b'\nCivil procedure\n\n  I. Personal Jurisdiction\n        a. State long-arm statute\n        b. Constitutional Analysis: D must have such minimum contacts with\n           the forum so that the exercise of jurisdiction does not offend\n           traditional notions of fair play and substantial justice.\n              i. Contact (purposeful availment and foreseeability)\n             ii. Fairness (relatedness of contact and claim or substantial\n                 ties giving rise to general jurisdiction.; convenience to\n                 D; state\xe2\x80\x99s interest)\n II. Subject Matter Jurisdiction\n        a. Diversity Jurisdiction\n              i. Complete diversity: there is no diversity of citizenship\n                 jurisdiction if any plaintiff is a citizen of the same\n                 state as any defendant (across the v)\n                    1. Tested at the time the case if filed\n                    2. Human citizenship based on domicile (physical\n                       presence in state & subjective intent to make that\n                       her permanent home)\n                    3. Corporation citizenship based on (1) place of\n                       incorporation AND (2) principal place of business\n                       (look to the headquarters / nerve center or where the\n                       corporation does more production or service than\n                       anywhere else / muscle center).\n                    4. Unincorporated associations citizenship based on\n                       citizenship of ALL members (where members in every\n                       state \xe2\x80\x93 no diversity of citizenship).\n                    5. Decedents, minors and incompetents: look to their\n                       citizenship, not the citizenship of their\n                       representatives.\n                    6. Class action: citizenship based on that of the named\n                       Ps.\n             ii. Amount in controversy must exceed $75,000:\n                    1. P\xe2\x80\x99s good faith claim is sufficient, unless it is\n                       clear to a legal certainty that the P cannot recover\n                       more than $75k (what she ultimately recovers is\n                       irrelevant, but a P who recovers less than $75k may\n                       be liable for the D\xe2\x80\x99s litigation costs).\n                    2. Aggregation: may aggregate claims where it is one P\n                       v. one D; and for joint claims use the total value of\n                       the claims.\n                    3. Equitable relief: two tests, if either is over $75k\n                       it\xe2\x80\x99s okay\n                         a. P\xe2\x80\x99s viewpoint: does the absence of the\n                            injunction cost P more than $75K\n                         b. D\xe2\x80\x99s viewpoint: would it cost D more than $75k\n                            to comply with the injunction.\n        b. Federal Question Jurisdiction: Complaint must show a right or\n           interest founded substantially on a federal law, so that the\n           claim \xe2\x80\x9carises under\xe2\x80\x9d federal law.\n              i. Well Pleaded Complaint Rule: federal question must appear\n                 on the face of a well pleased complaint.  P must be\n                 enforcing a federal right.\nIII. Supplemental Jurisdiction\n        a. THE TEST: the claim you are trying to get into fed court must\n           share a common nucleus of operative facts with the underlying\n           claim, such that it arises from the same transaction or\n           occurrence.\n        b. Limitation: you cannot use supplemental jx. to overcome a lack\n           of diversity in a diversity case for a claim by a P.  So, a non-\n           federal, non-diversity claim can be heard in federal court if it\n           meets \xe2\x80\x9cthe test\xe2\x80\x9d UNLESS it is:\n              i. Asserted by a P\n             ii. In a diversity case (not FQ)\n            iii. It would violate complete diversity.\n        c. Discretionary factors: Court has discretion NOT to hear the\n           supplemental claim: (1) if the federal question is dismissed\n           early in the proceedings; or (2) if the state law claim is\n           complex or (2) state law issues would predominate.\n\n\n\n\n\n\n\n\n\n\n IV. REMOVAL: allows defendants (only) to have a case filed in state court\n     \xe2\x80\x9cremoved\xe2\x80\x9d to fed court.\n        a. Requirements:\n              i. May only remove cases that could have originally been\n                 brought in fed court (diversity/ FQ)\n             ii. May only be removed to the federal district court which\n                 embraces the state court in which the case was originally\n                 filed.\n            iii. Must remove no later than 30 days after the initial service\n                 of process.\n             iv. All defendants must agree to removal\n        b. Special Rule for Diversity Cases: no removal if any defendant is\n           a citizen of the forum.\n              i. But, if the forum-citizen is dismissed, the case is\n                 removable.  So, the remaining D has 30 days from service of\n                 the dismissal in which to remove.  But, no removal more\n                 than one year have the case was filed in state court.\n        c. Waiver: A D who files a permissive counterclaim in state court\n           probably waives the right to remove.  Filing a compulsory\n           counterclaim in state court, though, probably does waive the\n           right to removal.\n  V. Erie Doctrine: in diversity cases, federal court must apply state\n     substantive law.\n        a. Clearly substantive: (1) elements of a claim or defense; (2)\n           statute of limitations; (3) rules for tolling statutes of\n           limitations; (4) choice of law.\n        b. But, if there is a federal law (like FRCP or FRE) on point that\n           directly conflicts with state law, apply the federal law as long\n           as it is valid (i.e. it\xe2\x80\x99s arguably procedural).\n        c. If there is no federal law on point, and it is unclear whether\n           the rule is substantive or procedural consider:\n              i. Is the state rule outcome determinative? \xe2\x86\x92 apply state law\n             ii. Does either federal or state system have a strong interest\n                 in having its rule applied (balance of interests)?\n            iii. Avoid forum shopping.  If the federal court ignores state\n                 law on this issue, will it cause parties to flock to\n                 federal courts?  \xe2\x86\x92 apply state law.\n VI. Venue\n        a. Local actions (re ownership, possession or injury to land) must\n           be filed in the district where the land lies.\n        b. It it\xe2\x80\x99s not a local action, venue is proper in any district\n           where\n              i. ALL defendant\xe2\x80\x99s reside OR\n                    1. Human reside where they are domiciled\n                    2. Corporation resides in all districts where it is\n                       subject to personal jurisdiction when the case if\n                       filed.\n             ii. A substantial part of the claim arose OR\n            iii. Fall back-provision: venue is proper\n                    1. In a FQ case: any district where any D \xe2\x80\x9cis found\xe2\x80\x9d;\n                    2. In a diversity case: any district where any D is\n                       subject to personal jx.\n        c. Special Rule: where all D\xe2\x80\x99s reside in different districts of the\n           same state, venue is proper in any district in which any of them\n           resides.\n        d. Transfer of venue: Can only transfer to a district where a case\n           could have been filed.  That means to (1) a proper venue which\n           (2) has personal jurisdiction over D.  Must be true without\n           waiver by the D.\n              i. If venue in the original district is proper, you may\n                 transfer to another district based on convenience of the\n                 parties and witnesses and in the interest of justice.\n                 Could should look to (1) public factors (what law applies,\n                 what community should be burdened w/ jury service, and (2)\n                 private factors (convenience, where witnesses and evidences\n                 are)\n             ii. If venue in original forum is improper, court may transfer\n                 in the interest of justice or dismiss.\n        e. Forum Non Conveniens: If there is a far more appropriate court\n           elsewhere, a court may dismiss (usually w/out prejudice).\n           Occurs where transfer is impossible b/c it is in a  different\n           judicial system.\n              i. Does not matter that P may recover less in the other court.\n             ii. Almost never granted if P is resident of the present forum.\n\n\n\n\nVII. Service of Process\n        a. In addition to personal jx., must give notice to D.  Deliver to\n           D (1) a summons (formal court notice of suit); (2) a copy of the\n           complaint.\n        b. Timing: must be within 120 days of filing case or case dismissed\n           w/out prejudice.\n        c. Mechanics.  