mortgage sever the joint tenancy? Explain.
2. Assuming that the execution of the mortgage did not sever the joint tenancy:
(a) Did the husband’s execution of the lease sever the joint tenancy? Explain.
(b) Assuming further that the lease severed the joint tenancy, then upon the husband’s death, what rights, if any, does the tenant have in the building? Explain.
3. Assuming that neither the mortgage nor the lease severed the joint tenancy:
(a) During the spouses’ lifetimes, was the woman entitled to half of the rental income payable to her husband under the lease? Explain.
(b) At the husband’s death, what rights, if any, do the woman and the tenant have in the building? Explain.
Sample Answer
1. The issue is whether the husband's unilateral execution of the mortgage severed the joint tenancy in the commercial building with his wife. Because state A, where the property is located, applies the title theory of mortgages, the husband's mortgage did sever the joint tenancy. 
 To create a joint tenancy there must be four unities: Time, interest, title, and possession. The "title" unity requires that the parties hold equal title to the land. Whether a mortgage severs a joint tenancy depends on whether a jurisdiction follows the title theory or lien theory. If the title theory is followed, a mortgage severs a joint tenancy because it disturbs the unity of title because the mortagee is said to have title in the property. If the lien theory is followed the mortgagee is said to simply have a lien on the property and the lien only applies to the mortgagor's portion of the joint tenancy and cannot be applied against the other joint tenant. 
 Here, State A follows the title theory of mortgages. Ass such, when the husband granted a friend a mortgage on the commercial building, the friend, as mortgagee had title to the building as opposed to merely having a lien as he would have in a lien theory jurisdiction. As such, despite the fact that the husband unilaterally executed the mortgage without the wife's knowledge and used the money borrowed to purchase a yacht which was issued in his name alone, the mortgage severed the joint tenancy because the unity of title was no longer present.
2(a). The issue is whether, assuming the husband's mortgage did not sever the joint tenancy, the husband's execution of the lease severed the joint tenancy. Leases sever joint tenancies because it severs the unity of possession. When a party unilaterally leases the joint tenancy, neither party is entitled to the use and enjoyment of the land while the land is under lease.
 Here, the husband's lease severed the joint tenancy because it made it such that the parties' interests or rights to possession were no longer the same. 
2(b). The issue is, assuming the lease severed the joint tenancy, what rights if any the tenant had in the building upon the husband's death. Upon the severance of a joint tenancy the parties who were formerly joint tenants are now tenants in common. When a party rents from one tenant in a tenancy in common they may remain in possession for the remainder of the leasehold despite that tenant's death. During the term of their lease they are still entitled to use and possess the whole property.
 Here, the husbands death would not terminate the lease held by the tenant. The tenant would be able to use and enjoy the full property as a tenant in common with the wife for the remainder of the leasehold at which time the land would go to the bank because they now have title to the land. 
3(a). Where parties are joint tenants they are entitled to split the proceeds of any rental income in the property. This is true even where on party does not live on the property or did not facilitate the lease.
 Here, the woman would be entitled to half of the rental income payable to her husband under the lease by virtue of the joint tenancy. Because each party has equal rights to possess and enjoy the entire land, they are both entitled to the profits derived from that land. This is true even though the wife worked for an international corporation and lived in a rented apartment overseas. She would stilll be entitled to half of the rental income because she owns the property as a joint tenant with the husband.
3(b). Assuming that neither the mortgage nor lease severed the joint tenancy, the wife would own the entire property through the right of survivorship. Rights of surviorship allow tenants holding in joint tenancy to acquire the sole right to the land upon the death of their joint tenant. The joint tenant takes free of any encumbrances, claims of title, or leases against the deceased tenant's interest unless the surviving tenant was also a party to the transaction giving rise to the encumbrance.
 Here, the woman would take title to the land free of the lease because she was unaware that the lease existed. This is true because she was a joint tenant with the right of survivorship. Additionally, she did not know about the lease until her husband died. Therefore, she may choose to terminate or continue the lease.
Sample Answer
1. The issue here is whether the husband's execution of the mortgage severed the joint tenancy. A joint tenancy is a way in which more than 1 person can own property. Joint tenancies have a right of survivorship, meaning if 2 parties own a tract of land and one of the parties dies, the other party is entitled to the entire tract of land. A joint tenancy can be severed, however, and when a joint tenancy is severed it becomes a tenancy in common. A tenancy in common does not have survivorship rights, meaning, using the same example, the living party is not necessarily entitled to the entire tract of land. In order to form a joint tenancy, there has to be survivorship language and the four unities have to be present: (1) possession, (2) interest, (3) title, and (4) time. A joint tenancy can be severed when one of these unities is severed. When the husband executed the mortgage, he severed the joint tenancy because State A, which is where the property is located, is a title theory state. In a title theory state, a mortgage severs a joint tenancy unlike a lien theory state, where a mortgage does not sever a joint tenancy. Therefore, the joint tenancy would be severed and the husband and wife would have become tenants in common. The mortgage therefore would be against the husband's 1/2 of the property. 
2. (a) The next issue is whether the joint tenancy was severed with the husband's execution of the lease. As outlined above, a joint tenancy is when the owners in the property have rights to the entire property and survivorship rights. In forming a toint tenancy there has to be survivorship langauge and the four unities have to be present (1) possession, (2) interest, (3) title, and (4) time. Here, the husband would have severed the joint tenancy when he executed the lease because he would sever the unity of possession because he is not longer in unity of possession with his wife, rather he has given the tenant possession of the property for the duration of his 10 year lease. 
(b) Assuming the lease severed the joint tenancy, the next issue is upon the husband's death, what rights, if any, does the tenant have in the building. If the lease severed the joint tenancy, it would then make the husband and wife tenants in common. Tenants in common do not have a right of survivorship. Therefore, if they are tenants in common when the husband dies, the wife is not entitled to the entire property, but rather half of the property. The tenant signed a 10-year period lease at an annual rent of $9,000 that he was to pay in monthly installment checks. In some jurisdictions, the husband's death would void the lease and the tenant would not have any rights in the building. In other jurisdictions, however, the husband's death would not void the lease and the tenant would have a right to remain renting and pay the husband's estate the monthly rent, unless whoever acquires the property at the husband's death fights to void the lease. 
