Bar Examination Q&A - July 2014

July 2014 Sample Questions and Answers

TORTS

REAL PROPERTY

EVIDENCE

CIVIL PROCEDURE

CRIMINAL

CONSTITUTIONAL LAW

CONTRACTS

 

QUESTION 1 - TORTS

Barry is a self-employed handyman who builds machines in

his garage. He is hired by Kim to build a lawn mower, which he promises to construct for only half the price of a store-bought product. Using spare parts from the garage, Barry builds the mower and delivers it to Kim for the agreed-upon price.

 

Modern commercially constructed mowers have a guard that prevents users from accidentally running over  their  own  feet, but Barry’s mower did not have such protection. While using the mower, Kim strikes a tree, causing the machine to roll backward towards her. In an effort to avoid the whirling mower blades, Kim leaps out of the way but falls and strikes her head on the ground, immediately losing consciousness while bleeding profusely.

 

Kim’s neighbor, Peter, witnesses the incident from his yard. Instead of calling for help, Peter ignores the situation as he is still angry at Kim for playing loud music the night before. As a result, Kim suffers substantial blood loss before Tony, a passerby, spots her lying on the ground and begins to render assistance.

 

After stopping the bleeding, Tony places the  unconscious Kim into his car to drive her to the hospital. In order to shorten the driving distance, Tony travels across (rather than around) farmland owned by Vera. In so doing, Tony’s car runs over Vera’s friend, Mike, who had been camping on the property but without Vera’s permission. Mike sustains personal injuries as a result.

 

Kim, Vera, and Mike retain attorneys, who file suit. The matters are consolidated for trial. You are the law clerk to the trial judge, who asks you to prepare a memorandum outlining each party’s claims and defenses.

 

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 1A:

MEMORANDUM FOR THE MATTER OF KIM V. BARRY, ET AL.

 

Below is an outline of all the cases I expect to be brought in this case based on the facts obtained thus far.

 

Kim v. Barry

 

Kim will likely attempt to bring a strict liability action against Barry based on the harm she suffered as a result of the lawn mower that Barry built for her. Strict liability for products liability applies to merchants who sell commercial goods that are unreasonably dangerous based on manufacturing defects, design defects, inadequate warnings, etc. Here, Barry will likely claim that strict products liability doesn't apply to him, as he is merely a self-employed handyman, and not a commercial manufacturer of lawn mowers. However, he does engage in the business of building machines for sale to the public, so it seems reasonable to assume that a products liability action against Barry will properly lie. In this specific case, it seems clear that Kim's best cause of action in strict liability against Barry would be for a design defect. While modern commercially constructed lawn mowers have a guard that prevents users from accidentally running over their own feet, Barry failed to place such a protection on the mower he sold to Kim. There are no facts alleged which show that it would have been prohibitively expensive or burdensome for Barry to place a guard on his mower, so Kim is likely to succed in claiming that the mower suffered from a design defect. Barry may assert that Kim assumed the risk of the mower not having all of the commercially available modern safety features, since he was merely building the mower from spare parts and offering it to her at half the price of a store-bought product (meaning that it would have been unreasonable to assume that his product would be just as effective as a mower that is twice the price). However, in order for a party to be deemed to have assumed a risk, they must do so knowingly and voluntarily-which Kim does not seem to have done here. Additionally, Barry is likely to claim that the design defect in the mower was not the proximate cause of Kim's injuries, as the mower blades never actually caused any harm to her feet. However, this argument is not likely to be successful, as Kim suffered her injury while diving out of the way to avoid the mower blades. As such, it seems clear that the design defect in the mower constructed by Barry was both the actual cause (she never would have jumped out of the way but for the mower blades coming back at her) and proximate cause of Kim's injury.

 

Even if Kim is not able to bring a strict products liability action against Barry, she could still file a negligence action based on his unreasonably dangerous construction of the mower. Negligence actions are properly brought by alleging that a Defendant had a duty to the plaintiff, that he breached that duty, that the breach was both the actual and proximate cause of the plaintiff's injuries, and that the plaintiff actually suffered damages. Defendants owe a duty of reasonable care to all foreseeable plaintiffs. Here, it seems abundantly clear that Kim's injury was foreseeable based on Barry's actions. As stated above, Barry is not likely to succeed in claiming that Kim either assumed the risk or that the mower was not the proximate cause of her injuries. However, in a negligence action Barry could claim that Kim was contributorily negligent in her use of the mower, which led to her injuries. However, nothing in the facts alleged here demonstrate that Kim used the mower in an unsafe or negligent fashion-it is reasonably foreseeable that the mower might bump against a tree while being used. As such, a claim that Kim was contributorily negligent in her use of the mower is unlikely to insulate Barry from liability here.

 

Kim v. Peter

 

Whether or not Kim can recover against Peter for negligence (based on his failure to assist) turns on the question of whether or not Peter actually owed a duty to Kim in the first place. While the general rule that there is no duty to rescue others would preclude Kim from recovering against Peter, courts will find a duty to rescue when there is a special relationship between the parties. Thus, Kim may claim that such a special relationship existed here because Peter was Kim's neighbor, but this argument is unlikely to hold water. Furthermore, while it's clear that Peter didn't like Kim, his actions in no way contributed to placing Kim in the situation that caused her injuries.

 

Vera v. Tony

 

Vera will most likely bring a claim for trespass against Tony. A claim for trespass properly lies when a defendant intentionally crosses onto the plaintiff's property. It is important to note however that the Defendant doesn't have to have the intention to trespass, but merely the intention to enter onto the land which belongs to the plaintiff. It seems clear here that Tony intentionally drove onto Vera's land in an attempt to get Kim to the hospital faster. Vera need not show that Tony's trespass caused her any actual damages-the mere showing that he intentionally crossed over into her property is enough to prevail on the claim. However, Tony will likely assert the defense of necessity, considering that he was trying to get Kim to the hospital as quickly as he could-as she was "bleeding profusely"-and needed to avail himself of Vera's land in order to do so. Vera can show though that Kim was no longer bleeding when Tony was driving her, but this is unlikely to make a difference considering that Kim was unconscious at the time-creating a very dire situation. However, since the facts show that Tony could have driven around Vera's property, the fact that he trespassed is likely to subject him to liability here.

 

Mike v. Tony

 

Finally, Mike may bring an action for negligence againt Tony here based on the damages he suffered by being hit with Tony's car. Since Mike was camping on Vera's land without her permission, he was a trespasser, and thus was owed no duty by Vera. However, Mike can claim that his status on Vera's land should not preclude him for recovering in negligence against Mike. Whether or not Mike recovers from Tony will turn on the question of Tony's possible negligence given the circumstances.

 

SAMPLE ANSWER 1B:

Kim versus Barry

Strict Liablity for Lawnmower

 

 Barry would be liable to Kim for a design defect in the lawnmower that he constructed. The issue here is whether or not Barry's lawnmower design was defect.

 

 In order to sustain a products liablity action, a plaintiff must show that the design of the product was unreasonably dangerous. Such a cause of action will be sustained only against a manufacturor of a product or one who sells the product unchanged as received from the manufactoror. In order to prove that a design is unreasonably dangerous, a party can rely on evidence that at the time the product was manufactured, similar products on the market had indentified a danger and place a safeguard in their product to prevent injury. In addition to relieance on inudustry standard, a party may also show that at the time of manufacturing, there existed a safer design that could have been implemented at little or no cost. Essentially, the standard would be to balance the utility of the product as designed, the utility of the product if the safeguard was installed, the risk of injury with or without the safeguard, and the cost of the safeguard. If a party can prove that at the time a feasibly safer product could have been manufactured, that party will be strictly liable for any injury their product caused, without a showing of negligence. Of course, a party would still need to show that the product was the cause of the injury. This would mean a showing of both factual and proximate cause. Additonally, Kim will have to show that she suffered injuries as a result.

 

 In the present matter, Barry manufactured the lawnmower himself, as a result, Barry would qualify as a manufactuor. It is also undisputed that Barry constructed the lawn mower without a guard to prevent users from accidently running over their own feet. Because at the time, modern commercially constructed mowers had such a guard, and such a guard could likely be installed at little or no cost, Barry's lawnmower was likely defectly designed. While our court will have to balance the utlity and danger of the lawnmower as is versus the utility and danger of the lawnmower with a guard, it seems very likely that a lawnmower gaurd could have been easily and cheaply installed without reducing the utlity of the lawnmower. The fact present also tell us that the defect design was the factual or but for cause of her intial head injury. Had the lawnmower been properly designed, Kim would not have had to leap out of the way to avoid the blades of her lawnmower. The lawnmower was also the proximate cause of her injury, because it is reasonably forseable that a malfunctioning lawnmower could injury a party attempting to escape the blades. The standard for damages is also meet, as we know that Kim suffered a head injury and blood loss.

 

 Negligence:

 

 Alternatively, Kim can also recover against Barry under a theory of negligent construction. The issue here is whether or not Barry acted as a reasonably prudent person.

 

 Unlike strict liablity, Kim will have to prove all the elements of negligence- duty, breach of duty, causation, and damges. In order for Kim to prevail, she will have to prove that in constructing the lawnmower, Barry did not act as a reasonaly prudent person under the circumstances. If a reasonable person would have constructed a lawnmower with a guard, than Barry will be considered negligent. However, negligence alone is not enough. Kim will also need to prove that Barry owed a duty to her. Because Barry constucted a product for Kim, he is in privity of contract with Kim. Implied in contract for goods where the seller is aware of the purpose of the product, is an implied warranty of fitness for a particular purpose. Thus, Barry owed Kim a duty to provide a reasonably safe product capable of mowing lawns. If Barry is found negligent, he will have been found to have breach this duty. As mentioned above, Kim will also have to prove that but for the negligent construction of the mower, Kim would not have been injured, and that the lawnmower proximately caused the injury- ie it would be fair to hold Barry liable. Kim would also need to prove damages.

 

 In the present matter, Kim and Barry are in privity of contract, so Kim will also be able to prove that Barry owed her a duty of reasonable care. We also know that modern manifacturors construct their lawnmowers with feet guards. While we would need more evideince, it is likely that a jury would find that a reasonably prudent person would have constucted the lawnmower with a guard. A reasonably prudent person would be on notice of industry standard and conform to that standard. Thus, Kim will be able to prove that Barry breached his duty of care to Kim. Additionally, as mentioned above, this facts show both factual and proximate cause as well as damages. Thus, Kim would likely be succesful against Barry in an action for neglgience for her head injury and blood loss.

 

 Defenses:

 

 comparative negligence

 

 Barry will likely argue that Kim was negligent herself. The issue here is how much fault will a jury attribtute to Kim's actions.

 

 A jury may properly find Kim partially responible for her own injury and reduce her award of damages accordindly under a theory of comparative negligence.

 

 Barry will allege that but for Kim running her lawnmower into a tree, Kim would not have been injured and wold not have had to leap out of the way of her lawnmower. Additionally, Barry may argue that Kim carelessly leaped out of the way of the lawnmower, and if she had leaped more carefully, peraphs she would have landed on her feet and not fallen and hit her head. It is hard to say how much a jury would find Kim negligent in hear own injury.

 

 Kim as against Peter-

 

 Duty to rescuse

 

 Kim will not have a cause of action against Peter for his failure to assist her after her injury. The issue here is whether or not Peter a duty to rescue Kim.

 

 Most jursidictions do not recognize a of a third party to rescue an injured party unless there is some sort of prior relationship. The types of prior relationships that courts have recognized as creating a duty to rescue: include those of a common carrier to its customers, a partent to a child, and the duty of a tortfeasor to assist those injured as a result of the tortfeasors actions.

 

 In the present matter, Peter, will acting immorally, was not the cause of Kim's inury. As a result, Peter has not legal duty to assist injured Kim and will not be liable for any injuries she suffers, in this case the substainal blood loss.

 

 Vera as against Tony

 

 Tresspass

 

 While Vera has a cause of action against Tony for tresspass, it is unclear if Ver would succeed. The issue here is whether or not Tony committed a tresspass on Vera's land.

 

 In order to succeed in an action for trespass, the plaintiff must show that the tresspasssers physically entered the plaintiff's land without permission. The defendant need not know that the land is the land of another, he must just intend to enter a specfific location that belongs to another. The defendant also need not touch the land itself. A cause of action for tresspass will allow a party to recover nominal damages for the tresspass as well as compensation for any damges cause by the tresspass.

 

 In the present matter, it is undisputed that Tony entered Vera's farmland and that he inteneded to do so. Because Vera has filed a cause of action, we can also assume that Tony did not have permission to enter the land. We are not told whether or not Tony caused any damage to the land, but on these facts alone Vera would have a cause of action against Tony for his tresspass to her land and may be entitled to nominal damages.

 

 Defenses

 

 Necessity

 

 Tony would have be able to utilize the defense of necessity for his tresspass as to an award for nominal damages for his tresspass, but not as to any compensatory damges for any actual damage he caused.

 

 In order for a showing of necessity, a tresspasser must show that the reason for entering the land of another was to prevent a greater harm from occuring. Where a party tresspasses in order to protect their own life or the life of a third party, the indvidual will not be liable for the tresspass itself, but will be liable for any damage cauased to the property. Where the party is tresspassing in order to protect the public in general, for instance in the case of a wildfire, the tresspasser will not be liable for the nominal tresspass or for any damage caused to the property.

 

 In the present matter, Tony will argue that Kim had lost a substantial amount of blood and was unconscious. AS a result, Tony will be able to properly argue that the reason for his tresspass was to protect Kim from sustaining life a life threatening loss of blood. Saftey of a third party will protect Tony from any nominal damages that Vera is entitled to as a result of the trespass. However, because Tony tresspassed for the benefit of a third party as opposed to the public at large, he will still be liable for any actual damage done to Vera's land.

