Sunday, February 22, 2015

Good Luck!

Best of luck to all sitting this week for the bar exam!!

Posting to resume shortly in preparation for the July '15 exam.

Monday, February 16, 2015

MBE Fast Fact: Wrongful Birth vs Wrongful Life

Let's be sure to distinguish these concepts as they do show up on the MBE:

In short, wrongful life means the the child sues the mother or others for being born. Wrongful birth, on the other hand, means the mother sues others (very often a doctor who fails to inform the mother of the potential for a disability) for being burdened monetarily with a disabled child. Wrongful birth cases are nearly always medical malpractice tort cases.

For purposes of the MBE, it's most important to remember the following: Most states reject a claim of wrongful life, and of the few states that do permit it, some would limit recovery to the special damages attributable to the disability.

In contrast, a cause of action for wrongful birth will be permitted in many states. Though allowable, damages will generally be limited to expenses incurred as a result of the child's disabilities.

Thursday, February 12, 2015

MBE Essentials: Future Interests

Future Interests is an area that many students struggle with when preparing for the MBE. Here are three questions and answers from my book MBE Essentials dealing with this difficult topic:

What is the difference between a fee simple determinable, and a fee simple subject to condition subsequent?

A fee simple determinable terminates upon the happening of a stated event and automatically reverts back to the grantor. A fee simple subject to condition subsequent, on the other hand, will not terminate automatically, but will terminate only if the grantor takes action to re-enter the property and reclaim it.

What is a fee simple subject to an executory interest?

This fee simple terminates upon the happening of a stated event, and then passes on to a third party rather than reverting back to the grantor. The third party holds an executory interest, and that interest becomes possessory upon the happening of the stated event.

What are the rights of a life tenant?

A life tenant is entitled to ordinary uses and profits of the land but cannot do anything that might injure someone holding a remainder. A life tenant may not exploit the land (for example, by removing natural resources) unless doing so is necessary for repair or maintenance of the land, the land is suitable only for such use, or doing so has been expressly or impliedly allowed by the grantor. In addition, a life tenant must keep the land in a reasonable state of repair, pay interest on mortgages, and pay ordinary taxes on the land. Note that a life tenant is not obligated to insure the property for the benefit of the remaindermen, and if a third party tortfeasor damages the property (for example, by a trespass), the life tenant would not be responsible for that damage.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman


Or you can purchase and download it right here on the blog:
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Wednesday, February 4, 2015

MBE Fast Fact: The Appointments Clause

The Appointments Clause in the Constitution provides that the President shall nominate and by and with the advice of the Senate shall appoint ambassadors, Supreme Court Justices, and all other officers of the United States. This issue, though not as common on the MBE as many others, has appeared in the past.

It is a violation of this clause if the President, when appointing an ambassador, is required to pick from among names appearing on a congressionally-generated list. Though as per the clause the President's pick is subject to confirmation by the Senate, when picking the ambassador (or other principle federal officer), the President may act alone.

In addition, the rule regarding confirmation by the Senate is specific; namely, the appointment must be affirmatively approved by a vote of the Senate. If questions are presented in which the Senate attempts to avoid its obligation by a claim (for example by means of a statute) that a lack of disapproval of the appointment will be deemed as approval, such action will violate the Appointments clause, and any statute to that effect should be deemed unconstitutional.

Wednesday, January 28, 2015

MBE Essentials: Removal

Tough to believe that the MBE is just a few weeks away. Below are two questions on removal from the chapter on Civil Procedure from my book MBE Essentials . Best of luck to all as you gear up for the exam!

When may a case be removed from state court to federal court?

There are times in which a case is brought in state court, and later there is an attempt to remove the case from state court and transfer the case to a federal court. Such will be allowed only if the case could have originally been filed in federal court, and for cases removed in which jurisdiction in a federal court is based on diversity, no defendant is a citizen of the state in which the action was filed (in state court). Jurisdiction in federal court is generally tested as of the date of removal, though some courts will only allow for jurisdiction in federal court if jurisdiction is proper on the date of removal, and was proper when the case was originally filed in state court. Only defendants can exercise the right to removal, and if there are multiple defendants, they all must join in the action for removal. After the case has been removed, venue lies in the federal court embracing the place in which the state action is pending.

What is the procedure for removing a case from state court to federal court?

