Bar Prep Questions: Black Letter Law Thread Forum

[teabreeze]

Evidence set1 question#9

[]

I get that A frames the training as a lay opinion, but why the fuck wouldn't his testimony be admissible as an expert opinion?? Assuming the D laid proper foundation I see nothing wrong with the testimony coming in as an expert opinion

Obviously, this wasn't an answer choice, but this is why I thought there's NO WAY the inadmissible choice should be correct and figured I'd go with A. Wtf? Can anyone clear this up?

Urgh accidentally deleted my reply. The main gist was that regardless of whether or not the report contains expert opinion testimony, the report is still hearsay bc it's being offered to prove that the business is valued at $250K. There's no expert opinion exception to hearsay. If the accountant was directly testifying in court that according to his calculations the business is valued at $250K, this might be permitted as an expert witness opinion, but that is not the case here.

[ballouttacontrol]

Haha, I quoted your first reply which is below, lol. was curious why it didn't go through. But yea, you're totally right

Evidence set1 question#9

I get that A frames the training as a lay opinion, but why the fuck wouldn't his testimony be admissible as an expert opinion?? Assuming the D laid proper foundation I see nothing wrong with the testimony coming in as an expert opinion

Obviously, this wasn't an answer choice, but this is why I thought there's NO WAY the inadmissible choice should be correct and figured I'd go with A. Wtf? Can anyone clear this up?

Hmm im not sure if the report would be considered expert testimony, but in any case I would focus more on the fact that the report is hearsay than on the question of whether or not it's expert opinion. The report is an out of court statement that is clearly being introduced to prove that the business is valued at $250K. There is no witness opinion exception to hearsay so regardless of whether or not it is expert option testimony, it is inadmissible as hearsay and is not "nonhearsay."

Yea, I think that's basically right. I cross posted in another thread ( http://www.top-law-schools.com/forums/v ... 5#p9433689 ) and realized I mis-read and thought the accountant was actually testifying to his report, in which case, I believe it would be admissible expert testimony.

Thanks!

[nachosrgood]

Trying to resolve what seems to be a Barbri discrepancy on double jeopardy, lessor/greater included offenses (i.e. larceny and burglary)

My Barbri lecture notes say that double jeopardy goes both ways for lessor/greater included offenses. (If charged for burglary and underlying offense is larceny, then cant be charged later with that larceny. If charged with larceny first, then cant be later charged with burglary and larceny as the underlying felony).

Barbri practice question: Woman breaks into home to steal jewlry. First tried on larceny and convicted. Then a charge of burglary is brought. Woman moves to dismiss becaues of DJ. Correct answer: denied b/c they are separate offenses in that each reuires proof of a fact that the other does not. Explanation says they each require separate elements: larceny the taking and carrying away, burglary the breaking and entering...

The Barbri answer seems to contradict my takeway from the lecture notes. Am I missing something here? Could it be a Barbir mistake? It is a 2014 MBE practice book...

[mvp99]

Trying to resolve what seems to be a Barbri discrepancy on double jeopardy, lessor/greater included offenses (i.e. larceny and burglary)

My Barbri lecture notes say that double jeopardy goes both ways for lessor/greater included offenses. (If charged for burglary and underlying offense is larceny, then cant be charged later with that larceny. If charged with larceny first, then cant be later charged with burglary and larceny as the underlying felony).

Barbri practice question: Woman breaks into home to steal jewlry. First tried on larceny and convicted. Then a charge of burglary is brought. Woman moves to dismiss becaues of DJ. Correct answer: denied b/c they are separate offenses in that each reuires proof of a fact that the other does not. Explanation says they each require separate elements: larceny the taking and carrying away, burglary the breaking and entering...

The Barbri answer seems to contradict my takeway from the lecture notes. Am I missing something here? Could it be a Barbir mistake? It is a 2014 MBE practice book...

Burglary is the forcible entering into a dwelling (1) with intent to commit a felony therein (2) and Larceny doesn't require (1) and (2) is simply a sub element of larceny itself and it's an element in every crime except strict liability crimes. I wouldn't be surprise if double jeopardy doesn't apply.

[mvp99]

Separate Q. I haven't seen an MBE question test the element of burglary "at nighttime." It's usually the specific intent that element being tested. Do we have to assume the nighttime element on the MBE? It's in the real common law definition of burglary although modern statute have eliminated this distinction.

