b'Federal Civil Procedure Outline\n\n\n\nPersonal Jurisdiction: can plaintiff sue defendant in this state?  Must satisfy a statute and constitutional due process.  In Personam Jurisdiction: jurisdiction over the person because of contact between the defendant and the forum state. \n\nStatutory Analysis: CA statute reaches the Constitutional limit.\n\n*Constitutional Analysis: requires \xe2\x80\x9csuch minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.\xe2\x80\x9d  Assess contact, relatedness, and fairness.\n\nTraditional Bases: domicile in form, consents, present in forum when served (unless brought by trick).\n\nContact: with forum state: purposeful availment & foreseeability\n\nPurposeful Availment: D must reach out to the forum.  E.g., marketing a product, using the roads, causing some effect.  Defendant need not set foot in forum.  An interactive website can be purposeful availment, but a passive website is probably not.\n\nForeseeability: it must be foreseeable that defendant could be sued in forum\n\nRelatedness: must have either Specific or General PJ\n\nSpecific PJ: exists where claim is related to defendant\xe2\x80\x99s contact with forum (even if D otherwise has minimal contact with forum).\n\nGeneral PJ: exists even for claims unrelated to defendant\xe2\x80\x99s contact with forum if defendant has continuous and systematic ties with forum such that he is \xe2\x80\x9cessentially at home\xe2\x80\x9d there.  Human always at home in domicile, business always at home where formed or where it has its principal place of business.  Might be other places, but physical presence required, not just sales or purchases.\n\nFairness: consider (1) convenience, (2) state\xe2\x80\x99s interest, and (3) plaintiff\xe2\x80\x99s interest.\n\nConvenience: forum OK unless puts D at severe disadvantage.  Relative wealth of parties is not determinative.\n\nState Interest: e.g., providing forum for its citizens\n\nSubject Matter Jurisdiction: must be met for each claim\n\n*Diversity of Citizenship: requires (1) the case is either between (a) citizens of different states or (b) a citizen of a state and a citizen of a foreign country, and (2) amount in controversy exceeds $75,000.  Measured at time case is filed.\n\nComplete Diversity Rule: no P can be citizen of the same state as any D.\n\nCitizenship\n\nHuman: state of domicile: (1) presence in state and (2) intent to make it permanent home.  Can only have one domicile.\n\nCorporation: both incorporated and principal place of business.  PPB is where managers direct, control and coordinate corporate activity (the \xe2\x80\x9cnerve center\xe2\x80\x9d).\n\nUnincorporated Association: where any member is citizen.\n\nDecedents, Minors, Incompetents: their citizenship, not rep\xe2\x80\x99s.\n\nAmount in Controversy: good faith claim (unless clear to a reasonable certainty cannot be) must exceed $75,000.  Measured at time of filing, but a P who wins less than $75,000 may have to pay D\xe2\x80\x99s litigation costs.\n\nAggregation: claims of one plaintiff against one defendant may be aggregated, even if unrelated.  This is only permissible aggregation, unless defendants are jointly liable, in which case number of defendants is irrelevant.\n\nEquitable Relief: amount met if either (1) action hurt plaintiff by more than $75,000 or (2) it would cost defendant more than $75,000 to comply with injunction.\n\nFederal Question: complaint shows right or interest founded substantially on federal law, and claim arises thereunder.\n\nWell-Pleaded Complaint Rule: plaintiff\xe2\x80\x99s claim itself must arise under federal law; ask if plaintiff is enforcing a federal right.  Federal defense is not enough.\n\nSupplemental Jurisdiction: exercised if claim shares a common nucleus of operative fact with claim that invoked federal SMJ (e.g. same T/O).  Can use supplemental jurisdiction to meet amount requirement.  But in a diversity case, plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity (but a defendant can).  Court has discretion not to hear if federal question dismissed early.\n\n*Removal: a defendant sued in state court can remove to federal court within 30-days after service, which restarts after each defendant is served, if claim could have been filed in federal court.  All defendants who have been served with process must join\xe2\x80\x94i.e., unanimity required.  Plaintiff can never remove, even on counterclaim. \n\nLimitation in Diversity Cases: If removal jurisdiction is based on diversity, cannot remove (1) more than 1 year after filing, or (2) if any defendant is a citizen of the forum state, even if complete diversity met.  \n\nErie Doctrine: in diversity case, federal court applies state substantive law and federal procedural law.  First, if any federal law, including FRCP or FRE, if on point and conflicts with state law, is applied by supremacy clause if valid\xe2\x80\x94i.e., if arguably procedural.  Second, if no federal law on point, and issue is (1) elements of claim or defense, (2) SOL, (3) tolling SOL, and (4) conflict of law rules, state law applies\xe2\x80\x94these are substantive.  Third, if none of these, balance: outcome determinative, federal v. state interests, and avoidance of forum shopping.\n\n*Venue: plaintiff may lay venue in any district where (1) all defendants reside or (2) a substantial part of the claim arose.  \n\nDifferent Districts in Same State: If all defendants reside in different districts of same state, venue proper in any of the districts.\n\nResidence: humans reside in district where domiciled (one).  Businesses of any kind reside in all districts where subject to PJ for this case (many).\n\nTransfer of Venue: only to a district where case could have been filed\xe2\x80\x94i.e., a venue that had PJ over defendant, unless all parties agree otherwise.  \n\nWhere Original Venue Proper: court has discretion to transfer for convenience and interest of justice, and considers whether following factors show that other venue is center of gravity: applicable law, keeping controversy in local community, burden of jury service, location of witnesses and evidence.\n\nWhere Original Venue Improper: may transfer in interests of justice or dismiss.\n\nForum Non Conveniens: dismissal or stay of case where transfer is impossible because more convenient court is in a different judicial system, based on same factors for change of venue.  Requires a very strong showing.  Other court must be adequate, even if not same remedies.\n\nService of Process: delivery to defendant of (1) summons and (2) complaint, within 120 days of filing complaint, or dismissal without prejudice.\n\nWho Can Serve: any non-party at least 18.\n\nMechanics\n\nPersonal Service: given to defendant personally, anywhere.\n\nSubstituted Service: ok if service (1) at defendants usual abode and (2) on someone of suitable age and discretion who resides there.\n\nOn Agent: ok if receiving service within scope of agency.\n\nState Law: can use methods permitted by law of state of forum or service.\n\nWaiver: mail complaint and two copies of waiver form with prepaid means of return.  If D executes and returns within 30 days, waives formal service and gets 60 days from mailing to her to respond.  Plaintiff files waiver in court, effective at filing.  Does not waive any defenses.  If D does not waive, must compensate P for costs of service if no good cause.\n\nGeographic Limitation: can serve process outside state only if state law allows.\n\nImmunity from Service: service not effective while in state to be witness or party in another case.\n\nPleadings\n\nRule 11: attorney or pro se party must sign all papers except discovery documents.  Signing certifies that to best of knowledge/belief after reasonable inquiry, (1) paper not for improper purpose, (2) legal contentions warranted by law, and (3) factual contentions have evidentiary support.  This is a continuing certification each time advocated in court.  Sanctions available to deter (rather than punish), and can be non-monetary.  Prior to imposing sanctions, must give opportunity to be heard.  If another party violates Rule 11, a party cannot immediately move for Rule 11 sanctions.  Instead, party serves motion but does not file, and party in violation has 21 days to fix problem.  If she does not, file the motion.  Court, sua sponte, can raise Rule 11, and need not give 21-day safe harbor.\n\nComplaint: must contain (1) statement of grounds of SMJ, (2) short and plain statement of the claim, and (3) demand for relief.  Must allege facts supporting a plausible claim.  Fraud, mistake and special damages must be pled with particularity.\n\n*Defendant\xe2\x80\x99s Response: must be within 21 days after service of process\n\nIssues of Form: made by Rule 12 motion: for more definite statement; motion to strike\xe2\x80\x94aimed at immaterial things (e.g. demand for jury).\n\nRule 12 Defenses: made by Rule 12 motion or answer.\n\nDefense\n\nWhen May be Raised\n\nLack of SMJ\n\nAnytime, even appeal\n\nLack of PJ\n\nMust be raised in first defensive response, or they are waived\n\nImproper Venue\n\n\n\nInsufficient Process (problem with docs)\n\n\n\nInsufficient Service of Process\n\n\n\nFailure to State a Claim\n\nAnytime through end of trial\n\nFailure to Join an Indispensable Party\n\n\n\nAnswer: if D made Rule 12 motion and denied, must serve answer within 14 days of ruling on motion.  In answer, must respond to all allegations by (1) admit, (2) deny, or (3) lack sufficient information to admit or deny.  Cannot use (3) if information is public knowledge or in D\xe2\x80\x99s control.  May also raise affirmative defenses (e.g., SOL, SOF).  You must plead affirmative defenses, or you risk waiving them.\n\nEffect of Failure to Deny: constitutes an admission on any matter except damages.\n\nCounterclaim: claim against an opposing party.  Should be put in answer.  Must assess SMJ for counterclaims as well.\n\nCompulsory: arises from same T&O, and must be filed or waived.  This is the only compulsory claim.  However, if never required to answer (e.g. dismissal succeeds, no waiver.\n\nPermissive: does not arise from same T&O.  May file with answer or assert in a separate case.\n\nCrossclaim: claim against co-party.  Must arise from the same T&O.  Always permissive.\n\nAmending Pleading\n\nRight to Amend: plaintiff\xe2\x80\x94once within 21 days after defendant serves first Rule 12 response.  Defendant\xe2\x80\x94once within 21 days after serving answer.\n\nIf No Right: leave granted if justice so requires.  Court looks to delay, prejudice, and futility of amendment.\n\nVariance: if evidence at trial does not match pleadings, at or after trial plaintiff can move to amend complaint to conform to evidence.\n\nRelation Back: amendment after SOL\n\nTo Join New Claim: if concerns same T/O.\n\nTo Change Defendant: relates back if (1) same T/O, (2) new party knew of case within 120 days of filing, and (3) knew that but for mistake, she would have been named originally.\n\nDiscovery\n\nRequired Disclosures: must be produced even if nobody asks.  Includes disclosure of experts who may be used at trial, written report containing their opinion, data used, qualifications, compensation, etc.\n\nDiscovery Tools: after 26(f) conference unless order permits otherwise.  All can be used to get info from parties, issue often is which can be used to get info from non-parties.  There is a duty to supplement discovery responses if things change.\n\nDepositions: questions oral or written which deponent answers under oath, recorded.  Can depose non-parties, but should be subpoenaed so compelled, and may duces tecum, requiring deponent to bring material.  