Louisiana Bar Exam Study Guidedocshare04.docshare.tips/files/9548/95489173.pdf · Disavow burden:...

Louisiana Bar Exam Study Guide 1 February 2010

LOUISIANA BAR EXAM STUDY GUIDE FEBRUARY 2010

SUBJECT PAGE CODE I EXAM Persons and Domicile ………………………………………………………. 2 Community Property ……………………………………………………….. 4 Property and Acquisitive Prescription …………………………………….... 5 CODE II EXAM Successions …………………………………………………………………. 8 Trusts ……………………………………………………………………….. 10 CODE III EXAM Liberative Prescription ……………………………………………………… 11 Contracts and Obligations …………………………………………………... 12 Sales ………………………………………………………………………… 14

Lease ………………………………………………………………………... 16 Miscellaneous Topics ……………………………………………………….. 17

Civil Law Security Rights …………………………………………………... 18 UCC Chapter 9 Security Rights ……………………………………………. 19 LOUISIANA CODE OF CIVIL PROCEDURE EXAM …………………………………... 20 TORTS EXAM ……………………………………………………………………….. 46 BUSINESS ENTERPRISES & NEGOTIABLE INSTRUMENTS EXAM …………………... 49 CONSTITUTIONAL LAW EXAM ……………………………………………………... 53 CRIMINAL LAW AND PROCEDURE AND EVIDENCE EXAM Criminal Law ……………………………………………………………….. 55 Criminal Procedure …………………………………………………………. 57 Evidence ……………………………………………………………………. 58 FEDERAL JURISDICTION AND PROCEDURE EXAM …………………………………. 59


DOMICILE Juridical person → formation state or principal place business Natural persons → “habitual residence” (presence and intent)

SPOUSAL SUPPORT FACTORS Interim (fault does not matter) Needs of parties Ability to pay Standard of living Final (fault matters) Income Financial obligations Present earning capacity Time necessary to acquire skill/education Health and age Duration of marriage Tax consequences

CODE I EXAM: PERSONS AND DOMICILE

PREREQUISITES FOR MARRIAGE (1) Absence of legal impediment (absolute nullity)

Existing marriage Same-sex marriage Related in direct line Related in 4th degree as collaterals

(2) Marriage ceremony (absolute nullity) Qualified celebrant Attendance of both parties

(3) Free consent (relative nullity) No duress Capable of discernment Age

BEST INTEREST OF THE CHILD FACTORS Can every Paul M. Hebert law student recite the

Code? Probably not. Cooperation with the other party Emotional ties with the child Ability to provide Moral fitness Health Location (distance between the parties) Stability Prior relationship with the child History of the child (school, etc.) Past caregiver Preference of the child Ability to nurture

DIVORCE No fault 102 divorce → live apart after petition 103(1) divorce → live apart before petition Fault Adultery (opportunity and nature of relationship) Commission of a felony and sentenced to death/ hard labor Actions incidental Child custody, support, visitation Spousal support (interim and final) Injunctions (wasting community property, abuse, harassment) Use and occupancy of former community property Contributions to earning capacity

CUSTODY Preference (1) Parents agreement (meet BICF) (2) Joint custody (3) Sole custody (4) Nonparent (if 1-3 would cause substantial harm) Common judgments/orders and proof required (1) Stipulated/consent judgment—parties agree, no evidence

Must show: (1) Material change and (2) Modification meets BICF

(2) Considered decree Must show “Bergeron proof”: (1) Continuation of present custody is deleterious or (2) Harm caused substantially outweighed by advtgs

Mental evaluation → for “good cause shown” Temp custody order → ex parte order; show in verified petition

or supporting affidav that immediate and irreparable harm will result; 15 day expiration w/ 10 day extension for good cause

TUTORSHIP Natural (parents; “by right”—no proceeding) By will (appointed by parents) Legal (appointed by judge from family)

For illegitimate child not acknowledged by father, preference is given to mother’s parents or siblings over the father

Dative (appointed by judge from anyone)

PUTATIVE MARRIAGE Requirements (1) Absolutely null marriage AND (2) Good faith (“honest and reasonable belief”) Civil Effects Same as regular marriage except community prop. Community property effects: Common spouse BF split H0 W1 ½ W2 ½ Common spouse GF split H½ W1¼ W2¼ Duration of effects As long as in GF Bigamy exception: until official declaration of nullity or innocent spouse remarries


FILIATION Mother Preponderance of evidence child born of mother Contestation action Burden: clear and convincing evidence that:

(1) First husband not father (2) Second husband is father (3) Second husband acknowledges child

Time: 180 days marriage; 2 yr birth Father Presumption if married or 300 days of marriage Disavow burden: clear and convincing evidence Disavow time: 1 yr Rx; knew/should birth 1 yr Rx; written notice if apart 300 days Presumption if second husband and first husband disavows Disavow burden: clear and convincing evidence Disavow time: 1 yr Pr; first husband’s disavowal Marries and acknowledges and child not already filiated Disavow burden: clear and convincing evidence Disavow time: 180 days Pr; later of marriage or acknw Acknowledges and child not filiated (only in favor of child) Disavow burden: without cause Disavow time: 60 days; acknw Disavow burden: clear and convincing evidence Disavow time: 2 yr; acknw (not father, duress, fraud) Avowal Avowal burden: preponderance Avowal time: 1 yr Pr; child’s birth (if child filiated) If fraud, 10 yr Pr from child’s birth or 1

yr from knew/should know of birth No limit (if child not filiated) Always 1 yr Pr; child’s death If father dies, successors can bring action 1 yr from his death if Rx has already begun to accrue Child Preponderance of evidence if father alive Clear and convincing if father dead (1 yr Pr.; father’s death)

INTERDICTION Full interdict → incapable of taking care of person

and estate Limited interdict → incapable of taking care of

person or estate Procedure → file a petition for interdiction;

demonstrate by clear and convincing evidence all facts for interdiction; get appointed curator


COMMUNITY PROPERTY Definition: system of acquets and gains in which each spouse owns a present undivided one-half interest

CODE I EXAM: COMMUNITY PROPERTY

MATRIMONIAL AGREEMENT Before marriage → no court approval During marriage → court approval (file joint petition under

private signature or authentic act; judge determines if in best interest of parties and if the parties understand the governing principles and rules)

Limitations No violations of public policy No altering marital portion No renouncing interim spousal support No altering order of succession No altering rights of third parties

CLASSIFICATION OF PROPERTY Community Acquired during marriage through effort, skill, or

industry (ex: income) Acquired with CP or CP + SP Note: co-mingling ≠ CP; trace money Donated to spouses jointly Fruits of CP Fruits of SP if not reserved (authentic act or act

under private signature; must record) Damages for thing belonging to community Separate Acquired prior to community Acquired with SP or SP + inconsequential CP Donated to spouse individually Damages for loss as result of BF or fraud in

mismanagement of CP Damages for SP Acquired by voluntary partition DEGREE COMPENSATION

Factors (1) Supporting spouse’s expectation to share benefit (2) Detriment suffered by supporting spouse (3) Magnitude of benefit received by educated spouse

FRUITS Cash divided = fruit Stock divided = not a fruit Stock split = not a fruit Distributed trust income = fruit Non-distributed trust income = not a fruit

ACQUISITION OF TITLE Inception of title → life insurance Pro rata → pensions

UNCOMPENSATED LABOR If SP increases in value because of uncompensated labor, other spouse entitled to reimbursement of ½ of increased value

CONFLICT OF LAWS Movable property During marriage → domicile of acquiring spouse at the time it

was acquired Termination of community → Louisiana if property CP; if SP,

property is SP, but non-acquiring spouse gets his interest as would be owed under state where acquiring spouse was domiciled when property acquired

Immovable property Property in Louisiana, people in Louisiana when acquired →

Louisiana law Property in Louisiana, people not in Louisiana when acquired

→ Louisiana law, but if SP, non-acquiring spouse gets his interest as would be owed under state where acquiring spouse was domiciled when property acquired

Property not in Louisiana, people in Louisiana → Louisiana at termination

When all else fails . . . absent other proof, courts presume the law of other states is the same as Louisiana (i.e. note conflicts

issue, but only apply Louisiana law on bar exam)


CO-OWNERSHIP Rights of co-owners Fruits in % ownership

Producer gets production costs (not including labor) Equal use (regardless of % ownership) Use according to agreement or “destination of the thing” Reimbursement for “conservatory acts”

Conservatory act = necessary steps for preserving thing Reimbursed for ordinary maintenance Substantial improvements require others consent Consistent w/ property use → keep and co-owners pay Inconsistent → demand removal or keep and pay Individual co-owner may transfer his share But all co-owners must consent to transfer entire thing ARx only “overt and unambiguous” act Termination of co-ownership Loss of thing Judicial act Partition Can at any time, but can limit right for up to 15 yr Rescind for vice or lesion (¼ FMV) ex: $100 total, 2 co-

owners, $12.5 = ¼ FMV, lesion = received < $37.5

SERVITUDES Predial → charge on serv estate for benefit of dom estate Personal → charge on thing for benefit of person

USUFRUCT Rights and duties Consumable → UF may consume; must pay NO value at commencement or replace Nonconsumable → UF gets fruits (natural when severed; civil day-to-day)

Trees ≠ fruits; UF may cut for use on property; UF may cut “timberland” and retain proceeds if acts as prud admin (timberland = land capable of producing timber in paying quantities; ≠ “tree farm” which = land regularly managed/exploited)

Prudent admin of animals Make improvements at UF’s cost w/ written

consent of NO; if NO withholds consent, court can approve

UF cannot dispose of property unless right to abuse expressly granted, but can dispose of corporeal nonconsumable (act as prud admin)

UF act as prudent administrator UF — ordinary repairs, NO — extraordinary NO cannot interfere with usufruct or alter property Termination Natural usufruct → death (usufruct not heritable); expiration of term Legal → 30 years; expiration of term; termination of entity Permanent and total loss (UF can sue fault party; damage award subject to usufruct); involuntary conversion means proceeds subject to usufruct 10 yr Rx, confusion, renunciation Abuse (up to judicial discretion)

ACQUISITIVE PRESCRIPTION Good faith immovable (1) 10 yr (2) Just title

Juridical act—licit act intended to have legal conseq. Real title—certain and proved Translative title—sufficient to transfer ownership Nearly valid title—on its face valid Written title Recorded title

(3) Good faith—reasonable belief, in light of objective considerations, that you are the owner

Bad faith immovable (1) 30 yr Good faith movable (1) 3 yr (2) Act translative of title (just title sans written or recorded) (3) Good faith Bad faith movable (1) 10 yr Tacking Universal successor → continue in ancestor’s vices Particular successor → begin possession anew

PETITORY ACTION ∆ has right to possess Prove acquired ownership from previous owner (aka title “good against the word” → trace back to sovereign) or acquisitive prescription

Exception: common author rule—trace to author

∆ does not have right to possess Prove better title (debate if older = better or clearer = better)

POSSESSORY ACTION (1) Possession at time of disturbance (2) Quiet possession without interruption for 1 yr

immediately prior to disturbance (3) Disturbance in law or fact (4) Possessory action instituted within 1 yr of

disturbance

CODE I EXAM: PROPERTY


COMPONENT PARTS (ART. 466) (1) Things attached to bldg that, according to

prevailing usages, serve to complete bldg of same general type

Ex: doors, cabinets, plumbing; but not motel furniture bolted to wall or hospital camera

(2) Things attached to construction other than bldg that service its principal use

Ex: valves or ladder attached to water tower (3) Things attached to bldg or other construction

whose removal would cause substantial damage to thing or bldg/construction

ACCESSION Other precarious possessors (not lessee or co-owner; ex: serv.) Improvements w/ owner’s consent Maker owns improvement Maker can remove; must restore property Owner cannot force removal; can take ownership after

written notice and 90 days No right of reimbursement if Owner takes ownership Improvements w/o owner’s consent Owner owns improvement Owner cannot force removal No right of reimbursement Component parts w/ owner’s consent Owner owns component part Maker can remove; must restore property Owner can force removal at Maker’s expense if not

removed after demand If Owner keeps, must reimburse Maker current value of

materials and labor or enhanced value of immovable Component parts w/o owner’s consent Owner owns component part No rule removal No rule reimbursement Lessees Maker/lessee owns attachment Maker/lessee can remove

If Maker/lessee does not remove, Lessor can take ownership or demand removal at Maker’s/Lessee’s expense (if Maker/Lessee doesn’t remove, after 2d demand, Lessor takes ownership)

Reimbursement If Lessor takes ownership from get go, must pay Lessee lesser of cost or the enhanced value; if Lessor takes ownership post-demand, owes Lessee nothing

Possessors GF (possessing by act translative of ownership; not knowing defects) Owner owns constructions, plantings, works Owner must reimburse Maker either cost of materials and

labor, current value of material and labor, enhanced value of immovable (Owner’s choice)

Owner cannot demand removal at Maker’s expense BF Owner owns constructions, plantings, works Owner can force removal at Maker’s expense

Maker gets reimbursed if thing is separable; if inseparable, Maker does not get reimbursed

TRANSFER OF OWNERSHIP Immovables Effective between parties → written agreement Effective for third persons → filed in conveyance records Movables Effective → delivery of possession

BONA FIDE PURCHASER DOCTRINE Stolen (true owner transferred without consent) thing Cannot be sold True owner gets back from transferee

True owner reimburses transferee if transferee bought in GF from merchant who customarily sells things

Vice of consent sale (A → (vice) → B → C) C gets ownership if in GF and pays FMV

DEDICATED FOR PUBLIC USE Formal dedication Statutory dedication (maps/plats) Implied dedication Tacit dedication (roads)

PREDIAL SERVITUDES Types Natural → arise from natural situation (drainage) Legal → imposed by law (access to public road) Conventional → estab by juridical act, Rx, etc. Nature of rights Servient estate must not do something or permit something to be done; must keep estate in suitable condition for thing to be done

HABITATION Nontransferable real right to dwell in another’s

house Established/extinguished like usufruct Terminates at death Holder must act as prudent administrator

RIGHT OF USE Confers specialized use less than full enjoyment Transferable unless K or law prohibits Does not terminate upon death, unless contrary

provided by law or K

INTEGRAL PARTS (ART. 465) Thing so incorporated/merged in the immovable property to become part and parcel of it


BUILDING RESTRICTIONS Charges imposed by owner of immovable pursuant to general plan that governs building standards, uses, improvements Terminating and Amending As provided in the act of creation (may lessen or increase) If act silent, % of owners can terminate or amend:

> 10 yr → unanimous 10+ yr → 2/3 15+ yr → ½

Liberative Rx 2 yr of noticeable violation Abandonment of whole plan or particular restriction Remedies Enforceable by mandatory or prohibitory injunctions Violators may be sued for damages All landowners in subdivision may sue to enforce Homeowner association may sue to enforce

BUILDING Jurisprudential test (Seaways) → inhabited by people, cost, permanence, prevailing notions Building always immovable regardless unity oship

BOUNDARY ACTIONS Owner, possessor, UF, lessee may compel boundary action Right to compel boundary action is imprescriptable (meaning LRx, not ARx) Once boundary fixed, moving markers w/o court authorization makes you liable for damages and compelled to restore Extrajudicial boundary fixing Done by written agreement b/tw land owners Agreement has affect of compromise Judicial boundary fixing Fix according to ownership; if neither party has ownership, fix according to possession If using Rx to establish ownership, fix according to Rx (tack within title unless visible bounds) If both parties have ownership, fix according to titles

OCPA Other (than a building) Construction (manmade) Permanently attached (to the ground) OCPA immovable if unity of ownership OCPA movable is no unity of ownership

CROPS Unharvested crop/fruit immovable if unity oship Unharvested crop/fruit movable if no unity oship


ACCEPTANCE AND RENUNCIATION OF SUCCESSION Informal or formal acceptance Cannot accept or renounce before decedent dies Retroactive effect Renunciation must be express and in writing Effect of renunciation is to act as if predeceased decedent (use

representation) Creditor can have renunciation set aside by showing fraud and

intent to harm creditor or increased insolvency

DONATIONS Inter vivos → present and irrevocable Mortis causa → revocable during life of donor Form and preemption Generally inter vivos → authentic act with identities of donor,

donee, thing donated (absolute nullity to mess up form) Corporeal movable → manual delivery Life insurance → no authentic act; no collation; no reduction Annuities → no authentic act; maybe collation; yes reduction Pensions → no authentic act; likely no collation; no reduction Bonds → no authentic act; no collation; maybe reduction