 

 Mike as against Vera

 

 Although he was injured on Vera's property, Mike has not cause of Action against Vera. A tresspasser generally has no cause of action against a land owner, although some exception exist where the tresspass is expected. Even under the situtations where tresspass is expected, Mike would not have a cause of action against Vera, because Vera was not the factual cause of Mike's injuries.

 

 Mike as against Tony

 

 Negligence

 

 Defense

 

 Mike will have a cause of action against Tony for negligence. In order for Mike to sustain a cause of aciton, he will need to prove that that he was owed a duty of care by Tony, that Tony breached the duty of care, that he suffered damages and that Tony was the cause of those damages.

 

 In the present matter, it is clear that Mike suffered damages as a result of being run over by the car (personal injury). It is also clear that Tony was the factual and proximate cause of those injuries. Duty and breach are less clear. A driver has a duty to drive as a reasonablly prudent person would under the circumstances. A reasonably prudent person would generally drive the speed limit and stick to actual roadways. Driving on framland is not generally something a reasonably prudent person would do. While someone dealing with a medical emergency may do such things, the medical emergency in this instance does not absolve Tony of his duty to drive carefully. Because Tony was not driving carefully, he breached the duty he owes to Mike. As a result, Mike can recover against Tony for his personal injuries.

 

 Comparative negligience

 

 It is unclear what fault if any Mike holds for his own injury. A jury could reasonably reduce Mike's award for damages if they find that he contributed to his own injury, for instance because it was impossible to see him or because he was tresspassing.

 

QUESTION 2 – REAL PROPERTY

Several years ago, Art conveys Lot 1 “to Betty for life and at Betty’s death to Carl.” Art and Carl predecease Betty. Debbie is Carl’s only devisee under Carl’s Last Will and Testament. Betty passes away. Art’s heirs and Debbie each want Lot 1.

 

Debbie owns a commercial building and Ed signs a lease to rent it for two years. Ed pays rent monthly to Debbie. Ed loses track of time and continues occupying the building and paying rent for three months after expiration of the two-year period. When Ed realizes he has remained past the two-year period of the lease, he notifies Debbie that he is vacating and will be paying no further rent. Debbie notifies Ed that because he remained after the two- year period expired, he has renewed the lease for an additional two years.

 

Debbie owns a strip mall. Debbie leases space in the strip mall to Francine. The lease provides that Francine is permitted to operate a day spa that provides manicures, pedicures, facials, and massages. The lease further provides that Francine is not permitted to assign or sublease her rights under the lease and that Debbie will not lease any other space at the strip mall to another day spa. Shortly after entering into the lease, Francine sells her day spa business to George, who then operates the day spa from the space. George sends monthly rental payments to Debbie who accepts them. Debbie leases another space in the strip mall to a manicure establishment. When George learns about the manicure establishment, he stops sending rental payments and demands that Debbie evict the establishment. Debbie refuses and notifies George that he must leave because the lease prohibits assignments and subleases.

 

Debbie comes to your law firm. Debbie wants (i) title to Lot 1;

(ii) to confirm that Ed has renewed the lease for a second two-year period; (iii) George out of the space, but if that is not possible, Debbie does not want to evict the manicure establishment.

 

You are asked to prepare a memorandum setting forth all of Debbie’s  rights,  obligations,  and  liabilities  with respect to these issues.

 

PREPARE THE MEMOR ANDA

 

SAMPLE ANSWER 2A:

I. Debbie's right to title to Lot 1.

 

            Debbie has a right to title to Lot 1.

 

            When a grantor conveys an interest to land to a grantee "for life", the grantee's interest is a life estate and the grantee is called a life tenant. During life tenant's life, he or she has the right to possess the land, however this interest terminates at the end of the life tenant's life. The grantor can then specify to whom title will pass at the end of the life tenancy. If the grantor wishes for title to return to him (or his heirs or devisees), he retains a reversion. If the grantor wishes for title to pass to a third party, that third party's interest is called a remainder. When a grantor gives a remainder interest to a grantee, without any further limitations or conditions, that grantee takes title to the property in fee simple at the end of the life tenant's life. If the grantee holding a remainder interest predeceases the life tenant, the remainder interest will pass to the grantee's heirs or devisees.

 

            In this case, Art conveyed Lot 1 "to Betty for life and at Betty's death to Carl." Therefore, Art conveyed a life estate to Betty and a remainder interest to Carl. Carl predeceased Betty, therefore his remainder interest passed to the only devisee under Carl's will: Debbie. Since Betty held a life estate, her interest in Lot 1 ended when she passed away. Title to Lot 1 then passed to Debbie because she was the holder of the remainder interest in Lot 1.

 

            As a result, Debbie holds title to Lot 1 in fee simple.

 

 

 II. The status of Ed's lease of Debbie's commercial building.

 

 Ed has not renewed the lease for a second two-year period.

 

            When a landlord enters into a lease with a tenant for a fixed period of time, a term of years lease is created. A term of years lease automatically terminates at the specified time period, without either the landlord or the tenant needing to give notice of the termination. When a tenant stays in possession of the property past the date of the lease termination, the tenant is called a holdover tenant. A landlord can impose a new lease on the holdover tenant, but it will not be a term of years lease. Rather, the holdover tenant will be held to a periodic tenancy, in which the periods are measured in the same way rental payments were made. However, when a lease is a commercial lease that was entered into for a period of one year or more, the landlord may hold the commercial holdover tenant to a year-to-year lease. Generally, notice to terminate a periodic lease must be given for at least the length of one period of the lease. However, when a lease is a year-to-year lease, only six months' notice is required to terminate.

 

            In this case, Debbie (the landlord) entered into a lease with Ed (the tenant) to rent a commercial building for two years. This is a term of years lease. It is also a commercial lease. After the lease period ends, Ed remains in possession and continues to pay rent. Ed is therefore a holdover tenant. Debbie is entitled to hold Ed to a new lease and to collect rent from him. Since the original lease was a commercial lease for over one year, Debbie can hold Ed to a periodic year-to-year tenancy. Debbie cannot, however, hold Ed to a new two year lease (unless the original lease between Debbie and Ed specified that this would be the effect of Ed's staying in possession past the lease's termination date). If Ed would like to terminate this new peridoic year-to-year lease, he must give Debbie six months' notice.

 

            As a result, Ed has not renewed the lease for a second two-year period. He can, however, be held to a new year-to-year periodic tenancy, and under this new year-to-year periodic tenancy, he must give Debbie six months' notice to terminate.

 

 

 III. Whether Debbie can evict George and whether Debbie must evict the manicure establishment.

 

            Debbie cannot evict George, and Debbie may be required to evict the manicure establishment.

 

            A lease is a contract. Under freedom of contract principles, a landlord and a tenant can agree that the tenant is not permitted to assign or to sublease his or her rights under the lease. If a lease contains such a non-assignment clause, and the tenant nevertheless assigns his or her interest in the lease, the tenant has breached the contract with the landlord. The assignment, however, is still valid. The landlord can sue the original tenant for breach of contract because they are in privity of contract. The landlord could also collect rent from the assignee-tenant. This is because, even though the landlord and the assignee-tenant are not in privity of contract, they are in privity of estate. This means that the landlord and the assignee-tenant are liable to each other for all covenants in the original lease that run with the land.

 

            In this case, Debbie (the landlord) has entered into a lease with Francine (the original tenant) for a space in Debbie's strip mall so that Francine can operate a day spa. The lease provides that Francine is not permitted to assign to or to sublease her rights under the lease. The lease also provides that Debbie will not lease any other space in the strip mall to another day spa. After entering the lease, Francine sells her business to George, who continues to operate the day spa in the same space. Francine has therefore arguably assigned her interest in the lease to George. As a result, Francine has breached her contract with Debbie, and Debbie can sue Francine for damages.

 

            The assignment of the lease to George is still valid. Moreover, even if this assignment were not valid, George continued to make monthly payments to Debbie, and Debbie accepted those payments. Assuming the assignment was not valid as a matter of law, the fact that Debbie accepted payments from George (the assignee-tenant) could be construed as Debbie's consent to the assignment. Debbie remains in privity of contract with Francine, but now she is also in privity of estate with George. Therefore, George and Debbie are liable to each other for all coveants in the original lease that run with the land.

 

            The original lease contains a covenant that Debbie will not lease any other space in the strip mall to another day spa. This type of covenant, which is intended to protect the commercial tenant from competing businesses, is a valid covenant that runs with the land. Therefore Debbie would be liable to George if she breached the covenant, and she may be required to evict the tenant of the competing business. However, in this case, Debbie has leased the other space to a manicure establishment. The manicure establishment is not a day spa. Therefore, whether Debbie has to evict the manicure establishment will depend on whether the court construes the original lease's provision about leasing space to another day spa as encompassing a promise not to lease the space to another manicure establishment (which provides one of the same services that the day spa provides).

 

            As a result, Debbie cannot evict George, but she may be required to evict the manicure establishment.

 

 

SAMPLE ANSWER 2B:

To: Debbie

From: Attorney, Law Firm.

 Re: Your property rights, obligations, and liabilities

 

Dear Debbie,

 

You asked me to prepare a memorandum for you with all your rights, obligations, and liabilities for your real estate properties. I have organized the following according to your concerns. If you have any additional questions, please contact me.

 

(i) Title to Lot 1

 

            You have a strong claim for the ownership of Lot 1. Art gave Lot 1 to Betty "for life and at Betty's death to Carl." This created a life estate for Betty and a fee simple absolute in Carl and his heirs. Art did not retain any interest in Lot 1. That means that Betty could control and act as owner of Lot 1 during her life, but could not perform any wasteful acts that would damage the property for those who held it after her death. A fee simple absolute or fee simple is what you think of as owning property outright. On Betty's death, Carl owned Lot 1 outright and could do as he wishes with the property. Since Carl owned Lot 1, he could give it to anyone during his life or in a will. Even though Carl died before Betty, he still owned an interest in Lot 1 and would receive it at Betty's death. Carl was able to leave this interest in Lot 1 to you in his will, and did so. Therefore, when Betty passed away, Lot 1's ownership was automatically transferred to you. Art did not place any conditions on this ownership and did not retain any interest in Lot 1 for himself or his heirs. Therefore, you have a strong claim for the ownership of Lot 1, and should be able to assert it successfully against Art's heirs.

 

(ii) Ed's Renewed Lease in your Strip Mall

 

            You can hold Ed to a new lease, but unfortunately not for the full two-year period. When Ed stayed past the two-year period of his lease, you had several options.

            One option would have been to bring a claim for rent for the period Ed stayed past the lease. Since Ed stayed beyond his lease, the law considers him a tenant at sufferance, which simply means in this case that he has a legal obligation to you for rent.

            The option you chose was to hold Ed to a new lease. When a tenant overstays their lease, a landlord can choose to hold the tenant to a new lease that contains all the obligations and terms of the old lease. The term of the impliedly renewed lease, however, is only for a single year. So, when you decided to hold Ed to his lease, you were within your rights, but, unfortunately, the lease will only be for a year period. Ed will be able to notify you that he is terminating the lease within 6 months before the end of the year. You will still be able to collect rent from Ed for the year period, and may be able to lease the property to a new tenant if Ed chooses to continue vacating the property. Whether you choose to lease to a new tenant or not, you will be able to collect from Ed the difference between his rent and the rent a replacement tenant would have paid. Since this is a commercial building, you may also be able to collect Ed's full rent if you can give me information to show that you would have been able to lease to multiple tenants and lost the opportunity to lease to both Ed and another tenant as lost volume. While not for the full two-year period you desired, you will be able to collect some portion of rent from Ed for a year following his holdover from his previous lease.

 

(iii) Evicting George and Continuing the Lease to the Manicure Establishment

 

            Your lease to Francine prohibited her from subletting or assigning her lease to anyone else. Unfortunately, Francine chose to ignore the lease and to sell her business to George soon after signing the lease. This was a breach of your lease agreement, and you could have evicted George and brought a claim against Francine. When a landlord waives the prohibition on assignments or subleases, an assignment or sublease will be valid, and the landlord will not be able to prevent further assignments or subleases unless the landlord has reserved that right. When George began to occupy the day spa, you accepted monthly rental payments from him. Unfortunately, this will likely be seen as an implied waiver of the prohibition on assignment and sublease. Since you chose to accept the rent from George without inquiring as to why the rent was no longer being paid by Francine, you accepted George's payment or rent and gave up your right to object to Francine's assignment to him. Therefore, unfortunately, you will be unable to evict George; however, you can continue to collect rent from him and hold him to Francine's lease.

  

            Additionally, when Francine assigned her lease to George, all the terms of the lease remained the same. The lease to Francine included a requirement that you will not lease any other space at the strip mall to another day spa. Since George now stands in Francine's shoes, he will unfortunately be able to hold you to that obligation. Any attempt to avoid this by claiming that Francine breached the agreement first by assigning her interest to George in violation of the lease will probably be unsuccessful because of your implied waiver as noted above. You may be able to avoid evicting the manicure establishment, however, since the lease refers to additional day spas only. While George's day spa offers manicures, they also offer pedicures, facials, and massages. If the manicure establishment performs manicures only, we may be able to argue that it is not a day spa, does not directly compete with George, and its presence in the strip mall does not violate George's lease. There is a chance that this may not be successful, however, and I suggest that you attempt to come to an agreement with George that will allow the manicure establishment to stay in the strip mall. If you choose that option, I will be able to draft a demand letter to George. Since it is not certain whether the manicure establishment violates the lease, George may agree to settle this dispute. Settling this would be a good option since you would be able to retain both businesses in the strip mall.

 

If you have any further inquiries please contact me. I will be glad to draft any correspondence to the above parties at your request.

