Sunday, August 24, 2014

Defenses to Negligence

The default defense to negligence on the MBE is pure comparative negligence. But often enough the questions will direct you to apply a different standard, so it's important to understand how the analysis changes when the standard changes. Three defenses you'll want to know are pure comparative negligence, modified (or partial) comparative negligence, and contributory negligence.

Let's assume the following fact situation in discussing the analysis of each. Plaintiff ("P") is injured by 3 defendants "X," "Y," and "Z." The fault (in dollar amount) of plaintiff's injury is allocated as follows:

P's fault is valued at $50,000

X's fault is valued at $30,000

Y's fault is valued at $20,000

Z's fault is valued at $10,000

Total: $110,000

Contributory Negligence: If directed in any given question to apply contributory negligence, the analysis is very straight-forward. If plaintiff is determined to have been at fault (by even the slightest amount), then plaintiff is prevented from recovering anything from any other defendant. In our example, plaintiff is $50,000 at fault, so plaintiff will recover nothing. Note that plaintiff can then raise his own defense of the "last clear chance doctrine," claiming that defendant(s) had the last clear chance to avoid the act that caused the injury. If proven, then the fact that plaintiff was contributorily negligent will not entirely prevent plaintiff from recovering.

Modified (partial) comparative negligence: Here the analysis changes. Plaintiff can recover provided that plaintiff was less than 50% at fault when taking the total dollar amount of damages into account. Here, plaintiff was determined to have been $50,000 at fault, and total damages were valued at $110,000. Therefore plaintiff was 45% percent at fault (50,000/110,000), and because that is less than 50%, plaintiff will recover for his injuries. In determining the amount of recovery, subtract the amount of damages allocated to plaintiff ($50,000) from the total amount ($110,000). Plaintiff will therefore recover $60,000. Plaintiff can recover this amount from either x, y, or z (as per the default rule of joint and several liability), and then each defendant will have a right of contribution from the other defendants if any defendant pays an amount that exceeds his own fault. So, for example, if plaintiff recovers the $60,000 from z, z will have a right of contribution of $50,000 from x and y.

Pure Comparative Negligence: This is the standard to apply if you are not told to apply otherwise. The analysis is the same as in modified comparative negligence, except that under pure comparative negligence, plaintiff can recover even if plaintiff is determined to have been more than 50% at fault. So, assume that instead of damages valued at $110,000, the total damages were valued at $90,000 and further assume that plaintiff was still determined to have contributed $50,000 to his own injuries. In that case plaintiff would be deemed 56% at fault (50,000/90,000). Even so, plaintiff would be able to recover for the remaining fault allocated to defendant(s). In this example, plaintiff would be able to recover $40,000, and once again, assuming the default rule of joint and several liability applies, plaintiff may choose among x, y, or z, when recovering that amount, and then each defendant will have a right of contribution against the others.

**Note:: If told not to apply joint and several liability, the analysis changes slightly. Plaintiff can no longer recover the full amount from any given defendant, and can only recover an amount from a defendant equal to that defendant's fault.

Sunday, August 17, 2014

The Top Five: Venue

It's important when studying Civil Procedure to understand well the difference between subject-matter jurisdiction and venue. Subject-matter jurisdiction is the power of the court to adjudicate the matter before it, while venue relates instead to a determination as to which district court should hear the case. Here are five things to know about venue when preparing for the MBE.

1. The general rule regarding venue is that venue is proper in any judicial district where any defendant resides if all defendants reside in the same state. In addition, venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.

2. There will be times when the standards above are not satisfied. In such instances, venue will be proper in a judicial district in which any defendant is subject to personal jurisdiction, but only if the action is based solely on diversity. If the action is not based solely on diversity, then venue will be proper in a judicial district in which any defendant may be found.

3. In determining if venue is proper it is sometimes necessary to determine the defendant's residency (such as in 1, above). For purposes of venue, an individual's residence is determined by that individual's domicile. A corporation resides in any jurisdiction in which it is subject to personal jurisdiction, and an unincorporated association (such as a partnership) resides wherever it does business.

4. Improper venue may be waived by the parties. And importantly, venue is considered waived unless timely objection is made to improper venue.

5. There are situations in which, although venue is proper, the court may still wish to transfer the case for the convenience of the parties. This is allowable under the federal rules provided that the case is transferred to a court where it could have originally been filed. The standard here is the "interest of justice," and the court to which the case is transferred must have subject-matter and personal jurisdiction over the defendant; otherwise, venue in the transferee court is improper.