ADOPTION Adopted children inherit from adoptive parents and vice versa, but adopted children also inherit from biological parents (but not vice versa) Biological parents rights/duties to adopted child severed at adoption Note: in 2008, this in flux b/c repeal of art. 214; legislature fixed problem retroactively in 2009 Adult adoption → must be spouse of biological parent or get court approval in best interest of both parties; both parties must consent in authentic act and any spouse must concur or absolutely null

COLLATION Procedure Only forced heirs of 1° can demand collation (no grandkids

unless parent dead at time of gift), unless decedent says everyone can collate

Only descendants have to collate Formal expression will make property not subject to collation Renunciation of succession means you don’t have to collate Items subject to collation Yes gifts in past 3 yr No board, support, education Yes expenses procuring establishment No gifts type traditionally given to children by parents No profits from transactions with parent, unless really donation Yes fruits after written demand for collation made

HALF-BLOOD SIBLINGS Equally divided between maternal and paternal lines

ORDER OF SUCCESSION Community Property Separate Property Descendants Descendants Spouse Parents, siblings, desc of sib Parents, siblings, desc of sib Spouse Other ascendants Other ascendants Collaterals Collaterals Nearest class, then nearest degree Other ascendants → split maternal and paternal

REPRESENTATION Descendants → ad infinitum Ascendants → none Collaterals → limited to descendants of siblings Partition done by root

MARITAL PORTION Spouse dies rich (5:1), poor spouse takes:

¼ ownership if no kids ¼ lifetime UF if 3 or fewer kids Child’s share in lifetime UF if 4+ kids

$1M cap; deduct legacies

UNWORTHY SUCCESSOR Reasons Convicted of crime intent/attempt killing

decedent—pardon has no effect Judicial determination of participation in above Procedure Brought by someone who would inherit in place

of, with, or through (Rx 5 yr) Can be fixed by reconciliation Lose right to succeed Lose property donated by decedent and fruits of it

REVOKING DONATIONS INTER VIVOS Ingratitude

Attempted to take life of donor Cruel treatment or grievous injury to donor 1 yr Rx

Nonfulfillment or nonperformance of condition Suspensive condition → dissolved matter of right Resolutory condition → dissolved by judicial decree or

consent of parties 5 yr Rx

Legal or conventional return Ex: anomalous succession ((1) ascendant gives descendant immovable, (2) descendant dies w/o descendants, (3) immovable in descendant’s succession—if proceeds of sale not yet received, ascendant gets proceeds)

CODE II EXAM: SUCCESSIONS


WILL FORM Olographic Entirely in testator’s hand Date Signed Notarial Declare instrument is will Dated Signed in presence of 2 witnesses and notary at end and on

each page Attestation clause

USUFRUCTS 890 → surviving spouse takes UF; kids NO

No security unless kids not UF’s biological Continues until death or remarriage

891 → parents take UF; siblings NO 1499 → testamentary UF

Continues until death

WILL INTERPRETATION Precatory language is not binding Can probate lost will, but if not in possession at death,

presumption will was destroyed Last disposition written prevails

CAPACITY AND UNDUE INFLUENCE Capacity Age Able to comprehend generally the nature and consequences of disposition Undue influence Substitution of will for another Common law test → opportunity, susceptibility, disposition of influencer, coveted result

FORCED HEIRS Age 23 until you turn 24 Permanently incapable of taking care of their

persons or administering estate at time of decedent’s death

At time of decedent’s death, have inherited, incurable disease that may render them incapable of caring for self

LAPSING LEGACIES (1) Provision in testament (2) Anti-lapse rule → legatee child, sibling, dec

of sib of the decedent, then legacy accretes (3) Joint legacy (4) Determine based on other legacies (little/big) (5) Legacy phrased like universal legacy (6) Intestate

REVOKING A WILL Revoke will Physically destroy Declare previous will void in testament or authentic act If subsequent revoking will is void, revocation void Identify and clearly revoke by signed writing in testator’s hand Revoke legacy Declaration in testament Subsequent incompatible legacies Subsequent inter vivos dispositions Clearly revokes by signed writing on testament itself Divorced from legatee after testament executed and at death

DISINHERISON Only disinherit forced heirs Disinherison must be in will and identify person being

disinherited and reason

CALCULATION Calculating legitime (1) Aggregate gross estate (does not include life insurance, pensions, bonds, annuities) (2) Subtract out estate debts (3) Add in gifts from past 3 yr (called fictitious collation → includes collatable and non-collatable gifts) = active mass (4) Multiply active mass by forced portion fraction (1 forced heir = ¼ ; 2+ forced heirs = ½ ) = forced portion (5) Divide forced portion by number of forced heirs = legitime Reduction (satisfying legitime) (1) Impute donations received by forced heirs (2) Pay out legitime from net estate (reduce universal legacies first) (3) Reduce inter vivos donations up to 3 yr back (most recent first)


TYPES OF TRUSTS Revocable, irrevocable, inter vivos, testamentary All trusts considered irrevocable unless otherwise stated

TERMINATION Cannot terminate before term (even if all agree) unless

authority granted Principal beneficiary dies before termination, vests to heirs Trustee may have right to terminate (need express statement) Court may modify/terminate if continuance would “defeat or

substantially impair” purpose of the trust Generally death of last income beneficiary or 20 yr from death

of settlor (trust creation if settlor not natural person) If settlor and beneficiary juridical persons, 50 yr from creation

FORCED HEIRSHIP Legitime may be put in trust Distributed annually for health, education of FH

SPENDTHRIFT TRUST All needed to create is word “spendthrift” Beneficiary cannot alienate or encumber his interest in trust;

trust income and principal exempt from seizure (exception: child support and spousal support0

TRUSTEE Powers Buy, sell, lease, mortgage Borrow funds Duties Fiduciary Reasonably prudent No self-dealing Must account

FORM REQUIREMENTS Inter vivos → executed before notary and 2 witnesses OR by act before 2 witnesses and duly acknowledged Testamentary → form of will Trust with immovable → recorded in parish No special words; just intent to create trust

CODE II EXAM: TRUSTS


GENERAL RULES Computation Commences day cause of action arises Date of commencement doesn’t count Contractual freedom Cannot exclude Rx Cannot specify longer period Cannot make requirements more onerous Interruption (restart) Filing suit in court of competent jurisdiction and venue Service of process for court lacking jurisdiction or venue Suspension (pause) Marriage, tutorship, minority, interdiction Compromise Contra non valentem Renunciation No form; must clearly demonstrate intent to renounce Occurs after Rx has accrued

PEREMPTION Extinguish right No interruption, suspension, renunciation

2 YEAR Delictual actions for crimes of violence

3 YEAR Annuities Past due rent Money lent Compensation for services rendered

1 YEAR Actions based on tort Actions against home inspectors for faulty inspec.

5 YEAR Promissory notes and negotiable instruments Reduce excessive donations Annul a testament Rescind a partition Spousal support arrearages

10 YEAR Personal actions Money judgments Child support arrearages

30 YEAR Right of inheritance

CODE III EXAM: LIBERATIVE PRESCRIPTION


CONDITIONS Resolutory → obligation immediately enforceable; comes to

end if uncertain event occurs Suspensive → obligation not enforceable unless and until the

uncertain even occurs Potestative condition → condition within a party’s power to

fulfill; suspensive potestative conditions based on obligor’s whim (unbridled discretion) are null; resolutory are not null if exercised in GF

SUBROGATION Definition → substitution of one person to rights of another Effects → obligation extinguished for original obligee Conventional subrogation → arises by agreement with obligor or obligee Agreement with obligor In writing and state purpose of the loan is to pay debt Effective without obligee’s consent Agreement with obligee Governed by rules of assignment of right Effective without obligor’s consent Legal subrogation → (1) obligee pays another obligee

(2) purchaser of property uses purchase money to pay creditor with real right to property (3) obligor owes a debt with others and pays that debt has recourse against other obligors

(4) successor pays estate debt with own funds (5) when law provides

REMISSION AND RENUNCIATION Renunciation Renunciation of solidarity by obligee means obligee will look to obligor only for his share Other obligors remain liable for whole debt, minus renounced share Must be expressly done, though no particular form Remission Remission of solidarity by obligee means obligor’s share of debt extinguished Other obligors remain liable for whole debt, minus remitted share Presumption of remission if obligee voluntarily surrenders document remitting to obligor

OBLIGATIONS WITH MULTIPLE PEOPLE Several → separate performances owed; same effect as if

obligations incurred through different juridical acts Joint → 1 performance owed; no obligor bound for whole/no

obligee entitled to whole (divisible joint oblig means each obligor/ee does his portion; indivisible joint oblig acts like solidarity)

Solidary → obligors each owe whole performance

CONTRACT REQUIREMENTS (1) Capacity (2) Consent (established by offer and acceptance) (3) Cause (4) Object

NATURAL OBLIGATIONS Definition → moral duty not enforceable at law No reclamation of freely performed natural oblig New K for nat oblig performance is onerous

GENERAL Definition → legal relationship between 2+ people Overriding duty of GF imposed on all obligors/ees

WRITINGS Authentic act → 2 witnesses and notary Act under private signature duly acknowledged →

originally executed with no notary, but party thereafter acknowledges before court or notary and 2 witnesses

Act under private signature → signed by not written by parties

TERMINATION Performance Impossibility (fortuitous event—not reasonably

foreseeable—that renders impossible) Novation (extinguishment of obligation by

substitution of new one) Remission Compensation (extinguishing 2 obligations

simultaneously) Confusion

CODE III EXAM: CONTRACTS AND OBLIGATIONS


CONTRACTUAL BREACH AND REMEDIES Breach Nonperformance Defective performance Delay Remedies Obligee entitled to damages and either specific performance or dissolution Damages measured by loss sustained by obligee and profit deprived GF breach → only reasonably foreseeable damages BF breach → all direct consequences

CAUSE Definition → reason why a person obligates himself Obligations need cause or detrimental reliance Detrimental reliance requires: (1) promisee relied on promise to her detriment (2) promisor knew/should have known of reliance (3) promisee was reasonable in relying

OFFER AND ACCEPTANCE Offer Offer generally revocable; revocation must be

received before offer accepted Irrevocable offer cannot be revoked during time,

if no time given then reasonable time Acceptance Revocable offer effective when offer transmitted Irrevocable offer effective when received Can accept by performance Nonconforming acceptance is a counteroffer

TYPES OF CONTRACTS Unilateral → one party incurs obligation Bilateral → both parties incur obligation reciprocally Onerous → reason obligor bound himself was to get benefit Gratuitous → obligor bound himself to benefit obligee Principal → K whose obligation secured by accessory K Accessory → provides security for performance of another

obligation Commutative → performance by one party is correlative to

performance by other party Aleatory → performance depends on uncertain event

VICES OF CONSENT Error (bears on principal cause and other party

knows/should know principal cause Fraud (misrepresentation/suppression of truth with

intent to obtain an unjust advantage) Duress (reasonable fear of unjust or considerable

injury) Defense of error and fraud is easily discoverable

CAPACITY All persons have capacity except: (1) Unemancipated minors (2) Interdicts (3) Persons deprived of reason

CONFLICTS OF LAW Governed by law of state whose policies would be most seriously impaired

SIMULATION Absolute → parties intend K has no effects Relative → parties intend K produce different

effects

REVOCATORY ACTION Allows obligee to set aside obligor’s transaction if

it will cause or increase obligor’s insolvency (former law was fraud and intent to harm)

To bring, obligee must have a right that arose before the transaction sought to be set aside

PAROL EVIDENCE RULE Cannot use parol evidence to negate or vary K at time of

execution Can use parol evidence to prove written act was modified by a

subsequent, valid oral agreement


ELEMENTS OF VALID SALE (1) Agreement (2) Object

Item must be capable of being sold (sale of a thing of another is null); future and hope may be sold

(3) Price Price must be in money and be sum certain or sum determinable by method parties have agreed

OBLIGATIONS OF SELLER AND BUYER Seller’s obligations Deliver thing Warrant thing against eviction and redhibitory defects Warrant thing is reasonably fit for ordinary use Buyer’s obligations Pay price Take delivery

RIGHT OF FIRST REFUSAL Unilateral K whereby one part agrees he will not sell w/o first offering to certain person OWNERSHIP AND RISK OF LOSS

Ownership → transfers on perfection of sale (3 elements met) Goods sold by weight, sale perfected upon weighing Buyer owns things in transit that are deliverable to buyer Seller owns things in transit that are deliverable to seller Suspensive condition must be filled to transfer ownerhsip Risk of loss → transfers when thing delivered Shipment contract transfers risk to buyer pre-transit Destination contract transfer risk to buyer post-transit

REDHIBITION Definition1 → defect that renders the thing useless or its use is so inconvenient that buyer would not have bought → buyer entitled to rescission of sale

or Definition2 → defect that diminishes usefulness such that buyer would have paid less for it → buyer entitled to reduction of price (quanti minoris) Defect must be: (1) Not apparent (reasonably discoverable by prudent buyer) (2) Not known to buyer at time of sale (3) Existed at time of delivery (4) Meet definition 1 or 2 Liability of seller BF seller → purchase price, expenses, damages, attorney fee;

no opportunity to repair; 1 yr Rx from discovery of defect GF seller → purchase price, reasonable expenses; opportunity

to repair; 4 yr Rx from delivery or 1 yr from discovery Waiver must be clear, unambiguous, and brought to buyer’s attention

OPTION CONTRACT Unilateral K whereby grantor bound to buy/sell if grantee of option accepts within stipulated time Must have a term (10 yr limit), specify thing, price, writing for immovables

DATION EN PAIEMENT Giving a thing to a creditor as payment Perfected by delivery

WARRANTY OF FITNESS (ORD. USE) Warranty that thing is reasonably fit for ordinary use Also can warrant for particular use if buyer has particular use, seller knows of particular use, and seller knows buyer relying on seller’s skill to select thing

CONTRACT TO SELL Bilateral agreement to sell at later date Earnest money negates specific performance;

must expressly stipulate money is earnest (money is presumed to be deposit)

WARRANTY AGAINST EVICTION Eviction occurs if: (1) Third party has perfect title even if buyer has

not lost physical control (2) Nonapparent servitudes not declared Implied in all sales Seller’s liability turns on type of warranty: (1) Warranty sale → when parties don’t address

matter of warranty; seller owes price, fruits, costs, damages if buyer in GF

(2) Sale without warranty → when seller renounces warranty; seller owes price if buyer in GF

(3) Sale at buyer’s peril/risk → when buyer says he gets nothing back in event of eviction and he was aware of eviction; seller owes nothing

(4) Quitclaim → assignment of right; seller owes nothing

CODE III EXAM: SALES


LESION Requirements (1) Corporeal immovable (2) Only vendor can bring action (3) Price < ½ value of thing at time of sale Effects Buyer can either return thing and get money back or keep thing and give seller supplemental payment 1 yr Rx from sale

FORM OF SALE Movables → no form Immovables → in writing; authentic act or act

under private signature Exception: oral transfer of immovable okay

if seller recognizes transfer under oath

VENDOR’S PRIVILEGE Movables Vendee must have physical possession for

privilege to attach Lost upon delivery to third party, not merely on

sale to third party Subordinated to claims of pledge if the vendee

pledges the property Immovables Act of sale must be filed for recordation Outranks other encumbrances Relates back to the date of the credit sale and

outranks intervening encumbrances if act of sale is filed for recordation timely


ELEMENTS OF VALID LEASE (1) Thing (only possession) (2) Rent (certain or determinable; need not be in money) (3) Consent No form requirements, but unrecorded lease has no effect against third parties No term necessary, but if term given, cannot exceed 99 yr

No term for agricultural lease means year-to-year; for non-residential movables means day-to-day, for others it means year-to-year

TERMINATION OF LEASE Expiration of term Notice if no term (written for immovables); notice must be:

30 days before end of period if term > 1 month 10 days before end of month if term month-to-month

SUBLEASE AND ASSIGNMENT Sublease → no third party beneficiary arrangement; lessee giving sublessee fewer rights than he has Assignment → lessor is third party beneficiary; lessee transfers all rights

