BarBri - NY Exam - July 2014 Forum

[TrustMeI'mAnActress]

Can someone please clarify what contract damages are for construction contracts? I'm having trouble calculating -- mainly when owner breaches vs. when builder breaches and some performance has already been completed. Thanks!

Easiest to break it down:

Builder breaches
Before Construction: Cost of completion + reasonable expenses for delay
During Construction: Cost of completion + reasonable expenses for delay (in the case that economic waste would occur by restarting construction, get what buyer would've have received minus what he actually received)
After Construction (late delay): Owner gets damages for loss incurred by late readiness (if that can't be determined interest on the building).

Owner breaches
Before Construction: Builder gets profits he would've received under the contract
During Construction: Builder gets profits from K plus any expenses put into the project
After Construction: Builder gets contract price plus interest for delay in payment


ETA: Just read Tash's and that's a really good summary of this little checklist tree.

Thanks guys! Both very helpful!

[thetashster]

I'm a little confused with attorney advertising

For ads with a disclaimer: "Prior results do not guarantee a similar outcome,” what exactly can you include if you want to put in "testimonials and endorsements" and statements characterizing quality of the firm?

These statements need to be balanced with creating a misleading truth, right? So if my ad says "I NEVER LOST A CASE!" that technically might fall within what's permitted with that but it might be misleading?

it would be misleading if you've never gone to trial and just settled everything. you have to think like a lay person. if you saw that a surgeon has "never had any complaints from his patients" well... maybe his patient didn't complain cuz he's dead. same thing here. i think it has to be 100% true, no grey area in order for it to be kosher.

if you really have never ever lost a case... taken everything to trial and won every time, then i believe you can state that. or if you've gotten really favorable settlements every single time, you can probably say that. it just sounds like a rule of extremes, and one where you'd rather err on the side of caution unless you don't give a flying fuckin floozy about anything.

[Guchster]

I'm a little confused with attorney advertising

For ads with a disclaimer: "Prior results do not guarantee a similar outcome,” what exactly can you include if you want to put in "testimonials and endorsements" and statements characterizing quality of the firm?

These statements need to be balanced with creating a misleading truth, right? So if my ad says "I NEVER LOST A CASE!" that technically might fall within what's permitted with that but it might be misleading?

it would be misleading if you've never gone to trial and just settled everything. you have to think like a lay person. if you saw that a surgeon has "never had any complaints from his patients" well... maybe his patient didn't complain cuz he's dead. same thing here. i think it has to be 100% true, no grey area in order for it to be kosher.

if you really have never ever lost a case... taken everything to trial and won every time, then i believe you can state that. or if you've gotten really favorable settlements every single time, you can probably say that. it just sounds like a rule of extremes, and one where you'd rather err on the side of caution unless you don't give a flying fuckin floozy about anything.

OHHHHHHHHHH

I was really scratching my head hard to reconcile during the lecture what he meant by the "I never lost a case" example and this is sooooo much clearer.

[turquoiseturtle]

I'm a little confused with attorney advertising

For ads with a disclaimer: "Prior results do not guarantee a similar outcome,” what exactly can you include if you want to put in "testimonials and endorsements" and statements characterizing quality of the firm?

These statements need to be balanced with creating a misleading truth, right? So if my ad says "I NEVER LOST A CASE!" that technically might fall within what's permitted with that but it might be misleading?

For ads with a disclaimer, I haven't seen one. I tried to look at some NY law firm websites, but apparently many of them don't consider their website to be advertising. http://www.nytimes.com/2007/03/02/busin ... .html?_r=0

And this firm does appear to be based in NY and has a whole page dedicated to successes http://www.rosenlegal.com/successes.html but I can't find any disclaimers anywhere.

This one has a whole page of testimonial, no clear disclaimer. http://rossilawfirm.com/testimonials.html

So who knows?

[thetashster]

I'm a little confused with attorney advertising

For ads with a disclaimer: "Prior results do not guarantee a similar outcome,” what exactly can you include if you want to put in "testimonials and endorsements" and statements characterizing quality of the firm?