Process may be served by any nonparty who is at\n           least 18 years old\n              i. Personal service: papers given to D personally\n             ii. Substituted service: papers given to a person at the D\xe2\x80\x99s\n                 usual abode; person must be of suitable age and resides\n                 there.\n            iii. Service of D\xe2\x80\x99s agent: process can be delivered to D\xe2\x80\x99s\n                 agent.\n             iv. State law: can use any method permitted by state law.\n              v. Waiver by mail: Process mailed to D by first class mail,\n                 postage prepaid.  OK if D returns waiver form w/in 30 days.\n        d. Geographic limitation: Process may be delivered to D in another\n           state IF forum state allows.  Except, federal court may serve\n           outside the forum state regardless of state law if (1) bulge\n           rule (w/in 100 miles of the courthouse) or (2) statutory\n           interpleader.\n        e. Immunity from service: states may immunize from service a\n           witness or party who enters the state to appear in another\n           action.\nVIII. Pleadings\n        a. Rule 11: requires an attorney or a pro se party sign all\n           pleadings, written motions, and papers certifying that to the\n           best of her knowledge and belief, after reasonable inquiry: (1)\n           the paper is not for an improper purpose, (2) the legal\n           contentions are warranted by law, (3) that factual contentions\n           and denial of factual contentions have evidentiary support.\n              i. Certification effective every time position is \xe2\x80\x9cpresented\xe2\x80\x9d\n                 to a court.\n             ii. Sanctions may be levied (they are discretionary) against\n                 attorney, firm or party to deter bad conduct (not for\n                 punishment).  Can be non-monetary sanctions.\n            iii. Motion for violation of Rule 11 is served on the other\n                 party, but is NOT immediately filed on the court.  B/c the\n                 party allegedly violation Rule 11 has 21 days (safe harbor)\n                 to withdraw the document or fix the problem.  If she does\n                 not fix the problem, then the motion can be filed.\n             iv. Court has authority to raise Rule 11 problems sua sponte.\n        b. Complaint:\n              i. Requirements: (1) statement of subject matter; (2) short\n                 and plain statement of the claim, showing entitlement to\n                 relief; AND (3) demand for judgment.\n                    1. Pro se claimants must meet all these requirements.\n                    2. The purpose is to give the D proper notice.\n             ii. Special matters that must be pleaded with particularity or\n                 specificity: fraud, mistake, and special damages (must give\n                 details)\n        c. Defendant\xe2\x80\x99s Response:  Rule 12 requires the D to respond by\n           motion or by answer.  Either one must be within 20 days after\n           service or else risk default.\n              i. Motions:\n                    1. Issues of form: (1) 12(e) motion for more definite\n                       statement \xe2\x80\x93 pleadings so vague D can\xe2\x80\x99t frame a\n                       response (rare) or (2) 12(f) motion to strike, which\n                       is aimed at immaterial things.\n                    2. Rule 12(b) defenses: (1) lack of subject matter\n                       jurisdiction; (2) lack of personal jurisdiction; (3)\n                       improper venue; (4) insufficiency of process; (5)\n                       insufficient service of process; (6) failure to state\n                       a claim; (7) failure to join indispensable party.\n                         a. Can be raised either by motion or answer.\n                         b. Numbers 2, 3, 4, and 5 are waivable, so they\n                            must be put in the FIRST rule 12 response\n                            (motion or answer) or else they\xe2\x80\x99re waived.\n                         c. Subject matter jurisdiction is NEVER waived.\n             ii. Answer:\n                    1. Timing: must be served w/in 20 days if the D makes no\n                       motions; if D does make a Rule 12 motions, and it\xe2\x80\x99s\n                       denied, she must serve her answer within 10 days\n                       after court rules on motion.  If D waives service,\n                       she has 60 days from P\xe2\x80\x99s mailing to waiver form in\n                       which to answer.\n                    2. Must respond to allegations of complaint: (1) admit;\n                       (2) deny; (3) state that you lack sufficient\n                       information to admit or deny\n                         a. Number 3 acts as a denial, but can\xe2\x80\x99t be used if\n                            the information is public knowledge or is in\n                            the D\xe2\x80\x99s control.\n                         b. Failure to deny can constitute an admission on\n                            any matter except damages.\n                    3. Must raise affirmative defenses (e.g. SoL, SoF, res\n                       judicata, self-defense).\n        d. Counter-claim: offensive claim against an opposing party.  Filed\n           with the D\xe2\x80\x99s answer.\n              i. Compulsory: arises from the same transaction or occurrence.\n                  MUST be filed in the pending case, or it is waived.  The\n                 claim cannot be asserted in another action.\n                    1. But, if you never answer the case (e.g. get the case\n                       dismissed), the compulsory counter-claim rule does\n                       not apply.\n                    2. Still need federal jx. (but always meet the test for\n                       supp jx. b/c same T/O)\n             ii. Permissive: does not arise from same transaction or\n                 occurrence as plaintiff\xe2\x80\x99s claim.  May assert it with the\n                 answer in this case or in a separate case.\n                    1. Still need federal jx.: diversity, FQ (will NOT meet\n                       supp. jx. b/c not same T/O)\n        e. Cross-claim: offensive claim against a co-party.  It MUST arise\n           from the same transaction or occurrence as the underlying\n           action.  NOT compulsory.\n        f. Amending Pleadings:\n              i. Right to amend:\n                    1. P has a right to amend one time before D serves his\n                       answer.\n                    2. D has a right to amend one time w/in 20 days of\n                       serving his answer.\n             ii. If there is no right to amend, party must seek leave of the\n                 court to amend.\n                    1. Granted if justice so requires - usually allowed\n                       unless delay or prejudice.\n                    2. If P amends, D must respond w/in 10 days or remaining\n                       20 days, whichever\xe2\x80\x99s longer.\n            iii. Variance: when the evidence at trial does not match what is\n                 pleaded.  May amend to conform to the evidence, so pleading\n                 reflect what will be tried.\n             iv. Amendment after the statute of limitations has run: allowed\n                 if the amendment \xe2\x80\x9crelates back\xe2\x80\x9d to the original pleadings.\n                    1. To join a new claim: amended pleadings \xe2\x80\x9crelate back\xe2\x80\x9d\n                       if they concern the same conduct, transaction, or\n                       occurrence as the original pleadings, so you treat\n                       the amended pleading as though it was filed when the\n                       original was filed, so it can avoid the statute of\n                       limitations problem.\n                    2. Changing D after the SoL has run: will \xe2\x80\x9crelate back\xe2\x80\x9d\n                       if new party received notice of the action so that\n                       she will not be prejudiced by maintaining her defense\n                       on the merits, and knew or should have known that,\n                       but for a mistake concerning the proper party\xe2\x80\x99s id,\n                       the action would have been bought against her.\n IX. Joinder of Parties\n        a. Proper D and Ps MAY be joined together if\n              i. The claims arise from the same transaction or occurrence\n                 AND\n             ii. Raise at least one common question.\n            iii. And the claims meet subject matter jurisdiction.\n        b. Necessary and Indispensable Parties:\n              i. An absentee is forced to join the case if he meets one of\n                 three tests:\n                    1. Without the absentee the court cannot complete relief\n                    2. Absentee\xe2\x80\x99s interest may be harmed if he isn\xe2\x80\x99t joined.\n                    3. Absentee claims an interest which subjects a party\n                       (usually defendant) to multiple obligations.\n                 Note: joint-tortfeasors are NOT necessary parties.\n             ii. Joinder must be feasible.\n                    1. There is personal jurisdiction over him AND\n                    2. Joining him will not make it impossible to maintain\n                       diversity.