RECONDUCTION Lease with fixed term is tacitly reconducted if lessee continues in possession and no steps are taken to terminate the lease for:

30 days for agricultural lease 1 wk for other leases with fixed terms > 1 wk 1 day for leases with fixed terms =/< 1 wk

Reconducted leases become:

Year-to-year for agricultural lease Week-to-week for leases w/ fixed terms > 1

wk Day-to-day for leases w/ fixed terms b/tw 1

day and 1 month

OBLIGATIONS Lessor’s obligations Deliver thing Maintain in condition suitable for purpose Make necessary repairs Maintain peaceful possession

Liable for disturbance by people claiming right to leased thing

Not liable for loss not lessor’s fault Lessee’s obligations Pay rent Use as prudent administrator Return thing

CODE III EXAM: LEASE


MANDATE Definition → contract between principal and mandatary

conferring on mandatory authority to represent (including in transactions) the principal

Form → no form requirements; but equal dignities rule applies Authority → generally authority to do any “incidental or

necessary” acts; to sell, acquire, encumber, or lease, authority must be express

Duties of mandatary → act with prudence and diligence; give

information to principal; deliver to principal Liability of mandatary → principal’s loss if breaches duty Disclosed P and M: M not bound to 3d party Disclosed M, but not P: M personally bound until P

disclosed Undisclosed P and M: M personally bound M exceeds authority: M personally bound unless P ratifies or 3d party knew exceeding authority Duties of principal → liability for obligations of mandatary;

duty to reimburse mandatary; can be bound by apparent authority

Termination → death; interdiction; notice; continues if 3d

party not notified

DEPOSIT Definition → K in which depositor delivers

movable to depositary for safekeeping Standard of care → onerous deposit = diligence

and prudence; gratuitous = care used for own property

Return → when depositor demands; cannot end

term early unless unforeseeable circumstances; no term means return at any time

Sequestration → conventional = parties agree to

deliver contested thing to depositary pending dispute resolution; judicial = court ordered deposit

LOAN FOR USE Lender delivers nonconsumable Borrower must keep, preserve, and use as prudent

administrator Borrower must return after use finished

COMPROMISE Definition → K whereby one or more parties make concessions to settle a dispute Form → in writing or recited in open court Accord and satisfaction → accepting payment tendered by other party with clearly expressed written condition that acceptance extinguishes obligation Effect of compromise → rescind for vice of consent, but not error or lesion; can’t bring subsequent action

CODE III EXAM: MISCELLANEOUS TOPICS


GENERAL OVERVIEW AND DEFINITIONS Security right = legal mechanism to help creditor collect on obligation; gives creditor extra rights against a third party or in property belonging to obligor or third party Types of obligations Principal obligation = obligor’s personal liability to creditor Accessory obligation = security right associated with principal

obligation Types of security rights Suretyship = laws governing personal securities, i.e. securities

enforceable against a third party Mortgages = laws governing real securities, i.e. securities

enforceable against immovable property UCC Chapter 9 = laws governing security interests, i.e.

securities enforceable against movable property Privileges = security rights arising by operation of law

SURETYSHIP Form requirements (1) Express [surety undertaking personal liability

and obligations surety is undertaking] (2) In writing Types of suretyship (1) Commercial [if either surety is paid,

surety/debtor is business, or principal oblig or suretyship arises out of business transaction]

(2) Ordinary [everything not commercial] Creditor’s rights Can collect from any surety (solidarily bound) as soon as debt is enforceable—does not have to exhaust remedies against debtor first Surety’s defenses (1) Obligor’s defenses [save capacity, bankrupt] (2) Release [release of principal oblig releases all

sureties; release of co-surety releases only his virile share]

(3) Modification of principal obligation (4) Impairment of collateral security Note: for 3 and 4, if commercial surety, only extinguishes amount surety injured; extinguishes all of ordinary surety Surety’s rights (1) Reimbursement from principal obligor if

exgible (actually due) or if obligor knew creditor insisting on inexigble payment or surety tried in GF to contact obligor

(2) Subrogation of creditor’s rights against obligor

(3) Contribution from co-sureties (4) Termination on notice of death of surety

MORTGAGES Form requirements (1) In writing (authentic act or can’t use executory process) (2) Signed by mortgagor (no need for mortgagee) (3) State value of secured obligation (4) Describe immovable property Perfection of mortgages Entire mortgage must be filed in mortgage records Lapse and reinscription Mortgages lapse 10 yr after date of mortgage (not filing date) If mortgage describes a maturity date and maturity date is 9+

yr from date of mortgage, then mortgage is effective for 6 yr after the maturity date

Mortgagee may reinscribe mortgage before lapse by: (1) Stating name of mortgagor (2) Stating the recordation number of original mortgage (3) Declaring mortgage reinscribed Effect = extends mortgage for 10 yr from date of filing notice Transfer of mortgaged property Mortgagee can transfer mortgage; if transfer only in part, amount received if mortgage is enforced will be pro rata Mortgagor may transfer property; property still subject to mortgage; new property owner is a “third possessor” Termination (1) Extinction/destruction of collateral (2) Confusion (3) Extinction of principal obligation (4) Termination

CODE III EXAM: CIVIL LAW SECURITY RIGHTS


TYPES OF COLLATERAL (1) Tangible movable property (equipment or inventory) (2) Consumer goods (3) Rights in immovable property (ex: rights in fixtures) (4) Intangible rights (ex: accounts, deposit accounts)

FINANCING STATEMENT Financing statement only puts parties on notice; it does not create rights itself Requirements: (1) Full, accurate legal name of debtor (2) Secured creditor’s name (3) Description of collateral (may be generic) For fixture, the financing statement must also include: (1) Description of immovable with sufficient detail (2) State that it covers a fixture (3) Identify the owner of the immovable (if different) (4) Be made before the component part is affixed

ATTACHMENT Attachment = making rights enforceable between parties Requirements for attachment: (1) Value must be given (2) Debtor must have rights in collateral (3) Debtor must authenticate (sign) a written security

agreement that provides adequate description of collateral

PERFECTION Perfection = making rights enforceable against third parties Methods of perfection: (1) Filing a financing statement (for autos, file FS

w/ DMV (2) Possession (3) Automatic perfection upon attachment

(purchase-money security interest) (4) Control

CONTROL Control is exclusive means of perfecting interest

in deposit account (aka bank account) and life insurance policies

Control of bank account occurs in 1 of 3 ways: (1) Secured creditor is bank where deposit

account is held (2) Control agreement (3) Creditor’s name is added to account

PRIORITY (1) Secured creditor (first to file) (2) Lien creditors (creditors acquiring rights

through judicial process) (3) Buyer in ordinary course

PURCHASE-MONEY SECURITY INTEREST (PMSI) PMSI = security interest that allows debtor to acquire a thing If thing is equipment, PMSI has priority if PMSI is perfected within 20 days of debtor’s receipt of the equipment If thing is inventory, PMSI has priority if PMSI is perfected and all secured creditors are notified before debtor’s receipt of inventory

CODE III EXAM: UCC CHAPTER 9 SECURITY RIGHTS


LOUISIANA CODE OF CIVIL PROCEDURE EXAM QUESTIONS ASKED BETWEEN 2003 AND 2009, GROUPED BY TOPIC (MORE OR LESS)

SUBJECT MATTER JURISDICTION

1. Co-owners want to file partition action before particular city court judge. Can they?

City courts have no jurisdiction over partition actions. 2. Two Louisiana residents want to adjudicate in a Louisiana court a petitory action to

settle ownership of a tract of land in Texas. Does the Louisiana court have jurisdiction? No. A Louisiana state court does not have jurisdiction to adjudicate ownership of immovable property located in other states.

PERSONAL JURISDICTION

3. Out of state bank loaned money to a nonresident defendant. The loan was executed out

of state but the nonresident owns a Louisiana immovable. Bank wants to get money judgment in Louisiana against defendant. Procedure? With no other contacts to Louisiana, personal jurisdiction is doubtful under Schaffer v. Heitner. There is a possibility of non-resident attachment of immovable property in Louisiana. Action brought in parish where immovable is located and must proceed by attachment of property pursuant to writ of attachment. Curator ad hoc will be appointed to represent non-resident defendant, with duty to attempt to locate and give notice of action. If located can choose to defend or not. If not, curator defends. If plaintiff gets judgment, sheriff enforces by writ of fieri facias directing sheriff to seize and sell. Quasi in rem judgment limited to value of seize property.

4. A Georgia company’s only contact with Louisiana is from a Louisiana resident

company calling it to place order after seeing advertisements in national publication. Before this order, the Georgia company had only made one sale in Louisiana, which also took place after being called by the Louisiana customer. The product is now found defective, and a Louisiana resident sues the Georgia company in a Louisiana court. How can company try to avoid litigating in Louisiana court? Will it succeed? Georgia company should file a declinatory exception for lack of personal jurisdiction. In order for Louisiana court to exercise jurisdiction over a non-resident corporation, the non-resident must have minimum contacts with Louisiana, such that maintenance of action in Louisiana courts does not offend traditional notions of fair play and substantial justice. In applying this test, courts look to whether nonresident has purposefully directed its activities to the forum state. Here, the Georgia company is likely to lose its declinatory exception. The Georgia company has not directed any marketing towards Louisiana specifically, and it has not registered to do business in the state. It has on two instances taken orders from Louisiana customers who called it, and on at least one occasion shipped software to those customers in Louisiana. Since this shipment to Louisiana contained a product that caused harm in Louisiana, and since it advertised in national publications signaling a desire to do business nationally, there will likely be enough grounds for courts to exercise jurisdiction.


5. Nonresident debtor has defaulted on an agreed payment of $10,000. Currently the nonresident debtor has movable property worth $30,000 located state, but only for next three days. How to protect creditor’s interest? The creditor should file a petition for writ of attachment to have property seized. Attachment can be based on the fact debtor is a non-resident with no duly appointed agent for service of process in state. Court may therefore exercise quasi in rem jurisdiction over the debtor by attaching his property. Judgment can only be executed against property for its value. There is no personal judgment against debtor.

VENUE

6. Where must a proceeding to open a succession be brought?

Proceeding to open succession must be brought in the parish where decedent was domiciled, not in others where he might have died or owned property. This venue is non-waivable.

7. There is a property damage tort suit against the Driver of truck that damaged a car and

the Company that employed the Driver. The accident occurred 5 months ago in Rapides Parish. The Company is corporation with registered office in East Baton Rouge Parish. Driver was domiciled in East Baton Rouge at time of accident but has since moved to Bossier. Plaintiff resides in Acadia Parish. Where is venue proper? Why? Suit can be brought in Rapides because that’s where the wrongful conduct occurred and where damage was sustained. Suit can be brought in East Baton Rouge because that’s where Company is domiciled and where the Driver was domiciled in past year. (After change of domicile, can sue in old or new parishes for a year unless declaration of intent to change domicile is filed.) Bossier is also proper, since this is current Driver domicile. Driver and Company are joint tortfeasors, and action can be brought against all in a venue proper to any. No long arm defendants, and plaintiff’s uninsured motorist carrier apparently not a defendant, plaintiff’s domicile parish not allowed.

8. Five months after answer was filed asserting no exceptions in tort suit, ∆ determines

case is proceeding in improper venue, the ∏’s domicile, and that all witnesses and relevant facts to be found are in another parish, where the accident actually occurred. Can anything to contest venue? To change it to the other parish? Venue cannot be contested. Declinatory exception of improper venue must be brought before or with answer or it is waived. To change venue, have to file motion for forum non conveniens, which allows transfer to parish where case might have originally been brought in the interests of justice, convenience of parties and witnesses. Forum non conveniens not allowed where case has been properly filed in venue of plaintiff’s domicile, but here the suit was improperly filed in plaintiff’s domicile parish.

9. Union Parish client complains LLC contractor abandoned the job at his home and

caused him to incur greater costs so that it could move south to work on post-Katrina reconstruction projects. LLC registered business office was located in Morehouse until last month, and is now located in St. Tammany Parish. No agent for service of process has been appointed by company. Where will venue be proper, and how will service of process be made on LLC?


Venue is proper in Union Parish, where work occurred under the contract and damages were sustained. It will also be permissible in St. Tammnay, current location of LLC registered office. Since there is no agent designated for service of process on LLC, process can be served personally on any manager, and if there are no managers, on any member, or personal service on any employee of suitable age and discretion at any place it regularly conducts business.

10. Your client is sued on a contract dispute by a Terrebonne parish company. Suit is filed

in Terrebonne parish. Contract was executed in client’s home parish of Caddo by travelling salesman of company who made sales call to client’s home. Initial payments were sent to Terrebonne parish. Product delivered there, client finds it unsatisfactory, refuses to pay. Is Terrebonne parish a proper venue? Does it matter that contract client signed had a provision waiving all objections to venue on a suit brought by seller to recover payment? Terrebonne is likely not a proper venue. In accordance with art. 76.1, an action on a contract may be brought in parish where contract was executed or where work or service was performed or was to be performed. None of these apply here, but company might argue that Terrebonne is proper because that’s where payments were made. The contract clause waiving venue objections is irrelevant because an objection to venue may not be waived prior to institution of an action.

11. Multiple choice: The parish where the person paying support is domiciled is NOT an

appropriate venue for an action seeking to modify a child support obligation. 12. ∏ is a resident of Bossier Parish. ∏ wants to sue Corporation for breach of contract.

Corporation has a registered office in Calcasieu Parish. Contract was for construction of a camp in Sabine Parish. ∏ signed the contract in Bossier, Corporation signed the contract in Calcasieu. All work for the contract was performed in Sabine. Work was supervised from Corporation’s office in Natchitoches Parish. Where is venue proper? Venue is proper under art. 42 in Calcasieu because that’s where defendant corporation’s registered office is located, and also under art. 76.1 because that is where Corporation executed the contract. Venue is proper in Bossier because that’s where plaintiff executed the contract. Venue is proper in Sabine under art. 76.1 because that is where the work under the contract was performed. Venue is also proper in Natchitoches under art. 77 because Corporation had a business office there exercised supervision over the matter.

RECUSAL OF JUDGES

13. At trial you discover the judge is being represented in an unrelated personal matter by

a senior partner of the opposing counsel. You can file a motion to recusal. A judge may be recused if an attorney in a case represents him at the time of hearing. Here, though, it’s a partner, not the attorney himself, so that may not be a permissive ground for recusal. Rely on general ground that judge’s connection with opposing attorney’s firm would so bias or prejudice his view that recusal is proper.


ACTIONS 14. ∏ in slip and fall suit dies by an unrelated cause while it’s pending. How can the action

be sustained? Amend the petition to assert a survival action and file a motion to have ∏’s legal successor substituted to represent the interest of the deceased plaintiff. Motion may be filed ex parte.

15. Client comes to you after death of his lawyer. Patent infringement was filed against him

four years ago and discovery was propounded to client at same time. This discovery was never answered and the record and files of previous counsel reveals no other action or activity in the case since that time. What course of action do you recommend? Client doesn’t need to take action since suit has been abandoned. No step has been taken in prosecution or defense of case in four years, and period for abandonment is three years. Abandonment is effective without formal order, but Client could file ex parte motion to dismiss on grounds of abandonment, and court will enter formal order of dismissal.

16. Notice of lis pendens has been placed incorrectly in the mortgage records of property

owned by your client. (Action is for payment for improvements, and lis pendens notice can only be attached when it affects title to immovable or asserts mortgage.) Client wants to cancel notice of lis pendens, and you contact recorder of mortgages to have it done. She refuses because she’s concerned you might be wrong. Remedy? To file writ mandamus directed to recorder of mortgages, a public officer, to compel her to perform a ministerial duty required by law: in this case, removing an unauthorized inscription in public records.

CLASS ACTIONS

17. Right action and venue for claims of stock broker buying club and 15 other clubs across

the state against the stock broker for nondisclosure of conflict of interest? Right action: class action. To maintain class action, requirements are: numerosity such that it would be impractical to join all plaintiffs, questions of fact and law common to class, claims are typical of those of the class, ∏s will fairly and adequately represent interests of class, and there are ascertainable criteria for objectively defining class. Venue: the proper venue of the stock broker. When a class action is brought on behalf of a ∏ class (as is the case here), the action shall be brought in the parish of proper venue as to the ∆. When the action is brought against a class of ∆s, venue is proper as to any member of the class named as a ∆.