Party need not be subpoenaed, and notice of deposition is sufficient to compel presence of party.\n\nInterrogatories: questions propounded in writing to another party, answered under oath.\n\nRequests to Produce: request to another party or a non-party if accompanied by a subpoena, to make available certain material.\n\nPhysical or Mental Exam: only available through court order upon demonstrating good cause, of party or someone relevant under party\xe2\x80\x99s control.  Physical or mental condition must be at issue.\n\nRequest for Admission: to a party to admit truth of any discoverable matter.\n\nScope of Discovery: anything relevant to a claim or defense, even if inadmissible, so long as reasonably calculated to lead to discovery of admissible evidence.\n\nPrivilege: cannot discover communication protected by privilege.\n\n*Work Product: cannot discover material \xe2\x80\x9cprepared in anticipation of litigation.\xe2\x80\x9d  Factual WP (e.g. witness statements) can be obtained if (1) substantial need and (2) not otherwise available.  Mental impressions, opinions, conclusions, and legal theories are absolutely protected from discovery.  WP need not be generated by lawyer; can be by party or any representative of party.\n\nClaiming Privilege of Work Product: must claim expressly and particularly describe materials by date, author, recipient, and privilege.\n\nInadvertent Production: notify other party as soon as possible, and other party must await decision on waiver.\n\nEnforcement of Discovery Rules\n\nPartial Violation Sanctions: where party responds to some but not all discovery: can get order compelling response and costs and fees for motion.  If party violates order compelling, can get remedies for total violation, costs and fees of motion, and contempt (except no contempt for refusing to submit to medical examination.\n\nTotal Violation Sanctions: costs and attorneys fees and, on judge\xe2\x80\x99s choice:\n\nEstablishment Order (establishes facts as true)\n\nStrike Pleadings (as to issues re the discovery)\n\nDisallow Evidence from disobedient party\n\nDismiss case (if bad faith)\n\nDefault Judgment (if bad faith).\n\nFor ESI, if failure to produce was due to good faith loss in routine operation of system, no sanctions unless extreme case.\n\nJoining Parties\n\nProper Parties: those who may be joined: (1) arise from the same TO and (2) raise at least one common question.  Then assess SMJ & PJ.\n\nNecessary Parties: absentee must be joined if necessary and joinder feasible.\n\nWho is Necessary: An absentee is necessary if  (1) without absentee court cannot accord complete relief among existing parties; (2) absentee\xe2\x80\x99s interest may be harmed if not joined; or (3) absentee claims an interest which subjects a party to multiple obligations.  Joint tortfeasors are not necessary parties.\n\nCan Absentee Be Joined: feasible if (1) PJ over absentee and (2) joinder will not destroy diversity.  If absentee cannot be joined, must proceed or dismiss the entire case, and might consider alternative forum, likelihood of harm, and whether court can shape relief to avoid potential harm.\n\nImpleader: defendant seeks to join a third-party defendant, usually for indemnity or contribution.  Right to implead within 14 days of serving answer, otherwise leave is required. Not a cross-claim, because TPD is not yet a party.  After TPD joined, plaintiff/TPD can assert claim against each other if arises out of same TO as underlying case.   Always look for SMJ.  However, so long as the third-party complaint does not involve a claim against the original plaintiff, there is no need for diversity among original P and TPD. \n\nIntervention: absentee wants to join pending suit, either as P or D, and court can re-align her.  Intervention must be timely.\n\nIntervention of Right: absentee\xe2\x80\x99s interest may be harmed if not joined and her interest is not adequately represented now.\n\nClass Action\n\nInitial Requirements\n\nNumerosity: too many members for practicable joinder\n\nCommonality: some questions of law or fact in common\n\nTypicality: rep\xe2\x80\x99s claims/defenses typical of those of the class\n\nAdequate Representation: rep will fairly and adequately represent class\n\nMust Fit Within One of Three Types\n\nPrejudice: necessary to avoid harm to class members or party opposing class (e.g., many claims to a limited fund).\n\nInjunctive Relief: seeking for injunction or declaratory judgment because class was treated alike by the other party, but not damages.\n\nDamages: (1) common questions predominate over individual questions, and (2) class action is superior method for handling dispute.  \n\nNotice: for this type only, must provide individual notice of class membership to all reasonably identifiable members, informing that they can opt out, will be bound otherwise, and may enter separate appearance through counsel.  Class representative pays for this notice.\n\nCourt must determine at an early practicable time whether to certify class, and if class certified, class and claims, issues, and defenses must be defined, and court must appoint class counsel.\n\nWho is Bound?  All class members except those who opt out of damages class.  There is no right to opt out of any other class.\n\nSettlement: parties can settle or dismiss certified class action only with court approval.  Court gives notice to class members of potential settlement/dismissal.  Court may allow a second chance to opt out in damages suit at this point.\n\nSMJ: in diversity, for citizenship and amount in controversy, consider rep only.\n\nAdjudication\n\nPre-Trial Adjudication\n\nVoluntary Dismissal: may be allowed on court order, but plaintiff has right to voluntarily dismiss without prejudice by filing written notice of dismissal before defendant answers.  If plaintiff dismisses second case by written notice, it is with prejudice, even if the first case was in state court.\n\nDefault Judgment\n\nFailure to State a Claim: tests only sufficiency of allegations; court ignores legal conclusions and looks only to allegations of fact and asks if accepted as true, would plaintiff win a judgment.  Facts alleged must support plausible claim.  Same motion, if made after answer, is motion for judgment on pleadings.\n\nSummary Judgment: moving party must show (1) no genuine dispute on a material fact and (2) entitled to judgment as a matter of law.  Evidence viewed in light most favorable to non-moving party.  Pleadings can be relevant if they fail to deny or admit something, but otherwise not evidence.  Hearsay or speculation is disregarded.\n\nPre-Trial Conferences: court may hold to process the case and foster settlement, and the final determines all issues to be tried and evidence to be presented, recorded in a pretrial conference order, which supersedes the pleadings.\n\nTrial\n\nJury Trial: \n\nRight: right to jury trial in federal court for civil actions at law.  If case involves both law and equity, jury decides facts underlying the damages claim, but not the equity claim.  Jury issues come first, then equity issues.  \n\nDemand: must be demanded in writing no later than 14 days after service of last pleading raising jury triable issues.  Otherwise waived.\n\nSelection: no limit to strikes for cause, but each side gets only 3 peremptory challenges.  Peremptory must be used in race and gender neutral way, because jury selection is state action.\n\n*Motion for Judgment as a Matter of Law: Directed Verdict: brought after other side has been heard at trial.  Granted if reasonable people could not disagree on the result.  Court views evidence in light most favorable to the non-moving party.  Plaintiff typically can move once, defendant twice.\n\nRenewed JMOL: same, but occurs after verdict.  Must move within 28 days after judgment.  If did not move for JMOL at trial, cannot renew.\n\nMotion for New Trial: where judgment was entered but circumstances require new trial.  Must move within 28 days after judgment.  Many grounds, but common one is prejudicial error at trial makes judgment unfair.  Also available for excessive (Fed & CA) or inadequate (CA) damages where figure \xe2\x80\x9cshocks the conscience.\xe2\x80\x9d\n\nRemittitur: gives plaintiff a choice: can take a lesser amount, or go through a new trial.  Available in both state and federal court.  Court cannot simply lower the figure.\n\nAdditur: gives defendant choice: either pay more, or go through new trial.  Available in CA, but is unconstitutional in federal court.\n\nMotion to Set Aside Judgment\n\nAppellate Review\n\nFinal Judgment Rule: generally, right to appeal only from final judgment\xe2\x80\x94ultimate decision of merits of the entire case.  File NOA in trial court within 30 days of entry of final judgment.  To determine if final, ask if judge has anything left to do on merits.  E.g., denial of motion for new trial is final, grant of remand not final.\n\nCA: final judgment as to one of several parties is final, whereas in federal it would not be.\n\nInterlocutory Review: a number of instances, but here is important one: Court of Appeals has discretion to review order granting or denying certification of class action.  Must seek review in COA (not trial court) within 14 days or order.  Appeal does not stay proceedings unless trial court or COA orders.\n\n*Preclusion: affirmative defense of preclusive effect of prior judgment on merits\n\nApplicable Law: preclusive effect of a judgment is determined by the law of jurisdiction of that initial judgment.\n\nJudgment on Appeal\n\nFederal: entitled to preclusive effect.\n\nCA: not entitled to preclusive effect.\n\nClaim Preclusion: claim cannot be brought if (1) both cases were brought by the same claimant against the same defendant, (2) first case ended in a valid final judgment on the merits, and (3) both cases asserted same cause of action or claim.\n\nOn the Merits: presumed unless states otherwise or based on jurisdiction, venue, or indispensable parties.  Default judgment is on the merits, as is judgment based on discovery abuse.\n\nSame Cause of Action/Claim\n\nFederal: same T/O\n\nCalifornia: same \xe2\x80\x9cprimary right\xe2\x80\x9d invaded.  If a single accident caused both personal injuries and property damage, there are two causes of action for different rights, and a later claim is allowed on the different right (even though same T/O).\n\nIssue Preclusion: precludes relitigation of particular issue if (1) first case ended with valid final judgment on the merits, (2) same issue was actually litigated and determined, (3) issue was essential to judgment, (4) preclusion sought against someone who was a party to the first case, and (5) preclusion sought by someone who was a party to the first case or falls into a non-mutuality exception.\n\nActually Litigated & Determined: must actually have been decided, not default or judgment for discovery problems.\n\nSought By Whom: traditionally, must be sought by someone who was a party to the first case (mutuality), but modern practice dispenses with this requirement and permits non-mutuality in some cases.\n\nNon-Mutual Defensive IP: used by non-party to first case who is a defendant in second case: permitted if party in first case had a full chance to litigate the issue there.\n\nNon-Mutual Offensive IP: used by non-party to first case who is plaintiff in second case: permitted if fair: consider whether (1) full and fair opportunity to litigate; (2) multiple suits foreseeable; (3) non-mutual party could not have joined easily in original suit; and (4) no inconsistent judgments as to issue on record.\n\n\n\n\n\nEssay Tip:\n\n\n\n1.  Always assess SMJ and PJ on each claim and party.'