Monday, August 11, 2014

Personal Jurisdiction

Personal jurisdiction will surely be a heavily tested topic in Civil Procedure now that it'll be tested on the MBE. There are three types of jurisdiction to note: in personam jurisdiction (when the forum has power over the person of defendant); in rem jurisdiction (when the court has the power to adjudicate the rights of all persons with respect to a particular item of property); and quasi is rem jurisdiction (when the court has the power to determine the rights of particular individuals with respect to specific property within the court's control.) This post will focus on the first: in personam jurisdiction. As a foundation, it's important to understand that there are two potential limits on the exercise of personal jurisdiction over a defendant: the constitution, and any given state's long-arm statute.

(1): The Long-arm Statute:

The limitations as set forth the by long-arm statutes will of course vary by state (and so on the MBE, you'd have to be provided with a statute). But there are commonalities to note. Very often long arm statutes will allow for personal jurisdiction over defendants who are present in the forum state and personally served with process while present in that state. There are, however, often exceptions allowable for those who are in the state merely to serve as a party or witness to a judicial proceeding. In addition, if your domicile is the forum state, or if you consent to jurisdiction in the forum state, personal jurisdiction in that state is often granted. Finally, it's common for a state's long-arm statute to allow for jurisdiction whenever it would be allowed under the Constitution.

(2): The Constitution:

The constitutional requirements for granting personal jurisdiction over a defendant revolve around three concepts: minimum contacts, fairness, and notice. In regards to contacts, the constitution requires that the defendant have minimum contacts with the forum such that the exercise of jurisdiction over defendant would be fair and reasonable. The contacts must not be accidental; rather, the court must find that through defendant's contacts with the forum state, defendant purposefully availed him/herself of the privilege of conducting activities in that state, thus invoking the benefits and protections of the laws of that state. Further, the court will determine whether it was reasonably foreseeable to defendant that s/he may be haled into court in the forum state.

As to fairness, if the claim against defendant is related to the contacts with the state, then less contacts will be required for the court to determine that jurisdiction is fair. If the claim is entirely unrelated to the contacts with the state, then far more contacts (often deemed systematic and continuous contacts) may be required prior to granting jurisdiction. A determination of fairness in regards to the number of contacts is essential, and some other factors to consider when analyzing fairness are the plaintiff's interest in obtaining convenient and effective relief, the judicial system's interest in efficiency, convenience to defendant, and the shared interests of states in furthering social policies.

Notice is also required, and this is based on due process. Defendant must be notified by a reasonable method of a pending lawsuit, so that s/he may have the opportunity to appear in court and be heard.

Wednesday, August 6, 2014

Federal Question Jurisdiction

In the most recent post, I outlined the important points concerning diversity jurisdiction. Diversity jurisdiction is one avenue for getting a case into federal court. The other is federal question jurisdiction.

The district federal courts have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. It's important to note that the federal question for which jurisdiction is based must appear as part of plaintiff's cause of action. In other words, the fact that there is an asserted defense that implicates a federal question is not sufficient to confer jurisdiction if plaintiff has not also asserted a federal question.

It gets a bit more complex when there are multiple claims, some of which assert a federal question, and some of which do not. In such instances the federal court will have discretion (as per its pendent jurisdiction) to hear all claims that derive from a "common nucleus of operative fact." That's a rather odd way of stating the idea, but what it means is that if the claims all arise from the same set of facts, then the the fact that some of the claims are based on state law will not prevent a federal court from hearing those state-law claims provided there is at least one federal claim to warrant jurisdiction. And even if the federal claim on which jurisdiction is based ends up getting dismissed after trial has commenced, the federal court may still exercise pendent jurisdiction over the state claims.

It's also possible that questions may arise in which plaintiff sues more than one defendant, and there is a federal claim against only one of the defendants. Here, too, pendent jurisdiction (specifically, pendent-party jurisdiction) will allow the federal court to hear the non-federal claims against all defendants provided that the claims once again derive from a "common nucleus of operative fact."

***note that the term pendent jurisdiction is interchangeable with the term supplemental jurisdiction.

Monday, August 4, 2014

Diversity Jurisdiction

The MBE is about to change. Beginning in February of 2015, a new subject, Civil Procedure, will be added to the testable list of subjects. As such, I'll be posting quite a lot on this subject prior to the exam. Today's post is on the topic of diversity jurisdiction.