3. Assuming that neither the mortgage nor the lease severed the joint tenancy, (a) the first issue is during the spouses' lifetimes, was the woman entitled to half of the rental income payable to her husband under the lease. As outlined above, when two people have a joint tenancy, they are each entitled to the entire property. Because the wife would be entitled to the entire property, she would be entitled to half of the rental income payable to her husband under the lease. If the wife knew about the lease, however, and did not request the rental income for a long period of time, a court might determine that she is not entitled to 1/2 of the rental income if she knew about it and did not exercise her rights for a long period of time. 
(b) The next issue is at the husband's death, what rights if any, do the woman and tenant have in the building, again assuming that neither the mortgage nor the lease severed the joint tenancy. If the joint tenancy was never severed, then the wife would be entitled to the entire property because joint tenants have a right of survivorship. A right of survivorship means the reminaing party to a joint tenancy receives the survivorship rights upon the death of the other party, and the entire property becomes theirs. The tenant signed a valid lease for 10 years and while the tenant would not have actual rights to the land itself, the tenant might be able to continue on the lease for the time permitted in the lease which was 10 years with an annual rent of $9,000 with monthly installments. Although the payments were to be made solely to the husband under the terms of the lease, the tenant would now be respsonsible for making payments to the woman, who now owns the building in its entirety. 
MEE Question 3
During a snowstorm, a woman and a man were driving in opposite directions on a state highway when their cars collided head-on in the middle of the road. At the moment of impact, the locking mechanism on the woman’s seat belt malfunctioned, and the woman was thrown from her car and seriously injured.
The woman was transported from the scene of the accident in an ambulance owned and operated by AmCo, a private ambulance company. On the way to the hospital, the ambulance driver lost control of the ambulance, which skidded off the highway, causing further injury to the woman and exacerbating the injuries she had suffered in the original accident.
Six months later, the woman filed a tort action in federal district court against the man, AmCo, and CarCo, the manufacturer of the woman’s car. The complaint alleges that each defendant is liable for all or part of the woman’s injuries. In particular, the complaint alleges that the man caused the original accident by swerving across the median of the highway, that AmCo’s driver was driving too fast for the weather and road conditions, and that CarCo is liable because the seat belt in the woman’s car was defectively manufactured. The woman’s complaint properly invoked the court’s diversity jurisdiction, and each defendant was properly served with process. Each defendant filed an answer to the complaint and denied liability.
Seven days after it served its answer, CarCo served a summons and complaint on LockCo, the company that manufactured and supplied the seat belt locking mechanism that CarCo installed in the woman’s car. CarCo seeks to join LockCo as a party to the woman’s action, alleging that LockCo must indemnify CarCo if the seat belt locking mechanism is found to have been defective and CarCo is held liable to the woman.
1. Under the Federal Rules of Civil Procedure, did the woman properly join the man, AmCo, and CarCo as defendants in a single action? Explain.
2. Under the Federal Rules of Civil Procedure, did CarCo properly join LockCo as a party to the woman’s action against CarCo? Explain.
Sample Answer
1. Multiple Defendants
The issue is whether Woman properly joined Man, AmCo, and CarCo as defendants in a single action. Under the Federal Rules of Civil Procedure, pursuant to the rule for compulsory joinder, a plaintiff must join parties in an action if the party is necessary and joinder is feasible. A party is necessary if either: 1) litigation without the party would impair any party's rights, or 2) the parties may be liable for multiple or inconsistent judgments if the party is not joined. Additionally, joinder is feasible if the court retains subject-matter jurisdiction and has personal jurisdiction over the party. If a party is found to be necessary, but joinder is not feasible, then the court has discretion to either: 1) dismiss the claim, or 2) continue without the necessary party. 
Also, pursuant to the rule for permissive joinder, a party may join additional defendants if: 1) any right to relief jointly, severally, or in the alternative may arise during the course of litigation, and 2) there is a common question of law or fact. 
Here, Woman commenced a single action against Man, AmCo, and CarCo. The complaint alleges: 1) that each defendant is liable for all or part of Woman's injuries, 2) that Man caused the accident by swerving across the median of the highway, 3) that AmCo's driver was driving too fast for the weather and road conditions, and 4) that CarCo is liable becaused the seat belt in Woman's car was defectively manufactured. We first analyze whether Woman was obligated to bring a single action pursuant to compulsory joinder. If Woman had brought separate claims against each defendant, it appears unlikely that any party's rights would be impaired because each claim involves a separate tortious event. The three tortious events are not dependent on each other, and none of the defendant's were involved in each other's tortious event. Similarly, if Woman had brought separate claims against each defendant, it is unlikely that the defendants would be subject to multiple or inconsistent judgments because the defendants did not act jointly, and the tortious conduct of each one does not affect the tortious conduct of the other. Consequently, Woman was not obligated to bring a single action against defendants pursuant to compulsory joinder. 
We next analyze whether Woman was permitted to bring a single action pursuant to permissive joinder. Woman suffered injuries from the car accident with Man, both due to Man's alleged negligence in swerving across the median, and due to CarCo's alleged defective seatbelt in her car. She was further injured by AmCo's alleged negligent driving, which also exacerbated her injuries from the car accident. Consequently, Man, AmCo, and CarCo may be liable to Woman jointly, severally, or in the alternative with each other because they all caused the same injuries to Woman, or made them worse. Additionally, Woman's injuries serve as a common question of fact, and the car accident involves common questions of fact regarding Man and AmCo related to the impact and Woman being thrown from her car. Consequently, Woman was allowed to bring a single action pursuant to permissive joinder. 
Therefore, Woman properly joined Man, AmCo, and CarCo as defendants in a single action pursuant to permissive joinder.
2. Impleader
The issue is whether CarCo properly impleaded LockCo as a party to Woman's action against CarCo. Under the FRCP, a defendant may file an impleader againt a third-party defendant when the third-party defendant may be liable to the defendant in whole or in part if the defendant is found liable in the original action. Most commonly, defendants use impleader if a third-party defendant would owe the defendant contribution or indemnification for the defendant's liability to the plaintiff. A defendant properly commences impleader by filing a third-party complaint on the third-party defendant.