\n            iii. If joinder is NOT feasible, then the court may either (1)\n                 proceed without him or (2) dismiss the whole case.  Factors\n                 for deciding whether to proceed or dismiss:\n                    1. Is there an alternative forum available?\n                    2. What is the actual likelihood of prejudice?\n                    3. Can the court shape relief to avoid that prejudice?\n\n\n\n        c. Impleader (third-party practice): A defending party wants to\n           bring in someone new b/c that 3rd party may owe indemnity or\n           contribution to the defending party.\n              i. Timing: D may implead as of right within 10 days after\n                 serving answer; after that, need court permission.\n             ii. After the 3rdP is joined\n                    1. The P can assert a claim against the 3rdP if: (1) the\n                       claim arises from the same transaction or occurrence\n                       as the underlying case AND (2) there is s.m. jx.\n                    2. The 3rdP may assert a claim against the P if: (1)\n                       same transaction or occurrence AND (2) there is s.m.\n                       jx.\n                    3. P may cross-claim against 3rdP if: (1) same T/O AND\n                       (2) s.m. jx.\n        d. Intervention: where 3rd Party seeks to intervene in the case.\n           Granted if (1) applicant claims an interest in the property or\n           transaction that is the subject matter of the action AND (2)\n           disposition of the action without him may impair his ability to\n           protect that interest.\n        e. Interpleader: joinder where several persons have same claim to\n           same assets.  Requires (1) complete diversity between the\n           stakeholder and all adverse claimants + $75K OR (2) FQ.\n        f. Class Actions:\n              i. Initial Requirements \xe2\x80\x93 Rule 23(a):\n                    1. Numerosity: too many class members for practicable\n                       joinder\n                    2. Commonality: there are some questions of law or fact\n                       in common to the class\n                    3. Typicality: representative\xe2\x80\x99s claims/defenses typical\n                       of those of the class\n                    4. Adequate representation: the class rep will fairly\n                       and adequately represent the interests of the class.\n             ii. Must fit in one of 3 types:\n                    1. Class treatment is necessary to avoid harm either to\n                       class members or to party opposing class.  Usually\n                       limited fund.  (Can ask money damages)\n                         a. No notice\n                         b. No opportunity to opt out\n                         c. No need for common issues to predominate OR\n                    2. Final injunctive relief would be appropriate for the\n                       whole class\n                         a. No notice to the class required\n                         b. No opportunity to opt out\n                         c. No need for common issues to predominate.  OR\n                    3. ($) Common questions of law or fact predominate over\n                       any question affecting only individual members, so\n                       class action is superior to other available methods.\n                       Presumptively used when money damages are at issue.\n                         a. Must provide notice to the class (best notice\n                            under the circumstances)\n                         b. Class members have right to opt out\n                         c. Must show common issues predominate and are\n                            superior.\n            iii. Certification: Court must determine \xe2\x80\x9cat an early\n                 practicable time\xe2\x80\x9d whether to certify the class as a class\n                 action, must define the class and the class claims, issues\n                 or defenses, and appoint a class counsel who will fairly\n                 and adequately represent the interests of the class.\n             iv. Judgment & Settlement\n                    1. All class members are bound by the judgment, except\n                       those who opt out.\n                    2. Court must approve a dismissal or settlement.\n                    3. ALL types of classes require notice of a proposed\n                       settlement be given to the class, and an opportunity\n                       for feedback re the proposed settlement.\n                    4. (b)(3) classes require a back-end opt out opportunity\n                       for settlement.\n              v. Jurisdiction:\n                    1. Personal Jurisdiction: No need for minimum contacts\n                       for unnamed Ps as long as there is adequate\n                       representation, notice, and opportunity to opt out.\n                    2. Subject Matter Jurisdiction: FQ or diversity.  If\n                       diversity:\n                         a. Look only to the citizenship of the class\n                            representatives (and not the class members).\n                            As long as the class rep\xe2\x80\x99s divers, it\xe2\x80\x99s okay\n                         b. Look only to the amount in controversy asserted\n                            by the class rep.  As long as the rep\xe2\x80\x99s claim\n                            exceeds $75k, it\xe2\x80\x99s okay.  Class members w/\n                            claims not exceeding $75k may invoke supplement\n                            jx.\n\n  X. DISCOVERY\n        a. Required Disclosure (must be produced even though no one asks)\n              i. Initial Disclosure: (1) must identify persons and documents\n                 \xe2\x80\x9clikely to have discoverable information,\xe2\x80\x9d (2) computation\n                 of damages and insurance for any judgment.\n             ii. Experts: Must identify experts \xe2\x80\x9cwho may be used at trial\xe2\x80\x9d\n                 and produce written reports containing opinions, data used,\n                 qualifications, compensation for study, etc.\n            iii. Pretrial: No later than 30 days before trial, must give\n                 detailed information about trial evidence, including\n                 documents and identity of witnesses to testify live or by\n                 deposition.\n        b. Discovery tools:\n              i. Deposition: parties or nonparties (who have been\n                 subpoenaed)\n             ii. Interrogatories: parties only\n            iii. Requests to produce: party or non-party (if accompanied by\n                 a subpoena)\n             iv. Physical or mental examination: only available though court\n                 order.\n              v. Requests for admission: parties only\n        c. Scope of discovery\n              i. Standard: anything relevant to a claim or defense\n                 (something in the pleadings).\n                    1. Relevant means \xe2\x80\x9creasonably calculated to lead to the\n                       discovery of admissible evidence.\xe2\x80\x9d  Note: this is\n                       broader than admissible.\n             ii. Privileged matter is NOT discoverable\n            iii. Work product (material prepared in anticipation of\n                 litigation) is generally NOT discoverable.\n                    1. But, witness statements are discoverable if the other\n                       side shows (1) substantial need, and (2) it\xe2\x80\x99s not\n                       otherwise available.\n                    2. Mental impressions, opinions, conclusions and legal\n                       theories are ABSOLUTELY protected.\n                    3. Work product need not be generated by a lawyer.  It\n                       can be prepared by a party or any representative of\n                       the party (e.g. a private investigator).\n        d. Enforcement of Discovery Rules\n              i. Three main ways discovery problems are presented to the\n                 court\n                    1. Protective order: receiving party seeks protective\n                       order because the discovery request is over-\n                       burdensome.\n                    2. Partial violation: receiving party answers some and\n                       objects to others.  If the objections are not upheld,\n                       this is a partial violation \xe2\x86\x92 light sanction\n                    3. Total violation: receiving party fails completely to\n                       attend deposition, respond to interrogatories or to\n                       respond to requests for production.  This is a total\n                       violation \xe2\x86\x92 heavy sanction.\n             ii. Sanctions against a party\n                    1. Partial violation\n                         a. Can get an order compelling the party to answer\n                            the unanswered questions plus costs (including\n                            atty fees) of bringing the motion.\n                         b. If the party violates the order compelling him\n                            to answer, you can get heavy sanctions plus\n                            costs, and could be held in contempt for\n                            violating a court order\n                    2. Total violation: immediate heavy sanctions plus\n                       costs.  