18. Multiple choice: It is NOT a prerequisite for a class action that allowing the class action

would provide the most judicially economical resolution of the claims.


SERVICE OF PROCESS 19. Service of process received by defendant’s brother at her place of work. Valid?

No. Proper domiciliary requires service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served. Alternatively, personal service.

20. How to object to improper service of process.

Declinatory exception of insufficiency of service of process, which must be raised prior to or in the answer or prior to confirmation of default judgment, and not later than any other declinatory or dilatory exceptions.

21. Service of process when whereabouts are unknown for an out of state defendant.

Served via registered or certified mail to last known address under long arm statute. If long arm service can’t be made, a curator ad hoc will be appointed to represent. If non-resident attachment of the property is the basis of jurisdiction, pleadings can be served on curator.

22. When must service of process be made on ∆s?

Service of process on all named ∆s must be requested within 90 days of commencing action. If not done, other party can file contradictory motion to dismiss for failure to request timely service.

23. Sheriff attempts to serve process on ∆, can’t find him and is told he no longer lives at

his last known address. Your client assures you he’s just hiding. What can you do? You can have court appoint a private person, who is not a party, over the age of majority and residing in state, to make service in same manner as sheriff. Motion should state that sheriff has been unable after five days of diligent effort to make service.

24. Your client brings you two default judgments, entered against him and his wholly-

owned corporation XYZ in a suit against both. Client explains suit involved contract dispute with XYZ and that he should face no personal liability. He is the corporation’s registered agent for service of process. Both he and XYZ were served by domiciliary service on his wife at their home on 3/5/07. On 7/20/07, plaintiff obtained a preliminary default judgment against both client and XYZ. On 10/15/07, the default judgment was confirmed in open court. Client was personally served with both judgments on 10/25/07. Does client have a legal basis to challenge either or both of the two default judgments? If so, what is the procedure? Judgment against client can’t be challenged: all formal requirements and delays for default judgments met (15 days after petition, 2 days after preliminary default judgment) and proper service of both petition and confirmed judgment was made. No grounds to seek nullity of judgment for either vices of form or substance exist. It does not matter that he had a valid substantive defense at one point; it is too late now. However, judgment against XYZ can be challenged for lack of proper service of the petition. The petition should have been served personally on corporation’s registered agent, the client, not through domiciliary service on his wife. XYZ should file a petition for nullity of judgment for vices of form which can be brought at any time.


TIME LIMITS

25. Delays: (a) To answer an original petition in district court: 15 days from date of service of petition, or 30 days if issued by long-arm. (b) To answer a petition after an exception is overruled: 10 days after overruling (c) To amend an original petition w/o leave of court: any time before answer is served. (d) To amend an answer: any time within 10 days after it has been served. (e) To file a suspensive appeal: within 30 days of expiration of the delay for applying for a new trial. (f) To file a devolutive appeal: within 60 days of expiration of the delay for applying for a new trial. (g) To answer an appeal in a court of appeal: appellee only required to answer appeal if he wants to modify judgment or demands damages against appellant. If so, must answer within 15 days after return day or the lodging of the record, whichever is later. (h) To answer interrogatories: within 15 days after service of interrogatories. (i) To apply for a new trial: 7 days after notice served of final judgment, exclusive of legal holidays. (j) To appeal issuance of preliminary injunction: within 15 days from date of judgment issuing injunction. (k) To request service of process on all named defendants in a civil action: 90 days after commencement of action. (l) To answer request for admission: 15 days after service of request for admission. (m) To apply for an appellate court rehearing after receiving an appellate court opinion: within 14 days of the mailing of the notice of judgment and opinion by court of appeal. (n) To apply for writ of certiorari from Louisiana Supreme Court after appellate court decision (assuming rehearing not asked for): within 30 days of mailing of notice of judgment and opinion by court of appeal.

PLEADINGS

26. What must be prayed for in proceedings? Does it depend upon the nature of service on

a nonresident defendant? If proceeding is against person via long arm statute, proceed as if in any other ordinary proceeding and pray for enforcement of mortgage or any other damages. If non-resident attachment is used, writ of attachment must be issued and prayer would include seizure of the lot in accordance with writ of attachment.

27. What does an attorney certify when he signs a pleading?

That the attorney has read the pleading, that it is reasonably well grounded in fact, that it is warranted by existing law or a good faith argument to change the law, and it is not being imposed for an improper purpose, such as to harass, delay or increase litigation costs.


28. Having answered a fire insurance claim petition with a general denial that the fire resulted from ∏’s intentional act, ∆ introduces evidence of fraud by the ∏ at trial. Permissible? ∏ can object that ∆ is required to allege any affirmative defenses in its answer or risk waiving the defense. Since ∆ is alleging fraud, which also must be pleaded with particularity, ∆ should have specifically designated fraud (based on arson) as an affirmative defense, rather than as part of a general denial. Failure by ∆ to allege affirmative defense in answer means he may be precluded from introducing evidence of it at trial. ∏ should timely object to fraud evidence on grounds that the ∆ waived the affirmative defense by failing to plead it.

29. (continued from question above) Is there a motion ∆ may make in response to ∏’s

objection which will permit introduction of the fraud evidence? File a motion for leave to amend the answer to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised by the pleadings. ∆ can argue that ∏ implicitly consented to trial on the fraud issue because it was contained in the general denial of the answer and plaintiff failed to object at that point. Alternatively, court may allow the pleadings to be amended and shall do so freely when the presentation of the merits will be served thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice in maintaining his action on the merits. Here, the judge should grant motion. Even though fraud wasn’t labeled as an affirmative defense, ∏ had fair and adequate constructive notice of it through the general denial alleging that the fire was caused by “intentional act,” which necessarily implied fraud.

EXCEPTIONS

30. List the three kinds of exceptions, their purposes, and functions.

Declinatory exceptions decline the jurisdiction of the court for lack of subject matter jurisdiction, personal jurisdiction, and proper venue, among other reasons. Dilatory exceptions delay the action for errors in form in the original petition or to ask for more information. Peremptory exceptions seek to have the claim dismissed and declared invalid as a matter of law.

31. You pled dilatory exception of prematurity in your answer. Trial is about to commence,

and the exception has yet to be heard. Can the exception be tried and decided during the trial of the case? No. When dilatory exceptions are pled with the answer, they must be tried and decided in advance of the trial of the case.

32. Sued by full interdict in his own name. What should you do?

File a dilatory exception of lack of procedural capacity since interdicts may not file in their own name. Curator must sue for them.

33. Petition filed by three ∏s, one claiming wrongful discharge, one claiming slip and fall,

one claiming false imprisonment. Remedy?


File dilatory exception of improper cumulation of actions. Two or more parties may be joined as ∏s in same suit against a single ∆ only if: (1) community of interest between the parties, (2) jurisdiction and venue proper for all, and (3) actions are mutually consistent, and use same form of procedure. Here, 2 and 3 are met but not 1.

34. What must the court determine when seeking an exception of no cause of action seeking

to dismiss only one of a multiple of claims? (1) Whether petition asserts several demands or theories of recovery based on a single cause

of action arising out of one transaction or occurrence, OR (2) Whether the petition is based on several separate and distinct causes of action arising out

of separate transactions and occurrences. If (1), overrule exception of no cause of action if petition states cause of action as to any demand or theory of recovery. If (2), court can maintain exception in part, but partial judgment will not be a partial final judgment which is appealable, unless there is irreparable injury. But a party could apply for supervisory writs.

35. Mandamus action against Governor to compel him to cancel leases covering water

bottoms, attached with default judgment against Landowner to have leases declared nullity. Remedy for Governor? Dilatory exception of unauthorized use of summary proceedings. Mandamus is appropriate to compel performance of ministerial duties of public officer, not discretionary duties, like decision to lease water bottoms. Dilatory exception of improper cumulation of actions: mandamus as a summary proceedings employs a different form of procedure than default judgment, an ordinary action. Dilatory exceptions must be raised together, before or with answer. Effect dilatory action against mandamus would be to dismiss it. Plaintiff would have to refile with an ordinary proceeding.

36. What is the right of discussion?

Right of discussion permits a secondary debtor to require the creditor to exhaust the assets of the primary debtor prior to proceeding against secondary debtor. If creditor fails to do so, secondary debtor can interpose plea of discussion as a dilatory exception.

37. ∏’s witness makes an admission in trial testimony that establishes that the claim was

prescribed at the time of filing. No peremptory exception for prescription was filed before trial. Can it be filed at this point? The peremptory exception for prescription can be filed at any time in trial or appellate court before matter is submitted for judgment in either.

38. Your client has been sued for breach of contract. However, your client believes the suit

improper because the contract contains a mandatory arbitration clause for any dispute arising under it. What can be done? File (1) either a dilatory exception of prematurity or a motion to stay proceedings in the trial court pending arbitration and (2) a motion to compel arbitration. In each of the pleadings, I would assert that the mandatory arbitration clause requires arbitration and bars immediate trial court proceedings.


39. (continued from question above) What if the trial court turns your motion down? Do you have any recourse? Since the denial would be an interlocutory judgment, not a final judgment, an appeal is not available. However, I could seek a supervisory writ in the appropriate state court of appeal arguing the trial court erred in allowing proceedings to go forward.

INCIDENTAL DEMANDS

40. Company A sued for accident injuring ∏. Injury to ∏ caused by a part that was

supplied to Company A by Company B. What action should be taken on behalf of Company A and why? File third party demand because the defective part caused the injury; third party may be liable for all or part of ∏’s injury.

41. ∆ files a reconventional demand entirely unrelated to any claim or issue in ∏’s demand,

asking for amount much higher than properly prayed for in ∏’s demand. Dismissible? No. ∆ may assert in reconvention any cause of action he has against ∏ in principal action. No limit on amount of relief sought. [note: reconventional demand = counterclaim]

42. Intervention to join wrongful death action filed 2 months and 13 days earlier. ∆ objects

on grounds that the claim had prescribed by the time of the intervention filing. Result? An intervention is an incidental demand, which is not barred by prescription so long as it was not barred at the time of main demand and filed within 90 days of service of the main demand. Here, less than 90 days, so not barred.

43. Client (∆) wants to assert timber trespass claim against co-∆ in a partition action that

involves a different piece of land than the one trespassed on. Permissible? No. Cross-claims must arise out of the same transaction or occurrence as the original action. Trespass claim has no legal or factual connection to partition action.

44. Client (∆) wants to assert timber trespass claim against ∏ in a partition action that

involves a different piece of land than the one trespassed on. Permissible? Yes. This is a reconventional demand and reconventional demands do not have to arise from same transaction or occurrence as original action.

45. Your clients A and B are sued for a $75,000 debt. They assert they have no personal

liability at all and that the transaction concerns their wholly owned company, ABC Corp. Furthermore, they claim plaintiff actually owes ABC Corp $55,000. What should be done? Have ABC Corp intervene as a defendant to defend A and B from claim. Third parties such as ABC Corp may intervene in a lawsuit to enforce a right related to the pending suit, in this case, to protect company owners from being personally held liable for a corporate debt. After being joined, ABC Corp should reconvene against plaintiff to assert its $55,000 claim against her. The reconvention claim does not have to be related to plaintiff’s claim in main demand. [And, according to Richard Drew, A and B should also file motion for summary judgment


since there’s supposedly no question of material fact as to their personal liability, to get out of the case entirely.]

46. What action can be taken to protect one’s property interest if not named as ∆?

If not made a ∆, it can intervene to become one to protect its property interest.

47. Defective product litigation. Distributor ∆ has an indemnity agreement for any lawsuit costs granted by Manufacturer who is joined as ∆. File petition for cross-claim against co-∆, requesting indemnity for any damages assessed in original action. Allowable since it arises out of the same transaction or occurrence as the original action.

MOTIONS

48. ∆’s answer fails to deny any essential elements of ∏’s claim. Can you file a motion for

judgment on the pleadings, under these facts? Any party may move for judgment on the pleadings after the answer is filed but within such time as not to delay the trial. Allegations of fact in complaint not denied by ∆ are considered true.

49. ∏’s petition in personal injury case asks for $500,000. Okay?

No specific monetary demand may be included in prayer of petition. A motion to strike is the appropriate remedy for improperly requesting a specific monetary award. Attorney’s fees/costs are available if a motion to strike is necessary.

50. Injury caused by independent contractor over whom homeowner enjoyed no control.

Homeowner and contractor sued. Pretrial motion to terminate by homeowner? Motion for summary judgment that there is no genuine issue of material fact as to homeowner’s liability and that homeowner is entitled to judgment as a matter of law. No question that worker was independent contractor and no question there’s no vicarious liability for his acts. Burden on ∏ to show liability, so ∆ only has to knock out one essential element. Motion can be supported with affidavits from competent affiants, on personal knowledge, containing facts admissible at trial. Deposition testimony can qualify under this same standard and be introduced. Also, documentary evidence like contracts can be appended to affidavits.

51. Can ∆ move for involuntary dismissal when ∏’s case has concluded?

Yes. If ∏’s case has concluded and defense believes it unproven, ∆ may without presenting evidence of his own move for involuntary dismissal on the ground that upon the facts and law, ∏ has shown no right to relief. This does not affect his right to present evidence later if the motion is unsuccessful.

52. ∆ believes that while he is liable, the damages are very small. ∏ refuses settlement

without counteroffer. Can anything be done to recover costs of defending suit from plaintiff?


Make a written offer to settle all claims at least 30 days prior to trial and state that it is made pursuant to CCP art. 970. Offer can be made without admitting liability. If offer is refused and final judgment obtained by plaintiff is at least 25% less than the amount of the offer of judgment, the plaintiff must pay defendant’s costs, exclusive of attorney’s fees, incurred after offer was made, as fixed by the court. This is called a motion for judgment on offer of judgment.

53. Following an adverse jury verdict, a juror approaches to advise you of what she believed to be improper conduct by someone affiliated with opposing party. You would like to move for a new trial based upon this reported behavior. What is the time delay for filing such new trial motion and what if anything must you file with the motion? You must file within 7 days, excluding legal holidays, from mailing of service of the notice of signed judgment. Motion must state grounds for the new trial request, which include the peremptory grounds of (1) the verdict is clearly contrary to the law and evidence; (2) discovery of new evidence that could not have been discovered with due diligence before judgment (3) juror was bribed or compromised. Here there is possibly a claim a juror was compromised. Motion would have to include a a verified affidavit of the facts on which the motion was based. Alternatively, you may urge the motion on discretionary grounds which allows a new trial in any case if there is good grounds therefore.

54. You are sued in state court. The suit involves the same parties, claims and subject

matter as a lawsuit filed six months earlier in federal court, still pending. Do you have to defend against both suits? Is there a way to only have to defend against one? When a suit is filed in Louisiana court while another is pending in federal court on the same transaction or occurrence between the same parties in the same capacities, ∆ (or court on its own motion) can move to stay all proceedings in the second suit until the first has been discontinued or a final judgment has been rendered under CCP art 532. ∆ could also file a declinatory exception of lis pendens. Court may also stay on its own motion. [If the first suit had been pending in another Louisiana state court, not a federal court, the ∆ could have moved to have any later suits between same parties on same transaction dismissed. If he doesn’t the ∏ can move forward on all, but the first one that gets to final judgment is conclusive of all under CCP art. 531.]

DISCOVERY

55. ∏ claims damage to land. ∆ has asked permission for expert to examine land to assess

damage and ∏ refuses. Remedy? File a request for production and entry upon land which would permit expert to enter and assess. Request must set forth premises to be inspected and specify a reasonable time, place and manner of making inspection and related acts. ∏ has 15 days from service of request to either permit inspection or object to it.

56. At start of litigation you responded accurately in full to interrogatory asking your client

to identify all witnesses to accident. Now, two weeks before trial, you learn of a new witness. You won’t be calling her at trial, since her testimony would be adverse to your


client’s interests. Do you have a responsibility to disclose her identity to opposing counsel? There is usually no duty to supplement discovery responses which were complete when made. However, there is an exception to this rule regarding the identity of a new witness with knowledge of discoverable issues. Witness must be divulged.

57. Former accountant has documents your client needs for your case, refuses to give them.

You don’t want the accountant testimony. How do you get the record documents without taking her testimony? If the accountant is not a party to the lawsuit, serve the accountant with a subpoena duces tecum wherein the court orders her to produce the documents. If the accountant is a party to the proceedings, you may simply propound a request for production of documents.