b'Evidence Outline\n\n\n\nI.  Relevance\n\nGeneral Rule: to be admitted, evidence must (1) be offered to prove a fact of consequence and (2) make that fact more or less probable. \n\nCA: fact of consequence also must be in dispute.\n\nGeneral Exception: Courts can exclude evidence if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. \n\nPolicy-Based Exclusionary Rules\n\nLiability Insurance: cannot be used to prove culpable conduct or ability to pay.  Can be used to prove any other purpose.\n\nSubsequent Remedial Measures/Repairs: cannot be used to prove culpable conduct or that product had defective design.  Does not exclude evidence offered to rebut claim of \xe2\x80\x9cno way to avoid.\xe2\x80\x9d\n\nCA: admissible to prove defective design.\n\nSettlements, Offers to Settle, & Pleas: settlements, offers to settle, offers to plea, and pleas later withdrawn, as well as related statements, inadmissible to prove liability/guilt.  In CA, also discussions during mediation.  Exceptions:\n\nNo Claim Filed or Threatened\n\nNothing in Dispute (e.g., settlement offer on undisputed promissory note).  Rationale: why encourage settlement?\n\nPayments or Offers to Pay Medical Expenses: inadmissible to prove liability for injuries but related statements are admissible, as this is a humanitarian gesture, not a settlement offer\xe2\x80\x94you are not asking for anything in return.\n\nCA: related statements inadmissible.\n\nCA: Sympathy: in civil actions, expressions of sympathy for injury or death are inadmissible, but related statements of fault admissible.\n\nSimilar Occurrences Exception: sometimes, evidence about other people, things or events is relevant when there are similarities between that evidence and the people or events at issue in instant matter.\n\nSimilar Accidents Caused by Same Event or Condition: relevant to prove causation.\n\nPlaintiff\xe2\x80\x99s Prior Claims: relevant to prove (1) pattern of fraudulent claims or (2) preexisting (medical) condition.\n\nIntent at Issue: prior similar occurrences may be relevant to draw an inference of intent from a person\xe2\x80\x99s prior conduct.\n\nRebut Defense of Impossibility: relevant to prove that claimed incident is possible, and not fabricated.\n\nComparable Sales: relevant to establish value of property.\n\nHabit: evidence of specific, frequently repeated conduct (which conveys no moral judgment) is relevant to prove that a person acted in the same way on the occasion in question.\n\nDistinguish from Character Evidence, which says something general about a person and conveys moral judgment.\n\nRoutine Business Practice: relevant to show business acted in similar way on the occasion in question.\n\nIndustrial Custom: relevant to prove standard of care.\n\nCharacter Evidence Exception: evidence that says something general about a person and conveys moral judgment, but is arguably irrelevant because it does not address specific issues, offered to prove conduct/propensity in this case.\n\nCivil Case\n\nRule: Inadmissible to prove conduct.\n\nExceptions: only FRE.\n\nCharacter at Issue: e.g., defamation, negligent entrustment, child custody, loss of consortium.\n\nSexual Assault: character evidence admissible to prove conduct in sexual assault or child molestation case.  Unavailable in CA.\n\nIf exception applicable, any method may be used to establish character.\n\nCriminal Case\n\nDefendant\xe2\x80\x99s Character\n\nBy Defendant: may offer evidence of his own good character for a relevant trait.\n\nBy Prosecution: inadmissible, unless:\n\nSexual Assault or Child Molestation\n\nCharacter Comparison: if defendant offers victim\xe2\x80\x99s character, prosecution can offer defendant\xe2\x80\x99s character for same trait.  CA: exception limited to trait of violence.\n\nDefendant Opens Door: admissible to rebut with evidence of bad character for same trait.\n\nCA: Domestic Violence/Elder Abuse\n\nVictim\xe2\x80\x99s Character\n\nBy Defendant: admissible, by Reputation or Opinion only.\n\nBy Prosecution: inadmissible unless\n\nDefendant Opens Door: may rebut.\n\nHomicide Case: if defendant offers evidence victim attacked first, prosecution can offer evidence of victim\xe2\x80\x99s character for peacefulness.  Homicide case only.  In CA, no such exception.\n\nSpecial Rule For Defendant\xe2\x80\x99s State of Mind: defendant may offer evidence of his own knowledge of the victim\xe2\x80\x99s bad character for violence for the purpose of showing that he reasonably believes in the need to use self-defense.  This shows only belief, not victim\xe2\x80\x99s propensity, so it is ok.  Any form is allowed (even Specific Acts).  \n\nForm of Character Evidence: on Direct Examination, Reputation & Opinion.  On Cross Examination, Reputation, Opinion, & Specific Acts.  If witness denies knowledge of Specific Acts, offerror not allowed to prove them.  In CA, no Specific Acts for Defendant\xe2\x80\x99s character, but for victim\xe2\x80\x99s character, Specific Acts admissible on both direct and cross.\n\nRape Shield Rule: in a case involving alleged sexual misconduct, the defendant ordinarily may not introduce evidence of the victim\xe2\x80\x99s reputation for promiscuity or the victim\xe2\x80\x99s prior sexual conduct unless offered to prove:\n\nConsent: evidence of victims sexual activity with the defendant, but only if the defense is consent\n\nWrong Guy: evidence of the victim\xe2\x80\x99s sexual activity with others, but only to prove that someone other than the defendant was the source of the physical evidence.\n\nBad Act Evidence Offered for Other Purposes: specific incidents of defendant\xe2\x80\x99s bad conduct may be offered for permissible purpose apart from propensity to commit alleged conduct, including MIMIC: Motive, Intent, absence of Mistake or accident, Identity (must be similar and unique), part of Common scheme or plan. \n\nII. Forms of Evidence\n\nWitness Testimony\n\nCompetency: witness (1) has personal knowledge, (2) must testify from present recollection, (3) be able to communicate, and (4) takes an oath.   CA: witness also must understand her legal duty to tell the truth.\n\nCA: Hypnosis: hypnotically-refreshed testimony inadmissible unless, in a criminal case, hypnotized by police using proper manner.\n\nDead Man\xe2\x80\x99s Statute: does not exist under Federal law.  In some states, in a civil suit against an estate, an interested party is not competent to testify about a transaction or conversation with a dead man.\n\nObjections to Form of Questions or Answers: must be timely and specific:\n\nLeading Question: permissible on cross, impermissible on direct unless: preliminary introductory matters, youthful or forgetful witness, hostile witness (turns on you), adverse party or someone under control of adverse party.\n\nOthers: Calls for Narrative; Non-Responsive; Cross-Examination Outside Scope of Direct; Assumes Facts Not in Evidence; Argumentative; Compound.\n\nWritings in Aid of Oral Testimony (not as evidence themselves)\n\nPresent Recollection Refreshed: witness may not read from a prepared memo, but must testify on basis of current reflection.  However, if a witness forgets something he once knew, he may be shown anything to refresh his memory.  To prevent abuse, opposing party may inspect refresher, use it in cross, and enter it into evidence.\n\nPast Recollection Recorded (hearsay exception): writing may be read to the jury as a past recollection recorded if the witness (1) once had personal knowledge, (2) now forgets, (3) the writing was either made or adopted by witness, (4) the writing was made when the event was fresh in memory, and (5) witness can attest that, when made/adopted, the writing was accurate.\n\nOpinion Testimony: inadmissible, unless\n\nLay Opinion: rationally based on witness\xe2\x80\x99s perceptions and helpful to the trier of fact\xe2\x80\x94i.e., gives the jury more information than would testimony limited to facts.  E.g., sobriety, emotions, speed.  Cannot be on expert subjects.\n\nCA: can be based on specialized knowledge, subject to court discretion.\n\nExpert Opinion: admissible if\n\nHelpful to Jury: expert is using specialized knowledge to reach a conclusion the jury could not otherwise reach.\n\nExpert is Qualified: must have specialized knowledge, however acquired (e.g. university, experience).\n\nOpinion is to Reasonable Degree of Certainty\n\nOpinion is Based on Proper Foundations: either Admitted Evidence, Personal Knowledge, or Inadmissible Evidence Reasonable Relied On by experts in the area.\n\nOpinion is Based on Reliable Principles Reliably Applied\n\nScientific Reliability Test: Daubert: weigh the following factors: (i) has the methodology been tested, (ii) are there known rates of error, (iii) has the methodology been subject to peer review, (iv) has the methodology been reasonably accepted?\n\nCA: Frye: reliability is determined only by whether opinion is based on principles generally accepted by experts in the field.  This is more limiting standard.  Unaffected by Prop. 8.\n\nGeneral Reliability Test (Science & Non-Science): Kumho Tire: must be reliable from common sense/logic perspective.\n\nLearned Treatise Exception: a learned treatise (often used by experts in aid of testimony) admissible to prove anything stated therein if it is an accepted authority in the field.  CA: only admissible to show matters of general notoriety or interest.\n\nCredibility, Impeachment, & Rehabilitation of Testifying Witness\n\nEvidence of Credibility: inadmissible, unless credibility has been called into question.  Note: this is not about relevance; credibility of a testifying witness is generally relevant.\n\nImpeachment Evidence\n\nTypes\n\nIntrinsic: witness\xe2\x80\x99s own statements at this trial.\n\nExtrinsic: evidence other than testimony given at this proceeding by witness being impeached.\n\nMethods\n\nContradiction: showing that witness made a mistake or lied about any fact she testified to during direct.  If the contradiction goes to an issue that is significant to the case, it may be proven by extrinsic evidence.  If the contradiction goes to matter that is collateral, proof is limited to intrinsic evidence, and cross-examiner is stuck with W\xe2\x80\x99s answer.\n\nPrior Inconsistent Statements: admissible to prove witness made an inconsistent statement (i.e., to impeach), but not admissible to prove the truth of the prior inconsistent statement (hearsay), unless\xe2\x80\x94under federal law\xe2\x80\x94given under oath.  Extrinsic evidence impermissible to impeach on collateral matter, but permitted for significant matter.  Foundation: to introduce extrinsic evidence, witness must be given an opportunity to explain or deny the prior inconsistent statement.  \n\nCA: Hearsay whenever offered to prove the truth, but still admissible under exception that extends to all prior statements, even if not under oath.\n\nBias, Interest or Motive: Bias may be proven by intrinsic evidence, and may only be proven by extrinsic evidence if witness given an opportunity to explain or deny. \n\nConvictions\n\nFederal\n\nAny Crime of Lying: admissible for impeachment, and no balancing of unfair prejudice even though might be used for other purpose (except for old convictions).