A defendant seeking removal must file a notice of removal in the federal district court in the district and division within which the action is pending. A copy of the notice must then be sent to the other parties and to the state court. The notice of removal must be filed within 30 days after defendant receives notice that the case is removable. Plaintiff may then file a motion to have the case remanded to state court, and such will be granted if there is no proper basis for jurisdiction in federal court.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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Wednesday, January 21, 2015

Requests for Jury Instructions

With Federal Civil Procedure now tested, there are two things you should know going into the MBE next month regarding jury instructions (instructions to the trial jury on the law that governs the verdict). The first relates to the rules concerning the request for jury instructions, and the second relates to the rules regarding objections to those request. Let's look at each aspect individually:

At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. Note the specifics here; namely that every other party must be furnished with the written requests. In addition, if the requests are not made at the close of evidence or prior, then after the close of the evidence, a party may file requests for instructions on issues that could not reasonably have been anticipated by an earlier time. Finally, with permission by the court, a party may file untimely requests for instructions on any issue.

The court itself has obligations in regards to jury instructions as well. The court must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments. Further, it must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered. The court may instruct the jury at any time before the jury is discharged.

If a party is to object to jury instructions, the party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection. The objection will be timely if made either when the court provides the opportunity to do so, or if the party was not provided the opportunity to object, if the party objects promptly after learning that a jury instruction has been given or refused.

Wednesday, January 14, 2015

MBE Fast Fact: Installment Contracts

Under the UCC the "Perfect Tender Rule" allows a buyer to reject goods if the goods do not conform to the specifications as agreed upon by the buyer and seller when entering into the contract. But the rules change when an installment contract (one which requires or authorizes the delivery of goods in separate lots to be separately accepted) is involved. As always, an exception to a general rule should be noted carefully, as it's likely to be tested.

It is more difficult for a buyer under an installment contract to reject a non-conforming tender of goods than it is for a buyer in a non-installment contract to do the same. Rejection of an installment in an installment contract is permissible only if the non-conformity substantially impairs the value of that particular installment and if the installment cannot be cured. In other words, if the seller gives adequate assurances of an intent to cure the non-conforming installment, then the buyer must accept the installment and await the cure.

A non-conformity of an installment can in fact render the entire contract breached, but only under a very limited set of circumstances. Specifically, whenever a non-conformity with respect to one or more installments substantially impairs the value of the whole contract (rather than merely an installment) there is a breach of the whole.

Wednesday, January 7, 2015

MBE Fast Fact: Equitable Conversion

In all questions concerning the sale of real property there are two important dates to keep in mind: The first is the date of the contract between buyer and seller, and the second is the date of closing when legal title is delivered from seller to buyer. But there will also be time between those two dates, and on the MBE many terrible things will occur during that time that will effect the analysis.

Specifically, the doctrine of equitable conversion supplies the rules for dealing with those events that occur between the contract and the date of closing. The doctrine holds that once the parties have entered into a contract, the buyer's interest in the contract is converted into real property, and the seller's interest is converted into personal property.

And that conversion greatly affects the analysis. For example, assume X is the seller, and Y is the buyer. X dies after the contract is entered into with Y but before the date when legal title was actually transferred to Y. Because legal title has not actually changed hands, it might be expected that X's heirs would receive the real property upon the death of X. But, rather, due to the doctrine of equitable conversion, by the time of seller's death, seller was no longer deemed to have held an interest in the real property. Instead, seller held an interest in the personal property, specifically the proceeds from the sale of the real property.

Seller's heirs may be entitled to those proceeds, but buyer will be entitled to the real property. And on that note, if buyer were to die during the period prior to closing, buyer's heirs would have the right to the real property.

Sunday, December 28, 2014

MBE Fast Fact: Abstention

In prior posts I've written about some limitations on the exercise of federal jurisdiction. Some examples of such limitations are a lack of standing, the rule against advisory opinions, and cases deemed moot or not yet ripe. Another limitation to keep in mind occurs when a federal court abstains from resolving a constitutional claim. For MBE purposes, keep in mind that a federal court will temporarily abstain from resolving a constitutional claim where the disposition rests on an unsettled question of state law.

Further, federal courts will not enjoin pending state criminal proceedings (and sometimes state civil proceedings) even if the federal court has jurisdiction over the case. A case is generally deemed to be pending the moment it is filed. Rather, the federal court will wait until after the state prosecution has ended to hear the case.

There is an important exception here, however, to keep in mind. A federal court will hear an action to enjoin a pending state court proceeding if is being conducted in bad faith (for example, a case moving forward in state court merely to harass the defendant).