58. You are defending a personal injury suit. There has already been an independent

medical exam of ∏. Can you also obtain exam by a vocational rehabilitation expert? Yes. File request for physical examination under art. 1464 which allows you to compel physical or mental exam of any party when the physical or mental condition of the party is at issue. Such exams may be conducted by physical rehabilitation expert. Plaintiff would be entitled to subsequent report if he requests it. If he does, he would be required to turn over to defendant the report prepared by the plaintiff’s own vocational expert.

59. What is the general scope of discovery allowed by La. CCP?

Parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter of the litigation. The information sought need not be admissible if it is reasonably calculated to lead to the discovery of admissible evidence.

60. Is a written document prepared in anticipation of litigation subject to discovery?

A written document prepared in anticipation of litigation constitutes work product and, as such, is discoverable only if the party seeking discovery can demonstrate that denial of it will unfairly prejudice him in preparing his claim or defense, or cause him undue hardship or injustice.

61. Is a litigant required to organize and label responsive documents to correspond to the

specific categories of requests for production of documents? Not necessarily. A party may organize produced documents to correspond with the requests OR produce them as they are kept in the usual course of business.

62. Answer to interrogatories is contained within the documents requested for production.

Is there a way to produce the documents and answer the interrogatories at the same time? Yes. Where answers to interrogatories can be obtained from the business records of a party, that party can specify where in the records they are to be found (if burden is substantially similar for both parties) and make them available in lieu of answering the interrogatories.

63. Are pre-litigation emails between senior managers discussing possible litigation

strategies and other issues about the potential suit subject to production?


No, as writing produced in anticipation of litigation, they are privileged under the work product rule. The other party would have to show that withholding them from discovery imposes unfair prejudice, undue hardship or justice upon them.

64. You represent plaintiff in a products liability suit that will commence in six months.

How do you obtain as much information as possible about the opposing party’s expert witnesses and the opinions they hold? For expert witnesses expected to testify at trial, there are several options available. First, names of all such testifying experts can be obtained through the service of interrogatories. Second, by contradictory motion, you can request the opposing party to provide written reports prepared and signed by each of the experts disclosing their opinions on the case and the reasons therefore and any data or information upon which whose opinions are based. The reports must also include exhibits, qualifications, publications of the previous ten years, the compensation received for the experts’ services, and the cases in the preceding four years in which each testified as an expert. The reports must be filed 90 days before trial, or if the witnesses are used for rebuttal only, within 30 days after the opposing side's expert report is disclosed. After expert reports are filed, I can discover facts known by these testifying experts with a notice of deposition or deposition subpoena.

DEPOSITIONS

65. Can an attorney be deposed?

Usually no because privileged attorney-client communications could be disclosed. No attorney of record representing the ∏ or ∆ may be deposed except under extraordinary circumstances and then only by order the district court after contradictory hearing.

66. Opponent’s lawyer is making long objections during deposition that seem to be guiding

testimony. Permissible? Not permissible. Objections during deposition must be concise and non-suggestive. Most objections, like to competency of witness, are preserved for trial even if not made. The only objections that are waived are those that could be cured by prompt objection at deposition, such as objections to form of question.

67. Opponent’s lawyer is asking questions at deposition that that delve into unrelated

personal matters, apparently to frustrate and embarrass the deponent. Explain two things you can do to remedy this. You can instruct the deponent not to answer questions that are harassing or not reasonably calculated to lead to admissible evidence. You can terminate the deposition if it is being conducted in bad faith or to harass or embarrass deponent.

68. You want to depose certain company officials who knew about the manufacture and

design of a defective product, but you don’t which ones are the most knowledgeable. How can you obtain their depositions without knowing their identity? File an article 1442 notice of an organization, naming the company as deponent, and setting forth the matters on which the examination is requested. The organization must then


designate one or more officers or other persons to testify as to the matters known or reasonably available to corporation.

69. A witness living in Texas refuses to return to Louisiana to have his deposition taken,

which is absolutely necessary to establish an essential element of your case. How may you obtain the Texas witness’ testimony? Several options: (1) If witness is willing to testify but not travel, you may take deposition by telephone if all parties agree. (2) If unwilling to testify at all, you can compel the witness to do so in Texas by letters rogatory. Texas law would govern compulsory process to require witness to submit to deposition. You would give written notice of deposition to all parties and apply to the Louisiana trial court for letters rogatory, addressed to the appropriate Texas court, requesting the court to compel witness’ attendance at deposition. (3) If witness is ever temporarily in Louisiana, you can serve subpoena on him there.

70. As ∏’s lawyer, you learn that ∆’s expert is relying upon work performed in this matter

by another expert retained by the ∆ who will not be called to testify. Can you depose the consulting, non-testifying expert? What would have to be shown to do so? A party can discover facts known by and opinions held by a non-testifying expert only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain the facts and opinions by other means. If the non-testifying expert has unique information not obtainable from any other source, the presumption that his opinions are non-discoverable can be overcome. In this case, this may be true. Moreover, it appears that defense is using testifying expert as just a cloak and mouthpiece for the non-testifying expert to shield his opinions from discovery, which also weights towards overcoming the presumption.

TRIALS

71. Trial judge improperly comments on or endorses expert witness after his testimony.

Remedy? Move for a mistrial. Mistrial may be granted after a hearing, on motion of any party. Judge may not comment upon the facts of the case in front of the jury by commenting on evidence, or give an opinion on what has been proved. Implicitly endorsing expert as “obviously very knowledgeable” after testimony counts.

72. Can witness, domiciled in Louisiana, who lives 200 miles from trial venue be compelled

to testify? Yes. Any witness in a civil case who resides or is employed in state may be compelled to testify wherever held in the state. (Note: when witness resides more than 25 miles from venue, ∏ must deposit funds sufficient to cover travelling expenses with clerk of court) However, the deposition of a witness may be used in any way at trial (including being read at trial) if the witness resides more than 100 miles from courthouse.

73. Judge renders verdict after bench trial just by announcing who she’s finding for and

then signing judgment prepared by winning party. As lawyer for losing party, what can


you do to find out her actual reasons for ruling, and what time limitations does she face? You can request the court provide in writing its findings of fact and reasons for judgment, provided the request is made not later than 10 days after the mailing of the notice of the signing of the judgment.

74. As judge, you think complex trial should be bifurcated to try the issues of liability and

damages separately. The ∆ files motion to do this, ∏ opposes. Can you order the bifurcation? No. Judge can order separate trials of liability and damages, in a jury or non-jury trial, to simplify proceedings, permit a more orderly disposition of case, or otherwise in interest of justice, but only upon the consent of all parties. (In jury trial, also power to have damages tried before liability, but also only upon consent of all parties.)

75. The ∏ has asked for a continuance on the grounds that one of its material witnesses

who previously had not been deposed cannot be found. As ∆s lawyer, you do not believe testimony of missing witness will affect trial outcome. What can you do to maintain the scheduled start date of the trial and avoid the continuance? You can prevent a continuance by requiring the ∏ to disclose under oath the expected testimony of the absent witness, and if the ∆ admits the witness would so testify, the case would proceed to trial on the scheduled date.

76. Multiple choice: A court is NOT required to deny a motion to consolidate two separate

actions for trial if it is shown this would lengthen the time required for trial. 77. ∆ in breach of contract suit raises affirmative defenses of lack of consideration and

error in his reconventional demand, not his answer. Now that trial is about to proceed, is he barred from introducing evidence of these defenses at trial. He shouldn’t be, for several reasons. (1) ∆ raised the affirmative defenses in his reconventional demand, and ∏ failed to object, which could be deemed a waiver to the right to oppose the affirmatives defenses as not timely plead. ∏ should not have waited until trial. (2) Reconventional demand provided ∏ with adequate notice of the defenses, and he cannot claim surprise now or any real prejudice to his case. (3) Court can treat as an affirmative defense if they were “mistakenly” designated as part of reconventional demand, but this would likely only apply if reconventional demand was filed at same time as answer. In any event, the court will likely allow evidence to be introduced, perhaps after allowing ∆ to amend pleadings, which is in the court’s discretion when it will aid the material presentation of the case and poses no unfair prejudice to the other side.

JURY TRIALS

78. Trial judge finishes questioning jurors, then denies ∏’s lawyer any opportunity for voir

dire. Parties and their attorneys have a right to examine prospective jurors. Trial judge can control scope of examination to prevent unfair or prejudicial questioning, but denying any voir dire is clear abuse of that power. ∏’s counsel should request continuance and leave to


immediately file supervisory writs. He could also note his objections on the record and proceed with trial.

79. If ∏’s petition requested trial by jury, and then 6 months later ∏ files motion to

withdraw request for jury trial, may ∆ now file request for jury, despite not previously requesting one? Yes, ∆ may file request for jury trial within 10 days of the granting of ∏’s motion to withdraw her jury demand.

80. Prospective juror relates during voir dire she suffered similar injury and won an award

for it. Use a challenge for cause to strike prospective juror. Challenge is available when juror has formed an opinion or is otherwise not impartial. Also, request that judge issue a curative instruction to other prospective jurors to disregard comments. If the judge rehabilitates juror, use peremptory challenge.

81. Jury requests to hear expert witness testimony again and to review medical documents

introduced into evidence. Both are at judge’s discretion. Medical records can either be examined by jury in courtroom or taken back to jury room. Jury can be brought into court room and have testimony read back to them.

82. What is the judge’s duty as to instructions she must give jury? What must be done to

preserve your objection to an improper charge or instruction? When must it be done? After trial and all evidence and arguments, court must instruct jury on law applicable to the cause of action. Must be reduced to writing. Judge must instruct jury that they can take written copy of all instructions and charges with them, and any object or document in evidence when a physical examination thereof is necessary to verdict. To be able to appeal erroneous instruction, you must object either before jury retires to consider verdict or immediately after jury retires, specifically stating the matter to which you object and grounds of objection. If you object before jury retires, will have opportunity to make objection out of the hearing of the jury.

83. After new ∆ added by amended petition 1 year after original petition, original ∆

requests jury trial 9 days after service of process on new ∆. No jury request had previously been made by any party. Timely filed? Yes. A party may request jury trial within 10 days of service of the last pleading directed to any issue triable by a jury. An amended petition adding a ∆ is such a pleading since it contains allegations of liability and requests for damages. Doesn’t matter that original ∆ didn’t file amended petition and wasn’t object of it.

84. Multiple Choice: A juror having previously served on a jury that considered a case with

similar kinds of issues is NOT a basis for which a juror must be excused pursuant to a challenge for cause.


JUDGMENTS 85. On a Friday you find: Petition filed 15 days previous, judgment of preliminary default

entered 1 day previous. Remedy? You can still file responsive pleadings, either an answer or exceptions. Exceptions may be filed any time prior to confirmation of default. Preliminary default may not be confirmed until two full days, excluding legal holidays, after entry of preliminary default. Saturdays and Sundays are legal holidays, so default entered on a Thursday can’t be confirmed until following Tuesday. If confirmation of default is received premature, file a motion to annul the final judgment for vices of form. Default wasn’t valid.

86. Confirmed default judgment awarded in parish court 12 days after personal service of

process for $6500 in property damages, $1500 more than ∏ had asked for. Client (∆) comes to you 15 days after judgment to see if there is remedy. ∆ in this instance can file action for nullity for vices of forms, which can be brought any time, based on court awarding default judgment greater than the amount prayed for in petition which is not a valid default judgment. Nullity action must be brought in the parish court which rendered judgment. [Note: In parish court, default judgment may be taken in 10 days, not 15, if ∆ fails to answer or respond. Moreover, it is immediately confirmed, and does not require entry of preliminary default two days prior as in district courts. Moreover, parish courts judgments must be appealed within 10 days of judgment or from service of notice of judgment when service is required. Here, petition had been served personally with petition, no service of notice of default judgment is required. Period to appeal has lapsed.]

87. How will a judgment to enforce a mortgage be executed?

If jurisdiction is based on the long arm statute, judgment will be executed in accordance with a writ of fieri facias directing sheriff to seize property and sell at auction. If judgment based on non-resident attachment, process is same, but judgment limited to value of property.

88. Mortgage on Bossier Parish vacant lot and promissory note sought to be enforced in

ordinary action against ∆ whose whereabouts are unknown and whose last known address was out of state. File ordinary action in court of proper jurisdiction and venue. Several bases of specific personal jurisdiction under long arm: contract signed in Louisiana, immovable owned in Louisiana, and cause of action arises out of each of these activities. Court could also attach immovable property and assert quasi in rem jurisdiction, but judgment would be limited to value of immovable. If proceeding in rem, must be preceded by attachment and appointment of a curator ad hoc for absent ∆. Bossier Parish, where immovable is located, would be proper venue.

89. Guest passenger (∏) in wrecked vehicle wins judgment of $250,000 against ∆ driver. ∏

considers award woefully inadequate. Remedy at trial court level? ∏ may file a motion for additur. This is an alternative to a motion for a new trial, on the issue of quantum alone, when the verdict is clearly contrary to the weight of evidence and a new trial could be granted on that basis alone. Quantum must be clearly separable from other


issues in the case. ∆ must also consent to additur as an alternative to a new trial. If additur is entered, court will reform the jury verdict in accordance with the motion.

90. ∆ driver considers verdict completely unwarranted by evidence, and wrong as a matter of law, but he’s OK with jury award. Post-judgment relief in the trial court? Can file motion for judgment notwithstanding the verdict, or in alternative, for a new trial. JNOV/New trial motion must be filed within 7 days of judgment or mailing of service of notice of signing judgment. JNOV should be granted when the facts and inferences, considered in light most favorable to the opposing party, point so strongly in favor moving party that reasonable persons could not find for opposing party. In new trial motion, trial judge free to evaluate evidence without favoring either party, may draw his own inferences, evaluate witness credibility. New trial standard is whether verdict was clearly contrary to law and evidence.

91. You represent ∏ who prevailed in suit for money damages. You reviewed a judgment

prepared by defense counsel, but after Judge signs it you realize it contains a mathematical addition error that reduces the size of the award. What can you do? You can file a motion to amend the judgment, which can be amended at any time by the trial court to address calculation errors, as happened here.

92. You have won a judgment specifically enforcing a contract to sell immovable property

and directing seller to execute instruments necessary to complete the sale to your client. Seller refuses to execute these instruments. What action can you take in order to force the sale of the property? File a writ of distringas. When a judgment orders a ∆ to do an act and he refuses to comply with order, other party may by contradictory motion obtain the following remedies: (1) court may distrain the property of the party until they comply, (2) an order finding the party in contempt, and (3) a judgment for any damages buyer may have sustained. Buyer can also sue for damages in separate action. Buyer can also seek specific performance directing sheriff or another person appointed by court to execute the documents with the same effect as if done by the seller.

93. Client believes his Partner is about to violate their partnership agreement, though the

Partner disagrees with that interpretation of the agreement. Is there any legal action client can take in advance of the contemplated breach of the agreement that might confirm client’s interpretation of the agreement is right? File a declaratory judgment action seeking a declaration of the rights, status, and legal relations of the persons governed by the Partnership agreement. Specifically, seek to declare that the actions the client’s Partner are about to take violate the agreement. The fact that client could get monetary damage after a breach doesn’t preclude him from seeking declaratory relief now. Any such declaration by the court would have the effect of a final judgment.

94. (continued from question above) Third Partner agrees with your client’s interpretation of

the partnership agreement, but refuses to join in any legal action about it. What, if anything, must be done about this?


Third Partner might be deemed a party necessary for a just adjudication and if not joined could justify a peremptory exception for nonjoinder. However, it seems unlikely he would be truly necessary for an action only seeking declaratory relief, since complete relief is available just by announcing proper interpretation of agreement. His absence as a party won’t impede client’s ability to get judgment, nor will his absence as party make inconsistent or conflicting obligations possible. If he was joined as necessary party, could be joined as plaintiff because he agrees with client, or if he refuses forced to join as defendant and defend his interests.

APPEALS

95. Without answering appeal, appellee requests by brief that it should receive interest at

the judicial rate from the date of judicial demand. Trial court made no such award. How should appellate court rule? Since trial court did not award it, appellee is seeking a modification of the judgment, which can be done only if appellee answers the appeal. Accordingly, appellate court should deny request.