 

Best,

--Attorney

 

QUESTION 3 – EVIDENCE

CyberSoothSayer (“CSS”) is a federal program that intercepts

and analyzes all internet traffic in the United States for links to terrorism and terror suspects. A CSS analyst discovers a suspected terrorist has a huge cache of child pornography on her computer. The analyst also discovers one of the sources of the child pornography is Ricardo, a small-time independent movie producer. The analyst suggests to his contact at the State Police that Ricardo should be watched but does not specify why.

 

The State Police begins to monitor Ricardo’s Twitter and Facebook accounts. At the same time, the unit reviews Ricardo’s criminal history and finds that 19 years ago, at age 17, Ricardo pled nolo contendere in Puerto Rico to a single count of Sexual Exploitation. Apparently, Ricardo sold access to a site that had pictures of underage cheerleaders at his junior high school undressing. Sgt. Layton discovers that 90% of Ricardo’s followers on Facebook and Twitter have been investigated for or convicted of crimes related to child pornography. Months into the investigation, Ricardo tweets that he’s having a “Big Premiere Tonight” at his studio and that everyone should “Bring Your Young Talent.”

 

The State Police decides to surveil Ricardo’s studio.  For  an hour they observe adults, some with young girls and boys, enter the studio. Highly concerned, the police enter into the studio to investigate. Upon entering, officers only observe the crowd watching Ricardo’s new infomercial about how families can break into the movie business.

 

As they were leaving, Trooper Canon notices Ricardo’s computer tablet displaying a nude picture of a very young girl. Saying “Let me see that!”, Canon takes the tablet and observes a website purporting to offer child pornography. Ricardo shoves the trooper aside and snatches the tablet back. Ricardo then enters a series of keystrokes causing the tablet apparently to shut down. Ricardo is immediately arrested. Startled, Ricardo’s audio technician Nancy blurts out, “I’ve overheard his friends say, ‘Ricardo, be very careful. If we ever get caught, they would lock us under the jail!’”  A forensic review of his tablet revealed that Ricardo activated

“Kwik Erase,” a program that erased all data from his home, office, and studio computers and from his Twitter and Facebook accounts. The review also revealed massive amounts of child pornography on the tablet. Ricardo is quickly indicted for possession of child pornography.

 

At a pre-trial hearing, Ricardo moves to have the court:

 

 

Suppress evidence of his 19-year-old nolo contendere plea in Puerto Rico.

 

 

Suppress the testimony of Nancy regarding her comment at the studio.

 

 

Allow the testimony of Victor Virtuous, CEO of CURE (Cease Underage Rape & Exploitation), that Ricardo donates thousands of dollars a year to his organization

 

 

At the same pre-trial hearing, the prosecution moves to have the court:

 

 

Allow  the  testimony  of  Trooper  Canon  that  Ricardo shoved him, snatched the tablet, and shut it down.

 

 

Allow the testimony of Senior Technical Advisor Denzel, a 20-year civilian advisor to the police and head of the State Police Computer Crimes division, that “Kwik Erase,” in his  professional  opinion  and  experience, is exclusively used by cyber criminals to hide their criminal activity from law enforcement.

 

 

Allow the testimony of Sgt. Layton that 90% of Ricardo’s followers on Facebook and Twitter have been investigated for or convicted of crimes related to child pornography.

 

 

You  are  a  law  clerk  for  the  hearing  judge.  The  judge  has asked you to review the facts described above and to prepare a memorandum discussing the evidentiary issues and their resolution.

 

 

 

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 3A:

To: Judge

From: Law Clerk

Date: July 31, 2014

RE: Evidence Motions

 

Ricardo's Motions

 

1.   Ricardo moves to have the court suppress evidence of his 19-year-old nolo contendre plea in Puerto Rico, the court should deny this motion.

 

Relevant evidence is admissible at trial unless it is excluded by the rules of evidence, privilege, or the Constitution.  To be relevant, evidence need only be probative. Which means it tends to prove or disprove the existence of some fact of consequence in a case.  Evidence of character is generally inadmissible to show that the defendant acted in conformity with that character.  Bad acts evidence falls under the umbrella of charater evidence.  Convictions and past criminal history are considered bad acts.  However, there is an exception for sexual misconduct.  Evidence of sexual misconduct may be used to prove conformity therewith, even if it is not a conviction.  A court will still refuse to admit admissible evidence when its probative value is substantially outweighed by its risk of unfair prejudice, confusion, waste of time, or other dangers.  The court also has discretion when it comes to admitting the crimes of juveniles.

 

Here, a review of Ricardo's criminal history revealed that 19 years ago, at age 17, Ricardo pled nolo contendre in Puerto Rico to a single count of Sexual Exploitation.  This is sexual misconduct and therefore not subject to the general rule as inadmissibility of character evidence.  The fact that Ricardo was charged with sexual exploitation is enough for that fact or evidence of the underling conduct to be admissible in court to show he is the kind of person that commits sex crimes.

 

Therefore, the court should deny Ricardo's motion to supress evidence of his 19-year-old nolo contendre plea in Puerto Rico. It is not unfairly prejudicial in light of what he is currently charged with, and it may be used to show he is guilty of sexual misconduct.

 

2.  Ricardo's motion seeks to suppress the testimony of Nancy regarding her comment at the studio, his motion should be granted since Nancy is relating a comment of others that do not fall under the hearsay exceptions.

 

Relevant evidence is generally admissible at trial, but hearsay is generally inadmissible, even when it is relevant. Hearsay is an out-of-court statement used to prove the truth of the matter asserted in the statement.  There are many exemptions and exceptions to the hearsay rule based on their probable reliability.  One such exception is the excited utterance exception.  The rationale is that someone excitedly uttering a statement while perceiving an exciting event and under the influence of excitemet, will not have the time or the presence of mind to fabricate.  In order for out of court statements to be admitted in court under the hearsay exceptions, all layers of the statment must fall into an exception.  The rational here is that it is unfair to the defendant and violated his Sixth Amendment confrontation clause rights when hearsay that is unreliable is allowed into court.

 

Here, when Ricardo was arrested for possessing child pornography, his studio technician blurted out, "I've overheard his friends say, 'Ricardo be very careful. If we ever get caught they will lock us under the jail!"  While, Nancy was excited when she made this utterance, she was retelling what some unspecified friends had said in her presence.  That deeper level of hearsay is unfair to Ricardo.  It is possible that his friends were joking or speculating when they made they statement and the factfinder will not know because there is no chance to cross-examine the declarant.

 

Ricardo's motion to exclude Nancy's testimony regarding her comment at the studio should be granted.

 

3.  Ricardo seeks to present testimony of Victor Virtuous that Ricardo donates thousands of dollars a year to Cease Underage Rape & Exploitation. This motion should be denied as improper character evidence.

 

Character evidence is generally inadmissible to prove conformit therewith. However, defendants may present evidence of good character that tends to negate the possibility that they committed th crime they are charged with.  That character evidence may be proven by reputation or opinion.

 

Here, Ricardo seeks to present testimony of Victor Virtuous that Ricardo donates thousands of dollars a year to Cease Underage Rape & Exploitation. Virtuous is not presenting reputation or opinion evidence, but specific acts to show that Ricardo is not guilty.

 

Because Virtuous wants to bring evidence of a specific act as character evidence for Ricardo, his testimony should not be allowed.

 

Prosecution's Motions

 

4.  The prosecutor wants to present evidence of Trooper Canon that Ricardo shoved him, snatched the tablet and shut it down. This motion should be granted.

 

Relevant evidence is admissible at trial unless it is excluded by the rules of evidence, privilege, or the Constitution.  To be relevant, evidence need only be probative. Which means it tends to prove or disprove the existence of some fact of consequence in a case.  A lay witness may testify as to his own observations based on personal knowledge.

 

Here, Ricardo shoved Trooper, snatched the tablet and shut it down after he realized he was suspected of possessing child pornography.  This is relevant as it tends to prove Ricardo had elicit material on the tablet.  Trooper Canon has personal knowledge of the event because he personally experienced it.

 

Therefore. evidence of Trooper Canon that Ricardo shoved him, snatched the tablet and shut it down, should be admitted.

 

5. The prosecutor wants to allow evidence of Senior Technical Advisor Denzel that Kwik erase in his professional opinion and experience is exclusively used by cyber criminals to hide their criminal activity from law enforcement.

 

Experts are generally able to testify as to matters that require technical knowledge or skill without having a personal connection to the underlying events of a case.  They are allowed to present testimony as long as they are qualified and as long as it would be helpful to the factfinder.

 

Here, Denzel has advised police or twenty years in the Computer Crimes division. He likely qualifies as an expert and should be allowed to help the factfinder understand how Kwik Erase is used.

 

Evidence of Senior Technical Advisor Denzel that Kwik erase in his professional opinion and experience is exclusively used by cyber criminals to hide their criminal activity from law enforcement should be allowed.

 

5.  The testimony of Sgt. Layton that 90% of Ricardo's followers on Facebook and Twitter have been investigated for or convicted of crimes related to child pornography should be denied as overly prejudicial compared to its probative value.

 

Rule 403 of the Federal Rule so Evidence says that relevant evidence must be excluded when its probative value is substantially outweighed by risk of unfair prejudice.

 

Here, although many of his friends are guilty of crimes related to child pornography, that does not necessarily mean that he is.

 

 The testimony of Sgt. Layton that 90% of Ricardo's followers on Facebook and Twitter have been investigated for or convicted of crimes related to child pornography should be denied as overly prejudicial compared to its probative value.

 

SAMPLE ANSWER 3B:

1. The court should suppress the 19 year old nolo contendere plea in Puerto Rico.

 

            The 19 year old plea was for a single count of Sexual Exploitation.  Likely the prosection would bring the past conviction and plea simply to show action in conformance with the current charge of Possession of Child pornography.  This is an impermissible use.  Moreover, NJ will not take judicial notice of a foreign jurisdiction's conviction, and here the conviction occured in Puerto Rico.  Even if the court does take judicial notice of it, the criminal jury would be able to make their own conclusion on the evidence.   Third, if the plea/conviction is 19 years old, the judge must complete an analysis of whether or not the prosecution has proven that the conviction's probative value would substantially outweigh its prejudicial effect.  Here, because it is so similar to the crimes charged, and is 19 years old, the prejudicial effect is great on the jury, thus the probative value does not come close to outweighing the prejudicial effect, and should be supressed.

 

2. The court should supress the testimony of Nancy even though it likely fits in a hearsay exception, because it is prejudicial and possibly irrelevant.

 

            Nancy would be used to testify that she heard his friend, likely co-felon, say "Ricardo, be very careful. If we get caught, they would lock us under the jail!"   The issue here is this is hearsay. Hearsay is an out of court statement used for the truth of the matter asserted.   Here, the statement was out of court, because it was said at the event, and also is not being testified to by the person who actually said it, since Nancy would be testifying to someone elses statement.  Likely it would be used for the truth of the matter asserted that Ricardo is guilty of possession of child pornography.  Thus it's hearsay.  In order for hearsay to come in it must fit under an exception.  The exception that the prosecutor will likely claim is that it was an excited utterance.  An excited utterance is a statement made under the excitment of an event.  We do not know if the statement was made during the arrest, however if it was that is a very exciting event thus it would be an excited utterance; it also has an exclamation at the end of the statement so that denotes more excitedness.   The judge may very well exclude this testimony however because it is very prejudicial, as the testimony does not reference what they would go under jail for; in fact it could be for a completely different crime, thus it may also be found as irrelevant.

 

3. The court should not allow the testimony of CEO of CURE, that Ricardo Donates thousands of dollars a year to his organization because it is irrelevant to a pertinent character trait, and is also not in the form of reputation in the community or opinion testimony which is necessary fo bosltering character.

 

            Character evidence in a criminal proceeding may be brought in by the defendant to prove a pertinent character trait to rebut the charges.   For example, in an assault trial, the defendant can bring in opinion or reputation evidence that he is peaceful.  However, the defendant can only bring it up by reputation or opinion testimony and not extrinsic evidence.   Thus he can't bring it in as extrinsic evidence, but also becuase the crime being charged is possession of Child pornography, and the evidence would not bolster his reputation for thruthfulness, or whatever would bolster against a charge of possession of child pornography (possibly perversion?).

 

4. The court should allow the testimony of Trooper Canon

 

            Trooper Canon would be allowed to testify as he is testifying to personal knowledge that he was shoved while Ricardo was trying to get to the computer to shut delete the child pornography.

 

5.   The court should not allow the testimony of Denzel, because it is irrelevant and prejudicial and not helpful to assist the trier of fact.

 

            Expert testimony can be used if it is based on scientific or technical knowledge, and would assist the trier of fact is understanding what the object is that is being testified about.   Here, Denzel is testifying about a computer program called "Kwik Erase."  The issue is that an expert would not be needed to help the trier of fact understand a program that deletes things when it is express in the actual name.  A reasonable person would understand erase and delete are the same without the assistance of an expert.   Second, if Denzel's testimony were to come in he would have to comport with all the requirements of an expert, that there was reilable information used, testability of the assertion, and that the opinion was formed based on the facts of the case and information of that scientific expertise, which we do not have the facts to prove here.

            In the end however, this testimony adds no value to the case, as the trier of fact only needs to know what the program does, not what it is normally used for. Thus is highly prejudicial, because the program does have other uses, and is merely to show that Ricardo likely used the program to delete the pornography.   It should not come in.

 

6. The evidence that 90% of Ricardo's follwers on Facebook and Twitter have been investigated for or convicted of crimes should not be allowed as it is irrelevant

  

            This statistic would be ever changing; his followers increase and decrease at any point.  Thus authetnification of this record would be an issue. Second, its irrelevant.   His followers have no bearing on his guilt.  Since it is so prejudicial the judge should not allow this in.  This would not fit under any exception either like business record.

