Barbri paced program question? Forum

[pkt63]

Evidence Q with a hint of Civ Pro - if someone brings a suit against two parties, are D1 and D2 automatically considered "opposing parties" as well? If not, are they considered opposing parties IF D1 offers an affirmative defense that D2 was responsible and they weren't (even if there is no cross claim filed)?

This is for the purposes of admitting a statement by a party opponent. In this Q, D1 asserted an affirmative defense and wanted to use an admission by D2. I answered hearsay because I assumed co-defendants were not "opposing parties." The answer is that it can come in under statement by party opponent/admission, but the Barbri answer didn't explicitly state whether these parties are always considered "opponents" or if they are only considered opponents because of the affirmative defense D1 asserted, or if the "statement by a party opponent" doesn't actually require the parties to be opposing and it is just a misnomer. Confused! Please help!

[Heat]

Edit Based on the Below Clarification (so as not to have wrong law in the thread).

You would have to be a party to the action, the statement would also have to be offered against you.

[LSAT Taker]

Based on my limited knowledge of Evidence law, a party admission is not hearsay. A party admission merely requires the party that made the statement is a party, not that the statement is actually opposing your position. So the statements of D1 and D2 are admissible since they are parties in opposition to P1.

Under 801(d)(2), the statement is not hearsay when offered "against the opposing party." So one could argue that merely being a party in an action does not necessarily render any statement against that party admissible. My question is whether an affirmative defense against "a" party automatically creates a relationship of opposing parties between the declarant and the party against whom the statement is offered. Anyone?

[mvpforme]

Based on my limited knowledge of Evidence law, a party admission is not hearsay. A party admission merely requires the party that made the statement is a party, not that the statement is actually opposing your position. So the statements of D1 and D2 are admissible since they are parties in opposition to P1.

Under 801(d)(2), the statement is not hearsay when offered "against the opposing party." So one could argue that merely being a party in an action does not necessarily render any statement against that party admissible. My question is whether an affirmative defense against "a" party automatically creates a relationship of opposing parties between the declarant and the party against whom the statement is offered. Anyone?

I'm not entirely sure what you're asking (maybe it has something to do with studying torts for 6 hours). It is my understanding that for all party admissions you need to prove some sort of agency relationship (employer-employee, co-conspirators, etc), and you cannot offer a party admission against Party A solely by virtue of him being a co-party to Party B.

[mvpforme]

I'm thinking about skipping the full-day MBE to focus on essays. Is this ill-advised? I got ~150 on the simulated MBE and ~72 on the SFE. I really really don't want to let up on the MBE but I'm worried about my essays going into the final week. FWIW, I have completed all of Barbri's assigned questions, as well as ~300 others.

[pkt63]

Based on my limited knowledge of Evidence law, a party admission is not hearsay. A party admission merely requires the party that made the statement is a party, not that the statement is actually opposing your position. So the statements of D1 and D2 are admissible since they are parties in opposition to P1.

Under 801(d)(2), the statement is not hearsay when offered "against the opposing party." So one could argue that merely being a party in an action does not necessarily render any statement against that party admissible. My question is whether an affirmative defense against "a" party automatically creates a relationship of opposing parties between the declarant and the party against whom the statement is offered. Anyone?

I'm not entirely sure what you're asking (maybe it has something to do with studying torts for 6 hours). It is my understanding that for all party admissions you need to prove some sort of agency relationship (employer-employee, co-conspirators, etc), and you cannot offer a party admission against Party A solely by virtue of him being a co-party to Party B.

I'll try to give more background. So Pam got hit by a car. Car is owned by David but was driven by Dina. Dina was high on coke and said to the officer on the scene - "Wow, that was really negligent of me, I shouldn't have been high on coke." Pam brings an action against David and Dina. David's affirmative defense is that Dina is the negligent party and he has nothing to do with anything, and in support of his defense, he wants to call the officer to testify that Dina said the statement quoted above. This obviously would be hearsay except that we know it is exempt because it is a Statement by a Party Opponent, aka Admission. Does this qualify as a Statement by a Party Opponent because:

a) Dina and David are Party Opponents just by virtue of being named in the same action together (i.e. doesn't matter that they are both defendants or co-parties, two defendants on one case are always considered Opposing Parties the moment they are both named).
b) They are Opposing Parties only because David has brought an affirmative defense that has ripened into actual adversity with Dina (though note, no formal cross complaint). If he had not done this, they wouldn't be considered Opponents for purposes of the exemption.
c) They aren't technically Opposing Parties at all (which would require a formal complaint, cross claim or counter claim between the two parties) but that's ok because when 801(d)(2) says the statement must be from an Opposing Party to be exempt from hearsay they don't really mean anything formal by that. I.e. they just need to be a *different* party than you in this suit.

At this point, hopefully I would just get the question right next time I see it, but I still don't frankly *understand* what made them opponents able to use that hearsay exception, as I always took 801(d)(2) very literally, thinking there would at least have to be a cross claim between the two Ds, although traditionally of course the exemption is used between a P and D or vice versa.