[LionelHutzJD]

Separate Q. I haven't seen an MBE question test the element of burglary "at nighttime." It's usually the specific intent that element being tested. Do we have to assume the nighttime element on the MBE? It's in the real common law definition of burglary although modern statute have eliminated this distinction.

The modern trend has done away with the dwelling and nighttime requirements. Therefore the examiners will make it clear that either (1) the common law definitions apply (in which case nighttime and dwelling would apply) or (2) they will tell us that the jurisdiction has abolished either (a) the nighttime requirement or (b) the dwelling requirement.

[mvp99]

Separate Q. I haven't seen an MBE question test the element of burglary "at nighttime." It's usually the specific intent that element being tested. Do we have to assume the nighttime element on the MBE? It's in the real common law definition of burglary although modern statute have eliminated this distinction.

The modern trend has done away with the dwelling and nighttime requirements. Therefore the examiners will make it clear that either (1) the common law definitions apply (in which case nighttime and dwelling would apply) or (2) they will tell us that the jurisdiction has abolished either (a) the nighttime requirement or (b) the dwelling requirement.

Thanks!

[pinaylawyer]

I just finished listening to the video to the answer pf the simluated MBE of BARBRI . I took down the notes in conlaw. In my notes, the lecturer said that STATE ACTION: not necessarily a state action if a private school was funded by state or accredited by state"

Now Here comes the adaptibar MPQ

A state accredits both public and private schools, licenses their teachers, and supplies textbooks on secular subjects to all such schools. A private school that offers elementary and secondary education in the state denies admission to all non-Caucasians. In a suit to enjoin as unconstitutional the continued racially exclusionary admissions policy of the school, which of the following is the strongest argument AGAINST the school?
A. Because education is a public function, the school may not discriminate on racial grounds.
B. The state is so involved in school regulation and support that the equal protection clause of the Fourteenth Amendment is applicable to the school.
C. The state is constitutionally obligated to eliminate segregation in all public and private educational institutions within the state.
D. Any school with teachers who are licensed by the state is forbidden to discriminate on racial grounds.


B is the correct answer. The Constitution prohibits the state from encouraging, authorizing, or participating in racial discrimination. However, this prohibition only applies to private parties in specific situations, such as the performance of a traditionally exclusive public function or where there is significant state involvement in the private action.

[criminaltheory]

I just finished listening to the video to the answer pf the simluated MBE of BARBRI . I took down the notes in conlaw. In my notes, the lecturer said that STATE ACTION: not necessarily a state action if a private school was funded by state or accredited by state"

Now Here comes the adaptibar MPQ

A state accredits both public and private schools, licenses their teachers, and supplies textbooks on secular subjects to all such schools. A private school that offers elementary and secondary education in the state denies admission to all non-Caucasians. In a suit to enjoin as unconstitutional the continued racially exclusionary admissions policy of the school, which of the following is the strongest argument AGAINST the school?
A. Because education is a public function, the school may not discriminate on racial grounds.
B. The state is so involved in school regulation and support that the equal protection clause of the Fourteenth Amendment is applicable to the school.
C. The state is constitutionally obligated to eliminate segregation in all public and private educational institutions within the state.
D. Any school with teachers who are licensed by the state is forbidden to discriminate on racial grounds.


B is the correct answer. The Constitution prohibits the state from encouraging, authorizing, or participating in racial discrimination. However, this prohibition only applies to private parties in specific situations, such as the performance of a traditionally exclusive public function or where there is significant state involvement in the private action.

Not sure what the specifics of your question are, but here's what I'm guessing:

Here, A, C, and D are all simply incorrect and would not be a strong argument against the school, because they're wrong statements of law.
B is correct because IF the state is so strongly involved with the regulation and support, then the school may be considered a state actor subject to the equal protection clause.
In general, licensing and support do not necessarily make a private actor a state actor, but they might (we can imagine a 'private' school that gets 100% of its funding and all its operating rules from the state) , and that's all the question is asking.