\n\nNon-Lying Crime: felonies may be admissible to impeach, but can be excluded for unfair prejudice.  Misdemeanors not admissible.\n\nConviction (or release from prison, whichever is later) must be within 10 years of trial, unless probative value outweighs unfair prejudice.  \n\nCalifornia\n\nAll felonies for moral turpitude (lying, violence, theft, sexual misconduct, or extreme recklessness) are admissible subject to balance of probative value and prejudice.  Other felonies, and all misdemeanors, inadmissible.  Prop. 8 might make misdemeanor conviction for moral turpitude relevant.\n\nNo age limit on conviction.\n\nConviction may be proved by extrinsic evidence. \n\nPrior Bad Acts\n\nFederal: Admissible to impeach if the acts involved lying, but extrinsic evidence inadmissible.\n\nCA: inadmissible.  But Prop. 8 might make it relevant in criminal cases, if an act of moral turpitude, provable by any means.\n\nReputation/Opinion Concerning Truthfulness: admissible, and may be proven by extrinsic evidence.\n\nRehabilitation Evidence: Prior Consistent Statement: may be used to rehabilitate only if the opposing party has suggested through impeachment that the witness has a motive to lie, and the statement was made before the motive to lie arose.  At federal law, admissible both to rehabilitate and as substantive evidence that prior statement is true.  \n\nWritten (Non-Testimonial) Evidence\n\nAuthentication: the party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be\xe2\x80\x94i.e., foundation.\n\nAuthenticating Writings: if the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing.\n\nTestimony by witness with personal knowledge (\xe2\x80\x9cI wrote it\xe2\x80\x9d; \xe2\x80\x9cI saw X write it\xe2\x80\x9d).\n\nProof of the Author\xe2\x80\x99s Handwriting by lay opinion (must be familiar with X\xe2\x80\x99s handwriting as a result of experience in the normal course of affairs, not as a result of preparation for the litigation), expert opinion and comparison (expert must be qualified and must compare document to a genuine sample or exemplar of X\xe2\x80\x99s handwriting), or jury comparison (trier of fact compares document to a genuine sample or exemplar of X\xe2\x80\x99s writing).\n\nSolicited Reply Doctrine: a document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.\n\nAncient Document Rule: authenticity may be inferred if the document is (i) at least 20 years old (federal), (ii) is facially free of suspicion, and (iii) is found where the document would be expected.\n\nCA: must be at least 30 years old.\n\nSelf-Authenticating Documents: no foundation necessary for: official (governmental) publications, certified copies of public or private documents on file in public office, trade inscriptions and labels, acknowledged documents (basically notarized docs), commercial paper (checks, promissory notes), and certified business records \xe2\x80\x93 offered under the business records hearsay exception (must be certified by someone within the business who knows how the records are regularly made and that these documents were made in the regular way at or about the time of the event recorded).\n\nCA: trade inscriptions are not self-authenticating.\n\nAuthenticating Photos & Recordings: depends on purpose\n\nAs Demonstrative Evidence: authenticated by witness testifying, based on personal knowledge, that the photo is a fair and accurate representation or the people or objects portrayed.  No need to know photographer\xe2\x80\x99s identity.\n\nAs Silent Evidence (is itself evidence): party offering such evidence must show that (i) the camera was properly installed and working, (ii) the film was properly removed and developed, and (iii) the film has not been tampered with (most common way to show third element is by chain of custody).\n\nAuthenticating Non-Unique Items: requires chain of custody.  Little breaks in chain not problematic, big breaks potentially problematic.\n\nBest Evidence Rule: if a party seeks to prove the contents of \xe2\x80\x9cwriting\xe2\x80\x9d\xe2\x80\x94a tangible collection of data (documents, recordings, pictures, x-rays, films)\xe2\x80\x94the party must either produce the \xe2\x80\x9coriginal writing,\xe2\x80\x9d or provide an acceptable excuse for its absence.  If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony to prove the contents.\n\nWhen Applicable: (1) the writing is a legally operative document, or (2) the witness is testifying to facts learned solely from reading about them in the writing.\n\n\xe2\x80\x9cOriginal Writing\xe2\x80\x9d: duplicate admissible to the same extent as original, and thus no excuse or court approval necessary, unless there is a genuine question about the authenticity of the duplicate or it would be unfair to admit the duplicate.  Handwritten copy is not duplicate.\n\nCA: handwritten copy is admissible.\n\nValid Excuses: a party need not produce the original (or an acceptable duplicate) if the original (1) is lost or cannot be found with due diligence, (2) has been destroyed without bad faith, or (3) cannot be obtained with legal process.  In these cases, oral testimony as to contents is permitted to prove contents.\n\nException for Voluminous Documents: can be presented through a summary chart, provided the originals are admissible and available for inspection.\n\nCA: called \xe2\x80\x9cSecondary Evidence Rule\xe2\x80\x9d\n\nJudicial Notice: a court may take judicial notice of indisputable facts, which come in two forms: (i) matters of common knowledge within the court\xe2\x80\x99s territorial jurisdiction, and (ii) matters capable of easy verification by resort to unquestionable sources.  Procedure: judicially noticed facts may be taken at any time, including on appeal, and judicially noticed facts are considered conclusive in civil cases, but not in criminal cases, where they are up to jury to decide whether to accept.\n\nCA: whether requested or not, court must take judicial notice of matters generally known within jurisdiction.  Also, both civil and criminal juries must accept judicially-noticed fact.\n\nIII. Privileges\n\nState vs. Federal Court\n\nPrivilege\n\nFederal\n\nCA\n\nAttorney-Client\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nSpousal\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nPsychotherapist-Patient\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nSocial Worker - Client\n\n\xc2\xa0\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nDoctor-Patient\n\n\xc2\xa0\n\n\xe2\x88\x9a\n\nClergy-Penitent\n\n\n\n\xe2\x88\x9a\n\nCounselor-Violence\n\n\n\n\xe2\x88\x9a\n\nReporter Immunity\n\n\xc2\xa0\n\n\xe2\x88\x9a\n\n\t  Note: in a federal civil action under diversity jurisdiction, state privileges apply.\n\nAttorney-Client\n\nRule: confidential communications between attorney and client (or their representatives) made to facilitate legal services/advice will be privileged unless the privilege is waived by the client or an exception applies.\n\n\xe2\x80\x9cAttorney\xe2\x80\x9d: includes representative of the attorney\xe2\x80\x94anybody hired by the attorney to assist in representation.\n\nRule for Corporations \n\nFederal Law: applies to communications by employees if the corporation authorized the employee to communicate to the lawyer on behalf of the corporation.\n\nCA: applies if this is the natural person to speak on behalf of corporation on the matter or the employee did something for which the corporation may be held liable and is told to tell lawyer what happened.\n\nMere Witness: no privilege where employee is mere witness.\n\nWaiver: client holds privilege, and alone has power to waive.  Privilege continues after relationship ends, and even after client\xe2\x80\x99s death.\n\nCA: privilege ends upon distribution of decedent\xe2\x80\x99s estate and discharge of executor.\n\nExceptions: in furtherance of crime or fraud; when client puts legal advice in issue (e.g. in tax fraud prosecution; D defends on ground that she relied on legal advice); attorney client dispute (e.g. legal malpractice).\n\nCA: Dangerous Client: additional exception where, at time of communication, lawyer reasonably believes disclosure is necessary to prevent a crime likely to result in substantial bodily harm.  Not privileged even if, at time of trial, danger has passed.\n\nMedical Professional\n\nPsychotherapist-Patient or Social Worker-Client: communication intended by patient to be confidential and made to facilitate rendition of psychological services is privileged unless waived.\n\nCA: Doctor-Patient: Not under federal law.  Prevents disclosure of pertinent communication or information confidentially conveyed for purpose of obtaining diagnosis or treatment.  Does not cover doctors hired for litigation testimony.\n\nExceptions: (1) patient puts condition in issue; (2) professional\xe2\x80\x99 services sought to aid in crime or fraud or to escape capture  (3) malpractice cases.\n\nAdditional CA Exceptions \n\nPsychotherapist privilege does not apply if reasonable cause to believe patient is danger to himself or others and disclosure is necessary to end that danger.\n\nDoctor-patient not recognized in criminal cases or for information required to be disclosed to authorities.\n\nSpousal Privileges\n\nSpousal Communication Privilege: confidential communications between spouses will be privileged, so long as the communication was made while they were still legally married, even if at time of litigation, they aren\xe2\x80\x99t married.  May be waived only by both spouses (one is not enough).\n\nSpousal Immunity (Spousal Testimony Privilege): in a criminal case, current spouse cannot be compelled to testify against spouse about any matter that occurred before or during the marriage (so long, of course as they are still married at the time of trial).  Witness (spouse) holds the privilege, and may waive it unilaterally and testify.\n\nCA: applies in both civil and criminal, need not assert privilege on the stand. \n\nExceptions to Both Privileges: do not apply to communications or acts in furtherance of a crime, or destructive of the family unit, or in action involving domestic violence/child abuse.\n\nAdditional CA Privileges\n\nCounselor and Victim of Sexual Assault or Domestic Violence\n\nClergy-Penitent\n\nImmunity from Contempt of Court to News Reporter\n\nIV. Hearsay\n\nRule: absent an exception, an out of court (this court in this case) statement (written, oral, or assertive) by a person offered to prove the matter of the truth asserted is hearsay and inadmissible.\n\nFour Principal Categories of Non-Hearsay Purposes\n\nImpeachment: a prior inconsistent statement may be offered to show that the witness is an inconsistent person, without necessarily being offered to prove the truth of the prior statement. \n\nVerbal Acts (Legally Operative Words): Words with independent legal significance (when the law attaches rights and obligations to certain words simply because they are said, regardless of whether they are true or believed or intended to do something) are not hearsay.  