96. Order granting ∏ suspensive appeal obtained 5 days after judgment, ∆’s motion for

new trial filed 6 days after judgment, ∏’s appeal bond filed seventh day after judgment. Can motion for new trial be decided? A trial court may act on a motion for new trial timely filed under art. 1974 before the suspensive appeal was perfected. A suspensive appeal does not divest the trial court of jurisdiction to hear the opponent’s timely filed motion for new trial.

97. Order granting suspensive appeal obtained on 15th day after judgment signed and

appeal bond is filed on 40th day after signing. No motion for new trial filed by opposing party. Opponent asks Appellate Court to dismiss appeal. Result? Suspensive appeal effective when both petition for appeal and suspensive appeal bond are properly and timely filed. Suspensive appeal must be perfected within 30 days of expiration of delay for new trial/jnov motion, when no new trial has been requested. Here, suspensive appeal bond filed 40 days after judgment signed, which is too late. Opponent can move for dismissal of suspensive appeal under art. 2161, since error is imputable to appellant. Motion to dismiss must be filed within 3 days of return date or date the record is lodged, whichever is later.

98. Must appellee answer appeal to get damages and attorney’s fees?

If appellee wants damages and attorney’s fees for frivolous appeal, he must answer appeal. Otherwise barred.

99. You represent ∏ in lawsuit against multiple ∆s. A res judicata exception is granted for

one ∆, dismissing him with prejudice from lawsuit. On 1/25/05, you get by mail a notice a judgment mailed on 1/20/05, enclosing a copy of the judgment of dismissal signed on 1/18/05. Not designated as final judgment. Can this be appealed now, and what are the deadlines for filing appeal? This is a partial final judgment since it dismisses one ∆ without dismissing others, and it can be rendered and signed without express designation as final appealable judgment. Delay is 30


days for suspensive appeal, 60 days for devolutive, or delay for new trial, which is 7 days from mailing of notice of final judgment, exclusive of legal holidays.

100. You win a $1M trial verdict. ∆ files suspensive appeal, offering a bond issued by his

brother in law, not a licensed Louisiana surety, which attests that the brother-in-law is worth more than the amount of the judgment over and above his other obligations. Your client believes the brother-in-law does not have such financial means. What actions can you take to ascertain whether brother in law really has the financial resources to be surety of the bond? Test sufficiency of bond by ruling the brother-in-law into trial court to show cause why the bond should not be decreed insufficient or invalid and why the motion for suspensive appeal should not be denied. Since the bond is challenged on the ground of brother-in-law’s solvency, and he is not a licensed surety, ∆ has the burden of proving his solvency.

101. Assuming court requires a new or supplemental bond. What time limits, if any, are there for furnishing the new bond? What effect does new bond have on validity of the underlying suspensive appeal? Within 4 days, exclusive of holidays, of the judgment holding the original bond insufficient, ∆ may furnish a new or supplemental bond with a new or additional surety. The underlying suspensive appeal will not be affected and cannot be dismissed if ∆ furnishes the new or supplemental bond in a timely fashion.

EXECUTORY PROCESS

102. Company seeks to seize property of defaulting Debtor secured to it by mortgage that

imports a confession of judgment, executed in authentic act form. What type of proceeding would accomplish the quickest seizure and sale of property possible and where could this proceeding be filed? A petition for executory process allows for rapid foreclosure and sale of property, without delays of an ordinary proceeding. It can be filed either in parish where immovable is located or where debtor is domiciled. Company has right to use executory process to seize and sell property because the mortgage contains a confession of judgment submitting to executory process and it was executed in authentic act form. Property has been seized but not yet sold.

103. (continued from previous question) Debtor wants to arrest seizure and sale on grounds he actually made the required payments. He does not have enough money to post security for any proceeding intended to arrest sale of property. What can he do to stop it without posting security? Debtor may file petition for injunction to arrest seizure on grounds that debt has extinguished. He doesn’t have to post security for preliminary injunction sought on this basis. Must be filed in court where executory process is proceeding, either in that proceeding or as a separate suit.

104. (continued from previous question) Can Company proceed personally against Debtor if the sale of property does not satisfy obligation?


Company can only pursue a deficiency judgment against debtor for unsatisfied portion of debt if it got appraisal of property before selling it. Deficiency judgment is ordinary proceeding with all the normal delays. Can be obtained by converting executory proceeding or filing separate suit.

105. Complicated dispute leaves your client wanting to file three actions against his

neighbor: (1) following default on a note, an executory process action to seize a 20 acre tract of land subject to a mortgage, (2) action to get neighbor to remove fence encroaching five feet on your clients land, and (3) a tort action for assault and battery. Succinctly, what are the pleadings required to bring the executory process action? Assuming mortgage was executed by authentic act and contains a confession of judgment, client would file a petition for executory process praying for seizure and sale of land tract and include all authentic evidence, such as the promissory note evidencing the obligation secured by the mortgage and the mortgage itself.

106. (continued from previous question) Can all three actions be brought in the same

lawsuit? No, since the tort and possessory actions are ordinary proceedings, they cannot be cumulated with action for executory process (mortgage) using executory procedure.

107. Client signed promissory note to Neighbor for purchase of land. Payments were

made for 5 months, then Client was injured while riding as passenger in Neighbor’s car. In return for Client foregoing any damage claim, Neighbor agrees to waive next 15 months of payments. After 14 months, Neighbor launches executory process suit to seize and sell land. Can Client reconvene with a demand for his tort damages stemming from the car accident? No. Client’s reconventional demand for damages would use ordinary process, and an incidental demand must use the same mode of procedure as the main demand, which in this case uses executory process. This would bar it even if was a compulsory reconventional demand, which it isn’t in this case because it does not arise out of the same transaction or occurrence as the main demand.

CONCURSUS

108. Surety company furnished construction bond for what became a troubled project to

build a swimming pool. Original contractor had to be replaced after abandoning project but it claims it wasn’t fully paid for work it did do. Equipment supplier for Original contractor claims it wasn’t paid. And owner of swimming pool claims cost for hiring replacement contractor. All three want proceeds from bond. Surety company doesn’t think any of them are owed. What should surety company do to sort out who has the rights to bond? File a concursus proceeding. Surety company can implead Pool Owner, Equipment Supplier, and original contractor even though surety company denies liability to any of them. Concursus petition must allege nature of the conflicting claims and request that each ∆ assert their respective claims contradictorily to all other parties to the proceeding. To the extent Surety company admits that some funds from bond are owed to at least one of the ∆s, it can


deposit that money into the registry of the court and be relieved of any liability to all the ∆s for the money so deposited. Proper venue is the parish where the immovable property on which the pool is located. All claims are for money due on surety contract pertaining to work done on that property.

INJUNCTIONS

109. What must applicant show to get temporary restraining order?

Applicant must show by verified petition or supporting affidavit that immediate and irreparable injury or damage will result to applicant before adverse party or attorney can be heard in opposition. Applicant’s attorney must also certify in writing to the court the efforts he made to give notice to the opposition or the reasons notice should not be required.

110. Timber company keeps cutting trees from your land without your permission and is

preparing in very short order to ship cut wood off the property. Is there any way to prevent them? File for temporary restraining order or a preliminary injunction. For either, couple would have to show that they would suffer irreparable injury, loss or damage unless defendants are enjoined. Maybe argue aesthetic value of trees, decades it would take to replace them.

REAL ACTIONS

111. Timber company begins cutting down trees on your client’s land. What action can

the client file to show he has the right to the land, not the timer company? File a possessory action because they are in possession of the property and that possession is being disturbed. To maintain the action, couple must allege and prove that (1) they had possession at time of disturbance (cutting of timber), (2) they and their ancestors in title had quiet possession for more than a year prior to disturbance, (3) the disturbance did occur, and (4) the possessory action was instituted within a year of the disturbance.

112. How can a succession representative assert ownership of a tract he was not in

possession of? Succession representative can bring a petitory action since succession claims ownership but is not in possession of land. The action would seek a judgment recognizing succession as owner. Alternatively, succession representative can answer possessory action and assert title for the succession, thereby converting the suit into a petitory action and judicially confessing possession.

113. What is the proper venue for a petitory action? Proper venue for petitory action is the situs.

114. What is the type of action and pleadings needed to deal with your Neighbor’s

encroaching fence on your client’s property, and what are the elements that must be proved for it? Since client has possession of land tract at the time of disturbance by Neighbor (the fence), client should file a petition for a possessory action asserting that he had such possession


quietly and without interruption for more than a year immediately prior to construction of fence and that his possession was in fact disturbed by the action. Possessory action must be filed within one year of the disturbance.

EVICTION

115. Lessee fails to cease possession after lessor provides notice giving 10 days to vacate.

What can lessor do? Lessor can serve notice to vacate after lessee right of occupancy has ceased. Must be written and give at least 5 days to vacate, unless tenant has waived notice to vacate by written waiver in lease. If tenant has fails to comply with notice or has waived, lessor can have him summarily cited in court to show cause why it should not deliver back possession. Rule to show cause must state grounds of eviction. Court gives tenant notice of at least 3 days before hearing. After hearing, court can render judgment of eviction ordering tenant to deliver possession. If tenant does not comply within 24 hours, court can issue warrant to Sheriff to deliver possession to lessor. Suspensive appeal must be perfected within 24 hours after rendition of eviction judgment.

116. In eviction proceeding, is it insufficient service of process to tack the notice to vacate

on door and later the citation for the rule to show cause to the door of an absent lessee? No. If whereabouts of lessee are unknown all notices required to be delivered or served on lessee may be attached to door of premises and will have same effect as delivery, so long as a reasonable diligent effort to locate tenant is made before attaching to door.

117. In order for lessee to perfect a suspensive appeal of an eviction judgment, what must

the lessee do? Answer rule under oath, plead an affirmative defense entitling him to retain possession, and file an appeal bond within 24 hours after rendition of eviction judgment in an amount sufficient to protect landlord against any damage it may sustain as a result of the appeal.

SUCCESSION AND PROBATE

118. Intestate succession of less than $50,000, part of which shares of stock requiring a

“legal paper” to transfer to heirs, which are his children, siblings, and surviving spouse. How do you obtain a “legal paper”? Since succession is small one worth less than $50,000, with no immovable property, intestate with only children, sibling and surviving spouse as heirs, it is not necessary to judicially open succession. Competent major heirs and surviving spouse may submit to inheritance tax collector one or more originals of their affidavit setting forth: (1) date of death and domicile at death, (2) fact that decedent died interstate with no immovable property, (3) relationship to decedent, (4) description of movable property left by decedent, value of each item, and aggregate value of all at time of death. If no inheritance tax is due, tax collector will certify by endorsement on multiple originals of the affidavits returned to heirs and surviving spouse.

119. Client wants to oppose probate of testament on grounds of its invalidity. Procedure?


Prepare opposition to the petition for probate. It must be in writing, state name and domicile of opponent, interest of opponent in filing the opposition, the grounds for opposition (invalidity of testament) and grounds for invalidity. Party that petitioned for probate may file responsive pleading by summary proceeding. At a contradictory trial to probate testament, proponent of probate bears burden of proving authenticity of testament and its compliance with all formal requirements of law.

120. You are seeking to probate the will of your client’s father against opposition. Your

client tells you he as videotape of the late father executing the will in question. The video depicts the last half of the meeting between father and attorney on the will, shows him mentally sound, but does not depict him taking the testator’s oath. Is the videotape admissible evidence to probate the testament. No. Videotape of the execution of a testament is admissible as evidence of mental capacity only if the testator’s sworn oath is on the tape.

121. Heir due a large inheritance is in dire straits. Is there in any way to receive a portion

of his inheritance in advance of the completion of the succession? One option is to seek an interim allowance for maintenance during the administration of the succession. If the succession is sufficiently solvent, the heir would be entitled to a reasonable periodic allowance for maintenance, provided court concludes such an allowance is necessary and the advances are within the amount eventually due to heir. Heir may compel such payment by contradictory motion against succession representative. Notice of the filing of a petition requesting authority to pay an allowance or of a contradictory hearing to compel such payment must be published once and state that any opposition may be filed within 10 days from date of publication.

122. Succinctly describe the requirements for a detailed descriptive list of succession

property. A detailed descriptive list must be (1) sworn to and subscribed by the person filing it, (2) show the location of all items of succession property, and (3) set forth the fair market value of each item as of the date of the death of the deceased.

DIVORCE

123. No-fault divorce procedure for wife who just left husband.

File article 102 verified petition for divorce, specify grounds of living separate and apart for 180 days (365 if minor children and no allegations of abuse). Petition served on husband. After 180 (or 365) days, file rule to show cause, verified by affidavit that service was made and there has been 180 (or 365) days separate and apart. Rule served on husband. At rule to show cause hearing, present (1) divorce petition, (2) Sheriff’s return of service of petition, (3) rule to show cause, (4) Sheriff’s return of service of rule, (5) affidavit of having lived 180 (or 365) days apart and still apart.

TUTORSHIP


124. Client’s brother has died, leaving authentic act giving her custody of children. How to make effective? Petition for appointment of tutorship by will. Petition should have copy of authentic act annexed to it, evidencing appointment and oath. Tutor will have to furnish security in amount equal to the total value of minor’s property as set forth in an inventory or sworn descriptive list.

125. Your client’s brother is the tutor of their late sister’s children. Client believes

brother is mismanaging the property under his administration and using its proceeds for his own benefit. Does your client have standing to take any action, and if so, what action? Any interested party may file a motion to remove a tutor who has, inter alia, mismanaged the minor’s property. Tutor is a fiduciary required to administer property with care, prudence and diligence of a reasonably prudent person. As relative of minors, your client certainly has interest to bring motion. The motion will be served on the tutor who will be required to show cause why he should not be removed as tutor. If he is removed, his prior acts will still be valid, however.

EMANCIPATION

126. Father and his 16 year old son want to know what steps must be taken to have son

judicially emancipated. Mother was killed four years earlier. Where is the proper court and what is the proper procedure? Petition for emancipation must be filed in the district court in the minor’s domicile parish and must state the reasons why he wants to emancipated as well as the value of any property owned by the minor. Must be accompanied by a written consent to the emancipation by the surviving father, specifically declaring minor is fully capable of managing his own affairs. Father will not be required to qualify as natural tutor to give consent, and appointment of a special tutor is unnecessary under these circumstances. If judge is satisfied there is good reason for emancipation and the minor is capable of managing his own affairs, he will render judgment of emancipation, which will fully emancipate the minor and give him full legal capacity as if he had reached age of majority.

INTERDICTION

127. Deranged daughter, father predeceased. How do you go about interdicting?

File petition for interdiction and to appoint mother/sister/relative-named-in-question as curator. Petition should include: name, domicile, age, address of both the petitioner and the impaired person, state relationship between them. Should also include where petitioner proposes defendant should reside after interdiction. Should include reasons why interdiction is necessary and a description of defendant’s infirmities. If full interdiction is sought, must explain why limited interdiction is inappropriate. Identify any relatives of ∆, propose a curator and reasons why curator should be chosen. Petition should be personally served on proposed interdict; court will appoint attorney if interdict doesn’t appear, and may appoint examiner to investigate interdict’s infirmities. Examiner’s report must be filed at least 7 days


before hearing, which will be by summary proceeding and by preference. Petitioner must establish necessary facts to interdict by clear and convincing evidence.

MISCELLANEOUS

128. What duties does an attorney have as an officer of the court?

As an officer of the court, attorney must conduct himself at all times with decorum and in a manner consistent with the dignity and authority of the court. He must treat court, its officers, jurors, witnesses and opposing counsel with due respect. He must not interrupt or impede the orderly administration of justice; and he must not knowingly encourage or produce false evidence or make false representations or otherwise deceive the court.

129. You represent a ∏ who is very poor and lacks money to pay court costs. Other than

paying costs yourself, what can you do to allow plaintiff to proceed with suit? File a request for in forma pauperis status in an ex parte motion or in the main petition. The request must be accompanied by affidavits of the ∏ and a third person, other than the attorney, attesting to ∏’s inability to prepay costs. The opposing party or the clerk of court may traverse and challenge ∏’s right to proceed in forma pauperis, but only one rule to traverse, whether by adverse party or the clerk, will be allowed. If granted, ∏ is relieved of obligation to prepay costs, until conclusion of the case. An account of costs will be kept by public officers to whom costs are owed, and if ∏ prevails in case, he will be relieved of paying costs. If ∏ loses, affidavit by the public officers owed costs will be filed in the mortgage records and have the effect of a judgment against ∏ for amount due.