[mvpforme]

I think C. The rationale is that everybody is bound by their own statements so they shouldn't get to use the hearsay rule to exclude them. I have never seen a court (or mbe question) deny it the exception because the claim is a crossclaim.

[At the Drive-In]

I just bombed the second set of torts MBE. Is it just me or did the lecture not cover a lot of material that they test on.

Yep- very frustrating. Does this mean read the CMR and memorize the details? Does this mean I should put those details in my outline (which I will atleast do that)? Is this BarBri trying to freak us out? Does this mean BarBri is a giant flame? Are they just "teaching questions"? There was some shit in there way out in left field. Very confusing/frustrating.

Barbri would be pure flame if they only tested you on what they taught in the lectures. The real MBE isn't going to be like that. There will be questions you just don't know.

From what I have seen/heard, there are going to be 1-2 questions per subject that require specifics of a certain rule or exception that you either know, or you don't know.

For example, that barbri con law workshop where they asked about Congress' D.C. Police Powers. That's just something you either know or don't. There's no way to apply rules and figure it out.

[jrf12886]

c) They aren't technically Opposing Parties at all (which would require a formal complaint, cross claim or counter claim between the two parties) but that's ok because when 801(d)(2) says the statement must be from an Opposing Party to be exempt from hearsay they don't really mean anything formal by that. I.e. they just need to be a *different* party than you in this suit.

I think C. My understanding is "opposing party" just means you are introducing the statement to prove something that it adverse to another party.

[jd20132013]

tired of this shit. just want to take it tomorrow and get it over with.

[ditch digger]

I would literally stab a baby if it would guarantee that I wont have a commercial paper essay question on the exam.

[beachbum]

I would literally stab a baby if it would guarantee that I wont have a commercial paper essay question on the exam.

Two babies for commercial paper and secured transactions.

Although isn't this the last exam on which those two topics are testable? (I hope I'm not making that up.) So maybe they'll forgo testing them. This dude seems to think we'll get commercial paper, though: http://whlawoffices.com/july-2014-mee-subjects/

Edit: Link only pertains to MEE. Sometimes I forget not everyone in the world is taking the bar in my state.

[ditch digger]

I would literally stab a baby if it would guarantee that I wont have a commercial paper essay question on the exam.

Two babies for commercial paper and secured transactions.

Although isn't this the last exam on which those two topics are testable? (I hope I'm not making that up.) So maybe they'll forgo testing them. This dude seems to think we'll get commercial paper, though: <a class="vglnk" title="Link added by VigLink" rel="nofollow" href="http://whlawoffices.com/july-2014-mee-s ... </span></a>

Edit: Link only pertains to MEE. Sometimes I forget not everyone in the world is taking the bar in my state.

Thanks for this. Are you taking the UBE?

[beachbum]

I would literally stab a baby if it would guarantee that I wont have a commercial paper essay question on the exam.

Two babies for commercial paper and secured transactions.

Although isn't this the last exam on which those two topics are testable? (I hope I'm not making that up.) So maybe they'll forgo testing them. This dude seems to think we'll get commercial paper, though: <a class="vglnk" title="Link added by VigLink" rel="nofollow" href="http://whlawoffices.com/july-2014-mee-s ... </span></a>

Edit: Link only pertains to MEE. Sometimes I forget not everyone in the world is taking the bar in my state.

Thanks for this. Are you taking the UBE?

I am indeed.

[ditch digger]

I would literally stab a baby if it would guarantee that I wont have a commercial paper essay question on the exam.

Two babies for commercial paper and secured transactions.

Although isn't this the last exam on which those two topics are testable? (I hope I'm not making that up.) So maybe they'll forgo testing them. This dude seems to think we'll get commercial paper, though: <a class="vglnk" title="Link added by VigLink" rel="nofollow" href="http://whlawoffices.com/july-2014-mee-s ... </span></a>

Edit: Link only pertains to MEE. Sometimes I forget not everyone in the world is taking the bar in my state.

Thanks for this. Are you taking the UBE?

I am indeed.

Kick some ass! I'll also be taking the UBE this summer. I am hoping that they will scrap the commercial paper/secured transactions questions for this exam because they wont test these subjects on the February 2015 exam.

[The Egyptian]

Anybody know whether on the MBE day, questions will be marked? i.e, Torts, Contracts, etc?

[TheFactor]

Anybody know whether on the MBE day, questions will be marked? i.e, Torts, Contracts, etc?

no, obviously not

[bigstumpdriver]

Anybody know whether on the MBE day, questions will be marked? i.e, Torts, Contracts, etc?

no, obviously not

And thus I clothe my naked villainy
With old odd ends, stol'n forth of holy writ;
And seem a saint, when most I play the devil.

[jd20132013]

Is it not true that a claim for Negligent Infliction of Emotional Distress always recovers physical injury to be brought?

An answer in the Emanuels (Torts 23, for those who have it) seems to suggest that "severe emotional distress in the absence of physical injury would not be a barrier to recovery, given that the homeowner was in the zone of danger"

This strikes me as wrong--I had always diferentated IIED from NIED on the ground that IIED does not require any physical manifestations, and NIED does.