E.g. \xe2\x80\x9cI accept the offer,\xe2\x80\x9d words of defamation, \xe2\x80\x9cyou can drive my car for the weekend.\xe2\x80\x9d\n\nTo Show Effect On Person Who Heard or Read Statement: a statement that is relevant simply because someone heard it or read it is not hearsay.  Thus statements that put a person on notice of a danger may be used to prove notice, but not to prove that there was in fact a danger.\n\nCircumstantial Evidence of Speaker\xe2\x80\x99s State of Mind: a statement that unintentionally reveals something about the speaker\xe2\x80\x99s state of mind is not hearsay.\n\nExclusions From Definition of Hearsay (even though being used to prove truth of matter asserted).  Tip: excluded from definition because in each, the declarant is present in court.  In CA, all exclusions are considered exemptions.\n\nStatement of Party Opponent: any statement by party or by person whose statements can be attributed to party offered by party opponent.  No limits for personal knowledge, legal conclusions, etc.\n\nDistinguish Declarations Against Interest, which must, at time made, be against interest, may be made by any party, and are an exception, not exclusion, to hearsay.\n\nVicarious Admissions: admissible if made by (1) authorized agent/spokesperson; (2) agent/employee, if it concerns a matter within the scope of the agency or employment, and was made during the agency or employment, regardless of authority to speak; (3) other, and was adopted, or (4) co-conspirators if made in furtherance and course.\n\nCA: employee statement is admissible admission of employer only where employer is liable for employee\xe2\x80\x99s accompanying conduct, e.g., employee\xe2\x80\x99s negligence is basis of employer\xe2\x80\x99s liability.\n\nPrior Statements of Current Trial Witnesses\n\nPrior Inconsistent Statement if made under oath during formal proceeding.  In CA, admissible however made.\n\nPrior Consistent Statement used to rebut an accusation of a motive to lie, and made before motive to lie arose.\n\nStatement of Identification made after perceiving the person.\n\nExceptions to Hearsay Rule: may be offered to prove truth of the matter asserted\n\n\n\nException\n\nDeclarant\n\nFormer Testimony\n\nMust Be Unavailable\n\nStatement Against Interest\n\n\n\nDying Declaration\n\n\n\nExcited Utterance\n\nAvailability Irrelevant\n\nPresent Sense Impression\n\n\n\nDeclaration of Then-Existing Physical or Mental Condition\n\n\n\nStatement for Purpose of Medical Treatment or Diagnosis\n\n\n\nBusiness and Public Records, Judgment of Conviction\n\n\n\n\n\nGround of Unavailability\n\nFederal\n\nPAILS\n\nCA\n\n\n\nPrivilege\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nAbsence from jurisdiction\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nIllness or death\n\n\xe2\x88\x9a\n\n\xe2\x88\x9a\n\nLack of memory on subject\n\n\xe2\x88\x9a\n\n\xc2\xa0\n\nStubborn refusal to testify despite order\n\n\xe2\x88\x9a\n\n\xc2\xa0\n\nTotal Memory Loss\n\n\xc2\xa0\n\n\xe2\x88\x9a  \n\nRefusal to Testify Out of Fear\n\n\xc2\xa0\n\n\xe2\x88\x9a  \n\n\n\nDeclarant\xe2\x80\x99s Former Testimony: where declarant (need not be party) is unavailable, testimony given by declarant in an earlier proceeding or deposition can be admissible:\n\nIn Any Case: where party against whom now offered was party earlier and had, during earlier proceeding, opportunity and similar motive to exam.\n\nIn CA, additional exception when former testimony is offered today against person or successor-in-interest to person who offered it previously.  In such a case, no requirement for opportunity or motive. \n\nIn Civil Cases Only: party against whom now offered had a predecessor in interest with opportunity and similar motive to exam.  Federal law requires privity-like relationship, CA does not, and only requires similarity.\n\nCA: deposition testimony also admissible if declarant >100 miles from courthouse (i.e., addition ground for unavailability).\n\nStatements Against Interest: where declarant is unavailable, statement is admissible if, when made, was against the declarant\xe2\x80\x99s financial or penal interest.  However, in a criminal case, statement against penal interest offered to exculpate defendant must be supported by corroborating circumstances.\n\nCA: interests include social interests.\n\nDying Declaration: where declarant is unavailable, statement by one believing he is about to die (he need not actually die), describing cause or circumstance leading to death, is admissible in any civil case, but not in any criminal case except homicide.\n\nCA: applies in both civil and criminal, and declarant must be dead.\n\nExcited Utterance: regardless of availability, statement concerns a startling event, and was made while the declarant was still under the stress caused by the event (even if some time has passed).\n\nPresent Sense Impression: regardless of availability, statement describing event or condition made while or soon after perception.\n\nCA: narrower: only admits statement explaining conduct of declarant made while engaged in that conduct.\n\nDeclaration of Then-Existing Physical or Mental Condition: regardless of availability, a (1) contemporaneous statement (2) concerning the declarant\xe2\x80\x99s then-existing physical condition or state of mind, including intent or future plans, but (3) not including a statement of memory or belief about a past condition.\n\nStatements for Purpose of Medical Treatment or Diagnosis: regardless of availability, statement made (by anyone) to a medical professional concerning present symptoms, past symptoms, or general cause of the medical condition, for the purpose of diagnosis or treatment.  Does not include statements about fault or identity of wrongdoer.\n\nCA: narrower: admits only statements if made by minor describing act of child abuse or neglect.\n\nBusiness Records Exception: regardless of availability, (1) made in the regular course of business, (2) contemporaneously (at or about the time of the event recorded), (3) the business regularly keeps such records, and (4) the contents of the statement consist of either information observed by employees of the business, or a statement that falls within some other hearsay exception.  Note: if report contains statement, must be statement of person with a business duty to transmit such matters to the reporter.  For police reports, witnesses are under no business duty to convey statements.  Records prepared in anticipation of litigation do not count.\n\nCA: Where business records include opinions or diagnoses, courts will admit simple, but not complex, opinions or diagnoses.\n\nPublic Records Exception: regardless of availability, admissible if: (1) describes activities and policies of the public office; (2) describes matters observed pursuant to duty imposed by law, except, in criminal cases, for police reports; or (3) contains fact-findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy, except, may not be used in criminal cases.  However, in both FRE & CA, statements contained within records must meet separate hearsay exception.\n\nCA: broader: admits record made by public employee if making record was within scope of her duties, made at or near time of event described, and circumstances show trustworthiness.  Thus admits police reports, and factfindings, even in criminal cases.\n\nJudgments of Conviction: regardless of availability, admissible to prove any fact essential to that judgment.  In criminal case, when offered by prosecution for any purpose other than impeachment, a judgment against person other than the accused is inadmissible.\n\nCA: exception applies only in civil, not criminal, cases.  But, certified copy of conviction is admissible under public records exception, in both civil and criminal cases.\n\nCatch-All: if not covered by specific exception, federal law permits if: trustworthy, necessary, and notice given to adversary.\n\nAdditional CA Hearsay Exceptions\n\nStatement Describing Infliction or Threat of Physical Abuse: where declarant is unavailable, made at or near the time of injury or threat and describing or explaining the infliction or threat of injury in writing or recorded or made to police or other professionals and circumstances seem trustworthy.\n\nDeclaration of Past Physical or Mental Condition (including intent): where declarant is unavailable, to prove condition if that condition is at issue in the case.  No need for seeking medical care.\n\nHearsay & Confrontation Clause: even if otherwise admissible under a hearsay exception, in criminal cases, the 6th Amendment requires that the defendant be confronted with the witnesses against him; prosecution may not offer testimonial hearsay in violation of D\xe2\x80\x99s right to cross-examine declarant.  \xe2\x80\x9cTestimonial\xe2\x80\x9d includes grand jury testimony, statements in response to police interrogation if the primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecution (i.e., investigation), and police reports.  Does not include statements in police interrogation whose primary purpose is the enable police assistance to meet ongoing emergency, or business records.\n\nV. California Constitutional Rule in Criminal Cases: Prop 8: All relevant evidence is admissible in a criminal case even if objectionable under the Evidence Code.  \n\nRelevance: Prop. 8 only applies to relevant evidence, so if evidence is not relevant for any reason (e.g., character), Prop. 8 is inapplicable and does not permit evidence.  However, impeachment evidence of almost any kind is relevant, and thus Prop. 8 can override its otherwise inadmissibility.\n\nExceptions (i.e., objections still viable in criminal cases)\n\nExclusionary Rules Under U.S. Constitution\n\nHearsay\n\nPrivilege\n\nLimits on Character Evidence\n\nSecondary Evidence Rule\n\nSection 352: unfair prejudice substantially outweighs probative value\n\n\n\n\n\nEssay Tips\n\n\n\n1.  Always address relevance for every item of evidence., even if obvious.  Address even obvious issues.\n\n2.  Raise and resolve as many objections as you can to each item of evidence, even if told to assume all objections have been raised.  Ask to strike for improper form.\n\n3.  Always keep general exception for unfair prejudice in mind, especially where evidence admissible for one thing but not another.\n\n4.  For any exclusionary rule, evidence may be used for any purpose other than that specifically excluded.\n\n5.  Always mention all possible exceptions for hearsay that apply to a given statement.\n\n6.  If no jurisdiction is provided, only address FRE.  Address CA only if asked.\n\n7.  On CA questions: raise all objections under Evidence Code; for each objection, mention if Prop. 8 overrules the objection or if exception applies; always balance for unfair prejudice.\n\n8.  If the question asks about introduction of evidence regarding conduct/events other than conduct/events in this case, it is a relevance issue.\n\n9.  Sometimes, a potentially hearsay statement must be broken in two, as one hearsay exception applies to one part, but the other part requires a different hearsay exception.'