Here, after serving its answer, CarCo served a summons and complaint on LockCo, the company that manufactured and supplied the seat belt locking mechanism that CarCo installed in Woman's car. CarCo alleges that LockCo must indemnify CarCo if the seat belt locking mechanism is found to have been defective and CarCo is held to be liable to Woman. Since LockCo may be liable to CarCo in whole or in part because of indemnification if CarCo is found to be liable to Woman, CarCo was permitted to implead LockCo under these circumstances. Furthermore, CarCo properly impleaded LockCo by serving it with a summons and third-party complaint. 
Therefore, CarCo properly joined LockCo as a party to Woman's action through impleader. 
Sample Answer
Woman's Joinder: The woman properly joined man, AmCo and CarCo, as defendants in a single action. At issue is whether all three causes of action arise from the same transaction or occurrence.
Under the Federal Rules of Civil Procedure, a plaintiff may join any party as plaintiff (voluntarily) or as defendant (forced) when the causes of action relate to the same transaction or occurrence. Permissive joinder is optional and compulsory joinder must be brought as to any necessary or indespensable party related to the liability of the issue complained. Whether issues arise from the same transaction or occurrence is determined by a shared cause of action. If each of the alleged liabilities arises from a mutual cause of action then all possible parties to the same action that occurred may be joined as parties to that said action. That is the case here, where each of the three alleged causes of injury to Plainitff arose from the same relay of events. The car collision with the man that jolted the woman from her malfunctioned seat belt installed in the car bought from CarCo created injuries which were further exacerbated by AmCo who caused further injury in route to the hospital. Each and every one of the three alleged acts of the defendant were transacted at the same time. Each occurred around the same immediate time in relation to same exact incident and the plaintiff finds that all of her injuries are attributable to the three stated parties. In order to avoid multiple litigations on the same cause of action, courts will permit a plaintiff to join parties to be heard in a single suit when the issues or occurrences arise from the same incident or transaction. Therefore, the woman properly joined the man, CarCo, and AmCo as defendants in a single action.
CarCo's Joinder: CarCo did properly join LockCo as a party to the woman's action against CarCo. At issue is whether the third-praty complaint was proper.
Under the Federal Rules of Civil Procedure, a defendant may file a third-party complaint in order to emplead any party that it believes will owe the defendant contribution or indemnification, if held liable by the plaintiff.  Impleader is permissible when any defendant who believes the liability they may incur from the complaining plaintiff should be paid either in whole or in part by that third-party. As is the case here, CarCo could reasonably believe that if he is held liable for damages to the woman, that LockCo should have to indemnify CarCo for all such damages. LockCo is the company that manufactured and supplied the seat belt locking mechanism to CarCo, which CarCo had installed in the woman's car. Because this particular mechanism is specifically attributable to LockCo as the manufacturer, it should indemnify CarCo for any monetary damages owed for the woman's personal injuries because some of those injuries are attributable to the locking mechanism. Woman complains that the seat belt malfunctioned and is holding CarCo liable therefore. CarCo is aware that LockCo manufactured the seat belt, but as is the custom in civil procedure cannot raise the defense that fault is not his but LockCo's instead. So the only other option is the implead LockCo for indemnification of any liability that CarCo may incur from the cause of action. Therefore, CarCo did properly join LockCo as a party to the woman's action against CarCo. 
MEE Question 4
On February 1, Construction Company borrowed $500,000 from Bank. Construction Company’s president, on behalf of the company, contemporaneously signed and delivered to Bank a security agreement that included the following language:
To secure the repayment obligation of Construction Company to Bank, Construction Company hereby grants Bank a security interest in all rights of Construction Company to be paid with respect to any contract for the construction or repair of bridges or roads, whether such right exists now or arises in the future.
On March 1, Construction Company entered into a contract with a developer to build roads for a housing development. The contract required the developer to pay $450,000 to Construction Company upon completion of the road-building project.
On September 1, Construction Company defaulted on its obligations to Bank under the loan and the security agreement. Bank immediately sent a letter to the developer. The letter, which was signed on behalf of Bank by its president, read as follows: “In accordance with a security interest granted to us by Construction Company, all payments under your contract with Construction Company should be made to us at [address of Bank].”
This letter was received by the developer on September 3.
On October 1, Construction Company completed its project for the developer and sent an invoice to the developer demanding payment. The developer’s treasurer decided to pay Construction Company, and not Bank, because the developer had a contract with Construction Company but not with Bank. The developer’s treasurer promptly sent a check for $450,000 to Construction Company, which deposited the check and used the proceeds to pay its employees and subcontractors.
A few days later, when Bank learned that Construction Company had completed the road-building project, Bank sent an email to the developer demanding that the developer pay Bank the $450,000 contract price. Attached to the email was a copy of the security agreement signed by Construction Company and a copy of Bank’s September 1 letter to the developer directing it to make all contract payments to Bank. The developer responded that it had already paid Construction Company and was therefore discharged from its payment obligation under the road-building contract. The developer also stated that the security agreement executed on February 1 could not have encumbered Construction Company’s right to be paid under the road-building contract because that contract did not exist until March 1.
1. Did Bank have a security interest in Construction Company’s right to be paid $450,000 by the developer for the road-building project? Explain.
2. Was the developer discharged from its payment obligation under the road-building contract by virtue of its having paid Construction Company? Explain.
Sample Answer
1. Bank's Security Interest
The issue is whether Bank has a security interest in Construction Company's right to payment from developer. Under Article 9 of the UCC, the article governs any agreement that contains a security interest, regardless of form. If a party grants another party a security interest in a right of payment, then the party granting the security interest is treated as a debtor, and the party who is granted the security interest is treated as a secured party who must attach its security interest. 
Rights to payment include: 1) instruments, 2) chattel paper, 3) accounts, and 4) payment intangibles. An account is a party's right to be paid for selling, leasing, licensing, or services rendered.