 

 

QUESTION 4 – CIVIL PROCEDURE

On  May  10,  2014,  Plaintiffs,  citizens  of  Zumi,  a  foreign country, filed a Complaint against defendants, Kiran and the Zumi Liberation Organization (“ZLO”) in the U.S. District Court for the District of New Jersey alleging i) aiding and abetting acts of terrorism, ii) wrongful death, and iii) negligent infliction of emotional distress. Plaintiffs allege the ZLO regularly donated funds to a Zumi organization, ARJAN, which was known for its suicide bombings in Zumi. Plaintiffs also assert that Kiran funneled money to ARJAN with knowledge it would be used by ARJAN to carry out the suicide bombings in Zumi, which killed or injured Plaintiffs and their families. A federal civil statute prohibits any individual, entity, or organization from aiding or abetting any organization that conducts any terrorist-related activity.

 

The ZLO’s offices are located in Zumi and its main U.S. branch in Virginia. Priti, a director of the ZLO, also maintains a phone number and mailing address for the ZLO in New Jersey. The ZLO’s English-language website is hosted from a server in New Jersey. Priti organized events and fundraisers for the ZLO in New Jersey once a year from 2008 through 2012 for which Priti rented a venue, paid for insurance, and conducted marketing in New Jersey. From 2008 to 2012, the ZLO generated hundreds of millions of dollars from fundraising activities within the United States, which it funneled to ARJAN. On May 20, 2014, while Priti was visiting her family in New Jersey, she was personally served with the Complaint, on behalf of the ZLO.

 

Kiran is a citizen of Zumi and the United States. In 2011, Kiran donated one million dollars to ARJAN. From 2009 to 2012 Kiran attended a number of fundraisers sponsored by the ZLO and also hosted ZLO and ARJAN supporters and fundraiser speakers at his home in New Jersey. Kiran is currently serving a sentence in a U.S. prison based on a 2013 conviction for insider trading.

 

On May 25, 2014, the ZLO filed a motion to dismiss the Complaint for  lack  of personal  jurisdiction.  On the  same  day, Kiran filed a motion to dismiss the Complaint based on forum non conveniens. The civil procedure code of Zumi law provides “an action shall be instituted in the court within the local limits of whose jurisdiction the cause of action arises.”

 

You are asked to prepare a memorandum for the court in connection with the motions filed by the ZLO and Kiran. You are to set forth the applicable legal standards for each part of the motion, analyze their application to facts presented, and make a recommendation to the court as to how it should rule.

 

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 4A:

MEMORANDUM

 

To: Court

From: Applicant

Re: Motions to Dismiss

 

Below is my analysis of the personal jurisdiction and forum non conveniens issues presented by this case.

 

Personal Jurisdiction

 

The issue is whether the U.S. District Court for the District of New Jersey has personal jurisdiction over the Zumi Liberation Organization ("ZLO"). The Court should hold that there is personal jurisdiction over the ZLO because the constitutional test has been satisfied.

 

Personal jurisdiction is a fedearl element of due process and, in New Jersey, courts have personal jurisdiction to the extent permitted by the federal constitution. Personal jurisdiction has to do with the power of the court over the party, rather than over the subject matter of the dispute. Personal jurisdiction is analyzed in three steps: (a) contacts, (b) general or specific jurisdiction, and (c) fairness.

 

(a) Personal jurisdiction requires that the party being brough into court have sufficient minimum contacts with the jurisdiction so that their required appearance before the court does not offend traditional notions of fair play and substantial justice. In order to determine whether a party has minimum contacts, courts will look at whether the party has purposely availed themselves of the forum state, and whether it should have been foreseeable to them that they would  be called to appear before a court there. For example, minimum contacts can take the form of physical presence in the jurisdiction combined with personal service or being domiciled in the forum.

 

Here, the first issue is whether the ZLO has minimum contacts with New Jersey. The ZLO's offices are located in Zumi and its main U.S. branch is in Virginia. However, Priti, a director of the ZLO, maintains a phone number and a mailing address for the ZLO in New Jersey, and the ZLO's English-language website is hosted from a server in New Jersey. Priti, a director of the ZLO, organized events and fundraisers for the ZLO in New Jersey annually from 2008 to 2012, and Priti did business in New Jersey for the purpose of those events. Importantly, Priti was personally served on behalf of the ZLO while in New Jersey. All of these contacts are sufficient to rise to the level of minimum contacts. The fact that the ZLO raises money in New Jersey, especially when those funds are the subject of the litigation, shows that they purposely availed themselves of the forum. They reached out and targeted New Jersey as a place in which to do business. In addition, personal service on a director of the organization in a place in which it was foreseeable that they would be sued is enough to establish minimum contacts. As a result, the first element of personal jurisdiction is satisfied.

 

(b) The second issue is whether the type of jurisdiction asserted is specific or general. General jurisdiction means that the basis for jurisdiction is the minimum contacts with the forum rather than the occurrence of the incident in the forum. Specific jurisdiction exists when the cause of action arose in the forum state. Both can provide adequate grounds for personal jurisdiction, but general jurisdiction supports any suit being brought in the forum, whereas specific jurisdiction supports only suits relating to the incident to be brought in the forum.

 

Here, the best grounds for jurisdiction are the fact that the cause of action likely arose in the state. The fedearl civil statute prohibits organizations from aiding or abetting any organization that conducts any terrorist-related activity, and a great deal of money was raised in New Jersey for the ZLO. It is probably the case that some of that money found its way to ARJAN, so the aid began in New Jersey. That would support specific jurisdiction.

 

General jurisdiction is probably not supported under these facts because an organization such as a corporation is said to subject itself to the general jurisdiction of a forum if they have extensive contacts, or if they are domiciled in the forum. Organizations are domiciled where they have their principal place of business, or their "nerve center," or where they are formally organized or incorporated. Here, although the ZLO has sufficient minimum contacts, the contacts probably do not rise to the level of general jurisdiction. They are not domiciled in New Jersey because their principal place of business is in Zumi and their main U.S. office is in Virginia. As a result, specific jurisdiction probably supports personal jurisdiction, even though there is no general jurisdiction.

 

(c) FInally, personal jurisdiction will only be permitted when fairness is considered and favors jurisdiction. The fairness analysis considers fairness to the plaintiff, fairness to the defendant, and fairness to the forum. The plaintiffs here are citizens of Zumi and they filed a complaint against defendants, Kiran and the ZLO, based on the defendants' alleged support for acts taking place in Zumi. The plaintiffs do not have a strong interest in having the case adjudicated in New Jersey because they are not from New Jersey. In addition, the defendants have a strong interest in having the case adjudicated elsewhere because they do some fundraising in New Jersey, but most of their operations are in Virginia and Zumi. However, the forum has a very strong interest in adjudicating the case because it is important that federal laws against funding terrorism are enforced in the United States, and that residents of New Jersey are not permitted to funnel money to suicide bombers from New Jersey. The Court will consider all of these factors, but will probably find that there ultimately is personal jurisdiction over the ZLO.

 

Forum Non Conveniens

 

The issue is whether the complaint should be dismissed based on forum non conveniens. Kiran's motion to dismiss should be denied because the US is at least as convenient as Zumi, and there may be no court in which to bring the claim in Zumi.

 

Forum non conveniens is a venue rule that gives federal courts discretion to dismiss actions so that they can be brought in a more convenient forum that is not within the United States. Under the Federal Rules of Civil Procedure, a federal court has venue in the district where the cause of action arose, in a district where all the defendants reside, or in any district within the state in which all defendants reside (if all defendants reside in the same state). The Federal Rules outline procedures for transferring cases between venues in the interest of justice where the case was initially brought in an improper venue or in an inconvenient yet proper venue. Where the matter should rightly be heard outside the United States, the Rules permit the court to dismiss the action based on forum non conveniens so that the action can be brought in the foreign country. Proper considerations in deciding whether to grant a motion for dismissal based on forum non conveniens include the location of the parties, the location of the evidence, and the availability of a foreign jurisdiction that provides adequate access to judicial process. Great weight is accorded to the plaintiff's choice of forum.

 

Here, Kiran's motion to dismiss based on forum non conveniens should be denied because it is not clear that any court in Zumi is able to hear the action, and it is much more convenient to bring the suit against Kiran in the United States. Kiran is a dual citizen of Zumi and the United States. He resided in New Jersey and is currently serving a sentence in a U.S. prison. Because he is incarcerated in the United States, he cannot claim that it is more convenient for him to participate in the litigation if it is brought in Zumi. In addition, the evidence of aiding and abetting will likely be divided between the United States and Zumi, because the fundraising occurred in the U.S. and the funds were ultimately spent in Zumi. Finally, the civil procedure code of Zumi states that an action must be brought where the cause of action arose. It is not clear whether the Zumi court will permit the action to proceed in Zumi because the cause of action (i.e. funneling money to ARJAN) began in the United States in violation of U.S. law. If the federal court is not confident that the action will be able to proceed in a properly functiong court in a foreign country, then it should not dismiss for forum non conveniens.

 

Because it is not clear that the interests of the parties or the interests of justice would be best served by having the action brought in Zumi as opposed to the US, the court should reject the motion to dismiss for forum non conveniens.

 

SAMPLE ANSWER 4B:

TO: The Court

FROM: Law Associate

RE: ZLO and Kiran Issues

 

 

Personal Jurisidciton:

 

In order for the District Court to adjudicate the claim before the court they must have personal jurisdiction over the matter. New Jersey's long arm statute permits personal jurisdiction up to the levels permitted by due process of law. Due process of law for personal jurisdiction requires a showing that the court in its action of adjudicating the dispute would conform with traditional notions of fair play and substantial justice. In order to fulfill this mandate there must be adequate connections between the forum state and the defendant. This can be show by purposful availment by the defendant of the privleges offorded by the forum state.

 

In connection with this notion, minimum contacts can be shown in one of two ways. First, there is general jurisdiction. General jurisdiction arises in situations in which the defendant is "essentially at home' in the forum state and thus it would be fair to hold them accountable here. The litigated incident does not have to arise out fo their connection with the forum. It should be noted that for general jurisdiciton a person is considered to be subject to general jurisdiction in the place in which they are domiciled and a corporation is subject to general jurisdiciton in the place in which it is incorporated and in the place in which it is headquartered ("nerve center").  In regards to Specific jurisdiction on the other hand requires a showing that the defendant's conduct that gave rise to the litigation before the court and that the defendant's conduct in availing themselves to the forum state are sufficient that it is fair to "haul the defendant" into that state's court.

 

Here, the facts show that ZLO offices are located in Zumi and that its main US branch is in Virginia. These would likely constitute the only two places that ZLO would be subject to general jurisdiction. The court has been very hesitant to expand general jurisdiction to additional places. Thus the fact that ZLO has a phone number in NJ and has a website hosted from a NJ server will probably be insufficent to show a general presence in the state. Further, the fact that there were ongoing fundraisers and events in NJ will be helpful for the specific jurisdiciton analysis but probably will be insufficient for general jurisdiction.

 

Moving to specific jurisdiciton we look to see if ZLO has had contacts in connection with the litigated issue to a degree that it be fair to haul them into court in NJ. The facts show that they are bineg charged with terroristic crimes relating from their donations to a terroristic organization. Accordingly, it would seem that any availment to the state of NJ for the purpose of raising funds or awareness for ZLO would be considered in the specific jurisdiction analysis. The facts show that ZLO has help fundraisers for 4 years. has generated HUNDREDS of millions of dollars from their activiites (granted in the US). Further, the facts show that ZLO marketed in NJ, it rented venues in NJ it paid insurance in NJ. These are all purposeful availments to the state of New Jersey. They were benefited with the police departments protections, the fire departments help if needed etc when they were here putting on their events and thus it would be fair for them to have to answer for torts that they committed while they were in the state of NJ. Accordingly it would seem that NJ does have sufficient minimum contacts.

 

Once the minimum contacts anaylsis is met there are certain fairness factors that a court may consider. These fairness factors look at the burden on the defenant and other expections. The factors ar similiar to the forum non-convience determination that will be addressed later. It should also be noted that once minimum contacts are found it is VERY RARE for the court to not have personal jurisdiciton because of the fairness factors. Here it would likely be denied because of the fact that the ZLO has raised millions of dollars and it is fair to assume that they can afford to travel. Further, the action is taking place in NJ and they have operated fundraisers and such here many times before.

 

Lastly, it should be pointed out that Priti was personally served with the complain while she was in NJ. This is refrred to as "Tag" jurisdiciton and in NJ is still permitted to gain jurisdiciton over the defendant. However, the difficult part in relying on "tag" jurisdiciton in this case is that Priti is not being charged personally. Rather, it is ZLO as a corporation that is being charged, she is merely a director. Therefore, the court would have to decide whether or not  it is fair to allow personal jurisdiction over an entire organization because of the mere fact that a single directors was present in the state. The court would most likely find that this violates the notion of fair play and substantial justice.

 

Forum Non-conveniens.

 

Forum non-conveniens is a doctrine that a defendant may assert if they feel that the forum selected by the plaintiff is not the best place for the suit and further that the selection is oppressive to them. It is rare that a court will grant such a request because the court generally likes to respect the plaintiff's choice of court decision. Further, Forum Non-conveniens is appropriate when the court is wants to move the case outside of the current court system. Because the more appropriate court is not a part of the same court system the court cannot simply transfer the action. Rather the court must dismiss it so that it can be refiled. This is most commonly done in situations with foriegn parties. In making the determinaiton the court often looks at things such as the harship on the plaintiff, the fairness of the aciton, where the events occured, where the witnesses are located and where a jury could best understand the case, and lastly the interest of the other forum and the home forum.