Thursday, December 18, 2014

Shareholder Derivative Suits

With Civil Procedure now tested on the MBE, shareholder derivative suits may pop up in the questions. Under the Federal Rules of Civil Procedure a shareholder can sue to enforce a right of the corporation that those in control of the corporation refuse to assert. The derivative action may not be maintained if it appears that the plaintiff (the shareholder) does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. For a derivative suit apply the shareholder must allege and prove the following:

(1): The shareholder was a shareholder at the time of the transaction that is the subject of the complaint (or received shares thereafter by operation of law).

(2): The action is not a collusive effort to confer jurisdiction on the court that it would otherwise lack.

(3): The shareholder either made a demand on the directors of the corporation to resolve the complaint, or the shareholder has provided reasons why no demand was made. Facts here must be pleaded with particularity.

It's also important to note on this issue that a judgement in a shareholder derivative suit runs directly to the corporation rather than to an individual shareholder, so that when determining whether jurisdiction is proper, the jurisdictional amount will be determined by the damages allegedly suffered by the corporation. When determining venue, focus on where the corporation could have sued the defendant, as that will be the proper venue in which the shareholder bringing the suit may sue.

Thursday, December 11, 2014

The Fair Housing Act

The Fair Housing Act shows up on the NCBE subject-matter outline, and it shows up from time to time on the MBE. The following is a link that provides a nice summary of the act.

http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/FHLaws/yourrights

Especially important is the rights of the handicapped as per the act, as quoted from that site:

"your landlord may not:

Refuse to let you make reasonable modifications to your dwelling or common use areas, at your expense, if necessary for the disabled person to use the housing. (Where reasonable, the landlord may permit changes only if you agree to restore the property to its original condition when you move.)
Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing.

Example: A building with a no pets policy must allow a visually impaired tenant to keep a guide dog.

Example: An apartment complex that offers tenants ample, unassigned parking must honor a request from a mobility-impaired tenant for a reserved space near her apartment if necessary to assure that she can have access to her apartment."


Also note from the site:

"In the Sale and Rental of Housing: No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap:

Refuse to rent or sell housing
Refuse to negotiate for housing
Make housing unavailable
Deny a dwelling
Set different terms, conditions or privileges for sale or rental of a dwelling
Provide different housing services or facilities
Falsely deny that housing is available for inspection, sale, or rental
For profit, persuade owners to sell or rent (blockbusting) or
Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing."


I wouldn't spend too much time learning this act, but anything on the NCBE outline is fair game for the exam, so it's worth taking a quick look.

Monday, December 8, 2014

Motions

Distinguishing between a variety of motions is sure to be required for those answering civil procedure questions on the MBE. Below are five important motions made during trial to keep in mind and the distinguishing characteristics among them:

Motion for Judgment on the Pleadings: This motion may be granted if on the face of the pleadings (but without considering matters outside of the pleadings) the court determines that the moving party is entitled to judgment.

Judgment as a Matter of Law: This motion was formerly known as a motion for a directed verdict. Granting this motion is allowable for either party if the evidence is such that reasonable people could not disagree in favor of the moving party. The evidence must be viewed in the light most favorable to the non-moving party. If one is to later make a renewed motion for judgment as a matter of law, one must first make this particular motion.

Renewed Motion for Judgment as a Matter of Law: This motion was formerly known as a motion for judgment notwithstanding the verdict ("JNOV"). The motion is filed after judgment but not later than 28 days after entry of the judgment. The motion should be granted if the verdict returned could not have been reached by reasonable persons. A party is generally limited to those issues raised in the motion for judgment as a matter of law.

Motion for a New Trial: As with the renewed motion for judgment as a matter of law, this motion is filed after judgment but not later than 28 days after judgment. The court has the discretion to grant a new trial because of an error during trial, or because the verdict is against the weight of the evidence. Occasionally, the court will issue a new trial if the verdict is excessive, though another option is to offer the plaintiff remittitur, which allows plaintiff to choose between a lesser award or a new trial.

Motion for Summary Judgment: Summary judgment shall be granted if, from the pleadings, affidavits, and discovery material on file, it appears that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. This motion is very similar to the a motion for judgment on the pleadings, though more material is considered here in determining whether to grant the motion. A party may file a motion for summary judgment at any time until 30 days after close of discovery.

Monday, December 1, 2014

MBE Fast Fact: The Firm Offer Rule

The Firm Offer Rule is definitely one those distinctions between the common law of contracts and the UCC that you'll want to keep in mind when preparing for the MBE. Under the common law of contracts an option contract is available in which the offeree gives consideration for a promise by the offeror not to revoke the offer. Because the offeree provides consideration, the promise not to revoke is binding on the offeror. Such offer may not be revoked for the specific time period stated in the offer.