No need to get an order compelling answers\n                       first.\n                    3. False denial of request to admit: recover only costs\n                       of having to prove the issue.\n                    4. Failure to make required disclosure: other side can\n                       choose to treat as partial violation or total\n                       violation.  And the party failing to make disclosure\n                       cannot use the info at trial, unless failure was\n                       justified or harmless.  Choices available:\n                         a. Establishment order (established fast as true)\n                         b. Strike pleadings of the disobedient party\n                         c. Disallow evidence from the disobedient part\n                         d. Dismiss the P\xe2\x80\x99s case (if bad faith is shown)\n                         e. Enter default judgment against D (if bad faith\n                            is shown).\n            iii. Sanction against non-party: contempt (for violating\n                 subpoena or court order).\n             iv. Sanction against attorney: liable for all expenses\n                 (including atty fees) incurred by the other side is she\n                 counseled one of the bad acts.\n XI. Pretrial Adjudication\n        a. Voluntary Dismissal:\n              i. P may dismiss once without prejudice by filing a written\n                 notice of dismissal, before D serves an answer or moves for\n                 summary judgment (P may re-file).\n             ii. If P files a dismissal a second time by filing written\n                 notice, that dismissal is WITH prejudice (so the claim\n                 cannot be refilled) (applies even if the case was filed in\n                 state ct).\n        b. Default & Default Judgment: where D failed to respond.  May be\n           set-aside by showing good cause and a viable defense.\n        c. Failure to state a claim 12(b)(6): Tests the sufficiency of P\xe2\x80\x99s\n           allegations.  Assumes all allegations are true, and tests to see\n           whether the facts alleged state a claim that the law would\n           recognize.\n              i. Does not consider the evidence, looks only to the face of\n                 the complaint\n             ii. May dismiss if the complaint shows that a complete defense\n                 bars the claim.\n            iii. AKA Motion for Judgment on the Pleadings.\n        d. Summary judgment: moving party must show (1) there\xe2\x80\x99s no genuine\n           dispute as to a material issue of fact and (2) that she\xe2\x80\x99s\n           entitled to judgment as a matter of law.\n              i. Can be for \xe2\x80\x9cpartial\xe2\x80\x9d summary judgment (e.g. as to one of\n                 several claims).\n             ii. Court generally views the evidence (including affidavits)\n                 in a light most favorable to the non-moving party.\n                    1. Look at the evidence: is there a dispute on a\n                       material issue of fact\n                         a. Pleadings are NOT evidence (unless they are\n                            verified - under oath), though they may be\n                            relevant to show an admission.\n                         b. Thus, where the only evidence before the court\n                            are the Ds affidavits, that evidence may be\n                            sufficient to invoke summary judgment.\n                    2. Evidence must be first-hand knowledge.\nXII. Conferences and Meetings\n        a. Pretrial Conferences: court may hold pretrial conferences as\n           needed to expedite the case and foster settlement.\n              i. Determines issues to be tried and evidence to be proffered\n             ii. Recorded conference supersedes the pleading, and becomes a\n                 roadmap of issues to be tried, evidence to be presented at\n                 trial, witnesses etc.\n            iii. May be amended to \xe2\x80\x9cprevent manifest injustice\xe2\x80\x9d (very high\n                 standard \xe2\x80\x93 generally if it does not appear in the final\n                 pretrial conference order, it won\xe2\x80\x99t happen in court).\nXIII. Trial, Judgment and Post-Trial Motions\n        a. Jury Trial\n              i. 7th Am preserves the right to a jury trial in a civil\n                 matter as to legal relief (i.e. damages), but a judge\n                 decides equitable relief (i.e. injunction).\n             ii. Demand for jury trial must be in writing no later than 10\n                 days after service of the last pleading raising jury\n                 triable issues.\n            iii. In jury selection process, each side has unlimited strike\n                 for cause (e.g. bias, prejudice, related to a party).  Each\n                 side also gets 3 \xe2\x80\x9cpreemptory\xe2\x80\x9d strikes.  Peremptory strikes\n                 must be used in a race and gender neutral way.\n             iv. Motion for judgment as a matter of law: exceptional order,\n                 by which court takes case away from the jury.\n                    1. Timing: Occurs after opponent has presented case, but\n                       before submission to the jury\n                    2. Standard: when evidence is viewed in a light most\n                       favorable to the non-moving party, reasonable people\n                       could not disagree on the result.\n        b. Renewed Motion for Judgment as a Matter of Law: where jury\n           reaches a verdict, and the losing party brings a motion claiming\n           that reasonable persons could not have reached that verdict.\n              i. Timing: must be raised within 10 days after entry of\n                 judgment.  Moving party MUST have previously sought\n                 judgment as a matter of law at close of ALL evidence.\n             ii. Standard: same as with motion for judgment as a matter of\n                 law.\n        c. Motion for a new trial: judgment entered, but errors at trial\n           require a new trial.\n              i. Timing: must be raised within 10 days after judgment.\n             ii. Grounds: (1) prejudicial error; (2) new evidence; (3)\n                 prejudicial misconduct; (4) judgment is against the weight\n                 of the evidence.\nXIV. Appeal\n        a. Final Judgment Rule: As a general rule, can appeal only from\n           final judgments, which means an ultimate decision by the trial\n           court of the merits of the entire case.\n              i. File notice of appeal in trial court w/in 30 days after\n                 entry of judgment\n             ii. Final = trial court has nothing left to do on the merits of\n                 the case.\n        b. Interlocutory Review (pre-final judgment)\n              i. As of right: anything having to do with injunctions;\n                 grant/denial of class cert.\n             ii. Discretionary: Upon its own discretion, DC may certify that\n                 there should be an interlocutory appeal.  And the CoA may\n                 accept the appeal, again based on its own discretion.\n XV. Claim and Issue Preclusion\n        a. Claim preclusion (res judicata): An affirmative defense barring\n           the same parties from litigating all claims that were actually\n           litigated or could have been litigated in a prior claim.\n              i. Elements: (1) same claim, (2) same parties, (3) final\n                 judgment, (4) on the merits, (5) in a court of competent\n                 jurisdiction.\n                    1. Same claim: split on authority\n                         a. Transactional Test: Same operative facts, same\n                            transaction or series of transactions.\n                         b. Primary Rights Theory: Same claim = same\n                            primary right.  Still look to the evidence to\n                            determine whether same primary right.  Thus,\n                            there are separate claims for property damages\n                            and personal injury b/c they involve different\n                            rights.  (minority view)\n\n1 Same parties (or party represented in the prior action \xe2\x80\x93 \xe2\x80\x9cin privity\xe2\x80\x9d)\n\n                    2. Final judgment \xe2\x80\x9con the merits\xe2\x80\x9d: General rule: unless\n                       the court said otherwise when it entered the\n                       judgment, any judgment is \xe2\x80\x9con the merits\xe2\x80\x9d UNLESS it\n                       was based on (1) jurisdiction, (2) venue, or (3)\n                       indispensable parties.\n\n2 In a court of competent jurisdiction\n\n        b. Issue preclusion (collateral estoppel):  An affirmative defense\n           barring a party from re-litigating an issue determined against\n           that party in an earlier action, even if the second action\n           differs significantly from the first one.