 

Here, Kiran is moving for forum non-conveniens. Kiran's argument is that the the District court in New Jersey is not appropriate. Kiran's is a citizen of both the US and of Zumi and is currently serving time in jail. Looking at "substantial hardship" factor the court should likely determine that this points in favor of keeping the aciton in NJ. As stated, Kiran is in jail here in the US. If the case was dismissed to be filed in Zumi then it would actually be harder for Kiran to attend. Kiran would have to get a longer break from prision. In addition, he would have to be escorted by guards etc. Next, a lot of the action did take place in the US, especially in regards to Kiran's acitons. He donated 1 million dollars, he attended ZLO events all at his HOME in new jersey. However, the court could look at this and say this really is a home issue for the country of Zumi. ZUmi has a major interest in bringing to justice those terroristic groups that are plotting against them and maybe they would be best at handiling the issue. Further, the US does not have a plaintiff in this fight. The plaintiff's (citizen's of Zumi) are not US citizens. The courts have tended to always deny forum non-conveniens when it meant providing a forum for a US citizen plaintiff.

 

There are factors that cut many ways here. Ultimately I would urge the court to deny the forum non-conveniens motion. This is becaue the US has a major interest in making sure that our home states are NOT being used for terroristic activity. Whether that activity is being planned for use here in the states or abroad. The US should see it as a threat to American safety and thus adjudicate the matter.

 

QUESTION 5 – CRIMINAL

Alan and Bob, graduate students at Jerseyville University, manufactured and distributed heroin from a house they shared. One of their customers, Crystal, often complained of money troubles. Recognizing an opportunity to expand their enterprise, Alan and Bob invited Crystal to their house to explain their operation. Crystal obliged.

 

Once at the house, Alan and Bob showed Crystal their drug manufacturing equipment that was stored in the fenced backyard not visible from the street or neighboring properties. Thereafter, they all went into the house and injected heroin. Thirty minutes later, Bob passed out whereupon Alan said, “Crystal, your money troubles would be over if you want to help us; just say the word.” Crystal replied, “I would do anything to pay my bills.”

 

Meanwhile, unbeknownst to Alan, Bob, and Crystal, a Jerseyville police drone was hovering over the highway adjacent to the house. The drone, equipped with surveillance systems, recorded video of Alan, Bob, and Crystal in the backyard looking at the drug equipment. The drone also detected bags of drugs visible through a second-floor window, and recorded the conversation between Alan and Crystal.

 

The police chief, who was monitoring the drone, saw the suspicious activity and dispatched officers to the house. Hearing the approaching police sirens, Alan fled through the rear door and set the drug equipment on fire. The wind from the drone spread the fire to the house, engulfing it in flames.

 

Upon their arrival at the house, the police officers noticed the flames and immediately entered. Bob was found unconscious and was pulled from the house. The police searched his pockets and found heroin needles and bundles of cash, which they seized. The police also found and recovered bags of heroin on a table near Bob.

 

Crystal was found by an officer in the kitchen at which time she blurted, “I didn’t mean to get involved with all of this.” When she was approached by the officer, she stabbed him multiple times with a needle. The officer developed an infection three days later, from which he ultimately died.

 

Alan, Bob, and Crystal were arrested and taken into custody. You are an assistant prosecutor and have been provided with

copies of the following: police drone video recording, police drone audio recording, police report setting forth statements made at the scene, and an inventory of property seized at the time of the arrests.

 

You have been directed by the county prosecutor to prepare a memorandum outlining all the elements of charges that may be brought against Alan, Bob, and Crystal, and the likelihood of success of each charge at trial. You are also to include all potential pre-trial motions and defenses that may be asserted by each.

 

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 5A:

TO: County Prosecutor

FROM: Assistant Prosecutor

RE: Charges against Alan, Bob and Crystal

 

In order for charges to be issued there must be probable cause to file. Probable cause exists when there is a fair probability that a reasonable person would find that a crime has occurred.

 

I. Charges against Crystal

The first issue is what charges may be brought against Crystal.

 

First Degree Murder

The first issue is whether or not Crystal can be charged murder.   Homicide is the killing of another. Criminal homicide is the unlawful killing of another.  The most severe type of homicide is first degree murder.  First degree murder requires malice intent that results in the death of another.  First-degree murder is a premeditated and deliberate act.

 

In this case Crystal stabbed the officer multiple times with a needle when she was approached by him.  There is no evidence that this rises to the level of first-degree murder because there was no premeditation or deliberation.

 

Second-Degree Murder

The seocnd issue is whether or not Crystal can be charged with second-degree murder.  Second-degree murder also requires malice.  There is no requirement for premeditation or deliberation.

 

In this case Crystal stabbed the officer multiple times with a needle.  There is nothing in the facts to indicate that this was done with the intention to kill.

 

Therefore because there is no malice and no evidence to indicate that she intended to kill the officer, she may not be charged with second-degree murder.

 

Felony Murder

The next issue is whether or not Crystal may be charged with felony murder.  Felony murder is the unintentional killing of another caused by a co-felon during the commission of an inherently dangerous felony.  Inherently dangerous felonies include burglary, arson, robbery, rape, and kidnapping. Malice is inferred in felony-murder.

 

In this case there it is unlikely that felony-murder may be charged.  The officer was stabbed following Alan setting the drug equipment on fire constituting arson.  However, in this case Crystal may have been involved with a conspiracy to commit a felony, but the felony she conspired to commit was the sale, manufacture, and distribution of drugs.  Arson is not a foreseeable outgrowth of this felony.

 

Therefore, it is unlikely that Crystal may be charged with felony murder.

 

Voluntary Manslaughter

The next issue is whether or not Crystal may be charged with voluntary manslaughter.  Voluntary manslaughter is the intentional killing of another that occurs in the heat of passion.  A person may not have time  to cool off. It is required that this heat of passion occur to a reasonable person's sensibilities.  Voluntary manslaughter does not require malice.  Voluntary manslaughter also encompasses a failed defense of self-defense.

 

In this case it is unlikely that Crystal may be charged with voluntary manslaughter.  Nothing in the facts seem to indicate that she intended to kill the officer when she stabbed with him the needle.  The facts do not state where she stabbed him.

 

Therefore, it is unlikely that she can be charged with voluntary manslaughter.

 

Involuntary Manslaughter

Next, is whether or not Crystal can be charged with involuntary manslaughter.  Involuntary manslaughter is the unintentional killing of another that occurred when the defendant was engaged in extreme or reckless conduct showing a conscious disregard of human life.

 

In this case Crystal may be charged with involuntary manslaughter.  Upon being approached by the officer she immediately began stabbing him multiple times.  This type of action shows a conscious disregard of human life.  The stabbings by Crystal resulted in the death of the officer.

 

Therefore, Crystal may be charged with involuntary manslaughter.

 

Battery

The next issue is whether or not Crystal may be charged with criminal battery.  Battery is the unlawful use of force on another with no justifiable reason.  Aggravated battery occurs when one uses a deadly weapon, the person is of a protected class- such as a police officer, or causes serious bodily injury.

 

In this case Crystal may be charged with criminal battery.  The facts clearly indicate that she stabbed the officer immediately upon being confronted.  Further, Crystal may be charged with aggravated battery because she stabbed a member of a protected class- the officer and she caused serious bodily injury- death.

 

Therefore, Crystal may be charged with both battery and aggravated battery.

 

Conspiracy to Manufacture, Distribute, or Sell Narcotics

The next issue is whether Crystal may be charged with conspiracy for the manufacturing, distributing, and selling of illegal narcotics.  Conspiracy occurs when an agreement is made between more than one party to commit a crime.  Conspiracy requires a substantial step in the commission of the crime.  Mere preparation is not enough to satisfy the step needed for conspiracy. Conspiracy will merge with the actual crime when the crime is completed.

 

In this case Crystal was invited to house and was explained the drug operation of Alan and Bob.  Alan told Crystal of their plan and Crystal agreed to join saying she "would do anything to pay my bills."  However, the facts do not indicate that any further act was conducted by Crystal.  The police immediately raided the house.

 

Therefore, although Crystal agreed to help, no substantial step was made and she cannot be charged with conspiracy.

 

Possession of Drug Paraphernalia

The next issue is whether Crystal may be charged with possession of drug paraphernalia.  Possession requires either actual or constructive possession.  In order to be charged with drug paraphernalia, the instrument must be designed to ingest or smoke an illegal narcotic.

 

In this case the officer was stabbed by needle that was being used for the ingestion of heroin.  Therefore, this is considered drug paraphernalia.  Crystal may attempt to admit this needle because the officers entered the home without a warrant.  However, Crystal has no standing to challenge the charge of possession of drug paraphernalia because the home belonged to Alan and Bob.  Therefore, she cannot challenge the introduction of the needle.

 

Therefore, she may be charged with possession of drug paraphernalia.

 

II. Charges against Alan

The next issue concerns what charges may be brought against Alan.

 

Arson

The first issue is whether Alan can be charged with arson.  Arson is the malicious act causing the burning of dwelling. The intent needed can be accomplished when one is reckless and does not require the specific intent to burn the house.

 

In this case Alan lit the drug equipment on fire as he fled through the rear door of the house.  The wind then spread to the house and engulfed it in flames.  His act of lighting the equipment on fire was clearly reckless.

 

Therefore because Alan was reckless when he lit the drug equipment on fire he may be charged with arson for the burning of the home.

 

Solicitation

The next issue is whether Alan can be charged with solicitation for asking Crystal to join the drugmaking operation.  Solicitation occurs when the defendant asks another party to commit a crime.  The crime of solicitation is completed upon the asking of the party with the intent to commit the crime.

 

In this case Alan solicited Crystal to help with the manufacture and distribution of illegal narcotics.  The crime was completed upon his question to her to join the group.

 

Therefore, Alan may be charged with conspiracy for the manufacture and sale of illegal narcotics.

 

Conspiracy to manufacture or deliver illegal narcotics

The next issue is whether Alan can be charged with conspiracy to manufacture or deliver of illegal narcotics.  The law from conspiracy is contained above.  If a party is guilty of conspiracy, the crime can merge into completion.

 

In this case Alan had formed a conspiracy with Bob to produce and manufacture heroin.  However, that crime will merge with the completed act of possession with intent to deliver or the manufacturing and sale of an illegal narcotic.

 

Therefore, it is clear that he may be charged with conspiracy for the manufacture of the heroin.

 

However, Alan will likely move to suppress the evidence of the drug operation.  Suppression occurs when a defendant's Fourth Amendment right protecting against unreasonable searches and seizures is violated.  In order to conduct a search, a search warrant is necessary.  In order for a search warrant to be issued probable cause is required.  Probable cause exists when there is a fair probability to a reasonable person that a crime has occurred.  An exception to the requirement for probable cause exists when an item is in plain view or an exigent circumstance justifies the search.  Plain view exists when an item is able to be observed from the police officers' lawful vantage point, the illegality of the item is immediately apparent, and the seizure can occur.   A party may challenge the admission of evidence through suppression by claiming that they had a reasonable expectation of privacy in an item that is one society is willing to recognize.

 

In this case Alan will likely attempt to suppress the evidence on the charge of possession with intent to deliver or manufacturing of an illegal narcotic.  Evidence of the drug operation was obtained through the flying of a drone.  The facts indicate that the operation was ina  fenced backyard not visible from the street or neighboring properties.  However the Supreme Court has found that one may not have an expectation of privacy from aerial surveillance.  This is often done through helicopters.  A drone in this case is similar to a helicopter and this argument will likely fail with regard to the actual drug equipment in the backyard.  The drone also recorded a bag of drugs that was visible through a second-floor window.  Alan has a stronger argument to claim that he had a reasonable expectation of privacy but the drugs were still in view from a window.  The suppression of this evidence is unclear.  However, the officers can attempt to justify the obtaining of the drugs from the window by claiming that an exigent circumstance existed for them to enter the home when the house caught on fire.  Any evidence during this time would be in plain view and admissible.  A final major suppression issue concerns the recording of the conversations within a home.  In order to wiretap someone's home it is clear that probable cause is necessary.  The officers had no search warrant or permission to grant the recording of the conversation so it is likely the evidence of the audio recording will be suppressed.

 

Therefore, Alan may still be charged with the production and manufacture of illegal narcotics but the evidence of the recording and potentially the drugs in the window may be inadmissible.

 

Obstruction of Justice

The next issue is whether or not Alan may be charged with obstruction of justice.  Obstruction of justice occurs when a party intentionally intereferes with an official police investigation.  This interference can include the destruction of evidence or lying to stall the investigation.

 

In this case Alan set the drug equipment on fire as fled.  This destroyed the evidence that was needed for the prosecution of the manufacturing of the illegal narcotics.

 

Therefore, Alan may be charged with obstruction of justice.

 

Fleeing Police

The next issue is whether or not Alan may be charged with fleeing police.   Fleeing police occurs when a defendant intentionally evades an officer in order to prevent a lawful arrest.

 

In this case Alan may be charged with fleeing police because he fled through the rear door as he heard the approaching sirens.

 

Therefore, Alan may be charged with fleeing police

 

Felony Murder

The next issue is whether or not Alan may be charged with felony murder.  See the discussion above regarding felony murder concerning Crystal.

 

In this case Alan committed an inherently dangerous felony- arson.  Further as he was fleeing from this inherently dangerous felony Crystal stabbed the officer multiple times leading to his death.   A person fleeing from the felony can still be held liable under felony murder for any death resulting from its commission.  However, in this case the court will likely find that the death was not a foreseeable outgrowth in thi smanner and Crystal's acts were superseding.

 

Therefore, Alan most likley may not be charged with felony murder.