A secured party must attach its security interest in order to gain enforcement rights. A security attaches if 3 requirements are met: 1) value, 2) rights, and 3) security agreement. The secured party must give value for the collateral. The debtor must have rights in the collateral. There must be an authenticated security agreement, or the secured party must have possession or control over the collateral pursuant to an unauthenticated security agreement. Additionally, in its description of collateral in the security agreement, after-acquired property may be included, but attachment does not occur until the debtor has rights in the after-acquired property.
Here, Construction Company borrowed $500,000 from Bank and gave Bank a security interest "in all rights of Construction Company to be paid with respect to any contract for the construction or repair of bridges or roads, whether such right exists now or arises in the future." Consequently, Construction Company gave Bank a security interest in its accounts, or right to be paid, for the construction or repair of bridges and roads, or services rendered to others. The description includes Constuction Company's accounts that arise in the future, or after-acquired property, but the Bank's security interest does not attach until Construction Company's right arises. 
Bank gave Construction Company $500,000 in exchange for the security interest, so it gave value. Construction Company has rights in its accounts, so it had rights in the collateral. The parties executed a security agreement on February 1st, which was authenticated (signed) by Construction Company, the debtor. Consequently, Bank attached its security interest in Construction Company's accounts on February 1st. 
Subsequently, on March 1st, Construction Company entered into a contract with developer to build roads. The contract required developer to pay $450,000 to Construction Company upon completion. Consequently, on March 1st, Construction Company gained a new account, or right to payment. Thus, on March 1st, Bank's security interest in Construction Company's account with developer attached. 
Therefore, Bank has an attached security interest in Construction Company's right to be paid by developer.
2. Discharge from Payment Obligation
The issue is whether developer discharged its payment obligation by paying Construction Company rather than Bank. Under Article 9 of the UCC, once a secured party attached its security interest, the secured party gains enforcement rights. Pursuant to its enforcement rights, after debtor's default, the secured party may step into the shoes of the debtor and collect a payment from the third party. Even if the third party pays the debtor, the secured party has a right to payment from the third party, and may enforce that right against the third party. Consequently, the third party is not discharged from its payment obligation by paying the debtor. 
Here, on September 1st, Construction Company defaulted. Since Bank attached its security interest once Construction Company entered into contract with developer, Bank had enforcement rights for its security interest, and could step into Construction Company's shoes to collect payment from developer rather than wait for developer to pay Construction Company. Bank sent a letter to developer telling developer to pay Bank rather than Construction Company, pursuant to its security interest. Even though developer had notice of Bank's security interest in the account, developer paid Construction Company rather than Bank. However, since Bank had a security interest in the account, developer was obligated to pay Bank rather than Construction Company. Consequently, developer did not discharge its payment obligation by paying Construction Company instead. 
Therefore, developer was not discharged from its payment obligation under the contract by paying Consruction Company rather than Bank.
Sample Answer
(1) The issue is whether the Bank has a security interest in Construction Company's right to be paid $450,000 by the developer for the road-building project?
 A security interest is essentially when a party gives rights in collateral so that another party can secure payment for a debt. Security interests are governed by Article 9 of the Uniform Commercial Code. For a security interest to be enforceable under Article 9, "attachment" of the security interest is required. Attachment requires three elements. First, the secured party must give value. Here, the Bank gave value by granting a $500,000 loan to the Construction Company. Second, the debtor must have rights in the collateral. The Construction Company clearly has a right to be paid under its own contracts for repairing bridges and roads. Third, there must be an authenticated security agreement. Here, the Construction Company's President, on behalf of the company, contemporaneously signed and delivered to the Bank the security agreement that granted all of Constuciton Company's rights to be paid with respect to any contract for the construction or repair of bridges or roads, whether such right exists now or arises in the future. Because the security agreement is signed by the party against whom enforcement would be sought and it reasonably identifies the collateral it constitutes an authenticated security agreement. Therefore, the Bank properly attached its security interest in Construction Company's present or future rights to be paid under construction contracts for the repair of roads or bridges. 
Under Article 9, a party may grant security interests in "after-acquired" property. In other words, a debtor may give a security interest in property it does not yet have or is not yet entitled to but will be entitled to. Therefore, notwithstanding the fact that the developer claims that the February 1st security agreement could not encumber the Construction Company's right to be paid because iwas executed before the construction contract existed, the Bank had an enforceable security interest in the Construction COmpany's right to be paid by the developer under the March 1st contract.
(2) The issue is wehter the developer is discharged from its payment obligation under the road-building contract by virtue of its having paid Construction Company?
Under Article 9, when a secured party gives notice of its security interest to a party who owes money to the party to which the secured party has obtained its rights to be paid, before the right to be paid is triggered, only payment to the secured party can discharge the party's obligation to pay. The party that owes money cannot discharge its obligation by paying the party who gave a security interest in the right to be paid over notice of the security interest. 
Here, The Bank sent a letter to the developer on September 1st notifiying the developer that the Bank is enforcing its security interest to be paid under the devloper's contract with the Construction Company. The contract required the developer to pay $450,000 to the Construction Company upon comopletion of the road-building project. The Construction Company did not complete the project until October 1st. Therefore, the Bank properly gave notice of its security interest prior to the triggering of the Construction Company's right to be paid under the contract. Therefore, the developer did not discharge its obligation by sending a check for $450,000 to Construction Company because it did so over the Bank's issuance of notice of its security interest in the right to be paid under the contract. 
MEE Question 5
Linda owned and operated a clothing store as a sole proprietorship. To increase sales, she decided to offer a same-day delivery service to local customers. Rather than hiring an employee to make deliveries, she decided to use a driver who was an independent contractor to make deliveries on an as-needed basis. Because she did not know anyone who could do this work, she searched a website that listed local delivery drivers.
The website included the drivers’ names, their hourly rates, and customer reviews of their work. A driver on the list with the lowest hourly rate by a wide margin used his own delivery van for making deliveries. But 40 recent customer reviews of this driver on a scale of 1 (low) to 5 (high) rated him as 1.5, citing specific instances of misbehavior, untrustworthiness, and bad driving. The website also reported that in the last couple of years, the driver had been sued three times for negligent driving and had been found liable in each case. Nonetheless, Linda decided to use this driver to make deliveries because of his inexpensive hourly rate and because he had his own delivery van.