\n              i. Elements\n                    1. Same issue\n                    2. Actually litigated & decided (not enough that issue\n                       could-have-been litigated)\n                    3. Issue was essential to judgment\n                    4. Full and fair opportunity to litigate\n                    5. Does NOT have to be the same parties\n             ii. May only be asserted against one who was a party to the\n                 first case.\n            iii. May only be asserted by one who is a party to the first\n                 case.  But, some courts have rejected this traditional view\n                 to allow for non-mutual assertion of issue preclusion:\n                    1. Non-mutual defensive issue preclusion: D who was not\n                       a party to the first case, may assert issue\n                       preclusion against a P who was a party to the first\n                       case.  [Case 1: A v. B; Case 2: A v. C \xe2\x86\x92 C may assert\n                       issue preclusion against A as long as A had a full\n                       and fair opportunity to litigate the issue in Case\n                       1].\n                    2. Non-mutual offensive issue preclusion: P who was not\n                       a party to the first case, may assert issue\n                       preclusion against a D who was a party to the first\n                       case  [Case 1: A v. B; Case 2: C v. A  \xe2\x86\x92 C may assert\n                       issue preclusion against A as long as A had a full\n                       and fair opportunity to litigate the issue in Case 1]\n\n'


b'\nCONTRACTS\n\n     I. Which law governs?  If CL\xe2\x80\xa6\n    II. Formation of Contract\n        a. Offer \xe2\x80\x93 requires (1) an expression of a promise, undertaking or\n           commitment to enter a contract, (2) certainty and definiteness\n           of terms, and (3) communication to an identified offeree.\n              i. Is the offer still alive?\n                    1. Lapse of time\n                    2. Rejection by offeree (counter; conditional\n                       acceptance; additional terms)\n                    3. Revocation by offeror (unless option w/ consideration\n                       or detrimental reliance)\n        b. Acceptance \xe2\x80\x93 mirror image rule \xe2\x80\x93 manifestation of assent to the\n           terms of an offer in a manner prescribed or authorized in the\n           offer\n              i. Bilateral \xe2\x80\x93 full performance, start performance, promise,\n                 mailed acceptance\n             ii. Unilateral \xe2\x80\x93 full performance\n        c. Consideration \xe2\x80\x93 must exist on both sides of the K\n              i. Bargained for legal detriment\n             ii. Or promissory estoppel: promise, reasonable, detrimental\n                 and foreseeable reliance, enforcement necessary to avoid\n                 injustice\n        d. No defenses\n              i. Statute of frauds \xe2\x80\x93 by statute, certain agreements must be\n                 evidenced by a writing and signed by the party to be\n                 charged.  Satisfied by:\n                    1. Service Ks \xe2\x86\x92 full performance\n                    2. Real estate \xe2\x86\x92 partial performance if full or part\n                       payment; possession and/or improvements\n                    3. Writing \xe2\x86\x92 all material terms + signature of party to\n                       be bound\n             ii. Mistake / Ambiguity\n            iii. Illegality / Incapacity\n             iv. Unconscionability / Fraud / Duress\n   III. Contract Terms\n        a. Parol Evidence Rule: where parties express their agreement in a\n           final writing, other written or oral expressions, made prior to\n           or contemporaneously with the writing, are inadmissible to vary\n           the terms of the writing.\n        b. Modification \xe2\x86\x92 need consideration, must be in writing if\n           modified K falls under SoF\n        c. Interpretation of terms, look to: course of performance / course\n           of dealing  / custom and usage\n    IV. Third Parties\n        a. Third party beneficiaries\n        b. Assignment/Delegation\n     V. Performance\n        a. Conditions\n              i. Type \xe2\x80\x93 precedent, concurrent or subsequent AND express,\n                 implied or constructive\n             ii. Excused \xe2\x80\x93 anticipatory repudiation, impossibility,\n                 impracticability, waiver\n            iii. Satisfaction \xe2\x80\x93 question of fact\n        b. Discharge of Duty?\n              i. Impossibility/Impracticability \xe2\x80\x93 Unanticipated or\n                 extraordinary event\n             ii. Frustration of purpose \xe2\x80\x93 K has become valueless by virtue\n                 of some intervening event\n            iii. Anticipatory repudiation\n             iv. Mutual rescission\n              v. Modification / Novation / Accord & satisfaction\n    VI. Breach \xe2\x80\x93 material or minor?\n        a. Did the obligee gain the substantial benefit of her bargain\n           despite defective performance?\n   VII. Remedies\n        a. Compensatory damages \xe2\x80\x93 standard measure is based on an\n           expectation interest\n              i. Must be certain in their nature and not speculative\n             ii. Duty to mitigate\n        b. Consequential damages \xe2\x80\x93 foreseeable to a reasonable person at\n           the time of formation\n        c. Quasi K: where K fails, the non-breaching party may recover in\n           quasi-contract to prevent unjust enrichment to the parties (put\n           D in the same position, had the K never occurred)\n        d. Promissory Estoppel: reliance interest (put P in the same\n           position, had the K never occurred)\n        e. Specific performance: where damages are inadequate (e.g. real\n           estate)\n'


b'\nWILLS \xe2\x80\x93 ROADMAP\n\n   1) Execution of Wills\n        a. Attested Wills: (1) in writing (2) signed by T (3) in presence\n           of 2 witnesses (4) who also sign\n        b. Holographic Wills: (1) signed by T, (2) material provisions in\n           T\xe2\x80\x99s own handwriting\n              i. Extrinsic evidence is admissible to determine T\xe2\x80\x99s intent\n             ii. Date issues: inconsistent provisions, capacity\n   2) Enforcement of Wills\n        a. Incapacity (under 18, unable to understand extent of property,\n           know bounty) \xe2\x86\x92 will invalid\n        b. Insane delusion (false belief, product of sick mind, affected\n           will) \xe2\x86\x92 only affected part invalid\n        c. Fraud in the execution (forged signature, didn\xe2\x80\x99t know it was a\n           will) \xe2\x86\x92 will invalid\n        d. Fraud in inducement (misrepresentation effects content) \xe2\x86\x92 only\n           affected part invalid\n        e. Undue influence (3 types) \xe2\x86\x92 generally only affected part invalid\n              i. Prima Facie Case: (1) T has a weakness makes him\n                 susceptible; (2) wrongdoer had access to T, (4) wrongful\n                 act gets the gift, (5) unnatural result\n             ii. Presumption: (1) confidential relationship, (2) wrongful\n                 act gets gift, (3) unnatural result\n            iii. CA \xe2\x80\x93 Statutory: gift to (1) drafter, (2) person w/ relation\n                 to drafter, (3) person in fiduciary relationship w/ T who\n                 also drafted [devisee gets only their intestate share\n                 unless review by independent atty who counsels T].\n        f. Mistake \xe2\x80\x93 words left out \xe2\x86\x92 no relief, court will not re-write a\n           will\n        g. Mistake \xe2\x80\x93 words added \xe2\x86\x92 court will strike out those words\n        h. Mistake in inducement (act b/c erroneous belief) \xe2\x86\x92 no relief\n           unless mistake + intent on face\n        i. Mistake in description (ambiguity) \xe2\x86\x92 court will allow parol\n           evidence to determine T\xe2\x80\x99s intent\n   3) Revocation of Wills\n        a. Revocation: by (1) subsequent will or codicil (explicit or\n           implicit), (2) physical act (need simultaneous intent to\n           revoke), (3) operation of law (omitted child/spouse or\n           divorce/annulment)\n        b. Dependent Relative Revocation (DRR): cancels a revocation where\n           T revoked based on mistaken belief that a subsequent will or\n           codicil effectuated his intent.  If 2nd will does not effectuate\n           T\xe2\x80\x99s intent, the first will was not revoked.\n        c. Ademption: where T has devised specially described property and\n           that property is not owned by T at death, the specific gift is\n           deemed revoked and beneficiary takes nothing unless there is\n           evidence that T intended a general gift.\n        d. By satisfaction: an inter-vivos gift to B is deducted from the\n           devise, where the T express in a written document that she\n           intended the gift to be in satisfaction of the devise.\n        e. By advancement: an inter-vivos gift to an heir apparent is\n           deducted from the donnee\xe2\x80\x99s intestate share if the donor\xe2\x80\x99s intent\n           is expressed in a written document executed by donor and donnee.