 

III. Charges against Bob

 

Possession of Narcotics

The first issue is whether or not Bob can be charged with possession of a controlled substance. Possession can be actual or constructive.  In order to attempt to suppress evidence of suppression the party must have standing.  One may attempt to suppress evidence when there has been a violation of your Fourth Amendment right prohibiting unreasonabble searches and seizures.  An officer has the ability to conduct a Terry frisk of a person the officer has reasonable suspicion is carrying a weapon or involved in a crime.  Reasonable suspicion is more than mere hunch and must be based on particular facts.  An officer conducting a lawful Terry frisk may only search for weapons and for evidence that is immediately identifiable to the touch.  The officer may not manipulate the defendant's pockets. A lawful search of the defendant's pockets for contrabasnd and weapons may occur when the defendant is under arrest.  In order to be placed under arrest the officer is required to have probable cause.  Arrest occurs when a person is physically detained.

 

In this case Bob was found unconscious inside the home by the police.  Bob was then pulled from the house and the officers searched his pockets.  There is no evidence that at the time Bob was under arrest.  He was not given his Miranda rights prior to the officer going through his pockets.  Therefore, this is an invalid search and the evidence of the heroin needles and bundles of cash must be suppressed.  The suppression of this evidence would limit the ability to bring the bundles of cash to corroroborate the charge of possession with intent to delivery.  However, for the reasons outlined above concerning plain view the heroin that was found on the table near Bob may be admissible in the charge of possession.  Bob will have standing to challenge to suppress the heroin but because of the exigency of the situation the court will likely find that this evidence may be admissible. Additionally, the evidence of the drug equipment that was destroyed is also admissible because it was in plain view of the drone to support the charge of manufacturing a controlled substance.

 

Therefore, Bob should be charged with possession as well as possession with intent to deliver based on the drug equipment for manufacturing that was found within his home.

 

If you have any further requests please let me know.

 

Sincerely,

Assistant Prosecutor

 

 

SAMPLE ANSWER 5B:

Memorandum

To: County Prosecutor

From: Applicant

Date: July 31, 2014

Re: State v. Alan, Bob, and Crystal

 

 

 (1) Alan

 

 Alan may be charged with solicitation, conspiracy to distribute controlled substances, and arson.

 

 (1)(a) Solicitation

 

 The issue is whether Alan can be charged with solicitation. One is guilty of common law solicitation when he or she recruits another person to commit a crime. In this case, after Alan and Bob recognized an opportunity to involve another person in their drug enterprise, they invited Crystal back to their shared house where they showed her their shared drug equipment. After giving her the tour of their illegal operation, and using drugs with Crystal, Alan offered a way for Crystal to end her "money troubles," in reference to her "help[ing]" the two boys out. Although Alan's statement does not directly state that Crystal should join their drug operation, the facts indicate that Alan was not referencing anything else. Finally, it is a crime in New Jersey to possess, use, or distribute heroin. It should be noted, however, that once the person solicited takes overt acts with the solicitor in furtherance of the solicited crime, solicitation merges with conspiracy. Thus, although Alan solicited Crystal to commit a crime and the county prosecutor should highly consider brining a solicitation charge against Alan, he should also consider the conspiracy charge concurrently and make a decision as to which charge is better supported.

 

 (1)(b) Conspiracy to Distribute Controlled Substances

 

 The issue is whether Ala may be charged with conspiracy. Under the majority approach, to be guilty of conspiracy, thre must be 1) an agreement to commit a crime; 2) the specific intent to enter into the agreement; 3) the intent to fulfill the objectives of the agreement; and 4) an overt act in furtherance of the agreement, which is satisfied by mere preparation. Under the present facts, Alan and Crystal intentionally entered into an agreement to manufacturer and distribute controlled substances when Crystal assented to Alan's offer to end her "money troubles ... if you want to help us" by saying, "I would do anythig to pay my bills." The overt act prong was satisfied because Crystal already received the tour of the facility where she would be fulfilling the agreement's expectations. Crystal's intent may be inferred from her desperate statement of future intent and desire to satisfy her outstanding debts. Even if she lacked the requisite mens rea to intentionlly enter into an agreement, most jurisdictions follow the unilateral approach, requiring only one guilty mind. Thus, because Alan intended to fulfill the objectives of his agreement with Crystal, they can be held liable for conspiracy to distribute.

 

 (1)(c) Arson

 

 The issue is whether Alan may be charged with arson of his own dwelling. Common law arson is defined as 1) malicious 2) burning of the 3) dwelling of another. Most jurisdictions have relaxed the "dwelling" requirement, finding actionable arson when someone burns a car, office building, or other facility that is not a residence. They have additionally relaxed the meaning of "of another," and charged individuals with arson who burned their own property. Here, Alan committed arson because he intentionally burned his own home and that of Bob. His intent is evident from his motive to destroy any evidence of the drugs, which were scattered throughout the backyard and home. The county prosecutor should therefore bring a charge of arson against Alan.

 

 (2) Bob

 

 Bob should be charged with solicitation and use and possession of a controlled substance with intent to distribute.

 

 

 (2)(a) Solicitation

 

            Bob may also be charged with solicitation under the elements of solicitation outlined above. As the facts indicate, he and Alan jointly recruited Crystal to join their drug manufacturing and trade operation when they invited her back to their shared house "to explain their operation." Accordingly, the county prosecutor should also consider charging Bob with solicitation.

 

 (2)(b) Use and Possession of a Controlled Substance with Intent to Distribute

 

            The issue is whether Bob should be charged with use and possession of a controlled substance with intent to distribute. Under New Jersey law, heroin is a controlled substance. Under these facts, Bob injected heroin into his body and lived in a house where a drug operation was designed with sophisticated drug equipment. In addition, he was found with needles and bundles of cash. From these facts, the county prosecutor can prove beyond a reasonable doubt that Bob was not only using and possessing heroinn, but had the intent to distribute it.

 

 III. Crystal

 

 Crystal should be charged with conspiracy to distribute a controlled substance and murder.

 

            (a) Conspiracy

            As stated above, because Crystal was the confederate with whom Alan agreed to distribute heroin, she can be found guilty of conspiracy to distribute a controlled substance. Crystal may defend herself by trying to disprove that she had the requisite specific intent to fulfill the objective of distribution, citing her statement to the police, "I didn't mean to get invikve with all of this." However, through pleA bargaining and cross-examination, it will not be hard to find a source who will testify or reveal her agreement with Bob and Alan.

            (b) Murder

            The issue is whether an individual who did not have the intent to kill may be charged with murder. Common law murder is the 1) intentional 2) killing of another 3) with malice aforethought. Malice means intent to kill, intent to cause serious bodily injury, felony murder or depraved heart murder. Here, Crystal acted extremely recklessly when she defended herself against arrest by stabbing the officer with a used needle. Although she did not have the intent to kill, she did act with recklessness because she disregarded a substantially high and unjustifiable risk to human life. In addition, she murdered a police officer which may expose her to culpability for aggravated homicide. Thus, the prosecutor should bring a murder charge against Crystal.

 

 IV. Defenses

 

 A. Fourth Amendment

The issue is whether Bob, Alan or Crystal may suppress admission into evidence i) the police drove video recording; ii) the police drone audio recording; iii) the police report setting forth statements made at the scene; and iv) an inventory of property siezed at the time of the arrests by asserting that their rights under the Fourth Amendment were violated. Under the Fourth Amendment of the U.S. Constitution, all U.S. citizens are to be free from unreasonable searches and seizures. To fulfill this constitutional mandate, the Fourth Amendment requires that all searches and seizures conducted by a government officer or state action, of one's houses, papers, persons or effects be done pursuant to a search warrant. For the Fourth Amendment to apply, there must be 1) state action; 2) a breach of one's reasonable expectation of privacy or physicial intrustion into a protected area; and 3) the contestant must have standing. There are several exceptions to the search warrant requirement.

 

            Crystal lacks standing - All three defendants are likely to assert that their Fourth Amendment rights to privacy were violated when the Jerseyville police drone recorded video and audio while hovering above Alan and Bob's house. While one's home is afforded a higher expectation of privacy, Crystal is unlikely to prevail on this defense because she did not live there. The Fourth Amendment protects overnight guests and invitees, but it does not protect someone in another's home merely for a business purpose, especially when the business purpose is illegal.

 

 The video recording did not breach any expectation of privacy - There are specified areas that the US Supreme Court has expressly deemed protected and others it has deemed are unprotected. While one's curtilage (i.e., area adjacent to the home to which home life activity extends) is protected to the same extent as is one's home, airspace is expressly unprotected. Anything that is observable from public view in navigable airspace is not protected under the Fourth Amendment. Thus, despite the likelihood that Alan and Bob will raise the Fourth Amendment as a defense to suppress the video recording of their backyard, they will likely fail.

 

 The audio recording breached an expectation of privacy - For the Fourth Amendment to be violated, one's actual/subjective expectation of privacy must be breached and that expectation of privacy must be one society is willing to recognize as reasonable. The US Supreme Court has held that any evidence seized pursuant to a surveillance device not gnerally known and used by the general public is presumptively unreasonable. This typically happens with a device, without which the information it seized would not be discovered absent an actual physcal intrusion into the home. Thus, because the drone's operations revealed intimate activities of the home without a warrant, Alan and Bob are likely to prevail on suppressing the audio recording.

 

 Entry into the home did not violate the Fourth Amendment - Although the officers in this case entered Alan and Bob's home without a search warrant, they did so under the exigency exception to the warrant requirement. An exigency sufficient to qualify for a warrantless search exists where 1) the evidence involved is such that it would dissipate or disappear in the time it would take to get a warrant; 2) hot pursuit of a fleeing felon; or 3) the officers reasonably believe that someone in the home is in need of emergency aid to prevent further injury or assit in treating a current one. Here, the officers entered the home upon seeing the flames, which certaintly raises an exigency since the drugs would burn and there my have potentially been individuals trapped inside. The defendants will likely assert that the only reason there was the exigency by fire was because they heard the police sirens ad the exigency is thus the police's fault. This is not a winning argument, as the US Supreme Court has held that the exigency to the warrant requirement is still applicable to an exigency the officers themselves created. Thus, the inventory of evidence seized in the home will not be fruit of the poisonous tree.

 

 B. Fifth Amendment

 

 Under the Fifth Amendment to the US Constitution, no person may be custodially interrogated without first being read his or her Miranda rights to silence and an attorney. This right does not attach, however, until the individual is in custodial interrogation, which means that 1) a reasonable person would not have felt free to leave because of the inherently coercive atmoshphere that existe; and 2) the officer has said something that was reasonably likely to elicit an incriminating response.

 

 Crystal's statement at the scene does not violate her Fifth Amendment rights - In this case, Crystal will not benefit from raising her Fifth Amendment rights in suppressing her statement made at the scene. She was not seized by the police because she was i the kitchen of a burning building and actually had incentive to flee. She made her statement voluntarily and without being subjected to police questioning. Thus, her statement made at the scene should be admitted, despite her objection to the contrary.

 

 

QUESTION 6 – CONSTITUTIONAL LAW

In January 2014, Governor Yokaira signed into law a series

of bills:

 

Crime Victims Compensation:

Sonia was a prostitute convicted of intentionally infecting multiple clients with HIV. She has signed a lucrative publishing and movie contract that purportedly will expose the identi- ties and deviant sexual practices of the celebrities who patronized her services. The new law prohibits anyone convicted of a crime from profiting in the description of those activities. It also requires the deposit of any income related to those profiteering activities into an escrow account, and then disbursement to the crime victims for the harm they have suffered. As a result, Sonia’s income from the “tell all” will be deposited into the State’s crime victims compensation escrow account.

 

 

Voting Rights Act (“VRA”) Renewal:

 

 

Select munici- palities in the State had a long history of administer- ing voting registration literacy tests that resulted in the disenfranchisement of racial minorities. Coverage under the VRA is based on the following formula: (1) the municipality must have administered voter registration literacy tests and (2) the minority voting rate was at least 10 points below the overall average in the most recent municipal election. To remove these obstacles, the VRA required covered cities to submit any changes to their proposed electoral processes to the State for pre-approval. The legislative history for the VRA’s 2014 renewal reflects that the previously designated covered municipalities had stopped using literacy tests and that the racial minority voting rate was only five points below the average voting rate in the most recent municipal elections. Mayor Sterling disagrees with his city’s continued designation as a covered municipality.

 

 

Campaign  Finance  Reform  Act  (“CFRA”):

 

 

Fearing the potential corruptive influence of the influx of large corporations’ activities in the State’s electoral process, the CFRA prohibits U.S.-based corporations from mak-ing independent expenditures for television, radio, or internet advertisements that advocate the election or defeat of a candidate within 30 days of a primary or general election. In June 2014, Belkys Strip Club, Inc. (“Belkys”) paid for a television and internet adver-tising campaign advocating Yokaira’s defeat 25 days before the gubernatorial primary election and was fined $100,000 for violating the CFRA.

 

 

Quality of Life Act (“QLA”):

 

 

Paola is a corrections offi- cer in the State’s prison. She also worked as an exotic dancer at Belkys until it was closed down as a result of the State’s QLA, which prohibits adult entertainment establishments from operating within 500 feet of a school, church, or community center. At her prison job, Paola uses the computer system to post on her personal Internet blog political opinions about the QLA’s impact on the adult entertainment industry and a picture of herself in a tee shirt with the statement: “F*** the QLA.” Paola’s supervisor discovers these postings and, after an administrative hearing, she is suspended with- out pay for 15 days for her political commentary and another 15 days for the profane tee shirt picture.

 

 

Your boss is a political pundit on a cable television network.  She has asked you to draft legal memoranda analyzing all of the relevant constitutional claims and defenses presented in the above-referenced situations to prepare for her next television appearance.