When she hired the driver, Linda told him that, when making deliveries for the store, he would have to place self-sticking, removable signs advertising the store on both sides of his delivery van. He agreed, but because such signs ranged in price from $100 to $500 per pair, he told Linda that she would have to purchase them for him to use. Because she was too busy to do that, Linda asked him to purchase the signs but not to spend more than $300 for the pair when doing so. Linda gave the driver one of the store’s cards, and as a means of identifying the driver as acting for the store, she wrote on the back, “This is my agent to purchase signs for my store.”
The driver then went to a local sign shop, showed the shop owner the business card that Linda had given him (including her handwritten note on the back), and purchased a pair of custom-made signs for $450 on credit. Because the signs were custom-made, they were not returnable or refundable. When the completed signs were delivered to Linda, she refused to take possession of them or pay the sign shop for them because their cost exceeded the amount she had told the driver to spend by $150. The driver then made two smaller signs with the store name on them and, with Linda’s approval, put them on his van when making deliveries.
Three weeks ago, Linda called a customer and told her, “My driver is on his way to make a delivery to you in a van with the store’s name on its side.” The customer kept watch at her window, and when she saw the van with the store’s signs on it, she went out to the driveway through her garage. As she started to walk toward the van, the driver negligently hit the accelerator pedal, causing the van to hit the customer, who sustained substantial injuries.
Assume that there was an enforceable contract to buy the signs from the sign shop, that the driver’s negligence proximately caused the customer’s injuries, and that the driver was acting as Linda’s independent-contractor agent.
1. Is Linda liable to the sign shop for the purchase price of the signs? Explain.
2. Is the driver liable to the sign shop for the purchase price of the signs? Explain.
3. Even though the driver was an independent contractor, is Linda vicariously liable to the customer for the injuries resulting from the driver’s negligence? Explain.
4. Is Linda directly liable to the customer for the injuries the customer sustained? Explain.
Sample Answer
1. The issue is whether a fully disclosed principal is liable for the actions of an agent. A principal and agent enter into an agency relationship when the principal manifests an intent for the agent to act on the principal's behalf and under the principal's control. An agent may bind a principal with actual or apparent authority. Actual authority can be either expressed (i.e. what the principal says to the agent) or implied (what is reasonably necessary to do for the agent to complete what has been expressly asked of him). Apparent authority occurs when a third party reasonably believes the individual is acting on behalf of another person and the reason for this belief can be traced to a manifestation of the principal. A principal may be liable on a contract of an agent with a third party when the principal is fully disclosed. A principal is fully disclosed when the third party knows of (1) the existence of the principal; and (2) the identity of the principal. Here, Linda is likely liable to the sign shop for the purchase price of the signs because of the apparent authority doctrine. Linda manifested an intent for the driver to act on her behalf when purchasing the signs and under her control. She expressly limited the driver to paying no more than $450 for the pair. Accordingly, the driver did not act with actual authority when he purchased the signs. However, he likely acted apparent authority. Linda provided the driver with (1) a business card for the store; and (2) a note that stated "[the] driver is my agent to purchase signs for my store." This note comes directly from the principal to the third party and gives the third party a reasonable believe the driver is acting on the principal's behalf and has the authority to bind the principal to the contract. In addition, this note makes Linda a fully disclosed principal because it shows the existence of a principle and identifies the company. Accordingly, Linda  is liable to the isgn shop for the purchase price of the signs.
2. The issue is whether an agent is liable for a contract when the principal is fully disclosed. An agent is bound to a contract when the principal is either (1) undisclosed; or (2) partially disclosed, where the third party knows of the existence of the principal but not the identity. Here, the principal for the sign transaction was fully disclosed given the note stated the identity of the principal and explained the driver was the agent for the principal in purchasing the signs. Accordingly, the agent is not liable to the sign shop.
3. The issue is whether an employer may be liable for the acts of an independent contractor. An employer may be vicariously liable for the actions of its employees when the employee is acting within the scope of its employment. This rule does not generally extend to independent contractors; however, an employer may be liable for the acts of an independent contractor under the Ostensible Agency Theory. This theory applies when the employer holds out to a third party that the individual is closely connected to the company and is viewed by the third party as an employee. When this occurs, then the employer is liable for the negligent acts of the independent contractor during the scope of his work for the employer. When looking at whether something is "within the scope" of the employment courts consider three things: (1) whether the individual is performing the job he or she was hired to do; (2) whether the actions occured within the authorized time and space; and (3) whether the individual was acting with the intent for the employer. Here, Linda likely is vicariously liable for the negligent actions of the driver pursuant to the ostensible agency theory. First, this theory applies because Linda told the customer: "my driver is on his way to make a delivery to you in a van with the store's name on its side" and provided the driver with signs to put on the outside of the vehicle with the store's name. Second, the injury occurred while the driver was acting within the scope of his "employment" because: (1) he was driving to deliver the clothing to the victim when she was hurt; (2) this occured outside the customer's home, which was his set schedule; and (3) he was driving to the customer's house for the purpose of Linda. Accordingly, Linda is likely vicariously liable for the driver's negligence.
4. The issue is when an employer can be directly liable for negligent hiring, supervision, or entrustment. In addition to vicariously liability, an employer may be direclty liable for negligently hiring, superivising, or entrusting. Here, Linda may be directly liable for negligent hiring and entrustment because she was aware of several problems with the driver yet still hired him because he was the most affordable. Linda accessed a website of several drivers, with the relevant driver receiving several negative comments and a horrible score of 1.5 out of 5 for services. The comments included instances of misbehavior, untrustworthiness, and bad driving. The website also mentioned that the driver was involved in a few cases for neglgient driving and he was found liable in each. Despite all this, Linda disregarded these problems because (1) he had his own van; and (2) he had an inexpensive hourly rate. Accordingly, Linda may be directly liable for paying the driver to do jobs for her despite the fact he has a lengthly history of negligent driving and bad past misbehavior. 