[pinaylawyer]

^ just got confused because it seems in Adaptibar the explanation, if I understand it correctly, private schools that are accredited by the state is considered a significant involvement, thus, State Action. Whereas in the barbri lecture after the simulated MBE, it was emphasized that mere funding and accreditation of private school by the state doesnt necessarily have to be considered a state action.

thats all thank you =)

[mvp99]

^ just got confused because it seems in Adaptibar the explanation, if I understand it correctly, private schools that are accredited by the state is considered a significant involvement, thus, State Action. Whereas in the barbri lecture after the simulated MBE, it was emphasized that mere funding and accreditation of private school by the state doesnt necessarily have to be considered a state action.

thats all thank you =)

Make sure you understand this type of question. I think you understand the law (that there must be state action) but when you saw that there was no state action in this fact pattern you assumed they would lose the case on constitutional grounds and so you went ahead and searched for some sort of duty that would make the school liable for discrimination. The question is simply asking what argument helps, it doesn't ultimately have to "win" the case. In fact, without more it's very likely the school will win. However, answer choice B made the case against the school "stronger." That's all you need (also all other answer choices misstate the law).

[texas1100]

I haven't been able to find a clear answer on this.

Civil Procedure:

Say A sues B in federal court. B impleads C. If C has any claims against B that are related to the same t/o as between the claim B is bringing against C, must C bring the claim? (I.e. Do the compulsory counter-claim rules apply once all parties are brought in, regardless of how they're brought in)?

I know that a Third Party D's claim against the original P IS permissive and doesn't have to brought even if arising out of the same t/o. So can someone clarify when compulsory counterclaims apply in these types of scenarios? (Additionally, where A sues B and C, B cross-claims C, and C has a counterclaim related to the same t/o, must C assert it now?)

Thanks!

[ballouttacontrol]

I haven't been able to find a clear answer on this.

Civil Procedure:

Say A sues B in federal court. B impleads C. If C has any claims against B that are related to the same t/o as between the claim B is bringing against C, must C bring the claim? (I.e. Do the compulsory counter-claim rules apply once all parties are brought in, regardless of how they're brought in)?

I know that a Third Party D's claim against the original P IS permissive and doesn't have to brought even if arising out of the same t/o. So can someone clarify when compulsory counterclaims apply in these types of scenarios? (Additionally, where A sues B and C, B cross-claims C, and C has a counterclaim related to the same t/o, must C assert it now?)

Thanks!

Yes. Rule 14:

Code: Select all

(2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint—the “third-party defendant”:

(A) must assert any defense against the third-party plaintiff's claim under Rule 12;

(B) must assert any counterclaim against the third-party plaintiff under Rule 13a, and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and

(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).

[fly_lawy3r]

Just to confirm my muddled understanding of this, I get that under the Shelter Rule, a BFP can transfer to a non-BFP and the non-BFP transferee will be protected as if he were as BFP. But that transferee himself doesn't actually take on BFP status, right?

[BVest]

Just to confirm my muddled understanding of this, I get that under the Shelter Rule, a BFP can transfer to a non-BFP and the non-BFP transferee will be protected as if he were as BFP. But that transferee himself doesn't actually take on BFP status, right?

The transferee may have BFP status (if he buys for value with no notice), but does not have to have BFP status and does not inherit the original BFP's status.

Example:

A --> B, then A --> C for value and without notice of B's interest. C is a BFP.

Now either:

C --> D as a gift. D is not a BFP (no value) but is protected under shelter rule due to C's status

OR, assuming C never transferred to D"

C --> D for value and without notice of B's interest. E is a BFP. (E is also protected under shelter rule by C's status, in case it is later established that E did not actually pay value or that E did have notice).

[fly_lawy3r]

The transferee may have BFP status (if he buys for value with no notice), but does not have to have BFP status and does not inherit the original BFP's status.

Wonderful -- thanks.

[texas1100]

I haven't been able to find a clear answer on this.

Civil Procedure:

Say A sues B in federal court. B impleads C. If C has any claims against B that are related to the same t/o as between the claim B is bringing against C, must C bring the claim? (I.e. Do the compulsory counter-claim rules apply once all parties are brought in, regardless of how they're brought in)?

I know that a Third Party D's claim against the original P IS permissive and doesn't have to brought even if arising out of the same t/o. So can someone clarify when compulsory counterclaims apply in these types of scenarios? (Additionally, where A sues B and C, B cross-claims C, and C has a counterclaim related to the same t/o, must C assert it now?)