 

 

 

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 6A:

To: TV Pundit

From: Law Clerk

Date: 7/31/14

Re: Constitutional law issues

 

Crime Victim's compensation:

 

There are two issues with this law as applied to Sonia. The first is a potential first amendment issue chilling protected speech. Secondly, there is a potential due process issue for taking one's profits without due process of the law. These arguments are both specious and should be rejected.

 

The first amendment prohibits the government from chilling speech based on its content or viewpoint. IN this case the government is restricting the telling of stories based on its content, the intentional spreading of disease. This is not an outright restriction, as the speaker is not prohibited from publishing, merely discouraged by not getting any of the profits. However such a chilling effect can be overcome by a showing that the restiction was necessary to achieve a compelling government intererest in discriminating against such speech. Here, the prevention of the incenetive to spread deadly disease is likely to be considered just such a compelling interest. Furthermore, the restriction is narrowly tailored for the least restrictive means because it eliminates the financial incentive to commit a crime without prohibiting the speech regarding it.

 

There is also a potential due process issue. Under the 5th amendment to the constitution of the united states, no person may be deprived of life liberty or property without due process of law. This law arguably takes away one's legal profits to a sale without affording them the opportunity to a hearing to dispute such seizure of their proeprty. However, this is a weak argument. The person's whos profits are seized is only affected after they have been convicted of a crime and given the consitutional guarantees that go along with that process as required under the 6th amendment.

 

The best argument against this law is that it is vague. The term profiting from profiteering activities is not clearly defined. It is unclear if this refers only to monetary distributions for publishing rights / other media or if this could extend to anciallary benefits such as becoming famous as a rsult of the law and the myriad opportunities that can accompany that. The scope of this law is not very clearly defined and thus might fail for vagueness, even though as it is applied to Sonia it is very narrow. While this is the best argument, it is still not likely a winner. The Courts can look to the plain meaning of the word profiting and develop through case law a workable scope. The Courts may also look to to the legislative history to determine its intended scope.

 

Voting Rights Act:

 

Under the 15th amendment a state may not discriminate for voting on the basis of race. Congress is authorized to pass laws necessary for the enforcement of that amendment. The State itself is not empowered with any enumerated powers under the 15th amendment. However the 10th amendment reserves tot he states the powers not specifically reserved to Congress. States have traditionally been charged with creating their own voting rules and thus they are able to set about procedures for the voting in their covered municipalities as a power of their soveriegnty.

 

The municipality does not have any constitutional powers to demand it be allowed to set its voting laws independent of the State in which it sits. Municipalities are authorized by the state and are considerd instrumentalities of the states. Thus, the states may implement their own systems for regulating voting so long as the state regulations conform to constitutional standards for voting.

 

The only recourse the municipality can seek is to invalidate the statute on some other constitutional grounds including equal protections. However, the municipality would need to show that the State had singled the state out based on an impermissible classification. That is something that is not evident in these facts. There is no evidence that the State is discriminating on the basis of race, merely that they are singling out those state actors who have a history of past discrimination. That is not a suspect classification.

 

In sum, the municipality is an instrument of the state and thus may not challanege the state's voting system unless it fails to conform to national voting standards (i.e. one person one vote) or is violative of another constitutional amendment including the 14th amendment.

 

Campaign Finance Reform Act:

 

The law prohibiting corporations from making independent expenditures  for television, radio or the internet for the defeat of candidte within 30 days of an election is in violation of the first amendment.

 

The first amendment allows reasonable restrictions on the amount of campaign donations given by a corporation or similar entity directly to a candidates campaign. However, the corporation is free to make independent contributions to help elect or defeat a politician so long as it is not coordinating with a campiagn in its messaging or strategy.

This law not only infringes on the corporations right to donate to the political process, but directly with its right to speak over certain mediums. Political speech is among the most protected forms of speech under the first amendment. While, commercial speech is less protected, the corporation is protected when it makes purely political speech without commercail intent. A restriction on political speech can only be upheld if necessary to achieve a compelling government interest. In the past, the threat of quid pro quo corruption supplied that compelling government interest. However, recent supreme court opinions have stated that independent expenditures by corporations to promote its own political agenda does not give the appearance of corruption. Thus, the Corporation is free to make such commercials and the government cannot create a law restricting such speech without a different compelling government interest.

 

Quality of Life Act:

 

A government employee has a first amendment right to express dissatisfaction with governmental laws so long as doing so does not interfere with the performance of their duties. If no such interference is found, the employee may not be fired for expressing their political ideas, particularly if the expresssion occurs outside of the workplace where the functioning of the office is uninterrupted. The Quality of life act has nothing to do with the office of corrections and Paola's expression of dissatisfaction should have no impact on her work as a corrections officer.

 

The state may try to claim that Paola's speech was obsecnity and thus entitled to no first amendment protection. Obsecity is defined as speech that appeals to the pruient interest, exhibits hardcore secual activity and has no redeeming social, political, scientific or cultural value.  Furthermore, the Supreme Court has indicated that curse words have lesser constitutional protection than regular speech on school grounds. This speech is not obscene. While the word on her tshirt could arguably refer to secual activity, it is clearly an expression of dissatisfaction. Her statement also has social value as political speech and thus is entitled to first amendment protection. Furthermore, while she did display a curse word, it was not ina school and as an adult, she should be entitled to do so without reprecussion.

 

In sum, Paold was wrongfully terminated as her speech was protected by the first amendment.

 

 

By: _____________________

            Law Clerk

 

SAMPLE ANSWER 6B:

TO:                             Boss

FROM:                       Candidate

DATE:                       July 31, 2014

RE:                             Constitutional Law

 

1.  Crime Victims Compenstation ("CVC")

 

Freedom of speech

 

Under the First Amendment to the Constitution, the government regulation of protected speech generally must be content-neutral and viewpoint neutral and otherwise will face strict scrutiny.  Under strict scrutiny, the burden would be on the government to prove that the law is necessary to prove a compelling state interest.  The propsed Crime Victims Compenstation ("CVC") prohibits people from profiting in the description of criminal activiities. This regulation is not content-neutral and would thus meet stricy scrutiny.  The government would have to prove that the law in necessary to achieve the compelling state interest of victims, a burden they willl lose.

 

Procedural Due Process

 

Under the 14th amendment due process clause, a citizen may not be disposessed of "life, liberty, or property" without due process of law. Money is a property right, and the CVC takes money directly from Sonia and gives it to the victims without any process whatsoever.  A court will usually balance the states interests and the burdens on the plaintiffs, against the amount of process given in the situation.  Here there is no process given, and Sonia is being deprived of a "lucrative contract" when all the funds have been taken from her and placed in escrow.

 

Expost facto law

 

The US Constiution prohibits the passing of expost facto criminal laws.  Here, if Sonia entered into her conduct before the new law was passed, she would have a valid claim that enforcement of the law against her is improper.

 

2.  Voting Rights Act ("VRA")

 

Under the Fourteenth amendment to the Constitution, the right to vote is a fundamental right that triggers strict scrutiny.  Under strict scrutiny, the burden would be on the government to prove that the law is necessary to prove a compelling state interest.

 

The VRA at the federal level was recenly struck down by the Supreme Court under Chief Justice John Roberts.  The law was analgous to the one at issue here in that in mandated that states that had a history of discriminatory voting practices, such as poll taxes and literacy test (mostly in the South) were required to submit to Congress any changes in their voting procedures.  This was upheld in the first case on the matter many years ago, but was most recently stuck down by the Supreme Court because the jsutifiactions for its enactment had passed.

 

Here, the VRA at the state level was passed in response to racial biases in the administratons of municipal elections.  But also, the original justifications for the law have since diminished:  there are no longer literacy tests for voting in the targetted municipalites, and the representation of minoority voters has rised about the threshold.  Mayor Sterling has a valid talking point if he argues that the law should be now held unconstitutional.

 

 

3.  Campaing Finance Reform Act (CFRA)

 

The Supreme Court has held that the right to speech enshrined in the first amendment is directly tied the the right to spend money in furthereance of that speech.  Buckley v. Valeo.  Furthermore, the Court has more recently held that corporations are persons within the meaning of the first amendment and the right to spend money in furhterance of speech is protected as to corporations as well.  Citizens United.

 

Any regulation restricting the expenditures of money must meet strict scrutiny. Under strict scrutiny, the burden would be on the government to prove that the law is necessary to prove a compelling state interest. It has been held that statutes that limit expenditures directly to candidtates themselves are allwoed to further the compelling state interest of avoiding bribery or the implication of corruption, but statutes that limit expenditures by a corpration do not meet strict scrutiny.

 

The CFRA restricts expenditures for TV, radio, or internt advertisements that advocate teh elction or defeat of a candidate within 30 days of a primary or general election. Such speech runs to the core of the First Amendment protected speech and thus the government does not have a compelling government interest.

 

 

4. The Quality of Life Act ("QLA")

 

Secondary Effects

 

The Supreme Court has held that a city may zone nude dancing establishements in order to regulate the "secondary effects" of such clubs to promote the interest of the city in protecting neighborhoods.  City of Renton v. Playtime Theatres. The city simply may not entirely prohobit their existence. The law here provides simply that adult enteratinment establishements may not operate within 500 feets of a school, church, or community center.  This law is even more lenient that the one uphled in Detroit in City of Renton. Thus, the law will be upheld.

 

State Action

 

First, it should be noted that the State prison, and Paola's supervisor, are state actors such that the Constitution applies to his actions. State prisons are a traditional public function, and on these facts there is nothing the suggest that the prison is not a state agency.

 

Paula's t-shirt

 

The prohibotion for her punishment was unconstitutional.  In an analogous case, a man was prosecuted for wearing a jacket that said "F*** the Draft".  The man wore this jacket in a courthouse to protest the vietnam war.  In upholdng this speech as constitutionally protected speech despites its offensive nature, the Supreme court commented that "one mans curse is another man's lyric."

 

Paula's speech at work

 

The government may regulate the speech of public employees during the course of their employment.  Here, Paola was at her job in the prison--again, a state facility--when she blogged about the QLA.  The governemnt may regulate the speech of employees such as Paola in this situation.

 

Procedural Due Process

 

Under the 14th amendment due process clause, a citizen may not be disposessed of "life, liberty, or property" without due process of law. Government employement is sometimes a property interest under the PDP.  Here, Paola was suspended for 15 days without pay.  The court would look to the balance of the burdens and what type of process was given, and whther more process would have a greater liklihhod of protecting the property interest at issue.  Here, Paola was given an administrative hearing, which was probably enough given that she was only suspended 15 days for each offense.

 

QUESTION 7 – CONTRACTS

Luz owns Luz’s Luscious Cupcakes located in Sweet Town, New Jersey. She has experienced a recent downturn in customers frequenting the shop due to ongoing cupcake wars. She has an idea to self-advertise. She is an amateur photographer and wants to take pictures of her cupcakes and post them all over town. She finds, on the internet, Cameron’s Cameras, a New Jersey store that has a camera for $499.00 plus tax and shipping.

 

After Luz enters her credit card information above the words “no refunds,” Virgil walks into the shop to buy his favorite cupcakes and interrupts Luz’s internet session. When they both look at Luz’s laptop, they see that her session may have timed out. Luz cannot remember where she was in the camera buying process, and they both try to restore the session.

 

Virgil then tells Luz to forget about ordering the camera. He has his own information and technology firm and tells Luz he can order a camera from Cameron’s Cameras at a discount. He offers to order a camera for Luz at a discounted rate of 10 percent and Luz agrees but says she needs it in two weeks. Her next cupcake war is in a month from now, and she needs two full weeks to advertise. She also offers him a dozen cupcakes for his trouble. Virgil says, “It’s a deal!” He pulls out his laptop and starts to place the order for the camera. Luz puts down the dozen cupcakes next to Virgil, which distract him with their delicious aroma. As a result, he unknowingly orders 10 cameras instead of one. Meanwhile, Luz keeps hitting the cancel transaction box as the pinwheel on her computer keeps turning. Virgil walks out of the shop with a dozen cupcakes. After Virgil leaves, Luz sees the following message on her computer, “Thank you Luz for your order from Cameron’s Cameras.”

 

A week later, Ivan the terrible stock boy at Virgil’s company receives 10 cameras from Cameron’s Cameras. Ivan drops a full pallet of paper on top of five of the cameras and destroys them. He hides these facts from Virgil for three weeks. Virgil eventually comes to him and asks about a camera that was supposed to be delivered. Ivan tells Virgil the whole story and turns over the 10 cameras to Virgil. Virgil checks the attached invoice that says “no refunds” and sees that 10 cameras instead of one had been ordered. He tries to power up the cameras that Ivan did not destroy, and only one of them works. He then rushes over to Luz’s shop.

 

When Virgil arrives at Luz’s shop to collect payment for the camera Luz wanted, he finds out that she is closing down her shop. Luz lost her cupcake war to “First Out the Box,” a now prospering town rival that had posted pictures of their cupcakes all over town before the cupcake war. Luz is irate and refuses to pay for the camera, telling Virgil that it is too late. She tells Virgil that she has lost thousands of dollars because of this camera fiasco. Moreover, Cameron’s Cameras will not give her a refund for the camera they say she ordered on her laptop. She had sent the camera back relying on her conversation with Virgil about getting one from him. She threatens to sue Virgil for all he is worth.

 

Virgil comes to your law firm and asks one of the partners to explain Virgil’s rights and liabilities. The partner asks you to write a memorandum regarding the issues above.