These statements need to be balanced with creating a misleading truth, right? So if my ad says "I NEVER LOST A CASE!" that technically might fall within what's permitted with that but it might be misleading?

it would be misleading if you've never gone to trial and just settled everything. you have to think like a lay person. if you saw that a surgeon has "never had any complaints from his patients" well... maybe his patient didn't complain cuz he's dead. same thing here. i think it has to be 100% true, no grey area in order for it to be kosher.

if you really have never ever lost a case... taken everything to trial and won every time, then i believe you can state that. or if you've gotten really favorable settlements every single time, you can probably say that. it just sounds like a rule of extremes, and one where you'd rather err on the side of caution unless you don't give a flying fuckin floozy about anything.

OHHHHHHHHHH

I was really scratching my head hard to reconcile during the lecture what he meant by the "I never lost a case" example and this is sooooo much clearer.

i feel like overall PRE is all about extremes. i only watched the MA lecture for this (not NY) so idk if you had lisnek. but he was all about punishing the attorneys as much as possible. so if there's even a little bit of doubt, go with not allowing it. although it will always behove you to list exceptions, as per bar essay writing requirements

[Guchster]

I'm a little confused with attorney advertising

For ads with a disclaimer: "Prior results do not guarantee a similar outcome,” what exactly can you include if you want to put in "testimonials and endorsements" and statements characterizing quality of the firm?

These statements need to be balanced with creating a misleading truth, right? So if my ad says "I NEVER LOST A CASE!" that technically might fall within what's permitted with that but it might be misleading?

For ads with a disclaimer, I haven't seen one. I tried to look at some NY law firm websites, but apparently many of them don't consider their website to be advertising. http://www.nytimes.com/2007/03/02/busin ... .html?_r=0

And this firm does appear to be based in NY and has a whole page dedicated to successes http://www.rosenlegal.com/successes.html but I can't find any disclaimers anywhere.

This one has a whole page of testimonial, no clear disclaimer. http://rossilawfirm.com/testimonials.html

So who knows?

LOL. The TLS mob, in our anger and in retribution to the cruel attorneys who passively let this torture to continue from generation to generation, should hunt down advertisements that violate legal rules and report them to disciplinary committees.

HIDE YO KIDS, HIDE YO WIVES, HIDE YO ADVERTISEMENTS CUZ THEY REPORTING EVERYONE OUT HERE.

[turquoiseturtle]

I'm a little confused with attorney advertising

For ads with a disclaimer: "Prior results do not guarantee a similar outcome,” what exactly can you include if you want to put in "testimonials and endorsements" and statements characterizing quality of the firm?

These statements need to be balanced with creating a misleading truth, right? So if my ad says "I NEVER LOST A CASE!" that technically might fall within what's permitted with that but it might be misleading?

it would be misleading if you've never gone to trial and just settled everything. you have to think like a lay person. if you saw that a surgeon has "never had any complaints from his patients" well... maybe his patient didn't complain cuz he's dead. same thing here. i think it has to be 100% true, no grey area in order for it to be kosher.

if you really have never ever lost a case... taken everything to trial and won every time, then i believe you can state that. or if you've gotten really favorable settlements every single time, you can probably say that. it just sounds like a rule of extremes, and one where you'd rather err on the side of caution unless you don't give a flying fuckin floozy about anything.

OHHHHHHHHHH

I was really scratching my head hard to reconcile during the lecture what he meant by the "I never lost a case" example and this is sooooo much clearer.

i feel like overall PRE is all about extremes. i only watched the MA lecture for this (not NY) so idk if you had lisnek. but he was all about punishing the attorneys as much as possible. so if there's even a little bit of doubt, go with not allowing it. although it will always behove you to list exceptions, as per bar essay writing requirements

Again, the NY bar exam could mess with us, but in all the essays I've read I've only seen PR tested in terms of: 1. conflicts of interest, 2. will bequests to the attorney, 3. failure to get a signed retainer agreement, 4. contingent fees, and 5. candor to the tribunal type stuff.

Not a single advertising related question. Of course, it could show up in the MC, but I've basically given up caring about those.

[Guchster]

3. failure to get a signed retainer agreement

Not a single advertising related question. Of course, it could show up in the MC, but I've basically given up caring about those.

In what sort of contexts does the failure to get a signed retainer agreement come into play? You don't actually need to get one in NY do you outside the scope of DR cases and contingent fees? It just needs to be provided to clients?

It would make logical sense to require a signed written letter of engagement--but I don't see it in my notes, lecture handouts anywhere.