b'Corporations\n\n\n\nCorporate Formation\n\nPre-Incorporation Contracts\n\nPromoters: person acting on behalf of a corporation not yet formed.\n\nCorporate Liability: the corporation becomes liable on a promoter\xe2\x80\x99s pre-incorporation contract when the corporation adopts the contract by (1) express board resolution or (2) implied adoption through knowledge of the contract and acceptance of its benefits.\n\nPromoter Liability: retains liability until novation\xe2\x80\x94an agreement between promoter, corporation and third-party replacing promoter.\n\nFiduciary Duty: promoters are fiduciaries of each other and of corporation, and cannot make secret profit in dealing with them.  If promoter acquires property before becoming promoter, she can sell to corporation and profit so long as price if FMV.  If promoter acquires property after becoming promoter, cannot profit at all from resale to corporation, even if FMV.\n\nSubscribers: persons or entities who make written offers to buy stock from a corporation not yet formed.  A pre-incorporation offer to buy stock is irrevocable for 6 months.\n\nDe Jure Corporate Status\n\nIncorporator: person merely signs and files articles of incorporation.\n\nArticles of Incorporation: must contain all 5:\n\nAuthorized Shares: maximum number of shares the corporation is authorized to issue.\n\nPurpose: a general purpose and perpetual duration are valid and presumed in the absence of a specific purpose or limited duration.  A specific purpose or limited duration is valid, but anything beyond would be ultra vires, in which case (1) state can enjoin the ultra vires act and (2) corporation may sue its own directors and officers for losses cause by act.  If not enjoined, act can be valid, but damages still available for losses.\n\nAgent: name and address of registered office.\n\nIncorporators: names and addresses.\n\nName: must contain indicia of corporate status.\n\nBy-Laws: Articles need not contain by-laws.\n\nDe Facto Corporation: if you fail to achieve de jure status but made good faith, colorable attempt to comply with formalities and had no knowledge of lack of corporate status, treated as a corporation.\n\nLegal Significance of Corporate Form: generally, corporation is a separate legal person.  Generally, shareholders are not personally liable for debts of corporation.\n\nPiercing the Corporate Veil: courts will pierce to avoid fraud and unfairness, and to render a shareholder liable for corporate liability, if either (1) alter ego or (2) undercapitalization.  Courts likely to pierce for tort victims against controllers.\n\nAlter Ego: controlling owner fails to observe sufficient corporate formalities.\n\nUndercapitalization: fails to maintain sufficient funds to cover foreseeable liabilities at time of formation.\n\nForeign Corporations: to engage in regular intrastate business, must file Cert. of Authority with Sec. of State which includes same information required in Articles.\n\nIssuance of Stock by Corporation\n\nConsideration: what must corporation receive for issuing own stock?\n\nPar Value Stock: at least par value\xe2\x80\x94minimum issuance price.  Can be cash, or other consideration if Board values to be at least par value.  If shares issued for less than par, corporation can recover from directors, who are liable for authorizing below-par issuance.  *Can also recover from buyer.\n\nNo Par Stock: valid, and for this stock need only get consideration deemed adequate by Board.\n\nTreasury Stock: stock previously issued but reacquired by corporation.  Upon resale, deemed no par stock, even if called \xe2\x80\x9cpar\xe2\x80\x9d.\n\nShareholder\xe2\x80\x99s Preemptive Right: right of an existing shareholder to maintain her percentage of ownership by buying up to that percentage whenever corporation issues new shares for cash.  *No right unless expressly granted in Articles.\n\n*Directors & Officers\n\nDirectors: Statutory Requirements\n\nMust have board with at least 1 member.\n\nShareholders elect directors, and can remove with or without cause.\n\nValid Board Meeting: unless all directors consent in writing, a meeting is required.  \n\nNotice must be given, but can be in bylaws.  \n\nProxies are not allowed, nor voting agreements.  \n\nQuorum for Meeting: majority of all directors must be present.\n\nVoting: to pass resolution, need only majority of those present.\n\nEach director presumed to concur in board action unless dissent/abstention is recorded in writing (e.g., minutes).\n\nOfficers: as agents, they may bind corporation by their authorized activities.  Directors have virtually unlimited power to select and remove officers.\n\n*Liability of Directors & Officers to Corporation & Shareholders\n\nDuty to Manage: may delegate to committee of one or more directors that recommend actions.\n\nDuty to Disclose: material corporate information to other directors.\n\nDuty of Care: must act with care a prudent person would use in managing his own business in like circumstances, unless Articles have limited liability for lack of care, which is valid.\n\nBJR: presumption that directors manage the corporation in good faith and in best interests of corporation and shareholders.  Under BJR, directors not liable for innocent mistakes of business judgment, even if colossal.\n\nDuty of Loyalty: may not receive an unfair benefit to the detriment of the corporation or its shareholders.  Conflicted/Interested transactions breach the duty of loyalty unless (1) there has been disclosure of all material terms and independent ratification, or (2) the transaction was fair to the corporation.\n\nSelf-Dealing: receipt of unfair benefit in transaction with corporation.  Remedies: transaction can be enjoined or set aside, and damages may be sought equal to profit.\n\nUsurping Corporate Opportunity: director may not divert a corporate business opportunity to himself without first giving corporation an opportunity to act.  Corporation must have interest or expectancy in opportunity, but lack of financial ability is not a defense.  Remedy: recovery of profits or compel transfer of opportunity to corporation under constructive trust theory.\n\nIndependent Ratification: if approved by (1) majority of independent directors; (2) majority of committee of at least 2 independent directors; or (3) majority of shares held by independent shareholders.\n\nIndemnification: corporation\xe2\x80\x99s duty to indemnify\n\nNever: for directors/officers who lose lawsuit with corporation.\n\nAlways: for directors/officers who win lawsuit against anyone .\n\nMay: for director/officer loss to other or settlement with corporation: if director/officer shows she acted in good faith and in corporations best interest, permissive indemnity may be granted by decision of: (1) majority vote of independent directors; (2) majority vote of committee of at least 2 independent directors; (3) majority vote of shares held by independent shareholders; or (4) special lawyer\xe2\x80\x99s opinion recommending.\n\nRights of Shareholders\n\nShareholder Derivative Suits: shareholder is suing to enforce the corporation\xe2\x80\x99s cause of action.  Ask: could corporation have brought suit itself.  Requires: contemporaneous stock ownership, adequacy, and demand.\n\nContemporaneous stock ownership: at time claim arose and, in most jurisdictions, throughout litigation.\n\nAdequacy: shareholder must fairly and adequately represent the corporation\xe2\x80\x99s interest. \n\nDemand: must be made and rejected by the board or at least 90 days must have passed since demand was made.\n\nVoting\n\nWho Has Right: only \xe2\x80\x9crecord date\xe2\x80\x9d owner votes\xe2\x80\x94voter eligibility cutoff date set by board on any day within 70-day period before meeting.  Right to vote even if no longer own the shares!\n\nProxy Voting: must be (1) writing (fax/email valid); (2) signed by record shareholder; (3) sent to secretary of corporation; (4) authorizing another to vote shares.  Valid for 11 months only.\n\nRevocation: proxies are revocable unless (1) labeled irrevocable and (2) coupled with an interest (e.g., sale of shares to proxy after record date).\n\nWhere to Vote?\n\nAnnual Meeting: every corporation must have annual meeting at which at least 1 director slot is open for election.  Notice must include time & place.\n\nSpecial Meeting: meeting to vote on proposals or fundamental corporate changes.  Notice must include meeting\xe2\x80\x99s special purpose, and nothing else can take place at meeting.\n\nQuorum for Meeting: a majority of all shares (not shareholders) must be represented in person or proxy when meeting starts.\n\nVote: if quorum present, action approved if votes cast in favor exceed votes cast against.\n\nPooled or Block Voting: agreements to vote alike\n\nVoting Trusts: formal written delegation of voting power to a voting trustee for up to 10 years.\n\nShareholder Voting Agreements: written agreement to vote shares as required by the agreement which is binding on all signers.\n\nCumulative Voting for Directors: may multiply number of shares by number of open slots and use in one election in which top vote-getters will win.  Right does not exist unless expressly granted in Articles.\n\nExamine Books & Records: upon 5 days\xe2\x80\x99 written notice + proper purpose\n\nDividends: declared in board\xe2\x80\x99s discretion unless corporation is or would be rendered insolvent by dividend.  Board members liable for unlawful distributions, but have defense of good faith reliance on financial officer\xe2\x80\x99s representations regarding solvency.  Priority of Distribution: \n\nPreferred With Dividend Preference: paid specified dividend preference, remainder given totally to common.  Do not share in common dividend.\n\nPreferred With Dividend Preference & Participation: paid specified dividend preference and then participate as common for next round.\n\nPreferred With Dividend Preference & Cumulative: paid specified dividend for this year and each unpaid prior year, remainder given totally to common.  Do not share in common dividend.\n\nCommon: paid last and equally.\n\nShareholder Agreements to Eliminate Corporate Formalities (Closely-Held Corporation).  Requires: (1) unanimous shareholder election evidenced in the articles, bylaws, or a filed agreement, and (2) some share transfer restriction.  Consequences: (1) no piercing even for failure to observe corporate formalities and (2) possible Subchapter-S corporation status (which allows option of partnership, rather than corporate, tax treatment).  To be S-Corp, can have no more than 100 owners of stock and one class of stock.\n\nProfessional Corporations: a corporation of licensed processionals.\n\nRequirements: (1) organizers file Articles with name designated \xe2\x80\x9cProfessional Corporation\xe2\x80\x9d or \xe2\x80\x9cPC\xe2\x80\x9d; (2) shareholders must be licensed professionals; and (3) corporation may practice only one designated profession.\n\nConsequences: professional are liable personally for their own malpractice, but not liable for debts of other professionals or the corporation.\n\nShareholder Liabilities: generally, shareholders not liable for corporate obligations, absent veil-piercing.  However, a controlling shareholder cannot unfairly prejudice minority.  While it can generally accept premium unavailable to minority, it cannot (1) sell to looter, and must conduct reasonable investigation, (2) sell corporate assets, or (3) sell board positions.\n\nFundamental Corporate Changes\n\nRecognized Fundamental Changes: Merger (A becomes B); Consolidation (A & B become C); Dissolution (A dissolves); Fundamental (not ministerial) Amendment of Articles; Sale (not purchase) of Substantially All Corporate Assets.\n\nProcedural Steps\n\nResolution by Board at Valid Meeting\n\nNotice of Special Meeting\n\nApproval by Majority of All Shares Entitled to Vote, and by Majority of Each Voting Group Adversely Affected.  Exception: no approval required for short-form merger (parent owning 90% or more of sub merges with sub).\n\nDissenter\xe2\x80\x99s Appraisal Right: a shareholder who does not vote in favor of a fundamental change has the right to force corporation to buy her shares at fair value if (1) before vote, filed written notice of objection and intent to demand payment, (2) does not vote in favor, and (3) makes prompt written demand.  If no agreement as to FMV, court can appoint expert appraiser, and appraisal will be binding on parties.\n\nFile Notice With State\n\nFederal Securities Laws\n\nAnti-Fraud: Section 10(b) of SEA: requires (1) scienter\xe2\x80\x94intent to deceive, (2) deception, and (3) in connection with actual purchase or sale of securities.  For money damages, must also prove (4) reliance and (5) loss causation.\n\nDeception\n\nMisrepresentation/Omission (Despite Duty) of Material Fact\n\nInsider Trading\n\nMisappropriator: misappropriates and uses material non-public information to purchase or sell.\n\nTipper: tips for personal benefit to another who trades.\n\nTippee: receives inside information and trades with knowledge that disclosed in breach of tipper\xe2\x80\x99s fiduciary duty.\n\nReliance: investors actually relied or invested at price infected by fraud.\n\nLoss Causation: fraud caused actual economic losses.\n\nStrict Liability for Short-Swing Trading Profits: Section 16(b)\n\nApplication: applies only officers, directors, or more than 10% shareholders of a reporting corporation (listed on a national exchange or with at least 500 shareholders and $10 million in assets.\n\nRule: defendant may not profit from buying and selling corporation\xe2\x80\x99s stock within any 6-month period.  For D/O, purchase/sale before becoming D/O is excluded, but those after ceasing can be included.  For shareholders, must have already been more than 10% owner both at time of initial and subsequent transaction.  No fraud required.  Corporation may recover profit.\n\nSarbanes-Oxley Act: CEO\xe2\x80\x99s and CFO\xe2\x80\x99s of reporting companies must certify that based on their knowledge, reports filed with the SEC are true.  Willful violation punishable by up to $5 million and 20 years.\n\nIf false reports must be corrected and restated, corporation can recover from officer\xe2\x80\x99s benefits made from trading shares of the company within 12-months after the false reports filed, and may recover incentive-based compensation received during that period.\n\nCorporations may also recover any benefits made by officers from trading corporation\xe2\x80\x99s stock during \xe2\x80\x9cblack out\xe2\x80\x9d periods or when employees are prohibited from trading in their retirement plan\xe2\x80\x99s securities.'