BATTERY (1) Intent (“substantially certain”)

of harmful/offensive contact (2) Contact (3) Harm or offense

ASSAULT (1) Reasonable apprehension of an

imminent battery (2) Intent (3) Apparent means to complete

battery

FALSE IMPRISONMENT (1) Intent to confine (2) Actual confinement (no

reasonable means of escape)

IIED (1) Specific intent (desire to inflict

severe emotional distress) (2) Extreme/outrageous behavior (3) Causation of ∏s severe

emotional distress (4) Severe emotional distress

(must prove harm)

TRESPASS TO LAND (1) Intent to enter property (don’t

need to know belongs to another)

(2) Entrance GF = w/o knowledge, w/ necessity (only actual damages) BF = opposite (nominal damages)

TRESPASS TO CHATTEL AND CONVERSION

(1) Intent to interfere with dominion or use

(2) Interference Chattel → compensate for damage Conversion → replace full value

DEFAMATION (1) False statement (2) Published (3) Damages (but not for libel or

slander per se) If public concern, 1st Amend applies and ∏ must show intent/recklessness if ∏ is public figure or negligence if ∏ is private figure

INTRUSION (1) Intentional intrusion (2) Upon seclusion (3) Offensive to reasonable person

APPROPRIATION (1) Appropriated (2) To ∆s benefit (3) ∏s name or likeness (4) Without consent (5) Causing actual damage

PUBLICITY OF PRIVATE LIFE (1) Publicity to public (2) About private life (3) Highly offensive and not of

reasonable importance to public

DEFENSES TO INTENTIONAL TORTS (1) Consent (check validity, power relationships, revocation, excess force) (2) Self-defense (must be reasonable, not excessive) (3) Defense of others (4) Deadly force okay as of 2006 to prevent forcible offense against person

or property (5) Defense of property (in possession of property means you can use

reasonable force; out of possession you can recapture with reasonable force)

(6) Arrest privileges (shopkeeper, police)

NEGLIGENCE (1) Cause in fact (did ∆s conduct actually cause ∏s injury?)

Prove cause in fact by either “but-for” causation or substantial factor (2) Duty/risk ((a) did ∆ owe a duty of care [name that duty] and (b) did the

duty extend to this injury, ∏, manner, etc.) Duty set by reasonable person standard, custom negligence per se

(statute sets duty; show class of persons, class of risks) Risk/injury to person must be foreseeable (Palsgraf) Superseding act relieves liability (if foreseeable, not superseding) Policy facts (Pitre factors) to determine scope of risk: (1) need for

compensation, (2) development of precedents, (3) moral aspects of ∆s conduct, (4) efficient administration of law, (5) deterrence, (6) capacity to distribute/bear loss

(3) Breach of duty (did ∆ breach his duty?) (4) Injury (must prove actual damage)

RES IPSA LOQUITUR (Thing speaks for itself)

Elements (1) Event doesn’t happen w/o neg (2) Other responsible causes are

eliminated (3) Neg is within scope of ∆s duty If ∏ proves res ipsa, burden shifts to ∆ to prove he is not negligence

SLIP & FALL ∆-merchant duty to make reasonable effort to keep store in reasonably safe condition ∏ must prove: (1) Condition of unreasonable risk

of harm (2) Harm reasonably foreseeable (3) ∆ actual/constructive notice (4) Fail to exercise reasonable care

TORTS EXAM


NIED (1) Witness accident or come on

scene shortly thereafter (2) Direct victim harm so great it is

reasonable that ∏ had harm (3) Serious and reasonably

foreseeable emotional distress (4) Claimants: spouse, kids,

grandparents/kids, parents, siblings

MEDICAL MALPRACTICE Definition → unintentional tort based on health care rendered to patient Standard of care possessed and exercised by members of profession in that

community and specialty Qualified health care provider → minimum of $100K insurance coverage for

medical malpractice; advantages: suit must go to medical review panel first; Rx suspended while at review panel; $500K cap on damages

Rx = 1 yr from discovery, 3 yr from act Informed consent → patient must consent (save in emergency); doctor must

disclose all material risks

PROVIDERS OF ALCOHOL Permitted sellers and hosts not

liable for injuries off premises unless they served to minor; otherwise, not liable (Anti-Dram Shop Rule)

DOGS Owner strictly liable if: (1) Owner could have prevented

damage (2) Injury wasn’t provoked For other animals, owner must first know that animal’s behavior would cause damage

PRODUCTS LIABILITY (LPLA) Exclusive remedy against manufacturers for personal injury Elements (1) ∆ is a manufacturer (person in the business of manufacturing product for

placement into trade or commerce) [non-manufacturer use negligence] (2) Proximate cause (injury caused because product unreasonably dangerous

for reasonably anticipated use) (3) Unreasonably dangerous in either construction/composition, design,

warning (4) Reasonably anticipated use

VICARIOUS LIABILITY Elements (1) Employment relationship (can be borrowed employee)

Control test → could employer exercise control over employee (2) Course and scope of employment (no frolic and detour) (3) Underlying fault (usually found through negligence) Employer/employee bound in solido Possible negligent hiring if employer did not exercise reasonable care in hiring

COMPARATIVE FAULT Code article establishing true comparative fault in Louisiana, meaning ∏s award will be reduced by ∏s % of fault Factors for comparative fault (Watson factors) Conduct inadvertent or aware of

danger? How great was the risk? Significance of what was sought by

conduct? Capacities of actors? Extenuating circumstance? Relationship between

fault/negligent conduct and harm?

WORKER’S COMPENSATION ACT Exclusive remedy for an employee against his employer/co-employee, unless there is an intentional tort (for intentional tort, can recover in both, but offset tort damages with WCA benefits) Elements (1) Employment relationship (2) Injury must arise out of employment AND in course of employment Exclusions Horseplay, personal disputes unrelated to employment


DAMAGES Nominal → small award when no

real loss (only some intentional torts)

Compensatory → return ∏ to

position he would be in if not injured (special = determined with certainty; general = speculative)

Punitive → punish ∆

WRONGFUL DEATH AND SURVIVAL ACTIONS Wrongful death → brought to recover damages suffered by beneficiaries Survival → brought to recover damages suffered by victim Possible beneficiaries: spouse/children, parents, siblings, grandparents [higher class beneficiary excludes lower class; all within one class may recover] Defenses Victim’s fault (use comparative fault) Beneficiary’s fault

CONFLICTS Law of state whose policies would be most seriously impaired governs tort actions To determine serious impairment, look at: (1) Contacts of parties (2) Policies and needs of interstate

system (3) Deterrence of wrongful

conduct


COMMERCIAL PAPER TERMINOLOGY Money paper → money Order → check (or draft) Account holder = drawer (person giving the order to pay) Bank = payor (person being ordered to pay) Third party = payee (beneficiary) Person who signs the back of the check = indorser Promise → promissory note Promisor = maker Promisee = payee Issuance → turning over a note for the first time Negotiate → passing all rights to payment under an instrument Holder → person entitled to payment Holder in due course (HIDC) → (1) holder, (2) acquired for

value, (3) taken in GF, (4) acquired instrument without notice of some reason the instrument is not enforceable

CHANGING HOLDERS Bearer papers → simply transfer possession; person in physical

possession is holder Order papers → pass possession and indorse instrument

NEGOTIABLE INSTRUMENTS Requirements (1) Written (and signed) promise to order/pay (2) Unconditional (3) Transfer in money (4) Fixed amount (words prevail over numbers,

handwriting over type) (5) Magic words of negotiability → “to bearer”

or “to order” (6) Definite time for payment (if says nothing,

then on demand) (7) No extraneous undertakings

ACCORD AND SATISFACTION If discounted instrument saying “full payment” used, will be accord and satisfaction (so obligation finalized) if: (1) Drawer acts in GF to settle bona fide dispute (2) “full payment” appears conspicuously (3) Payee obtains payment doesn’t refund

payment within 90 days

ENFORCING INSTRUMENT Enforcing instrument against maker Maker is primarily liable, but can assert defenses

like fraud HIDC can enforce instrument free of claims and

all but a few defenses Only defenses against HIDC:

(1) Infancy of maker (2) Illegality of debt (3) Fraud in factum (4) Discharge in bankruptcy

Shelter rule → can inherit rights of HIDC if you acquire instrument from HIDC

Enforcing instrument against indorser Indorsers are secondarily liable to pay dishonored

instruments

WHY WANT TO BE AN HIDC? When negotiable instruments are duly negotiated to a holder in due course, the holder in due course takes the instrument free of all claims to it, free of

personal defenses, and subject only to real defenses.

FRAUD AND FORGERY Forged signatures Writer of the signature is liable (not necessarily the name

signed); but if “responsible employee” fraudulently indorses employer’s instrument, forged indorsement is effective

If maker’s failure to take ordinary care substantially

contributed to forgery, maker is precluded from asserting forgery against anyone who gave value for the instrument in GF

Statement Review Rule → drawers must review bank account

reasonably promptly Fraudulent alteration Generally, fraudulent alteration will discharge maker’s liability An incomplete, but signed instrument (blank check) can be

enforced as completed if holder acquired for value, in GF, and without notice of fraudulent completion

BUSINESS ENTITIES AND NEGOTIABLE INSTRUMENTS


PARTNERSHIP Definition → juridical person created by written or oral K b/tw 2+ persons to combine efforts/resources and collaborate at mutual risk for common profit Elements (1) Consent and intent (2) Make contributions with economic value (3) Assume risk and profits Participation → presumed equal; if stated unequal in one area (ex: profits), unequal in all Voting Unanimity required for (1) amend pship agreement, (2) admit new partners, (3) terminate pship; for everything else, just majority vote Obligations of partners towards each other Fiduciary duty; if violates, then pship may recover for damages and profits accrued by breaching partner Partnership and third persons Partner is mandatary of pship Pship is primarily liable for debts; partners are secondarily

liable (provision saying partner not liable for loss is only good b/tw partners, not against third parties)

Cessation of membership Terminate on death, interdiction, etc., but pship does not

terminate Can be expelled for good cause; majority vote Withdraw when no term is okay if you give notice in GF at a

time not unfavorable to pship; if there is a term, can only withdraw if another partner fails to perform a material obligation (withdrawing partner gets his value)

Termination Unanimous consent, judgment of termination, bankruptcy, etc. Partner can only bind partnership for acts necessary to

liquidate, but third party relying on mandate of partner can still recover from pship

Liquidation Secured creditors (partner and non-partner) Unsecured creditors (non-partner) Unsecured creditors (partner) Capital contributors

PARTNERSHIP IN COMMENDAM General partner → liable Commendam partner → limited liability Form requirements (1) Written (2) Filed with Secretary of State (3) Name must clearly suggest a limited pship Liability Partner in commendam only liable for his portion,

unless he participates in management

REGISTERED LLP Partners free from liability of acts by other partners, but partnership may still be liable Name must say RLLP

LLCS Formation and requirements Must file articles (including name and purpose of

LLC) with Secretary of State Commencement begins with issuance of

certificate of organization by Sec of State, but retroactive to date of acquiring immovable prop

Must file annual report Must file initial report, signed by signatories of

articles Must have operating agreement Members and management May have members and managers; default rule is

management by members; can have different classes of members

Management has duty to LLC to act in GF with duty of care and duty of loyalty; no duties to members qua members

Management acts as mandatary No rules about meetings Default rule is each person gets 1 vote Financial structure Profit/loss shared equally among members Withdrawal and dissolution Member can withdrawal like pship, but if no term,

but give 30 days notice Dissolve by event in articles, consent of majority

of members, judicial decree Distributions at dissolution go to (1) creditors, (2)

members already owed distributions, (3) return of capital contributions, (4) members for portion they share in remainder

CONVERSION As of 2006, any business entity make convert to another business entity by submitting a conversion application; application must include names of entities, types of entities, how equity interest is being converted, statute that allows conversion, any information required to be filed by whatever entity being converted into


PROMOTERS Fiduciary duty of disclosure and fair dealing Personally liable for pre-incorporation Ks; corp

won’t be liable until ratification or adoption

CORPORATION FORMATION Anyone can form a corporation Corporation name must say corp, incorp, limited ( __ & Co.

may not be used) Must file articles of incorporation w/ Sec of State that include:

(1) name, (2) purpose, (3) aggregate # shares, (4) par value (if there is), (5) if more than 1 type of stock, info on stocks, (6) addresses of incorporators

Corporation commences w/ filing of articles and retroactive to acquisition of immovable property

Must file initial report Must file annual report Does not have to have bylaws (but should); articles trump

bylaws

PIERCING CORPORATE VEIL Shareholders generally only liable for their

investment Can pierce the corp veil if: (1) Business not conducted in proper form (2) Assets of corp treated as shareholders own (3) Corp undercapitalized

CORPORATE PURPOSE Purpose can be broad and must be stated in articles Liable for ultra vires acts if exceeds purpose

BOARD OF DIRECTORS Only 1 director required; size should be set in articles or

bylaws Elected by shareholders Manage corporation, but no individual director can be

mandatary 1 yr term is default; no more than 5 yr terms Director stops being director if stops meeting qualifications in

bylaws; can be voted out by majority of shareholders in attendance at a special meeting called for that purpose; majority can terminate w/ or w/o cause; if elected by particular class of stock, only need majority of that class

Directors must meet (by phone or in person); no proxies unless articles allow; must have quorum to meet, but meeting not over if you lose quorum mid-meeting (though still need majority of quorum to pass action)

Default rule is majority of quorum vote needed Cannot make fundamental changes (amend articles, dissolve);

that is shareholders job

DIRECTORS DUTIES AND LIABILITIES Duty of care → defense: business judgment rule

(1) Does not have a conflict of interest (2) Reasonably believes he is appropriately informed and (3) Reasonably believes acted in best interest of corp. Does not excuse gross negligence 1 yr Rx

Duty of loyalty (conflict of interest) → defenses:

(1) Full disclosure to board before vote; interested party didn’t vote

(2) Full disclosure to shareholders before vote (3) Fair to corporation at time it was authorized,

approved, or ratified 2 yr Rx

Cannot engage in self-dealing unless the corp has considered deal and voted not to pursue it

STOCK Terms Stated capital → aggregate par value Capital surplus → amount received for initial

share of stock in excess of par value Earned surplus → all corp assets minus liabilities,

stated capital, and capital surplus Dividends Dividends may be paid at board’s discretion May not be paid out of stated capital; if paid from

capital surplus, must notify shareholders Directors liable for unlawfully distributed

dividends; shareholders liable for illegal dividends received

Preferred stock preferences Cumulative shares must be paid out cumulatively

before non-cumulative shares get anything (ex: if no dividends in 2005, in 2006, cumulative shares get 2005 and 2006 dividends before non-cumulative get any) → default is non-cumulative

SHAREHOLDERS RIGHTS Inspect corporate books Dissenters’ rights Preemptive rights to purchase same % of stock if

articles specify this right

SHAREHOLDER MEETINGS AND VOTING Annual meeting Majority of voting power must be present to act 1 share, 1 vote Majority of votes cast needed to pass (save for

some things, ex: amend articles, dissolve) Straight voting is default; cumulative voting okay Proxy voting okay, but must be in writing and

filed with corp secretary; proxy is revocable at will of shareholder; proxy good for 11 months (default), but no longer than 3 yr


SHAREHOLDER AGREEMENTS Voting trust All shares get donated to created trust; transferred to trustee

who votes shares and distributes dividends Trust document must be filed with corp Valid for maximum of 15 yr, but can extend by majority for 10

yr Voting pools (aka shareholder agreement) Written agreement among shareholders to cast all votes

together

DERIVATIVE SUITS Suit brought by shareholder on behalf of the

corporation against a party the corporation has a legitimate cause of action

Requirements for shareholder: (1) be a shareholder at time suit was filed, (2) owns shares throughout litigation, (3) owned shares at time of wrong, (4) not participated in wrong

Shareholder generally must first make demand on corp to sue, unless demand is futile

Damage go to corporation CORPORATE DISSOLUTION

Voluntary (commenced by shareholders) Party sues to dissolve if assets insufficient to pay judgments,

object of corp has failed, directors deadlocked in management affairs, etc.

