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If you were attorney for Dot, what mistakes could you find?


Paul and Dave went to the mountains on a hunting trip together, agreeing to share
expenses. They used a jeep owned by Dave. Two days after they were due to return, the jeep
was found at the bottom of a gorge near a mountain road. Both men had been thrown from the
jeep and killed. The physical evidence surrounding the accident showed that the jeep apparently
had been going at a high rate of speed and had left the road when the driver consequently lost
control of the vehicle. It was impossible to tell from that physical evidence anything about who
had been driving the jeep when the accident occurred.

Pat was appointed as the administrator of Paul's estate, and Dot was appointed as the
administrator of Dave's estate. Pat filed a wrongful-death action as representative of Paul's
beneficiaries in order to recover $200,000 from Dot as administrator of Dave's estate. The suit
was properly filed in an appropriate federal district court, in that diversity of citizenship existed.
After proper service, Dot filed an answer, which contained appropriate denials, an affirmative
defense of contributory negligence, and a wrongful-death counterclaim against Pat to recover
$300,000. In reply, Pat filed an answer containing appropriate denials and alleging contributory
negligence.

Under these pleadings, the principal issues were the identity of the driver of the jeep at
the time of the accident and whether the driver was negligent. [You need know nothing about
guest passenger statutes, as the applicable state guest passenger statute does not apply to people
who shared expenses. On the other hand, it is helpful to know that, under the applicable law, the
burden of pleading and proving contributory negligence is on the party relying on that defense,
and there is no doctrine of comparative negligence.]

The case proceeded smoothly through the pretrial phase. After disclosure, discovery, and
a couple of conferences, the case was tried to a judge sitting without a jury, because neither party
requested a jury.

At trial, Pat presented the aforementioned physical evidence of the circumstances at the
accident scene and evidence on the amount of damages resulting from Paul's death. Pat also
presented evidence about the circumstances of the trip, including that Dave was driving the jeep
when the men left on the hunting trip and that Dave owned the jeep.

Pat went on to offer various evidence that Dave "usually" did not let other persons drive
his jeep, and Dot specifically objected. The trial judge said that this evidence probably would not
be admissible under the strict rules of evidence, because it did not constitute a habit or custom
from which an inference could reasonably be drawn that Dave was driving at the time of the
accident. However, because there was no jury, the judge accepted the testimony "for what it was
worth."

At the close of Pat's case, Dot moved for a judgment on partial findings. The court
denied the motion.



Dot then presented her case, trying only to establish the extent of the damages arising
from Dave's death.

Both sides then rested. The court took the case under advisement. Two weeks
later—that is, one week ago—the judge simply sent the following letter to the attorneys and to
the clerk of the court:

Gentlepersons:

I have carefully reviewed the evidence in the case. Although it is difficult to make
a decision, I feel it is slightly more probable than not that Dave was driving the jeep at the
time of the accident. The circumstances indicate that the driver was somewhat more likely
than not negligent, that his negligence proximately caused Paul's death, and that Paul was not
contributorily negligent. I think that Paul's death resulted in $150,000 damages to his
beneficiaries. I do not have to concern myself with any conjunction of probabilities.
I, therefore, am finding for plaintiff on plaintiff's claim in the amount of $150,000,
and for said plaintiff as defendant on the counterclaim.



Immediately, an appropriate judgment was entered accordingly, on the basis of that letter.

Is this an actual hypo from your professor? If it is, I kind of feel bad.

I was extremely frustrated reading this hypo. There could very well be an issue with the pleading standards, in that in Federal Court they'd apply the Twombly standard, and there's probably no way that Pat could have alleged proper facts to establish a plausible action. In this case, Dot should have filed a motion to dismiss. However, because of the lame-ass, indescriptive hypo, I have no idea whether that's a real issue.

I don't really care to continue, because the rest of the "issues" are equally vague and give you next to nothing to work off. I'm glad that this question will not be my final exam.

This is the only question from the practice exam our professor gave us, I think it was an old exam question from a previous year. FML

acdisagod wrote:This is the only question from the practice exam our professor gave us, I think it was an old exam question from a previous year. FML

You should ask your professor whether you can disclose the practice question to people who are not in his/her class.

I sense possible violations of the honor code and copyright . . . .

truevines wrote:

acdisagod wrote:This is the only question from the practice exam our professor gave us, I think it was an old exam question from a previous year. FML

You should ask your profession whether you can disclose the practice question to people who are not in his/her class.

I sense possible violations of the honor code and copyright . . . .

shut up and help figure out this hypo.

Shouldn't Dot have filed an appeal of the judge's decision to let the evidence in? Look to rule 60(b). I think she may have lost that ability if the letter is the judgment. But if it isn't the final judgment then she could appeal the entrance/consideration of the habit or routine practice. Then I guess you would go as to whether or not it would make a difference if that evidence was kept out. It would be pretty hard since there's no jury, but maybe it would be overturned if it was against the "great weight of the evidence." The time limit there wouldn't be a problem under Rule 60 because it's for a year.

Second, I guess that a motion on partial findings (not what my prof calls it) is a judgment as a matter of law (JMOL). If that's the case, then Dot should file a renewed JMOL AND a motion for retrial. She needs the retrial motion too because if she wins on the renewed JMOL and it gets overturned on appeal then she's screwed out of a retrial unless she files the retrial with the renewed JMOL.

But Dot should definitely go for the retrial. Rule 50a1/60(b), this was a "substantive error" by the judge for arbitrarily letting evidence into the record with an admission (on the record!) that it shouldn't be let in but he was feeling frisky. The error was prejudicial because it goes to the heart of the case-who was driving the car.

Maybe the error was that Dot should have filed another JMOL after her case-in-chief. Maybe she could have proven that Paul was contributorily negligent. The burden was on her to do so. She could have filed at the close of her case and at the close of Pat's (which she did)

The question also said Pat filed an answer alleging contributory negligence. Wtf does that mean? She needs to deny that there was contributory negligence by Paul, not allege contributory negligence by Dave that doesn't make any sense. Technical error I guess?

No personal jurisdiction problems, they consented by being in court. Subject matter properly filed. Proper service. Proper venue. So the only problems can be in pleadings/trial related stuff.

I guess you could say that the counterclaim has no basis to survive under Twombly too. Hope this helped, that's all I got. I'm a 1L too so I could be completely wrong.