\n   4) Components of Wills\n        a. Republication by codicil: will speaks at date of codicil\n        b. Integration: (1) papers present at execution, (2) with intent to\n           incorporate\n        c. Incorporation by reference: (1) writing in existence at\n           execution, (2) will shows intent to execute, (3) writing\n           sufficiently described in the will\n        d. Facts of independent significance: who a B is, or what gift is\n           given, may be given meaning by facts of significance independent\n           from T\xe2\x80\x99s will.  Allows the court to fill in the blanks in T\xe2\x80\x99s\n           will w/ parol evidence that is trustworthy.\n        e. Pour-over wills: where part or all of T\xe2\x80\x99s estate is devised to\n           the trustee of an inter-vivos trust that trust instrument may be\n           admitted into probate \xe2\x80\x93 and the pour over provisions effectuated\n           \xe2\x80\x93 via (1) incorporation by reference or (2) independent\n           significance or (3) Uniform Testamentary Additions to Trusts Act\n           \xe2\x80\x93 as long as you have a valid trust, which was executed before\n           or concurrently w/ the execution of the T\xe2\x80\x99s will, the pour-over\n           provision is valid by statute.\n   5) Interpretation of Wills\n        a. Rule of lapse: if the beneficiary does not survive T,\n           beneficiaries\xe2\x80\x99 gift lapses, or fails, unless T expresses a\n           contrary intent in the will. Passes by residual; if none by\n           intestacy.\n              i. If class gifts, only surviving class members take b/c the\n                 will speaks at the time of the T\xe2\x80\x99s death.  Deceased class\n                 members share will be deemed to have lapsed.\n        b. California\xe2\x80\x99s Anti-Lapse Statute: A deceased legatee who is a\n           blood relative of the T or the T\xe2\x80\x99s spouse takes by\n           representation.   Issue of a predeceased devisee may step into\n           the shoes of the devisee, unless will provides otherwise.\n\n\n   6) Intestate Succession\n        a. Share of surviving spouse: (1) all CP, (2) all quasi-CP, (3)\n           all, \xc2\xbd or \xe2\x85\x93 of SP\n        b. Share not passing to surviving spouse: (1) issue, (2) parents,\n           (3) issue of parents (siblings), (4) grandparents, etc.\n           Distribution:\n              i. \xc2\xa7 240: at 1st level \xe2\x86\x92 shares to all living persons, at 2nd\n                 level \xe2\x86\x92 shares to all living and deceased members of that\n                 generation who leave heirs.\n             ii. Per stirpes: distribute to all at 1st level (including\n                 deceased).  The issue takes in rep.\n        c. Special problems: adoption, stepchildren, foster-children,\n           advancements.\n        d. Simultaneous death: must prove by clear and convincing evidence\n           heir (or beneficiary) survived decedent (or testator) by 120\n           hours\n   7) Rights of Surviving Spouse and Children\n        a. Pretermitted spouse: a will executed prior to marriage, which\n           omits the surving spouse is revoked as to that spouse, and\n           she/he will receive her instate share of assets (D\xe2\x80\x99s share of CP\n           and quasi-CP plus up to \xc2\xbd of D\xe2\x80\x99s SP).  Unless: (1) omission was\n           intentional as shown in will, (2) D provided for spouse by other\n           transfer, or (3) spouse made valid agreement waiving right to\n           share in D\xe2\x80\x99s estate.\n        b. Pretermitted child: a will executed prior to birth or adoption\n           of a child which omits that child is revoked as to that child,\n           and she/he will receiver her instate share of assets.  Unless\n           (1) omission was intentional as shown in will, (2) D provided\n           for child by other transfer, or (3) D evidenced plan that\n           child\xe2\x80\x99s other parent would take financial care of all the\n           couple\xe2\x80\x99s children.\n   8) Bars to Succession\n        a. Homicide: a person who feloniously and intentionally kills\n           decedent is not entitled to any benefit from D\xe2\x80\x99s estate by will,\n           trust, intestacy, life insurance, joint tenancy, etc.\n        b. Elder Abuse: a person who is found liable by clear and\n           convincing evidence of abuse will be treated as s/he predeceased\n           decedent.  Includes physical abuse, neglect or fiduciary abuse.\n        c. No contest clause: will be enforced unless B, with reasonable\n           cause, brings contest on grounds of forgery, revocation or\n           invalid transfer to person who drafted instrument.\n\n\nTrusts \xe2\x80\x93 Roadmap\n\n   1) Creation of a Valid Trust \xe2\x80\x93 7 Elements\n        a. Settlor/Trustor \xe2\x80\x93 Creator who often provides assets to create\n           trust\n        b. Delivery \xe2\x80\x93 handing over property from S to trustee\n        c. Trustee \xe2\x80\x93 person holding legal title to trust property and\n           managing assets\n        d. Intent \xe2\x80\x93 S must intend to create trust in the present (mandatory\n           words)\n        e. Trust Property (Res) \xe2\x80\x93 must be presently existing property\n           interest, not illusory\n        f. Beneficiaries \xe2\x80\x93 person(s) holding equitable title and receiving\n           benefits of assets\n        g. Valid Trust Purpose \xe2\x80\x93 purpose cannot violate law or public\n           policy\n   2) Types of Trusts\n        a. Discretionary Trust \xe2\x80\x93 Trustee has discretion to pay income or\n           principal\n        b. Mandatory Trust \xe2\x80\x93 trustee lacks discretion; must pay per terms\n           of the trust\n        c. Spendthrift Trust \xe2\x80\x93 limits voluntary and involuntary alienation\n        d. Honorary Trust \xe2\x80\x93 not a valid trust as lacks human beneficiaries,\n           but trustee can carry out S\xe2\x80\x99s wishes to care for animal,\n           maintain grave, etc.\n        e. Secret Trust \xe2\x80\x93 Fact of the trust is secret; promise enforceable\n           as a constructive trust\n        f. Semi-Secret Trust \xe2\x80\x93 trustee named but beneficiaries are secret;\n           unenforceable\n        g. Totten Trust \xe2\x80\x93 bank account for benefit of third party\n        h. Charitable Trust \xe2\x80\x93 trust for charitable purpose that benefits\n           large number of unidentifiable beneficiaries (e.g. education,\n           science, research).  Cy pres if general charitable purpose.\n        i. Resulting Trust \xe2\x80\x93 not a real trust \xe2\x80\x93 implied in fact trust based\n           on presumed intent of the parties.  Resulting trustee will\n           transfer property to the S if alive, if not to residuary, if not\n           to intestate heirs.\n   3) Modification and Termination of Trusts\n        a. General Rule \xe2\x80\x93 If S and all Bs consent, trust may be modified or\n           terminated (only while S alive).\n        b. The Clafin Doctrine \xe2\x80\x93 Trust cannot be modified or terminated,\n           even if all beneficiaries agree, if to do so would be contrary\n           to a material purpose of the S.\n        c. Changed Circumstances \xe2\x80\x93 In Cal. court may modify or terminate\n           trust (upon petition by trustee or B) if changed circumstances\n           mean continuation in same manner would defeat trust purpose.\n   4) Trust Administration and Trustee Duties: Trustee owes fiduciary duty\n      to administer the trust solely in the interest of the beneficiaries.\n      A breach can mean personal liability for trustee.\n        a. Duty of loyalty \xe2\x80\x93 self-dealing \xe2\x80\x93 Trustee cannot buy or sell\n           trust assets for trustee or spouse; trustee cannot borrow trust\n           funds.  If trustee engaged in self-dealing, courts apply the no\n           further inquiry rule.  Trustee\xe2\x80\x99s good faith and reasonableness\n           of transaction are irrelevant.\n        b. Duty of loyalty \xe2\x80\x93 conflict of interest \xe2\x80\x93 Trustee breaches duty\n           of loyalty by not acting in best interest of beneficiaries.\n           E.g. selling trust property to buyer just to increase value of\n           T\xe2\x80\x99s own property.  Remedies include ratification and surcharge.\n        c. Duty of due care \xe2\x80\x93 trustee must act as a reasonably prudent\n           person dealing w/ his own affairs.\n        d. Duty to invest \xe2\x80\x93 split of authority \xe2\x80\x93 three alternative rules \xe2\x80\x93\n           discuss all three.\n              i. State lists: In certain jxs., in the absence of directions\n                 in the trust, the trustee must follow a list of good\n                 investments.\n             ii. Common law prudent person test: The duty to invest requires\n                 the trustee to act as a reasonably prudent person investing\n                 his own property, trying to maximize income while\n                 preserving corpus.  Key: each investment is scrutinized.\n            iii. Uniform Prudent Investor Act: Adopted by most states,\n                 provides that the trustee must invest as a prudent\n                 investor.  Key: Each individual investment is not\n                 scrutinized, but, rather, performance is measured in the\n                 context of the entire trust portfolio.\n        e. Duties relating to care of trust property:\n              i. Duty to collect and protect trust property\n             ii. Duty to earmark trust property\n            iii. Duty not to commingle trust funds w/ trustee\xe2\x80\x99s own\n             iv. Duty not to delegate investment decisions\n              v. Duty to diversify investment\n             vi. Duty to account to trust beneficiaries.\n        f. Remedies for the beneficiary:\n              i. Ratify the Transaction \xe2\x80\x93 waive the breach if outcome is\n                 positive (no netting)\n             ii. Surcharge the Trustee \xe2\x80\x93 sue for any resulting loss\n            iii. Trace and recover the property (constructive trust) \xe2\x80\x93\n                 except if sale to a BFP\n'