But under the UCC, the rules change in a very significant way. Under Article 2 of the UCC, if a merchant offers to sell goods in a signed writing and the writing gives assurances that it will be held open, then the offer may not be revoked for the period specified by the merchant. Consideration is not required. Watch for situations in which no time period is stated; under such circumstances, the offer may not be revoked for a reasonable period of time, but in no event may that time period exceed 3 months.

That last part is important; even if the merchant claims that the offer will remain open for 4 months, the merchant making the offer will only be bound to keep the offer open for 3 months. But the merchant can always limit the time period in which he is required to keep the offer open by specifically stating a time period less than 3 months.

Tuesday, November 25, 2014

MBE Essentials: Civil Procedure

Everyone taking the MBE in February is trying to get up to speed on Civil Procedure. Here are two questions and answers from the chapter on Civil Procedure from my book MBE Essentials:

Q: What information must be contained within an answer to a complaint?

A: The answer must contain a specific denial or admission of each averment of the complaint, or a general denial with specific admissions of the averments admitted. The defendant may also claim that he is without knowledge or information sufficient to form a belief, and that, too, will constitute a denial. The defendant must state any affirmative defenses. Defendant must file the answer within 21 days of service (or if defendant has waived the specific service rules, within 60 days after defendant receives the request for waiver). If defendant files a rule 12 motion (rather than filing an answer), and the court denies the motion, defendant’s responsive pleading is due within 14 days after denial of the motion. If defendant files a motion for a more definite statement, and service of a more definite statement is made to defendant, defendant’s answer is due within 14 days of the service of the more definite statement.

Q: What is a counterclaim and how does plaintiff respond to a counterclaim?

A: Counterclaims under the federal rules are either compulsory or permissive. Compulsory counterclaims are those that arise from the same transaction or occurrence as the plaintiff’s claim, and these must be pleaded as a counterclaim or they will be thereafter barred. Permissive counterclaims do not arise from the same transaction or occurrence as the plaintiff’s claim, and these may, at discretion of defendant, be asserted as a counterclaim provided they meet the jurisdictional requirement for filing a claim in federal court. The plaintiff need only reply to defendant’s answer when defendant has asserted a counterclaim.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman

Or you can purchase and download it right here on the blog:
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Saturday, November 22, 2014

MPRE Essentials

Along with my resource, MBE Essentials, MPRE Essentials is now available for download! The resource contains 80 questions and answers, each one teaching an essential aspect of the substantive law tested on the MPRE. Below is a sample of the format and content of the resource:
__________________________________________________________________________________________________________________
May a lawyer licensed to practice in one jurisdiction temporarily practice in a jurisdiction in which he is not licensed?

Under specific circumstances, yes, this is allowable. A lawyer may practice on a temporary basis in a state in which he is not admitted if he associates with a local lawyer who participates in the matter. In addition, even if not associating with a local lawyer, a lawyer may request to appear “pro hac vice,” which allows the lawyer to participate in that matter only. A lawyer may also engage in alternative dispute resolution in a state in which the lawyer is not licensed to practice law, but only if those services arise out of a matter originating in a state in which the lawyer is licensed to practice. Finally, a lawyer may temporarily practice in a state in which the lawyer is not licensed if the out-of-state practice is reasonably related to the home-state practice.

May a lawyer licensed to practice in one jurisdiction permanently practice in a jurisdiction in which he is not licensed?

Once again this is allowable, but the circumstances are more limited. This is allowable if the lawyer is a salaried employee of a single client (in other words, the lawyer is an in-house counsel for a corporation). If so, the lawyer may provide permanent legal services to that client in a state other than the state in which the lawyer is licensed, but note that to litigate for the client the lawyer will have to seek admission “pro-hac-vice.” In addition, the lawyer may provide permanent out-of-state- services when such services are authorized by federal or state law.

What are the consequences of assisting a non-lawyer who is engaging in the practice of law?

If a lawyer assists a non-lawyer who is engaging in the practice of law, the lawyer will be subject to discipline. The “practice of law” in this context includes those activities involving legal knowledge and skill that constitute advice regarding binding legal rights and are traditionally performed by lawyers. This rule does not prevent a lawyer from advising and instructing non-lawyers whose employment requires legal knowledge, or advising a person who has chosen to represent himself in a legal matter.

When does the lawyer-client relationship arise?

The relationship arises when a person indicates an intent that the lawyer provide legal services and the lawyer either agrees or fails to clearly inform the person that he does not wish to represent him.

To order MPRE Essentials (80 questions and answers in total) click below:

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