Went to post this, and someone else had posted and I found what seems to be the answer in the interim, according to Barbri's mini review.

Apparently "Most states still require physical symptoms, but the modern trend drops that requirement."

Well....thanks guys. Pretty big thing to leave up in the air. So what should we be treating it as on the exam?

[MoneyMay]

Is it not true that a claim for Negligent Infliction of Emotional Distress always recovers physical injury to be brought?

An answer in the Emanuels (Torts 23, for those who have it) seems to suggest that "severe emotional distress in the absence of physical injury would not be a barrier to recovery, given that the homeowner was in the zone of danger"

This strikes me as wrong--I had always diferentated IIED from NIED on the ground that IIED does not require any physical manifestations, and NIED does.


Went to post this, and someone else had posted and I found what seems to be the answer in the interim, according to Barbri's mini review.

Apparently "Most states still require physical symptoms, but the modern trend drops that requirement."

Well....thanks guys. Pretty big thing to leave up in the air. So what should we be treating it as on the exam?

No clue but I ran into that too.

[dudnaito]

Is it not true that a claim for Negligent Infliction of Emotional Distress always recovers physical injury to be brought?

An answer in the Emanuels (Torts 23, for those who have it) seems to suggest that "severe emotional distress in the absence of physical injury would not be a barrier to recovery, given that the homeowner was in the zone of danger"

This strikes me as wrong--I had always diferentated IIED from NIED on the ground that IIED does not require any physical manifestations, and NIED does.


Went to post this, and someone else had posted and I found what seems to be the answer in the interim, according to Barbri's mini review.

Apparently "Most states still require physical symptoms, but the modern trend drops that requirement."

Well....thanks guys. Pretty big thing to leave up in the air. So what should we be treating it as on the exam?

IIED requires physical manifestations of the severe emotional distress IF it's a BYSTANDER/3rd party IIED claim where the plaintiff bystander is NOT a close family member. So, if you're a complete stranger or depending on the jurisdiction even a very good friend who happens to be passing by, and the Defendant knows you're there, but shoots the victim anyway, and as a result, you suffered severe emotional distress... if you did NOT manifest a physical injury as a result of the severe emotional distress, you will not succeed in your claim.



Just copy-pasted from some random website.

BYSTANDER RECOVERY OF EMOTIONAL DISTRESS
Bystanders may recover for emotional distress damage only under very limited circumstances. The emotional disturbance suffered must be "serious and verifiable," and must be tied as a matter of proximate causation to the observation of the serious injury or death of an immediate family member. Finally, the plaintiff himself must have been in the "zone of danger" i.e, must have been exposed to a risk of bodily harm by the conduct of the defendant.

The essential elements of a claim of wrongful infliction of emotional distress upon a bystander are:
1. The defendant was negligent; or the defendant manufactured or supplied a defective product;
2. Defendant's negligence or defective product was a cause of injury or death to the victim;
3. Plaintiff was the spouse, parent, or child, of the victim;
4. Plaintiff was present at the scene of the injury-producing event or accident at the time it occurred;
5. Plaintiff was then aware that such event or accident caused the injury to the victim;
6. As a result, plaintiff suffered serious emotional distress.




The rule's rationale isn't so much that they'll award BECAUSE of the physical harm. They require physical harm because it's evidentiary/probative that there actually was a SEVERE emotional harm at all. If a non-family bystander simply says I suffered a severe emotional harm and is a great actor, then the court is fucked, whereas if someone suffered a heart attack or a pregnant lady miscarried soon after the shocking scene, that's a pretty damn good sign that they were legitimately shocked and did, in fact, suffer a severe emotional distress. That's the intuition behind the rules requiring physical harm flowing from the emotional distress.

Otherwise, they'd call the claim Bystanders who suffered physical & emotional distress. And yes, I am great with naming things. Thank you.

[The Egyptian]

Is it not true that a claim for Negligent Infliction of Emotional Distress always recovers physical injury to be brought?

An answer in the Emanuels (Torts 23, for those who have it) seems to suggest that "severe emotional distress in the absence of physical injury would not be a barrier to recovery, given that the homeowner was in the zone of danger"

This strikes me as wrong--I had always diferentated IIED from NIED on the ground that IIED does not require any physical manifestations, and NIED does.


Went to post this, and someone else had posted and I found what seems to be the answer in the interim, according to Barbri's mini review.

Apparently "Most states still require physical symptoms, but the modern trend drops that requirement."

Well....thanks guys. Pretty big thing to leave up in the air. So what should we be treating it as on the exam?

No clue but I ran into that too.

According to CMR, you can recover if the conduct of the defendant is negligent conduct that is "likely to cause" severe emotional distress.

Example: A driver who almost hits a parent and child with his car thereby causing severe emotional distress to the parent can be liable for negligent infliction of emotional distress if he was driving negligently.

[mvpforme]

How much of a "bump" do we get from scaling on the MBE? Anybody what approximately is necessary for a 155? 160?

[jd20132013]

it is 11-14 points from the raw

[Stringer6]

it is 11-14 points from the raw

Really? Always?