[turquoiseturtle]

3. failure to get a signed retainer agreement

Not a single advertising related question. Of course, it could show up in the MC, but I've basically given up caring about those.

In what sort of contexts does the failure to get a signed retainer agreement come into play? You don't actually need to get one in NY do you outside the scope of DR cases? It just needs to be provided to clients?

It would make logical sense to require a signed written letter of engagement--but I don't see it in my notes, lecture handouts anywhere.

Sorry, I mean retainer/letter of engagement. I'm just used to calling it a retainer. A retainer has to be signed, but I don't think a letter of engagement does. That seems silly to me.

Just for fullness: you have to have a letter of engagement/retainer in most cases except for those three exceptions (less than $3000, same type of services as previously provided, where no material portion of the services will even be in NY). This is from pages 28-29 in the handout.

The result if you don't provide it is discipline. But also, that whatever the attorney's usually fees+expenses are is irrelevant and the client just has to pay "reasonable value" of services.

[Guchster]

Just for fullness: you have to have a letter of engagement/retainer in most cases except for those three exceptions (less than $3000, same type of services as previously provided, where no material portion of the services will even be in NY). This is from pages 28-29 in the handout.

Nice! Thanks

Does it have to be signed?


Edited:
If you don't know off the top of your head don't worry about the answer. If this came up in an essay, I'm sure I would get decent amount of points for writing "signed, written" even though it didn't actually need to be signed.

[turquoiseturtle]

Just for fullness: you have to have a letter of engagement/retainer in most cases except for those three exceptions (less than $3000, same type of services as previously provided, where no material portion of the services will even be in NY). This is from pages 28-29 in the handout.

Nice! Thanks

Does it have to be signed?

I think you're right: not signed except in DR cases. Except that if its a "retainer" instead of a "letter of engagement," the retainer has to be signed in both DR and regular cases.

This seems incredibly arbitrary to me, which is probably why I'm not doing a good job of committing it to memory. I'm always like "sign everything! everything must be signed!"

[pizzasodafries]

need to get murder figured out for ny, mbe is playing with my head.

In ny the typical "reckless" murder is not murder 2? Depraved Heart murder is "extreme recklessness"?

The word reckless in mbe was murder 2 along with intentional murders that weren't murder 1.

[jets098]

need to get murder figured out for ny, mbe is playing with my head.

In ny the typical "reckless" murder is not murder 2? Depraved Heart murder is "extreme recklessness"?

The word reckless in mbe was murder 2 along with intentional murders that weren't murder 1.

Every time they talk about degrees of murder on the MBE it is accompanied by a statute (as far as I can remember). So I wouldn't worry about trying to sort out the distinction. Just remember that 2nd Degree in New York is "highly reckless demonstrating depraved indifference".

[turquoiseturtle]

need to get murder figured out for ny, mbe is playing with my head.

In ny the typical "reckless" murder is not murder 2? Depraved Heart murder is "extreme recklessness"?

The word reckless in mbe was murder 2 along with intentional murders that weren't murder 1.

Every time they talk about degrees of murder on the MBE it is accompanied by a statute (as far as I can remember). So I wouldn't worry about trying to sort out the distinction. Just remember that 2nd Degree in New York is "highly reckless demonstrating depraved indifference".

Also, what qualifies at "extreme recklessness" for 2nd Degree in NY, is not the same as "depraved heart" at common law/on the MBE. It has to be really really really bad for highly reckless murder in NY. The examples they give are like "prolonged torture of a vulnerable victim." So short torture might not qualify. Or a non-vulnerable victim might not qualify.

What on the MBE is "depraved heart" typically falls under "reckless" in NY and is 2nd degree manslaughter. "Conscious disregard of a substantial risk, which causes the death of another person."

[thetashster]

is there anything about nominee trusts in the materials?

i just came across it in MA but it's not in any of the MA materials, and i don't think we ever talked about it in NY trusts... at least not according to my notes..

[Guchster]

is there anything about nominee trusts in the materials?

i just came across it in MA but it's not in any of the MA materials, and i don't think we ever talked about it in NY trusts... at least not according to my notes..

I have no idea what that is.

[turquoiseturtle]

is there anything about nominee trusts in the materials?

i just came across it in MA but it's not in any of the MA materials, and i don't think we ever talked about it in NY trusts... at least not according to my notes..