b'\nTORTS\n\nStructure for an answer\n\n \xe2\x80\xa2 General Considerations\n \xe2\x80\xa2 Plaintiff is suing Defendant for X\n \xe2\x80\xa2 To establish a prima facie case for X, Plaintiff must prove\xe2\x80\xa6\n \xe2\x80\xa2 Here, Plaintiff will show\xe2\x80\xa6[analyze each element]\n \xe2\x80\xa2 Conclusion\n \xe2\x80\xa2 Defenses\n\nProblem Solving Approach\n\nI. General Considerations\n   A. Vicarious liability\n   B. Joint liability\n   C. Survival Actions\n   D. Wrongful death\n   E. Immunities\n\nII. Intentional Torts\n   A. Assault\n   B. Battery\n   C. False Imprisonment\n   D. IIED\n   E. Trespass to chattels/Conversion\n   F. Trespass to Land\n   G. Nuisance \xe2\x80\x93 balance the interests\n   H. Defenses \xe2\x80\x93 consent, defensive force, necessity, privilege of arrest\n\n\nIII. Harm to Economic and Dignitary Interests\n   A. Defamation\n        a. CL: (1) defamatory statement, (2) of and concerning P, (3)\n           publication, (4) damages\n        b. Defenses: consent, truth, privilege\n        c. Constitutional issues: (1) falsity, (2) fault\n   B. Invasion of Privacy: Misappropriation; Intrusion; False light;\n      Publication of private facts\n   C. Misrepresentation (intentional or negligent);\n   D. Malicious Prosecution;\n   E. Abuse of Process;\n   F. Interference w/ Business Relations\n\n\nIV. Negligence\n   A. Elements: (1) duty \xe2\x80\x93 foreseeable plaintiff, standard of care; (2)\n      breach of duty \xe2\x80\x93 custom & usage, statutory violation, res ipsa; (3)\n      causation \xe2\x80\x93 factual (but for, substantial factor, unascertainable) &\n      proximate (foreseeable harm); damages\n   B. Special negligence actions: attorney malpractice, negligent infliction\n      of emotional distress\n   C. Defenses \xe2\x80\x93 contributory neg., comparative neg., assumption of risk\n\n\nV. Strict Liability\n   A. Animals\n   B. Inherently dangerous activities\n\n\nVI. Product Liability\n   A. Strict Products Liability: (1) merchant D; (2) defect (3) when left\n      D\xe2\x80\x99s control; (4) foreseeable user/use\n   B. Negligence: (1) duty to supply safe products; (2) breach; (3)\n      causation; (4) damages\n   C. Express Warranties\n   D. Implied Warranties of Merchantability (ordinary product) Fitness\n      (particular purpose).\n   E. Defenses: comparative fault, scientifically unknowable risk,\n      unavoidably unsafe product\n'


b'\nCRIMINAL LAW\n\n   I. Accomplice Liability: One who, with the intent that the crime be\n      committed, aids, counsels, or encourages another in the commission of\n      a crime is deemed a party to the crime, and thus may be held guilty of\n      the criminal offense.\n  II. Inchoate Offenses\n        A. Solicitation: (1) asking someone to commit a crime (2) with the\n           specific intent that the person solicited commit the crime.\n        B. Conspiracy: (1) an agreement between two or more persons, (2) an\n           intent to enter into an agreement, (3) an intent to achieve the\n           unlawful purpose or objective of the agreement, [(4) the\n           majority of state also require an overt act in furtherance of\n           the conspiracy].\n        C. Attempt: (1) specific intent to commit the crime, and (2) an\n           overt act in furtherance.\n III. Crimes Against the Person\n        A. Murder: unlawful killing of a human being with malice\n           aforethought.  Malice aforethought exists if (1) Intent to kill;\n           (2) Intent to inflict great bodily injury; (3) Reckless\n           indifference to an unjustifiably high risk to human life; OR (4)\n           Intent to commit a felony (felony murder)\n        B. Voluntary manslaughter: a killing that would be murder but for\n           the existence of adequate provocation: (1) sudden and intense\n           passion (2) no time to cool off.\n        C. Involuntary manslaughter: a killing that was committed (1) with\n           criminal negligence OR (2) during the commission of a\n           misdemeanor or an un-enumerated felony\n        D. Battery: an unlawful application of force to the person of\n           another resulting in either bodily injury or an offensive\n           touching (general intent crime).\n        E. Assault: either (1) an attempt to commit battery (specific\n           intent crime) or (2) a threat (general intent crime) (there is\n           merger: if there\xe2\x80\x99s a touching it\xe2\x80\x99s battery not assault and\n           battery).\n        F. Other CL Crimes Against the Person: Rape, Kidnapping, Mayhem\n  IV. Crimes Against Property\n        A. Larceny : (1) A wrongful taking; (2) a carrying away (any\n           movement); (3) of the personal property; (4) of another; (5) by\n           trespass (without consent); (6) with intent to deprive\n           permanently (intent must exist at the time of the taking).\n        B. Robbery (larceny + assault) requires: (1) a wrongful taking; (2)\n           of personal property of another; (3) from the other\xe2\x80\x99s person or\n           presence; (4) by force or threat of immediate physical harm; (5)\n           with the intent to permanently deprive him of it.\n        C. Embezzlement: Requires (1) fraudulent (2) conversion (i.e.\n           dealing w/ the property in a manner inconsistent w/ the\n           arrangement by which D has possession); (3) of personal\n           property; (4) of another; (5) by a person in lawful possession\n           of that property; (6) with intent to defraud.\n        D. False Pretenses: (1) Obtaining title; (2) to personal property\n           of another; (3) by intentional false statement of past or\n           existing fact; (4) with intent to defraud by the other.\n   V. Crimes Against Habitation\n        A. Burglary: (1) a breaking; (2) an entry; (3) of the dwelling; (4)\n           of another; (5) at night; (6) with the intent to commit a felony\n           inside.\n        B. Arson: (1) malicious; (2) burning; (3) of the dwelling; (4) of\n           another\n  VI. Defenses\n        A. Insanity \xe2\x80\x93 4 Formulations for Acquittal\n               a. M\xe2\x80\x99Naghten Rule: (1) know the wrongfulness of his actions\n                  or (2) understand the nature and quality of his actions.\n               b. Irresistible Impulse Test: (1) control his actions or (2)\n                  conform his conduct to the law\n               c. Durham Test: Acquit if D\xe2\x80\x99s conduct was the product of\n                  mental illness.\n               d. MPC: (1) appreciate the criminality of his conduct or (2)\n                  conform his conduct to the requirements of the law.\n        B. Intoxication (voluntary or involuntary)\n        C. Infancy: Under 7 \xe2\x80\x93 no liability; Under 14 \xe2\x80\x93 rebuttable\n           presumption against liability\n        D. Self-Defense (non-deadly v. deadly \xe2\x80\x93 may have to retreat)\n        E. Defense of a Dwelling (only non-deadly force)\n        F. Duress: Where someone reasonably believes that another person\n           would imminently inflict death or great bodily harm upon him or\n           a member of his family.  Not a defense for homicide.\n        G. Mistake of Fact: a defense only when it negates intention.\n           Reasonable v. unreasonable mistake.\n\nCRIMINAL PROCEDURE\n\n   I. Exclusionary Rul: illegally obtained evidence is inadmissible at\n      trial, and all \xe2\x80\x9cfruit of the poisonous tree\xe2\x80\x9d must also be excluded\n      (unless independent source, inevitable discovery, or act of free-will\n      by the D) Limitations \xe2\x80\x93 Good faith defense\n\n\n  II. 4th Amendment \xe2\x80\x93 Search & Seizure\n        A. Does the D have a 4th Am right? (governmental action; reasonable\n           expectation of privacy)\n        B. If so, did the government agent have a warrant? (valid, properly\n           executed or good faith D)\n        C. If the police did not have a warrant, did they make a valid\n           warrantless search?\n              i. Searches incident to a lawful arrest: contemporaneous to\n                 lawful arrest; wingspan only\n             ii. Automobile exception: need probable cause\n            iii. Plain view: police must be legitimately on the premises\n             iv. Consent: must be voluntary and intelligent and w/ authority\n              v. Stop and Frisk: need reasonable suspicion; limited to pat-\n                 down of outer clothing\n             vi. Hot pursuit and evanescent evidence: evidence that could go\n                 away\n\n\n III. 5th Amendment\n        A. Privilege against self-incrimination\n              i. Miranda warning (custody + interrogation)\n             ii. Compelled testimony\n        B. Right to counsel:  NOT offense specific \xe2\x80\x93 police must STOP\n           interrogation of ANY issue.