Sample Answer
1. The issue is whether Linda, the principal, is responsible for the purchase price of the signs purchased by the driver, her agent
A disclosed principal is one whose (i) existence and (ii) identity is known to a third-party engaging with the agent of that principal. Linda was a disclosed principal because her existence and identity were made known to the shop owner when driver showed the store owner Linda's handwritten note designating driver to act as her agent for the purpose purchasing signs for her store-business. Notably, the handwritten note was executed on the back of a business card for Linda's business. Moreover, to the store owner, the driver was acting with the apparent authority of Linda. Apparent authority exists when under particular circumstances, a third-party entering into a transaction with an agent reasonably believes that the agent is acting with authority of the principal. Even though the price of the signs exceeded the $150.00 Linda authorized her driver-agent to spend, it was reasonable for the store owner to believe that the agent had authority to spend that amount. This is particularly true whereas here, the signs range from $100 to $500 per pair, and the agent-driver requested custom made signs. Moreover, Linda's handwritten note - which the store owner saw - does not specify how many signs driver is authorized to purchase nor does it place a limit on the amount of money driver is authorized to spend on those signs. It was reasonble for the store owner to believe that agent acted within the principal's authority here in entering into a contract on her behalf for the custom-made signs, and as a result, Linda will likely be held liable to the sign shop for the full purchase price of the signs.
2. The issue is whether the driver will be held liable to the sign shop for the purchase price of the custom made signs, of which Linda refused delivery.
As Linda's agent, driver was expressly authorized to purchase signs in an amount not to exceed $300.00. When driver subsequently purchased custom made signs in the amount of $450.00, driver exceeded his authority and acted outside his scope. Generally, the agent will not be held liable for acts on behalf of the principal unless the agent fails in adhering to one of his duties to the principal or does not act reasonably. Of those duties is acting diligently in carrying out the principal's purposes to the best of the agent's abilities. Here, the agent was new to working for the principal, Linda, and he could likely assert that he did not know if Linda's price limit was a hard line, and that it seemed like she only asked him to purchase the signs because she was "too busy," and not because it was too expensive. So long as the agent acted reasonably and in good-faith in carrying out Linda's wishes to get a sign made to put on his delivery truck, he will likely not be held liable to the sign shop for the purchase price of the signs.
Thus, Driver will not be liable for the purchase price of the signs refused by Linda.
3. The issue is whether Linda will be held vicariously liable for the independent contractor-driver's  negligence that caused the customer injury.
Respondeat superior is a doctrine of vicarious liability that holds an employer liable for the negligence of her employees acting within the scope of their employment. Generally, where an employer contracts with an independent contractor, that employer will not be held liable for injuries caused by the independent contractor's negligent actions; however, there are certain duties the employer nevertheless owes to its customers that cannot be so avoided. 
Here, Linda will likely be held vicariously liable for the driver's negligence because Linda expressly called the customer in advance and told the customer that "her" driver was on the way to make a delivery. Moreover, the van the driver was operating had the name of Linda's company on the side, as she also indicated to the customer over the phone. Under the circumstances, Linda will not be able to avoid liability for the driver's negligence in hitting the accelerator pedal where she specifically hired only driver to work for her in delivering clothing to customers on the same day they ordered same. Even though the man was operating his own delivery van, the van indicated Linda's business by way of adverstisement signs, which does not demonstrate that driver was acting as an independent contractor. This is also especially true where the driver makes same day deliveries for Linda, which likely evidences Linda engaging in daily deliveries through driver. Moreover, although the signs are removable out of the driver's van, he acted within the scope of his employment when customer approached him to collect her clothes. 
4. The issues is whether Linda may be held directly liable to the customer for the injuries customer sustained as a result of driver negligently operating the company van in the scope of his employment
The customer may sue Linda sucessfully for negligent hiring of the driver, in addition to a claim for vicarious liability. Negligent hiring will likely succeed because as a result of Linda negligently hiring the delivery driver, customer sustained injuries. Linda looked online at several drivers and nonetheless decided to hire the local delivery driver with the lowest hourly rate by a wide margin, who had 40 recent customer reviews on a scale of 1 to 5 (high) rating him at a 1.5. This evidence, which is readily accessible online by the customer-plaintiff, demonstrates that Linda acted negligently in hiring driver because she hired him for a low price even after seeing the several recently added bad reviews, along with specific citings of instances of misbehavior, untrustworthiness, and bad driving. Moreover, Linda had reason to believe that the driver had been sued on three different occasions, which was also readily available and viewed by Linda on the internet. Her carelenssness in hiring him for the specific job of operating a delivery van for her business, daily, due to his inexpensive price and the fact that he had his own van was negligent and customer's injuries were foreseeable.
MEE Question 6
A man and a woman were waiting in line at a public park for tickets to attend an outdoor performance of a play. They soon began arguing about sports, and as their conversation became more animated, the man began shouting at the woman and poking her shoulder with his finger. As the man poked harder and harder, the woman responded by punching the man in the nose.
The woman was arrested at the scene and charged with battery.
At trial, the prosecutor intends to elicit the following testimony from an eyewitness who was standing in the line:
Before the man arrived, I saw the woman talking to a friend. The friend said to the woman, “You and I have waited so long for these tickets, if anyone annoys us today they will not be seeing this play—they’ll be going to the hospital!” The woman nodded her head and gave the friend a thumbs-up signal.
I recognized the woman. I live in her neighborhood, and I probably see her at least twice a week. Every time I see her, she is arguing with people, acting out, and generally causing problems.
Assuming that the eyewitness is permitted to testify for the prosecution, defense counsel plans to
(1) cross-examine the eyewitness about her five-year-old conviction for shoplifting, a crime punishable by a maximum sentence of six months in jail; and
(2) cross-examine the eyewitness about a letter recently written by the eyewitness to the man saying, “Thanks for 10 years of a great friendship.”
The jurisdiction’s rules governing crimes and affirmative defenses follow common law principles. The evidence rules of the jurisdiction are identical to the Federal Rules of Evidence. 
The woman’s friend is unavailable and will not testify at trial.
1. Assuming that the prosecution proves the elements of battery, can the woman establish a common law affirmative defense based on these facts? Explain.