I have no idea what that is.

That better not be a thing in NY.

[PennBull]

Don't sweat the stupid small shit

If you can be cogent about the basics for every topic that's good enough

[pizzasodafries]

need to get murder figured out for ny, mbe is playing with my head.

In ny the typical "reckless" murder is not murder 2? Depraved Heart murder is "extreme recklessness"?

The word reckless in mbe was murder 2 along with intentional murders that weren't murder 1.

Every time they talk about degrees of murder on the MBE it is accompanied by a statute (as far as I can remember). So I wouldn't worry about trying to sort out the distinction. Just remember that 2nd Degree in New York is "highly reckless demonstrating depraved indifference".

Also, what qualifies at "extreme recklessness" for 2nd Degree in NY, is not the same as "depraved heart" at common law/on the MBE. It has to be really really really bad for highly reckless murder in NY. The examples they give are like "prolonged torture of a vulnerable victim." So short torture might not qualify. Or a non-vulnerable victim might not qualify.

What on the MBE is "depraved heart" typically falls under "reckless" in NY and is 2nd degree manslaughter. "Conscious disregard of a substantial risk, which causes the death of another person."

In a nutshell the classic MBE scenario where tough guy "wants to send a message to so and so, not to kill him" beats the shit out of some dude and the dude dies later that night, in MBE thats Murder 2 for Malice and under Recklessness, in NY that exact scenario is straight up Mans 2.

Did I get that right?

[Guchster]

In a nutshell the classic MBE scenario where tough guy "wants to send a message to so and so, not to kill him" beats the shit out of some dude and the dude dies later that night, in MBE thats Murder 2 for Malice and under Recklessness, in NY that exact scenario is straight up Mans 2.

Did I get that right?

I would put it under malice and thus 2nd degree murder in MBE (but for intent to to inflict serious bodily injury), and under first degree manslaughter in NY.

ed: fixed

[Guchster]

But I don't understand what a highly reckless killing means and why that's different than intent to inflict serious bodily harm that qualifies as first degree manslaughter.

[encore1101]

But I don't understand what a highly reckless killing means and why that's different than intent to inflict serious bodily harm that qualifies as first degree manslaughter.

In the example that the lecturer gave, he said that in some cases, DWI can qualify as "extremely reckless," such as if the defendant knew that he was drunk off his ass, drove 120+ on the freeway, going against traffic for 30 minutes, etc.

Let's say I shoot my gun outside my window, aiming at nothing in particular, but I unload multiple magazines and eventually shoot and kill someone. I didn't have any intent to shoot any particular person, and not even intent to shoot anyone, but my acts were "extremely reckless."

Intent to inflict serious bodily harm comes in when I want to beat up someone for tailgating me, so I beat him up with a bat I have in my car. I beat him up with my bat and then leave. Later, he dies from his injuries.

[thetashster]

Don't sweat the stupid small shit

If you can be cogent about the basics for every topic that's good enough

unfortunately it was a big part of an MA question. but it's all good. just gonna wing it that day

[turquoiseturtle]

Can someone help me out with domestic relations and jurisdiction please!

There are two things required right? If both parties are NY domiciles, theres no residency requirement and no need for the matrimonial long arm.

But I'm having trouble with matrimonial long arm and jurisdiction. This comes up when one of the parties isn't a NY domicile right?

If only one party is a domicile and meets the residency requirements, then the court has in rem jurisdiction over the marriage and can grant a divorce. But can't do anything with property or with maintenance or child support? You need the long arm jurisdiction over the other person for the support?

[Guchster]

Can someone help me out with domestic relations and jurisdiction please!

There are two things required right? If both parties are NY domiciles, theres no residency requirement and no need for the matrimonial long arm.

But I'm having trouble with matrimonial long arm and jurisdiction. This comes up when one of the parties isn't a NY domicile right?

If only one party is a domicile and meets the residency requirements, then the court has in rem jurisdiction over the marriage and can grant a divorce. But can't do anything with property or with maintenance or child support? You need the long arm jurisdiction over the other person for the support?

All of this looks good to me.

Also, note that failure to meet durational residence requirement doesn't deprive the court of subject matter jdx though. So if there's an error that it has been met (and it hasn't) all the defendant can do is appeal--and can't collateral attack the judgment.