Subject-matter jurisdiction is the requirement that the court have power to hear the specific kind of claim that is brought to that court. The two primary sources of subject-matter jurisdiction of the federal courts are diversity jurisdiction and federal-question jurisdiction. If jurisdiction is predicated on diversity, then every plaintiff must be of diverse citizenship from every defendant. Stated differently, if one defendant and one plaintiff are co-citizens of the same state, there is no diversity jurisdiction. Though there are exceptions to this rule, which will be discussed in later posts, it's always important to first understand the general rule.

In addition, diversity of citizenship as outlined above must exist as of the time that suit is instituted. As such, it need not exist at the time the cause of action arose, and diversity will not be defeated if after the suit is instituted, a plaintiff and defendant become citizens of the same state.

In determining whether there is complete diversity, it's often necessary to determine the citizenship of each party. For individuals, it's fairly simple: an individual is a citizen of his/her domicile, or the permanent home to which s/he intends to return. A corporation is a citizen of every state of its incorporation and also of its principal place of business. If the corporation performs its business in various states, look to see where the executive office is located, as that state will be deemed the principal place of business for determining citizenship. It's a bit different for unincorporated businesses such as partnerships. There, you'll want to determine the citizenship of each member, as the business will be deemed a citizen of each state of which any member is a citizen.

When analyzing diversity, in addition to determining that the citizenship requirement has been satisfied, it's also necessary to determine that the jurisdictional amount has been satisfied. When subject-matter jurisdiction is based on diversity, actions must be in excess of $75,000 exclusive of interests or costs. The amount is entirely determined by plaintiff's good faith allegations. In other words, if the plaintiff alleges an amount in excess of $75,000, the complaint can be dismissed only if it appears there is no legal possibility for the plaintiff to recover the amount alleged. And importantly, if the plaintiff ends up not recovering an amount in excess of $75,000, this has no effect on jurisdiction, as jurisdiction is not retroactively defeated. For purposes of satisfying the jurisdictional requirement, plaintiff may aggregate all claims against a single defendant (and against multiple defendants if those defendants are jointly liable to plaintiff).

Monday, July 21, 2014

Good luck!

Good luck to all in this final week of preparation for the July exam!! Posting to resume shortly in preparation for February.

Sunday, July 20, 2014

MBE Essentials: 3rd Party Beneficiaries

Two questions and answers from my book, MBE Essentials, clarifying the rights of a 3rd party beneficiary once it's determined that the party is intended and the rights have vested:

Can the third party beneficiary sue the promisor?

Yes, if the third party is intended and the rights have vested then the third party can sue the promisor. The promisor, however, may raise against the third party any defense that the promisor has against the promisee. The promisor may be able to use defenses that the promisee has against the third party, but that will depend upon whether the promisor has made an absolute promise to perform or has only promised to perform that which the promisee would have had to perform. If the latter, then the promisor can assert the promisee’s defenses.

Can the third-party beneficiary sue the promisee?

This will depend on whether the third party is a creditor beneficiary or a donee beneficiary. If the third party is a creditor of the promisee, then he can sue the promisee on the existing obligation between them. But if merely a donee (one who was given a gift by the promisee) then he will have no right to sue the promisee, unless he can prove that he detrimentally relied on the promise made by the promisee.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on @

Or you can purchase and download it right here on the blog:
Buy Now

Thursday, July 17, 2014

The Top Five: The Privilege Against Self-Incrimination

We're just a few weeks away from the July exam. Here are five things to know going into the exam about the privilege against self-incrimination:

(1): A person may assert the privilege against self incrimination in any proceeding in which an answer to a question might tend to incriminate him. Any answer choice which limits the privilege to criminal cases is incorrect.

(2): Though the privilege can be waived, it is not waived merely by taking the witness stand. The privilege, however, must be claimed in a civil proceeding to prevent the privilege from being waived in a later criminal prosecution.

(3): The privilege may only be claimed by natural persons. An answer choice on the exam that purports to allow the privilege for corporations or partnerships is incorrect.

(4): Only a criminal defendant can use the privilege to avoid taking the witness stand. For all others, the privilege does not permit a person to avoid taking the stand; instead, the person must take the stand, listen to the question, and then invoke the privilege.

(5): This privilege only applies to testimonial or communicative evidence rather than real or physical evidence. In other words, one cannot claim the privilege against self-incrimination to avoid producing documents (as part of discovery) that might tend to incriminate, as such documents are not considered to be testimonial, and are therefore not covered by the privilege.