2. What portions of the eyewitness’s testimony, if any, would be admissible? Explain.
3. What portions, if any, of the defense counsel’s cross-examination should the court permit? Explain.
Do not discuss any constitutional issues.
Sample Answer
I. Affirmative Defense
The first issue is, assuming the prosecution proves the elements of battery, can the woman establish a common law affirmative defense based on these facts.
An individual is entitled to assert certain defenses in a prosecution. These defenses include: (1) privilege; (2) defense of others; (3) defense of property; (4) consent; (5) necessity; and (6) self-defense. Self-defense is an affirmative defense wherein the defendant asserts he honestly and reasonably believed that the use of the defense was necessary to protect against a harm to themself. Self-Defense is both subjective and objective. It requires a look into the defendant's state of mind, while also determining what a reasonable person would have believed and what a proper response would have been. Some jurisdictions following common law have the retreat duty rule, whereby the defendant is required to leave the scene if they can do so safely.
Here, the woman was not the first aggressor. The man and the woman began arguing about sports and then the man began shouting at the woman and poking her shoulder with his finger. As the man poked harder and harder, the woman responded by punching the man in the nose. The woman was charged with battery, and she is not likely to establish the affirmative defense of self-defense.
Here, nothing indicates that the man was intending on creating an immediate and significant harm to the woman. Even though the man was shouting, he was repeatedly poking the woman's shoulder with her fingers. A reasonable person more than likely would not believe it was necessary to punch the man in the nose in response to poking. However, the woman could argue that based on the tone of the man's voice in how he was shouting at her, she honestly and reasonably believed punching the man in the nose was necessary to avoid a greater harm to her body. This is likely to fail, however, because being poked in the shoulder is not as harmful as being punched in the nose. Moreover, under the common law duty of the retreat rule, the court may find the woman was under the obligation to retreat to a different part of the line at the public park, especially considering the fact that the pokes were not truly harmful and unlikely to result in significant bodily injury. 
Therefore, the woman is unlikely to establish a common law affirmative self-defense on her battery charge.
II. Eyewitness Testimony
The second issue is what portions of the eyewitness' testimony, if any, would be admissible.
Evidence is relevant if it makes a fact more or less probable than it would be without the fact, and if the fact is material in that it is a matter of consequence. When deciding evidentiary issues, courts will rely on the hearsay rules. Hearsay is an out of court statement offered by the declarant to prove the truth of the matter asserted. Courts are reluctant to admit hearsay because of credibility issues; therefore, if a statement is hearsay, it needs to satisfy an exception in order to be admitted.
A.
The first part of the eyewitness testimony is the portion wherein the friend stated to the woman, "You and I have waited so long for these tickets, if anyone annoys us today they will not be seeing this play-they'll be going to the hospital!" This statement is relevant to the woman's charge of battery because it makes it more probable that the woman did commit a battery, and because it is material. A court will find that this statement is not hearsay, because it is putting the woman on notice as to what will happen. It is a warning. 
Even if a court were not to find that it was a state of mind, one could argue that it was a statement adopted by the woman as her own. The woman and her friend came to the baseball field together, and paid for the tickets. The woman adopted the friend's statement as her own because she gave an affirmative assertion in response- a headnod and a thumbs up. Both are assertions because they were intended to communicate a message back to the friend. Under this hearsay exception, the woman adopted the friend's statement as her own. It is irrelevant for this exception that the friend is not available to testify. 
Therefore, both portions of the eyewitness' testimony are admissible.
B.
The next issue is whether the court can admit the eyewitness' testimony regarding seeing the woman in the neighborhood always arguing, acting out, and causing problems.
Courts do not allow specific instances of conduct to show character, but rather allow evidence through reputation or opinion. 
Here, the Court would not allow this statement to come in because even though the woman has sufficient basis to form her reputation- through seeing the woman two times per week in the neighborhood, it is prejudicial and impermissible to assert that because the woman is always arguing with others and acting out and causing problems , that she acted this way on this occasion. Reputation evidence alone is admissible to show character, but not specific instances of conduct.
Thereofre, this portion of the testimony is inadmissible.
III. Cross-Examination
A. Conviction
The next issue is whether the Court may admit the defense counsel's cross-examination wherein he seeks to cross-examine the witness about her five-year old conviction for shoplifting.
Courts will allow criminal convictions into evidence when they are relevant and probative. Character evidence may not be used to show that because a person acted one way at a prior time, they are more likely to act the same way this time. Character evidence may be used to show truthfulness, however, because that goes to the heart of credibility during impeachment. Convictions are admissible if they are not older than 10 years, aged by the time of the judgment of conviction or the release from jail, whichever is later. The probative value must not be substantially outweighed by the risk of unfair prejudice. 
Here, the defense counsel seeks to cross-examine the eyewitness about her five-year-old conviction for shoplifting. Because this conviction is less than 10 years old, there are no time restrictions for admissibility. Therefore, the answer turns on whether or not this is relevant. The crime of shoplifting is not relevant to the eyewitness' actions per se because she has not been charged with any crimes. However, it can be argued that shoplifting is a theft crime which speaks to dishonest behavior and therefore affects the eyewitness' credibility. Juries need to know about factors surrounding credibility. Courts require that evidence regarding truthfulness or perjury are brought in as evidence. 
Therefore, it is proper for the defense counsel to cross-examine the eyewitness on her 5-year-old shoplifting conviction because it is relevant as to dishonesty. 
B. Letter
The final issue is whether the defense counsel can cross-examine the eyewitness about a letter recently written by her to the man saying, "Thanks for 10 years of a great friendship!"
Hearsay is an out-of-court statement offered by the declarant to prove the truth of the matter asserted. Evidence of bias is relevant to a case and is always admissible.
Here, the letter is not hearsay. It is not being offered to prove the turth of the matter asserted, i.e., that the eyewitness and the man have had a great 10 years of friendship. Rather, the letter is being offered to show bias of the eyewitness on behalf of the man. The letter is relevant because it makes it more probable that the eyewitness would feign a statement that she allegedly heard the friend say to the woman regarding sending annoying individuals to the hospital. Bias is always relevant in impeachment actions. 