 

PREPARE THE MEMORANDUM

 

SAMPLE ANSWER 7A:

To: Partner

From: Examinee

Date: July 31, 2014

RE: Virgil Contract Matters

 

 

 MEMORANDUM

 

 This memorandum will discuss the various contract issues related to the transactions Virgil has discussed with this firm. As an initial matter, these issues all involve the sale of cameras which are goods (things movable at the time of sale). The Uniform Commercial Code (UCC) governs contracts for the sale of goods. Because cameras are goods, the applicable law to these matters is the UCC.

 

 Luz v. Virgil - Breach of Contract

 

 Contract Formation - The first issue is whether Virgil is liable to Luz for breach of contract. In order to determine this issue we must first see if a contract was formed. A contract is a legally enforceable agreement that requires an offer, acceptance, and consideration (consideration is a bargained for exchange). Here Virgil made Luz an offer when he offered to order her a camera through his business "at a 10% discount." Thus there was an offer. Acceptance is a manifestation of an intent to be bound. Luz accepted Virgil's offer when "agreed." The deal was reaffirmed when Virgil responded by saying okay, "it's a deal!" The consideration for the agreement was that Luz would provide Virgil with a dozen of her delicious donuts (although arguably she may have just been doing this as an accommodation for Virgil's mere kind donative offer to help her, but this argument will likely fail because any consideration is enough to support a contract). Donuts are sufficient consideration to support Virgil's promise to get Luz a camera.

 

 Special Circumstances - Additionally, Luz told Virgil in advance that she had special circumstances and would suffer a loss if the camera was not received within 2 weeks. She advised Virgil that she needed the camera within two weeks so that she could start an advertising campaign to support herself in an upcoming competition with a competing baker. Thus, Virgil knew in advance that Luz had "special circumstances" and would suffer losses if the camera were not received in time. This meant that "time was of the essence."

 

 Luz may argue that Virgil breached the contract when he did not deliver the camera until 4 weeks later. As a result, Luz will argue that she is entitled to loss of profit damages. She will say that her lost profits were special circumstances that were foreseeable to Virgil at the time they entered the contract because she specifically told Virgil about them. If Luz can prove her special damages and lost profits with reasonable certainty (i.e. meaning that the damages are not too speculative) then she may be able to recover those damages.

 

 Statute of Frauds - However, Virgil may have a valid Statute of Frauds defense that will prevent enforcemenet of this agreement. Under the UCC Statute of Frauds, all contracts for the sale of goods over $500 must be in writing and signed by the party against whom enforcement is sought (or alternatively, at least have a confirmatory memo between merchants, but here Luz is not a merchant and there is no memo so this is not applicable on these facts). Here the camera that is the subject of this agreement was $499 plus tax and shipping. If the court interprets the "agreement" to only be the bare price of the camera, then the Statute of Frauds would not apply to these facts and would not prevent enforcement of this oral agreement between Luz and Virgil (i.e. because a valid contract would be formed and Virgil breached it for the above-stated reasons). If however the court includes the costs of tax and shipping into the price of this agreement, then the amount would be over $500 and because this oral agreement was not in a signed writing, Virgil could raise Statute of Frauds as a defense to formation of the contract. Additionally, because Virgil offered to get Luz 1 $499 camera "at a 10 % discount" the price very likely brings the costs below $500 and the Statute of Frauds will not prevent formation or enforcement of this oral agreement.

 

 Promissory Estoppel - Even if Statute of Frauds prevents enforcement of this contract, Luz may still raise promissory estoppel as a reason to hold Virgil liable. Promissory estoppel occurs when there is a promise by one party to another and the other party reasonable relies on the promise to her detriment. Here, Luz will argue that she reasonably relied on Virgil's promise that he would get her a camera at a discount in the time period she needed to perform her advertising tasks. Luz will say it was reasonable to rely because Virgil held himself out as being someone who "owns his own information adn technology firm" and thus she could reasonably rely that he knew what he was talking about (and would follow through on his promises). If Luz can prove that her reliance was reasonable, then she may very likely recover any damages that she can prove with reasonable certainty from Virgil (ex. lost profits, etc.).

 

 Lastly, Luz may unsuccessfully try to argue that Virgil should also be responsible to her for her first order to Cameron's Camera's (the one she was attempting to place when Virgil walked into her donut shop and interrupted her). (See promissory estoppel law above.). However, this argument will not work because Luz saw the message on her computer screen after Virgil left the store that said "Thank you for your order." Thus, she actually knew and was aware that her own order to Cameron's Cameras had gone through and that she would be responsible for the payment of the price of the camera, tax, and shipping. Thus she had no reason to rely on the conversation with Virgil to prevent enforcement of that contract. Luz will be on the hook for those costs even though she attempted to send the camera back to Cameron's because she saw the website said "no refunds." Thus, Virgil will not be responsible for those portions of the damages to Luz.

 

 Cameron's Cameras v. Virgil - Breach of Contract

 

 Contract Formation and Performance - The next issue is whether Virgil is liable to Cameron's Cameras for the cost of the 10 cameras delivered and accepted. Again, the applicable law here is still the UCC because cameras are goods (see law above). The first issue is to see whether a contract was formed. Virgil's placing the order online with Cameron's Cameras is considered an "offer" under the UCC. Under the UCC an offer includes orders to buy goods from a seller. Here Virgil placed an order for 10 cameras which constitutes an offer. Cameron's Cameras accepted that offer by delivering the 10 cameras one week later. This memorandum assumes that there was consideration to support the agreement in that Cameron likely paid with a credit card or in some other form of payment for the 10 cameras. Under the UCC, a merchant is required to make Perfect Tender (which means perfectly delivery the order under the terms of the contract). Here, Cameron's was a camera dealer, thus it is a merchant within the meaning of the word in the UCC (i.e. deals in goods of the kind). When Cameron delivered the 10 presumably working cameras, it completed its performance under the contract. Thus, Cameron was entitled to return performance from Virgil (i.e. paying the contract price).

 

 Impracticability and Risk of Loss - Virgil may argue "impracticability" as a defense to enforcement of his contractual obligations (impracticability is the UCC version of the common law defense of impossibility). Virgil will argue that because his employee accidentally destroyed the cameras he should not have to pay the contyract price to Cameron. However, this argument will fail. Because Cameron's and Virgil are both "merchants" (i.e. both deal in cameras and/or technology in the course of their business), the risk of loss of destruction of the goods passed to Virgil upon delivery of the goods (there areno other shipment or delivery terms in this contract). The fact that Virgil's employee accidentally destroyed the cameras by dropping a pallet on top of them is of no consequence to Cameron's ability to enforce the contract. Once the goods were delivered to Virgil's business, the risk of loss of the goods passed to him and he is responsible for paying Cameron the contract price.

 

 Virgil may argue that the risk of loss did not pass to him because he never accepted the goods. Under the UCC, buyer accepts the goods when he receives the goods, has a reasonable time to inspect them, and does not object within a reasonable time. Here Virgi's business had the cameras for 3 weeks before Virgil's employee Ivan told him what had happened. 3 weeks is a commercially reasonable amount of time to inspect the goods. Thus, because Virgil did not object within that time period he will be responsible to Cameron for the price of the cameras.

 

 Mistake - Virgil may attempt to argue mistake as a defense to enforcement of the contract (or even as to formation). Mistake may be a defense to formation of the contract only if it was a mutual mistake between the parties and the mistake was reasonable. However, unilateral mistake is usually not a defense to contract formation or enforcement. A unilateral mistake occurs when only one party to the contract made a mistake as to an essential part of the contract. A unilateral mistake will not be a defense unless the other party knows or has reason to know of the mistake and fails to correct it or say anything (i.e. bad faith). Here, Virgil made a mistake when he accidentally ordered 10 cameras from Cameron's instead of the 1 and only camera he needed to fulfill his promise/obligations to Luz. There is no indication that Cameron's knew the order of 10 cameras was a mistake or that it should have known it was a mistake (because Virgil owned an information and technology firm, so it is reasonable to assume that a firm in that line of business may need 10 cameras, whereas an individual person may not). Thus, mistake will not be a defense to contract formation.

 

 Statute of Frauds - Lastly, Virgil could try arguing Statute of Frauds as a defense to enforcement of this contract - however, this defense will certainly fail because Luz already accepted the entire order of 10 cameras (as indicated in the analysis above). Acceptance of all or part of the goods is an exception to the writing requirement of the Statute of Frauds. If a party accepts all of the goods then there is no need for a writing because it is less likely that the transaction is fraudulent. Further, this analysis may also be a moot issue because since the order was placed online, it was very likely in writing anyway.

 

 Therefore, under all of the theories, analysis, and defenses set forth above - Virgil is very likely liable to Cameron's Cameras to pay for all 10 of the cameras, plus tax, and shipping costs.

 

SAMPLE ANSWER 7B:

To: Partner

From: Associate

Date: July 31, 2014

Re: Virgil's Rights and Liabilities

 

You have asked me to prepare this memorandum regarding Virgil's rights and liabilities in order to assist you in advising him. I have separated my response into two sections: 1 regarding his interactions with Luz, and the other with his order with Cameron's Camera.

 

Virgil and Luz

Virgil and Luz had a conversation regarding the sale of a camera. The UCC Article 2 applies to this transaction, because it is for sales of a tangible good. It is immaterial that Virgil and Luz are not merchants, the UCC applies to all sales of goods.

 

The first issue regarding this conversation is whether the conversation formed an enforceable contract between them. To be enforceable, the contract needs to entail (1) mutual assent (2) consideration and (3) a lack of defenses to the formation of the deal.

 

Here, Virgil and Luz mutually assented to the contract. Mutual assent is determined from the positions of the parties, whether one party offered, the other accepted, and they were both obligated to perform. Here Virgil offered to buy a camera for luz at the discounted rate, Luz said okay but added a term to the contract - the date of delivery and the cupcakes, which likely constituted a counteroffer, and Virgil responded by accepting her offer saying, Its a deal! These communications created mutual assent. They were also supported by consideration: Virgil offered to buy the camera, and Luz offered to pay him back and give him cupcakes. There are no defenses to the creation of this deal. The closest one that may apply is the Statute of Frauds, but because of the cost of the camera, the statute of frauds does not apply. Only contracts for sales of goods over 500 are subject tothe statute, and here the contract was for a camera worth 499 gotten at a 10% discount by Virgil.

 

The second issue is whether Luz is releived of her obligation to pay Virgil for the camera. The terms of the contract were that Virgil would get the camera within two weeks, and Luz would pay him and give him cupcakes. The delivery date was an express term of the contract of which Virgil was well aware, so his failure to meet that date constituted a material breach. This breach alleviates Luz's obligation to pay and give him cupcakes.

 

The thrid issue is whether Luz can collect damages from Virgil for her lost profits.  In order for Lost profits to be recoverable they must be foreseeable, known by the breaching party, and sufficiently definite. In additon, it must be fair to impose those lost profits ont he breacher. Here, Luz did tell Virgil of her need for the camera for cupcake wars and that she needed the camera in that time. However, the amount of profits that she lost and the closing of her shop was not a foreseeable consequence of the delay in delivery of the camera, so she cannot recover those purported losse from Virgil, and he should vigorously defend against that. In addition, he should defend by claiming that Luz unreasonably failed to mitigate her losses based on the fact that she physically had another camera in her hand that she could have used. In that case, her losses would be equal to 10% of the purchase price of that camera. Luz should have known that she could not get a refund from Camerons given the "no refund" clause that she read, and should have hung onto that

 

The fourth issue is whether Luz can recover the cost of the Cameron's camera from virgil. It is unlikely because she had already entered into the contract with Cameron's when she entered into the contract with Virgil. It was not Virgi's fault that the computer was having a glitch and they both were not aware that the transaction went through.

 

Virgil and Cameron's Cameras

Again, this purchase is governed by the UCC Article 2 section on sales of goods. In order to get as much money back from Cameron's as possible, Virgil will want to argue that four out of the 10 cameras were defective and promptly notify Cameron's that he is rejecting the goods. If delivered goods are non-conforming, buyers may elect to reject all or part of the goods. Upon rejection, the rejecting merchant is obligated to take reasonable care of the goods. The risk of loss of goods passes from seller to buyer typically upon delivery unless the contract specifies otherwise.

 

Here, four of the cameras were non-conforming because they did not function as cameras, so arguaby cameron will be able to reject all of the goods, if his rejection was within a reasonable time. The time requirement wirgil will be a difficult hurdle to get over, given the fact that his stock boy failed to notify Virgil of the delivery for 3 weeks. Goods not rejected after 10 days are typically deemed accepted. Regardless, Virgil will be liable to Cameron's for the crushed cameras because merchants that are rejecting non-conforming goods have te duty to safeguard the rejected property for the seller and are liable for damages that occur as a result of their negligence. Here, Ivan's poor handling of the cameras would constitute negligence and require Virgil to pay for the broken cameras. Virgil will be liable for these because the risk of loss had already transferred to Virgil when the cameras were delivered to Virgil's store.

 

If it is deemed too late for rejection, Virgil should claim that four of the cameras were defective and breached Cameron's implied warranty of merchantibility. The implied warranty of merchantability   applies to sellers of goods who typically sell those goods. In the event that the item does not function as intended, the buyer is entitled to the reimbursement of the purchase price of those goods. The IWH can bee disclaimed by conspcuous language or by the words "as is" or similar.

 

Here, Cameron's cameras seems to typically sell cameras, and thus the IWH applies to them. The cameras did not work, so they breached the IWH. As a result, Cameron is entitled to the reimbursement of the purchase price of at least four of the cameras. A potential argument that Cameron could raise is that the "no refunds" clause qualifies as a disclaimer of all implied warranties. However, he will be unsuccessful in this argument given the fact that it is not conspicous nor does it contain the words "as is" or similar. Because he did not disclaim the implied warranties, the IWH appleis to this contract and Virgil can at a minimum recover for the purchase price of the non-functioning cameras.