Saturday, July 12, 2014

MBE Fast Fact: Dedication of Land

As we approach the July exam, ideally you'll begin to feel comfortable with the more commonly tested issues on the MBE, and you'll be able to dig deeper into the the areas that are less tested but do come up. One such issue involves a person (often a developer) dedicating land to a public body.

Land may be transferred to a public body (often a city or county) by dedication. The offer of dedication may be either written or oral, and both submission of a map or plat showing the dedication, or opening the land for public use will both suffice to satisfy an offer of dedication. The acceptance of such offer by the public agency is necessary, and may be accomplished by either a formal resolution, approval of the map or plat, or actual assumption of the maintenance or construction of improvements on the land by the public agency.

When you see a question implicating dedication, it's important to first note that such dedication (provided the requirements above are satisfied) is entirely valid. The property will pass to the public agency just as it would pass to any individual purchaser.

Sunday, July 6, 2014

MBE Fast Fact: Priority of Mortgages

Mortgage questions are some of the most difficult questions on the MBE. Some of them are just brutal. One issue that comes up often enough that it's worth knowing well involves a senior mortgagee who fails to include a junior mortgagee in a foreclosure sale.

As a general rule, the priority of a mortgage is determined by the time it was placed on the property (Exceptions do apply, such as purchase-money mortgages which can have priority over prior mortgages placed on the property.) Generally foreclosure will terminate interests junior to the mortgage being foreclosed, but will have no effect on mortgages senior to the mortgage being foreclosed.

Watch carefully, however, for situations where a senior mortgagee fails to include a junior mortgagee as a party to the foreclosure action. Such failure on the part of the senior mortgagee will preserve the rights of a junior mortgagee so that the general rule that the junior mortgagee's rights are extinguished will not apply.

The policy behind the above analysis is that the junior mortgagee has the option to pay off any liens senior to the junior mortgagee that are in default, and that right makes the junior mortgagee a necessary party to any foreclosure action on the part of a senior mortgagee. By not including a necessary party in the foreclosure action, the senior mortgagee effectively preserves the rights of the junior mortgagee. Anyone who then purchases the property at the foreclosure sale will purchase subject to the interests of the junior mortgagee.

Monday, June 30, 2014

Strategies for July

Students very often ask me whether they should be studying differently for the MBE in July than they were in the months leading up to the exam. Though it's difficult to generalize, the one piece of advice I do give to all students is that in July you should be focusing far more on practice questions than on reading substantive outlines. There is definitely a time for reading outlines, and doing so is an essential aspect of the bar-review process, but in the last month leading up to the exam, practicing applying the knowledge that you've already learned will often benefit you more than continuing to try to memorize the substantive law.

That isn't to say you should put the outlines away. As you work through questions you will often need to refer back to the outlines to clarify points made in the answer explanations to the questions you're working through. In other words, the outlines should become a reference rather than a primary studying tool.

It's still a balance, and throughout this final month you should continue to balance the two essential components of effective bar preparation: gaining a deep knowledge of the subject matter, and applying that knowledge to practice questions. But understand that just as it would be difficult to learn how to play a musical instrument by only memorizing the notes of a song, simply learning the law will not be enough to excel on the MBE.

Tuesday, June 24, 2014

MBE Fast Fact: Federal Police Power

If you've been working through Constitutional Law questions, it's likely you've come across answer choices that claim the constitutionality of a federal law on the basis of Congress's police power. It's important to note that only under very limited circumstances will such an answer be correct.

Though states are said to have police powers (giving them the right to enact laws for the health, welfare, and safety of their citizens), the same does not hold true for the federal government. Rather, Congress has no general police power. The only exception to keep in mind for purposes of the MBE is that Congress can constitutionally act as per their "police powers" over the District of Columbia, federal lands, military bases, and Indian Reservations.

Note that this narrow exception is based on the fact that Congress has a property power to make rules for territories and other properties of the United States.

Thursday, June 12, 2014

The Top Five: Permissive Waste by a Life Tenant

Permissive waste occurs when a life tenant either allows land to fall into disrepair, or fails to take reasonable measures to protect the land. This concept will nearly always be tested in the context of someone holding a remainder interest suing a life tenant for waste. As such, it's important to understand the obligations of a life tenant in determining whether such a lawsuit will be successful. Most importantly you should understand the following five rules in regards to obligations:

(1): A life tenant has an obligation to repair the property. The obligation, specifically, is to keep the property in a reasonable state of repair. The life tenant is under no obligation to make permanent repairs (as the tenant only holds the property for the duration of his life), but is under an obligation to make repairs to the extent of income or profits from renting the property, or if the tenant is not renting the property, to the extent of the reasonable rental value of the land.