b'Professional Responsibility\n\n\n\nEssay Organization\n\n\xe2\x80\x9cThe lawyer has a duty of ________ to ________.\xe2\x80\x9d\n\nKey Duties Owed to Client: Confidentiality, Loyalty, Financial Responsibility, Competence, and other reasonable things.  (Clients Love Fierce Counsel).\n\nKey Duties Owed to Others: Candor, Fairness, Dignity/Decorum, & other reasonable things. (Courts Feel Differently).\n\nDuty of Confidentiality\n\nRule: cannot reveal anything related to the representation of a client.\n\nScope: applies regardless of whether client requested confidentiality or disclosure will harm the client.\n\nTiming: can attach before a lawyer-client relationship is formed, and even if none is ever formed.  To ensure it does not, there must be clear and specific language warning no confidentiality.  Continues beyond death.\n\nDistinguish A-C Privilege: overlaps, but Confidentiality is broader.  Applies regardless of source of information and prevents any kind of disclosure.\n\nConsent: if client consents after consultation, lawyer may reveal otherwise confidential information.  Also, implied consent to reveal what is necessary to render legal services.\n\nSelf-Defense: may reveal information necessary to establish claim or defense in suit involving malpractice, discipline, or payment.\n\nCompulsion: may reveal if compelled by final court order, law, or ethical duty.  \n\nFuture Crimes\n\nDeath/Bodily Harm: attorney may reveal what\xe2\x80\x99s reasonably necessary to prevent reasonably certain death or substantial bodily harm.  Attorney must first, only if reasonable, (1) make a good faith effort to persuade client not to commit act and (2) inform client of decision to reveal confidences.\n\nFraud/Crimes Causing Financial Injury: \n\nABA: attorney may reveal to prevent future crime if (1) client used or using attorney\xe2\x80\x99s services to commit crime and (2) disclosure would prevent or mitigate substantial financial loss.  Attorney must reveal confidential information if it is only way lawyer can avoid assisting in the crime.\n\nCA: no exception.  Cannot reveal.\n\n*Duty of Loyalty / Conflict of Interest\n\n*Rule: cannot have any other interest that materially limits loyal representation or is adverse to client.  If so, and neither absolutely prohibited or permitted, representation is allowed if (1) attorney reasonably believes she can represent everyone effectively, (2) attorney informs each affected client (but if duty of confidentiality prevents disclosure, consent may not be possible), and (3) client\xe2\x80\x99s consent is confirmed in writing.  Unlike the ABA, CA does not use a \xe2\x80\x9creasonable attorney\xe2\x80\x9d standard, applies also to potential conflicts, and only requires written disclosure, not consent, of the client.\n\nPotential vs. Actual Conflicts: both should be discussed.  Same conflict, as question evolves, may be both, and both should be discussed in turn.\n\nKnowledge of Conflict: responsible even if ignorant of conflict, unless it is short-term legal services under court, agency, or non-profit program, in which attorney is responsible only if aware of conflict.\n\nImputed Disqualification: any group of lawyers that work together share each other\xe2\x80\x99s conflicts (but in CA, lawyer won\xe2\x80\x99t be disciplined for imputed conflict).\n\nAttorney With Conflict Joins: conflicts will not be imputed if (1) timely and effectively screen, (2) conflicted attorney receives no direct part of the fee, (3) former client receives notice and periodic certifications of compliance with conditions.  Same for Former Government Lawyers, but no periodic certifications required.\n\nAttorney With Conflict Leaves: group cannot represent client in matter adverse to leaving attorney\xe2\x80\x99s client if (1) matters are substantially related and (2) any remaining lawyer has confidential, material information.\n\nNo imputed conflicts for short-term legal services in public interest.\n\nRemedies/Options: (1) refuse to take the case; (2) advise multiple clients to get separate counsel; (3) withdraw.  Also, screening or an \xe2\x80\x9cethical wall\xe2\x80\x9d for imputed disqualification, and client consent might be required.\n\nClient-Client Conflicts\n\nOpposite Sides of Same Matter/Representation: prohibited.\n\nOpposing Current Client In Another Matter: a representation adverse to a current client in another matter permitted if rule is met, prohibited otherwise.  \n\nCA Statutory Exception: no conflict when lawyer represents policyholder and his insurer as joint client\xe2\x80\x99s where insurer\xe2\x80\x99s interest in each matter is as an indemnitor.  Thus, may sue same indemnitor insurer in another case.\n\nRepresenting Multiple Clients in Same Matter, or acting as intermediary: permitted if rule is met, prohibited otherwise.  In CA, potential conflicts also subject to rule.  Once actual conflict materializes, attorney should withdraw from both and advise clients to get separate counsel.  Must at least withdraw from representing client that attorney possesses favorable confidential information for but cannot use.  In criminal cases, dual representation could violate 6th Amendment right to effective counsel.\n\nNew Clients in Matters Related to Former Client: cannot take on new client with interests materially adverse to former client without the former\xe2\x80\x99s consent.  Moreover, using non-public, confidential information against a former client is unreasonable without consent.\n\nFormer Government Attorneys: ABA: former government attorney who personally and substantially worked on a \xe2\x80\x9cmatter\xe2\x80\x9d cannot work on same matter in private practice without government\xe2\x80\x99s consent.  \xe2\x80\x9cMatter\xe2\x80\x9d is a specific dispute, not simply interpretation of the same rules.  CA disqualifies a prosecutor from later defending in same case.\n\nClients With Inconsistent Positions: positions usually don\xe2\x80\x99t create conflicts, but if either client would be disadvantaged, consent of both must be obtained.\n\nLawyer-Client Conflicts\n\nGifts: attorney cannot solicit substantial gift from client, or draft legal instrument for client who is not a close relative if instrument provides a substantial gift to attorney or relative.\n\nLimiting Liability: cannot limit client\xe2\x80\x99s right to report for ethical or other violations.  Cannot limit malpractice liability, but ABA (not CA) permits if client is independently represented in making agreement.  If client makes a malpractice claim, attorney can only settle after written advice to client to consult an outside attorney first.\n\nPublication Rights Contracts\n\nABA: lawyer cannot accept before representation has ended.\n\nCA: discouraged, but may accept if judge is satisfied that client clearly understands and consents.\n\nLoans & Advances to Clients\n\nABA: forbids financial assistance, except for litigation expenses for an indigent client, and the advance of litigation expenses in contingency cases.\n\nCA: more liberal: forbids promising to pay a prospective client\xe2\x80\x99s debts but permits loans to a client in all matters for any purpose with a written loan agreement.\n\nUse of Information: covered by duty of confidentiality to a client\xe2\x80\x99s disadvantage without consent violated both loyalty and confidentiality.\n\nBusiness Transactions or Adverse Interests (First Discuss Over Coffee): may enter into business with client or obtain adverse interest only if (1) terms are fair to client, (2) disclosed in understandable writing, (3) client has opportunity to consult outside attorney, and (4) client provides consent (in CA, must be written).  E.g., payment in stock.\n\nBoard Service: permitted for both non-profit legal services organization and corporate client, but discouraged for corporate client as likely to compromise loyalty and confidentiality.\n\nTrial Counsel as Necessary Witness\n\nABA: cannot be counsel and witness in same trial unless (1) testimony is uncontested, (2) testimony regards nature and value of services rendered, or (3) attorney\xe2\x80\x99s distinctive value to case means withdrawal would impose a substantial hardship on client.  If testimony might prejudice client, consent required.\n\nCA: less restrictive: attorney can testify in any bench trial, and if client consents in a jury trial.\n\nClose Relationship With Adversary\xe2\x80\x99s Lawyer \n\nABA: cannot oppose party represented by a relative (immediate family) without client consent.  \n\nCA: cannot oppose party represented by an immediate family or other \xe2\x80\x9cintimates,\xe2\x80\x9d but only requires written disclosure, not consent.\n\nThis conflict is personal, and thus not imputed to others.\n\n3rd Party Payment: sole duty is to client, not to any third party.  Payment from 3rd party is permitted if (1) informed consent (CA, in writing), (2) no interference, and (3) confidentiality of client information protected.  \n\nOrganizational Clients: lawyer must act in the best interest of the entity.  Must report legal violations up the chain.  If lawyer reasonably believed disclosure necessary to prevent fraud, perjury, or substantial injury to organization or investors, may report to SEC.  CA prohibits \xe2\x80\x9creporting out,\xe2\x80\x9d but federal preemption permits reporting out in securities cases.\n\nFinancial Duties\n\nAttorney Fees\n\nNon-Contingent: agreement (can be oral) must include (1) how fee calculated, (2) what services are covered, and (3) lawyer\xe2\x80\x99s and client\xe2\x80\x99s duties.  In CA, agreements must be in writing, unless either (1) fee is under $1000, (2) corporate client, (3) for routine services for a regular client, or (4) emergency or impractical.\n\nContingent: agreement must be (1) in writing, (2) signed by client, stating (3) contingent percentage, (4) expenses to be deducted from recovery, (5) whether percent is taken from before after expenses, (6) how work not covered by contingent fee will be paid, and (7) that lawyer fees are negotiable.