Thanks!

Yes. Rule 14:

Code: Select all

(2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint—the “third-party defendant”:

(A) must assert any defense against the third-party plaintiff's claim under Rule 12;

(B) must assert any counterclaim against the third-party plaintiff under Rule 13a, and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and

(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).

Thanks. Diversity hypo- If Plaintiff (State A) sues Defendant (B) and Defendant impleads TPD (State A). If the TPD asserts a claim against Plaintiff arising out of the same T/O, can Plaintiff still counterclaim? I know that if the TPD is brought in initially, Plaintiff couldn't originally sue the TPD because it'd destroy diversity, even under SJ.

[ballouttacontrol]

Does anyone know what the rationale is for the resident defendant rule in civpro, that a resident defendant of the forum state may not remove to federal court in a case based off diversity jurisdiction?

Seems so random and the kinda thing I'd forget about without some kind of rational policy basis for it, which sure there must be?

[Rahviveh]

Does anyone know what the rationale is for the resident defendant rule in civpro, that a resident defendant of the forum state may not remove to federal court in a case based off diversity jurisdiction?

Seems so random and the kinda thing I'd forget about without some kind of rational policy basis for it, which sure there must be?

One of the purposes of removal is to protect against potential biases against the defendant. If it's a diversity case and the defendant is in his home state's court, there is no reason to suspect bias against him and no need for removal.

[BVest]

There's no right of the defendant to choose be in federal court over state court unless it's a claim for which the state court has no subject matter jurisdiction. The only right of the defendant is to not be in a forum state that's not fair to the defendant. If you're in D's home state, then whether you're in state court or federal court shouldn't matter to him in terms of fairness.

If the matter is one that could have been brought in either federal or state court, and D has an opinion about which court he'd like the matter to be brought in, then he should anticipate the lawsuit and file first.

[Calvin Murphy]

There's no right of the defendant to choose be in federal court over state court unless it's a claim for which the state court has no subject matter jurisdiction. The only right of the defendant is to not be in a forum state that's not fair to the defendant. If you're in D's home state, then whether you're in state court or federal court shouldn't matter to him in terms of fairness.

If the matter is one that could have been brought in either federal or state court, and D has an opinion about which court he'd like the matter to be brought in, then he should anticipate the lawsuit and file first.

If Plaintiff Pete from State P files a $100,000 tort suit against Defendant Dan from state D for a car accident that occurred in state P, and Pete files in a state court in State P (not friendly to Dan), Dan remove to federal court in State P, right??

[BVest]

There's no right of the defendant to choose be in federal court over state court unless it's a claim for which the state court has no subject matter jurisdiction. The only right of the defendant is to not be in a forum state that's not fair to the defendant. If you're in D's home state, then whether you're in state court or federal court shouldn't matter to him in terms of fairness.

If the matter is one that could have been brought in either federal or state court, and D has an opinion about which court he'd like the matter to be brought in, then he should anticipate the lawsuit and file first.

If Plaintiff Pete from State P files a $100,000 tort suit against Defendant Dan from state D for a car accident that occurred in state P, and Pete files in a state court in State P (not friendly to Dan), Dan remove to federal court in State P, right??

Yes. This is diversity jurisdiction in its simplest form.

[LionelHutzJD]

There's no right of the defendant to choose be in federal court over state court unless it's a claim for which the state court has no subject matter jurisdiction. The only right of the defendant is to not be in a forum state that's not fair to the defendant. If you're in D's home state, then whether you're in state court or federal court shouldn't matter to him in terms of fairness.

If the matter is one that could have been brought in either federal or state court, and D has an opinion about which court he'd like the matter to be brought in, then he should anticipate the lawsuit and file first.

If Plaintiff Pete from State P files a $100,000 tort suit against Defendant Dan from state D for a car accident that occurred in state P, and Pete files in a state court in State P (not friendly to Dan), Dan remove to federal court in State P, right??

Right, as long as the Federal court in State P would have PJ over Dan (which it would on these facts)

[ballouttacontrol]

Thanks guys

[mvp99]

Anyone willing to list rules specific to TBD? I know for instance they do not destroy diversity if domiciled in the same state as P. Are they ever subject to compulsory counter claims (against P?)? must they assert compulsory claims against TPP?