(2): A life tenant is obligated to pay interest on any encumbrances on the land. A common encumbrance in this respect would be a mortgage. Note that the tenant, however, is not required to the pay the principal on the encumbrance; that obligation is on the future interest holder (most likely someone either holding a remainder or a reversion).

(3): A life tenant is obligated to pay all ordinary taxes on the land.

(4): If there is a public improvement on the land, and such improvement is shorter than the expected duration of the life estate, then the life tenant is obligated to pay all of the assessment for the public improvement. If, however, the improvement is likely to outlast the estate, then the analysis changes; namely, the taxes and assessment for such an improvement will be apportioned equitably between the life tenant and the holder(s) of any future interest.

(5): Importantly, note that a life tenant is not responsible for insuring the property for the benefit of any future interest holder, and is similarly not responsible to the future interest holder for any damages to the land caused by a third party.

Thursday, June 5, 2014

MBE Essentials: Character Evidence

Two questions from my book MBE Essentials clarifying the difficult issues involving the admissibility of character evidence:

When is character evidence admissible in a civil trial?

The rules regarding character evidence in a civil trial are quite a bit less complicated than in a criminal trial. In a civil trial, character evidence is admissible if a person’s character is an essential element of a cause of action, claim or defense. Some examples as to when this will be true are in cases of defamation, deceit, negligent entrustment, and claims of self-defense. Note that when this type of evidence is admissible, it is admissible in all three forms (reputation, opinion, and specific acts).

When is character evidence admissible in a criminal trial?

Here is where it gets more complicated. The accused can use evidence of his good character in presenting his defense. In doing so, the accused can offer reputation or opinion evidence of a pertinent character trait. The accused can also offer reputation and opinion evidence of a victim’s character when the asserted defense makes it relevant (for example, if the accused is claiming self-defense). If the accused offers evidence of his own good character, the prosecution can cross-examine that character witness and ask about specific instances of conduct. If the accused offers evidence of the victim’s bad character trait, the prosecution can cross-examine that character witness, or call its own witness to testify to the same bad character trait of the accused.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on @

Or you can purchase and download it right here on the blog:
Buy Now

Wednesday, May 28, 2014

The Takings Clause: Takings vs. Regulations

If you're given a question on the Takings Clause, an issue you're likely to analyze is whether the government is required to compensate a landowner. This will depend entirely upon whether the act of the government is deemed to be a taking or merely a regulation. It should be noted that this analysis is the same for both the federal government (as per the 5th Amendment), and the state government (as per the 14th Amendment).

The key point here is that the government need not pay compensation for regulating property, but it must compensate an owner of property if the government takes the private property of the landowner for purposes of use by the public. The easy case is where an actual appropriation takes place. If there is an actual appropriation or a permanent physical invasion of another's property by the government, then there is a taking and compensation must be paid. The one exception to look out for here is if there is an emergency requiring the appropriation of property; in that case compensation will be less likely.

If the government permanently denies a landowner of all economic use of his land, that is equivalent to a physical appropriation of the land and as per the above should be deemed a taking. A classic example here is where the the state passes a zoning ordinance after a landowner has acquired the land and the ordinance effectively removes the landowner's ability to benefit monetarily from the property.

If, on the other hand, the government only temporarily denies the landowner of all economic use of his land, the case for a taking is far less certain. The Court will examine relevant factors (for example, the length of the delay, the degree of harm to the landowner, etc.) in order to determine whether fairness and justice require the landowner to compensate the landowner. It's a balance and the analysis should balance relevant factors.

One last potential angle is where an act by the government merely decreases the value of a landowner's property but does not either permanently or temporarily deny a landowner of all economic value of his land. This is nearly always deemed a regulation rather than a taking provided the landowner is left with an economically viable use of the property.

If you've determined that the government has acted in a way that qualifies as a taking, you must then determine the appropriate remedy for the landowner. There are two possibilities here: the government will either be required to pay the property owner compensation (measured by the reasonable value of the property at the time of the taking), or terminate the act immediately and pay the landowner for any damages that have occurred while the government was acting in a way that burdened the landowner.