\n\nWhen Prohibited: ABA: not in family or criminal cases.  CA: is silent, but caselaw allows contingency in DR if doesn\xe2\x80\x99t promote dissolution.\n\nTermination Pre-Contingency: can recover only if client wins, in proportion to work done.\n\nWhen Is Fee Too High?\n\nCA: fees cannot be unconscionably high.\n\nABA: fees must be reasonable taking into account all circumstances.\n\nBilling Multiple Clients For Same Time: CA: permitted if (1) fee to each is not unconscionably high, (2) attorney clearly discloses billing practices at outset of relationship, and (3) client consented.\n\nArbitration: ABA encourages, CA requires if client sues and requests.\n\nFee Splitting\n\nWithin Firm: generally OK to split fees with other lawyers in your law firm.\n\nOutside Firm: may split fees with lawyers outside your firm only if (1) the total fee is ethical and there is (2) written disclosure and (3) client consent.  ABA further requires the division be proportional to work done by each attorney unless each is jointly responsible for action.  Thus, large referral fee typically not OK under ABA because not proportional, whereas in CA permissible if not unconscionable and client consents.\n\nWith Non-Lawyers: generally not permitted, unless (1) death benefits to attorney\xe2\x80\x99s heirs, (2) fees passed on as salaries/benefits to firm employees, and (3) sharing court-awarded fee with non-profit that employed or recommended lawyer.\n\nPartnership With Non-Lawyers: prohibited.  Non-lawyers cannot be partners, shareholders, officers, or control/direct professional judgment.\n\nClient Trust Accounts: duty to safeguard client\xe2\x80\x99s property by labeling and storing in safe place.  Must place money in client trust account.  No borrowing or commingling.\n\nNormally, use an individual interest-bearing account (client gets interest).  Smaller funds held for short periods of time for multiple clients can be deposited together in a pooled account with interest to State Bar to fund indigent services. \n\nDuty to keep good records and keep client notified.  CA: must keep records for 5 years after final distribution.\n\nDisclosure of Professional Liability Insurance: liability insurance not required, but, must disclose in writing lack thereof at time of engagement if representation to require more than 4 hours of work.  Exceptions for gov\xe2\x80\x99t and in-house lawyers.\n\nCompetence & Other Duties\n\n*Duty of Competence: must use the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.  If you don\xe2\x80\x99t know law, cannot take matter unless can learn without undue expense or delay, or associate with competent attorney.\n\nDuty of Diligence: must diligently, promptly and zealously pursue case.\n\nDuty to Communicate: must keep client informed and answer messages, including settlement offer.\n\nAccepting Representation: free to accept or reject any case.  A lawyer should accept the case of defenseless or oppressed if only reason to refuse is selfish.  A lawyer must reject a case if he would violate a law or ethical rule to take it.\n\nScope of Representation: client makes decisions about substantive rights (testify, accept settlement), attorney makes decisions on legal strategy.\n\nDuties on Withdrawal from Representation\n\nMandatory Withdrawal: must withdraw from pending case if fired or if continuing would violate a law or ethical rule.\n\nPermissive Withdrawal: if court satisfied for good cause and withdrawal will not cause undue delay or disruption.  ABA: also if representation will result in unreasonable financial burden.  CA: if client breaches fee agreement.\n\nProcedures for Withdrawal: must (1) provide timely notice to client and (2) promptly return unspent fees and advances and (3) all property and material papers of the client.  Cannot withhold material to get paid.\n\nOther Duties: be reasonable and sensible.\n\nSex: ABA: no consensual sex unless pre-existing relationship.  CA: allows new relationships with cautions (look for something bad).\n\nDuty of Candor to Public & Duty of Dignity to Profession (address separately even if analysis is the same)\n\nConstitutional Floor: state can regulate attorney advertising and solicitation subject to lawyer\xe2\x80\x99s limited commercial speech rights under the 1st Amendment.  Permissible if (1) government asserts a substantial interest, (2) regulation directly advances that interest, and (3) regulation narrowly tailored.\n\nAdvertising: lawyer\xe2\x80\x99s communication with public at large\n\nMust Not be False or Misleading: no material misstatement or omission.  CA: presumes improper any claim that includes guaranties or prediction of result.  No testimonials unless disclaimer.\n\nClaims of Legal Specialties: can explain practice, but cannot advertise specialization unless a certified specialist.\n\nLabeling & Records: Every ad must be labeled as ad, and dramatization must be noted.  Must identify at least one lawyer responsible for contents. Must keep records of content and placement of ads.\n\nSolicitation: lawyer may not seek professional employment for pecuniary gain by initiating a live or telephone contact with a prospective client with whom you had no prior relationship.  Solicitation must be labeled as advertisement.\n\nLive/Telephone Contact: ABA: chat room included.  CA: no violation if solicitation by chatroom.\n\nPresumed Improper: solicitation at scene of accident, en route to or in medical facility, or to clients not in state to exercise judgment.\n\n*Duty of Candor to Court & Duty of Fairness to Adversary (discuss both, even if same analysis)\n\nRule: cannot engage in conduct involving dishonesty, fraud or misrepresentation.  These duties can trump conflicting duties of confidentiality and loyalty.\n\nPresent Facts & Evidence Truthfully: cannot make material misrepresentation or fail to correct a material misrepresentation previously presented.\n\nClient Perjury: cannot knowingly facilitate client perjury (if does not know but reasonably believes, rules are permissive).  In a civil case, must refuse to call witness if he intends to perjure himself.  In a criminal case, must, in following order, going to each next step only if prior doesn\xe2\x80\x99t work: (1) counsel client to testify truthfully or not testify, (2) try to withdraw from the case, and (3) (a) ABA: tell the judge, or (b) CA: allow defendant to testify in narrative fashion.  Attorney\xe2\x80\x99s duties end with proceedings.  If client reveals perjury afterward, can counsel to recant, but need not do anything else.\n\nMay pay basic expenses of witnesses so long as not contingent on content.\n\nDuty to Produce Evidence: attorney must not suppress any evidence that she or client has legal obligation reveal or produce, regardless of loyalty.  Must not obstruct access to or tamper with fruits or instrumentalities of a crime.  Contraband must be delivered to authorities.  Money?  If reasonably certain that instrumentality, should turn it over.  If attorney/investigator sees contraband but does not touch, no problem.  If touches, may be compelled to produce/testify because she moved or altered it.\n\nProsecutor\xe2\x80\x99s Duty: must timely disclose favorable evidence to defense, regardless of admissibility or impact on outcome.  Broader than Brady.\n\nNo Ex Parte Communications (unless permitted by law).\n\nDuty to State Law Truthfully: must also cite to adverse controlling precedent.\n\nDuty to Uphold Law: cannot assist in crime, and, under certain circumstances, may prevent client from committing a crime, as discussed above.\n\nMistaken Receipt: If attorney knows document was inadvertently sent, must stop reading and notify opposing counsel.\n\nAdditional Duties of Fairness\n\nGenerally: must behave honestly in all dealings, both in and out of legal practice.  Must act to promote public confidence in integrity and efficiency of legal system and profession.\n\nCommunication With Represented Party: must not communicate with a person you know is represented by counsel on the subject of your inquiry without counsel\xe2\x80\x99s consent, unless authorized by law or in giving second opinion.  For organizations, consent required to speak with officer, director, managing agent, or any employee whose communication might bind or be imputed to the organization.\n\nDealing With the Press: Fair Trial: must avoid out-of-court statements with a substantial likelihood of materially prejudicing a case.  Exceptions include statements required to protect your client from substantial undue prejudice from recent publicity not self-initiated.\n\nProsecutor: duty to seek justice.  Must have probable cause.\n\nDuty to Preserve Dignity of Court & Additional Duties\n\nDuty to Preserve Decorum & Impartiality of Tribunal: no improper influence.  No talking to prospective or impanelled jurors until case complete.  No referring to inadmissible material.  No belligerence or theatrics.\n\nDuty to Expedite Cases: ABA: duty to expedite; CA: duty not to delay.\n\nPolicing Misconduct\n\nABA: must report violation of ethical rules if it raises a substantial question as to honesty, trustworthiness, or fitness as a lawyer\n\nCA: does not require reporting, but can discipline if you did nothing to prevent, i.e., did not counsel against violation.\n\nUnauthorized Practice of Law: cannot engage in or facilitate.  Practice of law is anything requiring professional legal judgemtn.\n\nDuties of Subordinate Lawyers\n\nSubordinates: if supervisor ratifies or orders action violating ethical rule: if clearly a violation, subordinate subject to discipline; if debatable, supervisor is solely responsible.  \n\nSupervising partner: if ratified or failed to take action to remedy subordinate\xe2\x80\x99s violation, is in violation.\n\nManaging Partners: must make reasonable efforts to ensure that firm\xe2\x80\x99s conduct comports with professional obligations.\n\n\n\nEssay Tips:\n\n\n\nAlways discuss remedies and remedial action, such as withdrawal, counseling against fraud/crime, giving proper warnings about confidentiality and representation.'