\n        C. Double Jeopardy:  Once jeopardy attaches, the D may not be\n           retrial for the same offense.\n              i. Same Offense:  Generally, two crimes do not constitute the\n                 same offense if each crime requires proof of an additional\n                 element the other does not.\n                    1. Lesser included offenses usually = same offense\n                    2. Separate Sovereigns \xe2\x89\xa0 same offense\n              i. Exceptions permitting re-trail: (1) Hung jury; (2) Mistrial\n                 for manifest necessity; (3) Re-trial after successful\n                 appeal; (4) Breach of an agreed upon plea bargain\n\n\n  IV. 6th Amendment\n        A. Right to Counsel (post charge line-up/show-up and all critical\n           stages of prosecution)\n        B. Right to a Speedy Trial\n        C. Right to a Jury Trial: (6 month sentences; 6 jurors; unanimous)\n        D. Right to Confront Witnesses: Observe witness demeanor and\n           opportunity to cross examine. Right not absolute: (1) Judge may\n           remove disruptive D, (2) Co-defendant\xe2\x80\x99s confession\n\n\n   V. 8th Am\n        A. Cruel & Unusual Punishment \xe2\x80\x93 punishment must be proportionate to\n           the offense.\n        B. The Death Penalty\n              i. Any death penalty statute that does not give the D a chance\n                 to present mitigating facts and circumstances is\n                 unconstitutional.\n             ii. There can be no automatic category for imposition of the\n                 death penalty.\n            iii. The state may not by statute limit the mitigating factors;\n                 all relevant mitigating evidence must be admissible or the\n                 statute is unconstitutional.\n             iv. Only a jury and not a judge may determine the aggravating\n                 factors justifying imposition of the death penalty.\n\n\n  VI. 14th Amendment - Due Process\n        A. Burden of proof on prosecution to prove each element beyond a\n           reasonable doubt\n        B. Identification which are unnecessarily suggestive will be barred\n           by DP\n\n'


b'\nLandlord-Tenant\n\n   1) Nature of the leasehold\n        a. Tenancy for years\n        b. Periodic tenancy\n        c. Tenancy at will\n        d. Tenancy at sufferance\n   2) Assignment or sublease:\n        a. By tenant: absent an express restriction in the lease, a tenant\n           may freely transfer his leasehold interest.\n              i. Assignment \xe2\x80\x93 An assignment occurs when the assignor assigns\n                 his entire interest under the lease to another.  The\n                 assignee stands in the shoes of the original tenant in a\n                 direct relationship with the landlord.  The LL and T2 are\n                 in privity of estate, and each is liable to the other on\n                 all lease covenants that run with the land.  But, LL and T1\n                 remain in privity of contract, thus T1 remains liable for\n                 all unpaid rent.\n                    1. Covenants run w/ the land: If the original parties to\n                       the lease intended that the covenants run with the\n                       land, and if the covenant \xe2\x80\x9ctouches and concerns\xe2\x80\x9d the\n                       land, each will be liable to the other for those\n                       covenants.  A covenant touches and concerns the land\n                       when the agreement burdens one party while benefiting\n                       the other, respecting their interests in the\n                       property.\n             ii. Sublease \xe2\x80\x93 A sublease occurs when the subleasor moves out\n                 of the premises, and allows the subleasee to move into the\n                 premises as the subleasor\xe2\x80\x99s tenant.  A subleasee  is only\n                 in privity with the subleasor, and is not personally liable\n                 to the landlord for rent or for the performance of any of\n                 the covenants in the main lease unless the subleassee\n                 expressly assumes the covenants.\n                    1. Subleassee cannot enforce any covenants made by the\n                       LL in the original lease, except a residential\n                       subleassee may be able to enforce the implied\n                       warranty of habitability against the LL.\n        b. By LL: A LL may assignee the rents and reversion interest he\n           owns.\n              i. The tenant\xe2\x80\x99s consent is NOT required.\n             ii. Once the tenants are given reasonable notice of assignment,\n                 they must recognize and pay rent to the new owner as their\n                 LL.\n            iii. All tenant covenants that touch and concern the land will\n                 run with the land.\n             iv. Plus, the original LL also remains liable on all the\n                 covenants he made in the lease.\n   3) Tenant\xe2\x80\x99s Duties\n        a. Duty to repair\n              i. T must maintain the premises and make ordinary repairs\n             ii. T must not commit waste (voluntary, permissive, or\n                 ameliorative)\n            iii. Fixtures pass with ownership of the land.\n             iv. Defenses:\n                    1. Lease shifted burden of repair to the LL\n                    2. Tenant must promptly report deficiencies to the LL\n        b. Duty to pay rent\n              i. If breached and T leaves, LL may SIR\n                    1. Surrender \xe2\x80\x93 treat the abandonment as an offer of\n                       surrender\n                    2. Ignore \xe2\x80\x93 hold T responsible for unpaid rent\n                    3. Re-let\n             ii. If breached and T remains, LL may\n                    1. Evict through the courts\n                    2. Continue the relationship and sue for damages\n                    3. No self-help\n        c. Duty to not use premises for illegal purpose\n   4) Landlord\xe2\x80\x99s Duties\n        a. Duty to deliver possession\n        b. Implied warranty of quiet enjoyment\n              i. Breached by wrongful eviction\n             ii. Breached by constructive eviction (SING)\n                    1. Substantial interference\n                    2. T provides LL notice of the problem, but LL fails to\n                       respond\n                    3. T gets out\n        c. Implied warranty of habitability (residential leases only)\n              i. Standard: fit for basic human habitation\n             ii. When breached, T may: move, repair, reduce, or remain.\n        d. Tort Liability\n              i. Generally, LL is under no duty to make the premises safe.\n             ii. Exceptions: CLAPS\n                    1. LL must maintain common areas\n                    2. LL must warn T of latent defects\n                    3. LL must use reasonable care to complete repairs he\n                       voluntarily assumes\n                    4. LL who leases public space, and who should know,\n                       because of the nature of the defect and the length of\n                       the lease, that T will not repair, is liable for\n                       defects\n                    5. LL who leases furnished dwellings for short-terms is\n                       liable for defects.\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\nInterests in Land \xe2\x80\x93 5 Steps\n\n   1) Classify the interest and was it validly created?\n   2) State the characteristics of the interest\n   3) State any limitations to the interest\n   4) Conveyancing\n   5) Remedies\n\n\n   A. Ownership Interest\n        a. Present Possessory Interest\n              1. Fee Simple absolute\n              2. Fee simple determinable\n              3. Fee simple subject to condition subsequent\n              4. Fee simple subject to executory limitation\n              5. Life Estate\n        b. Future Interests\n              1. In grantor\n                    i. Possibility of reverter\n                   ii. Right of entry\n                  iii. Reversion\n              2. In grantee or third person\n                    i. Executory interest \xe2\x80\x93 springs or shifts\n                   ii. Remainders \xe2\x80\x93 contingent or vested\n              3. Validity\n                    i. Destructibility\n                   ii. Rule in Shelley\xe2\x80\x99s Case\n                  iii. Doctrine of Worthier Title\n                   iv. Restraints on alienation\n                    v. Restraints on marriage\n                   vi. Rule against perpetuities\n              4. Class gifts\n        c. Landlord Tennant\n        d. Adverse Possession\n   B. Non-Possessory Interest\n        a. Easement\n              1. Express v. Implied\n              2. Affirmative v. Negative\n              3. Creation\n              4. Enforcement\n              5. Termination\n        b. License\n        c. Profit\n              1. Exclusive v. non-exclusive\n              2. Profits v. ownership\n        d. Covenant running with the land\n              1. Affirmative\n              2. Negative\n        e. Equitable servitude\n   6) Remedies\n\n'