Because the letter is relevant, speaks to bias, and is not being offered for the truth of the matter asserted, the defense counesl can cross-examine the eyewitness on her letter.
Sample Answer
1) Assuming the prosecution proves the elements of battery, the woman will likely be able to establish the common law defense of self-defense.
Battery requires the intent to commit an offensive or unconsented touching. Common law defenses to battery potentially applicable here would be consent or self-defense. In battery situations, consent can be implied or express. For example, implied consent would take place on a crowded bus where contact with others is not reasonably practical to avoid. For express consent, there would need to be direct authorization in the form of words or writing from the alleged victim consenting to the touching. Self-defense in the battery context requires a showing that one reasonably experienced an unwanted touching and responded with force proportional to the force utilized against them. 
Here, the woman (W) and the man (M) began arguing about sports. It appears that M initiated a battery against W by continuing to poke her shoulder harder and harder with his finger. This appears to constitute an offensive unwanted touching that the man intended to do, given that he repeated this conduct several times. Given that the pair were arguing, it is unlikely that W consented to the touching. Thus, the defense of consent, would not be applicable here. However, self-defense appears applicable because the facts show that W responded by punching M in the nose. W will likely successfully argue self defense because the force used was proportional to the force used against her. Although it was punching as opposed to poking, that is not an escalation that would eviscerate self defense, like if the woman had pulled out a knife and stabbed M instead. Thus, W can likely successfully argue self-defense. 
2) The first paragraph of Eyewitneses' testimony is partially admissible, but the second paragraph regarding W's character is inadmissible.
Relevant evidence is generally admissible. Evidence is relevant if its inclusion would make a fact material to the case more or less likely. Relevant evidence can be excluded if its relevancy is outweighed by unfair prejudice, confusion of the issues and misleading the jury, among others not pertinent here. Here, all of the proposed testimony appears relevant because it shows W's plan or motive and shows W's character for being disagreeable and causing fights. It is testimony about what was occurring right before the fight between M and W in the park.  Despite being relevant, the evidence may not be admitted if it constitutes hearsay and is inadmissible character eveidence. Hearsay is an out of court statement made by a declarant offered for the truth of the matter asserted. A statement includes any assertive conduct, like a thumbs up. Exceptions to the hearsay rule will be detailed below. In a civil case, character evidence, or evidence used to show that a party acted in conformity with a character trait in question is inadmissible to prove liability. It can, however, be offered for other purposes, which will also be detailed below. 
First, we determine the portion of the eyewitness (E) statement he saw the woman talking to the friend, that the friend said to W that they'll be going to the hospital if anyone annoys them in their pursuit of the tickets (which is what they were waiting in line for when M and W fought) and that W flashed the thumbs up sign in response. Each is taken in turn below:
E's statement about woman talking to friend - admissible because it is based on E's observations. No questions have been raised about his competency, and all witnesses are presumed competent. There are no hearsay or character questions raised by this and the testimony is relevant as it places M and W at the park at the time of the fight. Thus it is admissible.
Friend's statement to W - this may constitute hearsay depending on the purpose for which it is offered. If it is offered for the truth of the matter asserted, i.e. that friend and W were going to send someone to the hospital if someone annoys them, it is hearsay. This is reinforced because it is an out of court statement made by a declarant, an unavailable witness. It may be subject to an exception, such as the then-existing mental, physical or emotional state exception. This requires that the declarant make a statement regarding their then existing mental state of mind. Given that friend infers they will fight someone if anyone annoys them in their pursuit of getting tickets to the play, this exception likely applies.
However, if the statement is not offered for the truth of the matter asserted, it can be otherwise admissible and relevant because it can be offered to show plan or common scheme. Statements made to show someone's intent are characterized as nonhearsay and are admissible. Thus, if the statement is offered simply to show the friend and W's plan, it is admissible.
W's thumbs up - W's thumbs up is a statement under the hearsay rules because it is assertive conduct (i.e. showing agreement or meaning "yes"). If offered for the truth of the matter asserted, that W and friend intended to fight anyone who annoyed them, it is likely hearsay because it was a statement made out of court by W, the declarant. However, a hearsay exception may apply because it is a statement made by a party. An opposing party's statements can be offered against them as a hearsay exception. Thus, it likely will be admissible under this exception. 
E's statement regarding W's character - this is likely inadmissible character evidence. The evidence speaks about how everytime E sees W, she is arguing with people and acting out.  Generally, in civil cases, character evidence is inadmissible for the reasons stated above or unless character is in issue here. Character is not in issue here. For these reasons, this testimony is inadmissible. Even if this were not considered character evidence (i.e. considered habit, which is admissible, unlikely here), its relevance would likely be outweighed by unfair prejudice because the jury may be inclined to convict W based on her poor character for fighting. For these reasons, even if the evidence is not characterized as character evidence, it nonetheless should be excluded. 
3) Defense counsel may not impeach on the basis of E's prior conviction but may impeach for the letter written to the man.
E's prior conviction - When a witness testifies, they automatically put their character for honesty and truthfulness at issue. Thus, any party can impeach them on these grounds. Here, E put their character for truthfulness in issue when they testified and was properly subject to impeachment by defense counsel. Prior convictions can be used to convict when they involve felonies involving one year or more of incarceration or any crimes of dishonesty. For the former, the court has discretion whether to permit the evidence and generally only felonies from ten years from the date of conviction or release, whatever is later, are admissible. For the latter, the court has no discretion to exclude the evidenece. Crimes of dishonesty are construed narrowly, and generally include crimes where false statements make up an element of the crime, such as perjury or forgery. Here, the prior conviction was for shoplifting, which is not considered a crime of dishonesty. Although it is less than ten years old, the shoplifting conviction does not appear to have been applicable to the rule because punishment was less than one year. It is also not relevant to E's truthfulness. In any event, it should be excluded because it has the danger of confusing the issues and misleading the jury. This evidence is inadmissible.
E's letter - Impeachment is also permitted for bias and memory, among others. Here, it looks like E is a friend of M, which could lead E's testimony to being bias. Thus, the jury should hear it and this letter constitutes proper impeachment for bias evidence and is admissible.