MERGERS Shareholders of both corps must approve, but 2/3

voting power must be present, unless merger b/tw parent and 90+% owned subsidiary (no shareholder approval needed)


TAKINGS CLAUSE Trigger→ fed/state take’s private land 5th Amend → private property shall not be taken for

public use w/o just compensation (1) Is there a taking?

Physical occupation, denial of all uses, substantial land us regulation

(2) For public use? “public benefit” is enough

If taking, owe just compensation from time of use

CONTRACT CLAUSE Trigger → fed/state impairs K Yes, violation if state undoes its own K or retroactively

makes severe change in K (unless necessary) No, violation if indirect effect on K

PROCEDURAL DUE PROCESS Trigger → fed/state affect property/liberty w/o process 5th/14th Amend say no deprivation of life, liberty,

property w/o DP Must have: (1) state action, (2) adverse affect on vested

interest, (3) no meaningful opportunity to be heard Balancing test (Mathews v. Eldridge) for what process is

due: (1) private interest affected, (2) risk of erroneous deprivation w/o safeguards, (3) government’s interest

INTERSTATE COMMERCE Trigger → goods/services moving across state lines w/

federal law Fed regulation is okay if activity affects interstate

commerce (i.e. rational basis for regulation) Fed regulation is not okay if regulates purely local,

intrastate commerce

DORMANT COMMERCE CLAUSE Trigger → goods/services moving across state lines w/

state law If state law discriminates against interstate commerce in

favor of intrastate commerce, per se unconstitutional; only okay if (1) justified by important non-economic state interest and (2) no non-discriminatory alternative

If state law “unduly burdens” interstate commerce, apply balancing test: (1) how substantial is the burden, (2) purpose of the law (need legitimate, local public interest), (3) purpose important enough to justify the burden

If state government is acting as market participant, then state law is okay

SUPREMACY CLAUSE Trigger → state law and federal law If collision b/tw state and fed, fed wins; state is preempted If clear congressional intent to preempt b/s no room left

for states to regulate, fed interest is so dominant, or state policies produce inconsistent results w/ fed objectives, then fed wins; state is preempted

Otherwise, state can fill in the gaps of fed law

PRIVILEGES AND IMMUNITIES Trigger → state treats citizen from other state differently If discriminatory treatment of person from different state

for right to travel, own property, or transact business, then P&I problem

Discriminatory treatment okay if closely related to substantial state interest

EQUAL PROTECTION Trigger → fed/state treats 1 person/group differently 5th /14th Amend prohibit denial of equal protection Strict scrutiny (narrowly tailored, compelling interest) Fundamental right Race Facially neutral law → show discrim purpose

Curing prior discrim is compelling interest Plan is narrowly tailored if flexible, temporary, etc.

Alienage Intermediate scrutiny (substantially related, important

interest Gender Illegitimacy Wealth Rational basis (rationally related, legitimate interest) Everything else

SUBSTANTIVE DUE PROCESS Trigger → state/fed interferes w/ fundamental right Apply strict scrutiny to: Right to privacy (family, sex, abortion [intermed]) Right to travel Right to vote Apply rational basis to (not fundamental rights): Right to education Economic/business-related rights

CONSTITUTIONAL LAW EXAM


ESTABLISHMENT CLAUSE Trigger→ fed/state helping religion 1st Amend says govt can make no law establishing relig Lemon test: (1) Govt program have secular purpose? (2) Primary effect of program to neither advance nor

inhibit religion? (3) Excessive entanglement with religion?

FREE EXERCISE CLAUSE Trigger → fed/state hurting religion 1st Amend says govt shall make no law prohibiting free

exercise of religion Govt cannot regulate religious beliefs Govt can regulate conduct associated with religious

beliefs, but if sincerely held religious belief, govt must make exception unless regulation passes strict scrutiny or incidental burden on practice caused by law of general application that passes rational basis (think smoking peyote)

SPEECH Trigger→ fed/state limiting speech or speech-conduct 1st Amend says govt can’t limit speech Content-based regulation Govt generally can’t regulate, but 5 exceptions: (1) Political speech → govt can regulate speech causing

incitement (Brandenburg) (2) Commercial speech → govt can regulate false or

deceptive speech (3) Public speech → govt can regulate if matter of public

concern and govt interest in efficiently delivering message outweighs speech interest

(4) Obscenity → unprotected; test for obscenity: avg person apply contemporary community standards taking work as a whole find it appeals to prurient interest

(5) Fighting words → unprotected Content-neutral regulation Public forum → can have time, place, and manner

restrictions no greater than necessary to accomplish purpose

Private forum → private actor can regulate Prior restraint on speech is presumed unconstitutional Overbroad or vague regulations are unconstitutional

SEPARATION OF POWERS Trigger → govt entity exceeding or delegating authority Fed govt is one of limited powers Article I (legis) → tax/spend, war, interstate commerce Article II (exec) → sign/veto legislation, commander in

chief Article III (jud) → review constitutionality of legislation Branches cannot exercise power they have no

constitutional authority to exercise, usurp another branches’ power, improperly delegate (sufficient standards if they do delegate)


SIMPLE ROBBERY (1) ∆ took “anything of value” (2) from person/immediate control (3) using force/intimidation

PURSE SNATCHING (1) Simple robbery 1 and 2 (2) Simple robbery 3 + snatching (3) Thing of value in purse/wallet

SECOND ° ROBBERY (1) Simple robbery (2) Specific intent to cause serious

bodily injury (3) Victim suffered serious bodily

injury FIRST ° ROBBERY (1) Simple robbery (2) Leads victim to believe armed

w/ dangerous weapon

ARMED ROBBERY (1) Simple robbery (2) Armed with dangerous weapon CAR JACKING

(1) Intentionally took auto (2) Auto in victim’s presence (3) Victim was in lawful

possession or passenger (4) Used force/intimidation to take

SECOND ° BATTERY (1) Simple battery (2) Specific intent to cause serious

bodily injury (3) Victim suffered serious injury

SIMPLE BATTERY (1) ∆ intentionally used

force/violence on victim w/o victim’s consent

AGGRAVATED ASSAULT (1) Simple assault (2) Used dangerous weapon

SIMPLE ARSON (1) ∆ intentionally sets fire without

consent (2) First causes damage to property

AGGRAVATED ARSON (1) Simple arson (2) Property is a structure,

movable, watercraft (3) Foreseeable that human life

could be endangered

AGGRAVATED BATTERY (1) Simple battery (2) Used dangerous weapon

SIMPLE ASSAULT (1) ∆ attempted to commit battery

or intentionally put victim in apprehension of battery

SIMPLE BURGLARY (1) ∆ entered dwelling (2) Unauthorized to enter (3) Entered with specific intent to

commit a felony

AGGRAVATED BURGLARY (1) Simple burglary (2) Structure is inhabited or person

present (3) Armed at any point

UNAUTHORIZED ENTRY OF AN INHABITED DWELLING

(1) ∆ intentionally entered inhabited dwelling

(2) Unauthorized to enter (3) Dwelling not the ∆s

THEFT (1) ∆ misappropriated or took

anything of value belonging to another

(2) Without consent (3) Specific intent to permanently

deprive

UNAUTHORIZED USE OF A MOVABLE

(1) ∆ intentionally took property of another

(2) Without consent

SIMPLE KIDNAPPING (1) ∆ intentionally and forcibly

seized and carried victim from one place to another

SECOND ° KIDNAPPING (1) Simple kidnapping (2) Victim used as shield/hostage,

abused, imprisoned for 72+ hours, ∆ is armed

AGGRAVATED KIDNAPPING (1) Simple kidnapping (2) Specific intent for victim to

give up anything of value (3) Victim under ∆s apparent or

actual control

SECOND ° MURDER (1) Killing human being (2) Specific intent to kill/great

bodily harm Or

(1) Killing human being (2) Committing a felony

FIRST ° MURDER (1) Killing human being (2) Specific intent to kill/great

bodily harm (3) Particular person (ex: judge),

multiple people, offered/gave something of value, victim < 12 or > 65

MISCELLANEOUS CRIMES Use of a controlled substance, unlawful distribution of a controlled substance, disturbing the peace, flight from an officer, resisting arrest, negligent injury, driving while under the influence, possession of concealed weapon

CRIMINAL LAW, PROCEDURE, AND EVIDENCE: CRIMINAL LAW


MANSLAUGHTER (1) Killing human being (2) Specific intent to kill/great

bodily harm (3) In sudden passion or heat of

blood

NEGLIGENT HOMICIDE (1) Killing human being (2) Killing result of ∆s criminal

negligence

VEHICULAR HOMICIDE (1) Killing human being (2) Caused by operation of vehicle (3) ∆s blood alchol level too high

CONSPIRACY (1) Agreement b/tw > 1 person to

commit a crime (2) > 1 person has specific intent to

commit a crime (3) At least 1 person does act in

furtherance of crime

ATTEMPT (1) ∆ had specific intent to commit

a crime (2) Does act tending directly

towards accomplishment of crime

ACCESSORY AFTER (1) Felony committed (2) ∆ knew/had reason to know

felony committed (3) Harbored, aided, concealed

felon after felony committed (4) Acted with intent

DEFENSES Withdrawal Self-defense (resulting in killing) → person must believe he is in imminent danger of death/great bodily harm and killing is necessary Protection of property (resulting in killing) You are not in car → reasonably believe felon attempting to use unlawful

force against you or passenger and felon attempting/committing burglary/robbery

You are not in house → reasonably believe felon likely to use unlawful force

against person in the house You are in house/car → lawfully inside, felon making unlawful entry,

reasonably believe necessary to use force to prevent entry or compel felon to leave

Protection of property (not resulting in killing) (1) Felon trespassing on property in your lawful possession (2) Force used is reasonable (3) Force was necessary


EXCLUSIONARY RULE Generally evidence obtained in violation of the 4th Amend and any fruit of the poisonous tree is excluded Exceptions: (1) GF (2) Attenuation (3) Independent discovery (4) Inevitable discovery

SEARCH 4th Amend protects against unreasonable searches by govt Requirements for reasonable search: (1) Probable cause (facts and circumstances are sufficient

to warrant a reasonably prudent person to believe that evidence exists in location)

(2) Prior judicial approval (cannot exceed judicial approval)

(3) Executed in a reasonable manner (knock-and-announce rule)

Not considered searches: Open fields doctrine Overhead investigations Technology that does not give more information than

could be gained by the naked eye Garbage inspection Sniffing luggage Searches, but exceptions to warrant rule: Plain view Exigent circumstances Inventory searches Automobiles → need PC Incidental to arrest Consent (others with “common authority” may consent) Standing to challenge seizure of someone else’s property Fed rule → do you have a reasonable expectation of

privacy? LA rule → any aggrieved party has standing

ARREST Arrest = seizure; need PC and arrest warrant Exceptions to needing arrest warrant: Exigent circumstances Arrest in public place If police have reasonable suspicion alleged ∆ is armed/dangerous, can do Terry frisk

CONFESSIONS Confession may be suppressed if in violation of 6th or

5th Amend, or it was involuntary 6th Amend right to counsel → attaches only after

formal arrest; offense specific right 5th Amend right to counsel (Miranda) → if in custody

or under police interrogation (cellmate conversations ≠ interrogation), must have Miranda warnings; Miranda can be knowingly and intelligently waived

Involuntary → confession cannot be gained through

force or fear LINE UPS Once 6th Amend has attached, ∆ has a right to counsel at

the line up Pre-6th Amend, no right to counsel, but line up cannot be

unduly suggestive

CRIMINAL LAW, PROCEDURE, AND EVIDENCE: CRIMINAL PROCEDURE


RELEVANCY Definition: having a tendency to make the existence of a fact

more or less probable Probative balancing test: probative worth versus prejudicial

affect Character evidence is usually inadmissible to show person

acted in conformity therewith, but is admissible to rebut other character evidence, attack credibility, or show character pertinent to the crime (ex: dishonesty if crime includes fraud); must be shown by habit or general reputation

Specific instances of bad acts are not admissible for character

evidence, but are admissible to show intent, motive, modus operandi

Compromise is inadmissible to show fault Proof of insurance is admissible, but amount is not

CRIMINAL LAW, PROCEDURE, AND EVIDENCE: EVIDENCE

HEARSAY Definition → statement made outside of court

offered for the truth of the words spoken Not hearsay Prior inconsistent statement by witness Personal statement by a party Exceptions (declarant available) Present sense impression Excited utterance Then existing condition (physical, emotional, etc.) Statements for purpose of medical treatment Business activity Recorded recollection Exceptions (declarant not available) Former testimony (except for expert testimony in

different proceeding) Statement under belief of impending death Statement against interest Crawford rule 6th Amend precludes hearsay in criminal case if: (1) Declarant unavailable (2) Statement is testimonial (= declarant makes

statement he anticipates will be used in investigation or primary purpose of police interrogating individual is to gather evidence for an investigation)

PRIOR BAD ACTS Any crime, any time → if a witness testifies, he

subjects himself to examination relative to all of his criminal convictions (but not of unconvicted crimes)

If witness does not testify, evidence of prior

convictions generally inadmissible

PRIVILEGE Spousal → spouses not allowed to testify about confidential

communication made during marriage to one another Attorney-client → no confidential communication between

lawyer and client made in furtherance of obtaining/rendering legal advice

Doctor/patient

AUTHENTICATION Authentication is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims

Self-authenticating documents: official publication, newspaper


PERSONAL JURISDICTION (1) Satisfy state long-arm statute (2) Satisfy constitutional due process

∆ must have minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice

For minimum contacts to exist, ∆ must personally avail himself in the forum state

Must be foreseeable that ∆ would be sued in forum state For “general jurisdiction” just need ∆ to have substantial

ties with forum

JOINDER DEVICES Cross-claim → claim against a co-party

Must arise out of same transaction/occurrence Never compulsory

Counterclaim → claim against opposing party

Compulsory means arising from same transaction/occurrence

Permissive means not compulsory Impleader → ∆ brings someone into claim for indemnity or contribution Implead within 10 days of filing answer or get court’s

permission Steps: (1) file 3d party complaint, (2) service process Intervention → 3d party wants to join suit Intervention of right when interest of 3d party may be

harmed Permissive intervention when at least one common

question; allowed unless would cause delay

SUBJECT MATTER JURISDICTION Cannot be waived; can be raised sua sponte

Diversity (1332) Complete diversity required at time filed More than $75K

Federal question (1331) Fed question must be in well-pleaded complaint, not just in ∆s defense

VENUE May be waived

District of ∆s residence District encompassing location where substantial

part of events giving rise to claim arose Any district where any ∆ is subject to personal

jurisdiction (fall-back option) If venue improper, may waive venue, file 12(b)

motion to dimiss for improper venue, or file 1406 motion to transfer venue

May file a 1404 motion to transfer venue to more

convenient location if originally filed in correct venue (original state’s law will still apply) → different than forum non conveniens which allows for dismissal of action and ∏ to refile in another court that is not a federal court

REMOVAL ∆ can remove if case could be heard in fed court

originally Cannot remove diversity case in which ∆ citizen

of forum Remove no later than 30 days after service of first

removable document Procedure: (1) file notice of removal in fed court,

(2) file copy in state court

SUPPLEMENTAL JURISDICTION Need common nucleus of operative fact to claim

granting FSMJ (1367) For diversity, ∏ cannot use supplemental

jurisdiction to overcome lack of diversity

§ 1983 AND SOVEREIGN IMMUNITY 1983 give remedy if a state actor acting under apparent color

of law (meaning statute or custom) violates ∏s rights under Constitution or federal law

Remedy: damages against state actor acting in private capacity; injunction/declaratory judgment against state actor acting in official capacity (cannot sue state, arm of state, or state actor in official capacity in fed court or state court (Will doctrine) for damages)

11th Amend gives state sovereign immunity; individual may

not sue state in federal court; no application to local govt Young fiction → if suing state officer, he is not viewed as “the

state” so no sovereign immunity under 11th Amend Pennhurst → state may use sovereign immunity to defeat a

state cause of action

INTERPLEADER Allows person (stakeholder) to compel litigation

so two other parties can settle dispute Rule interpleader (FRCP 22) → stakeholder and 2

parties diverse; $75K; normal venue rules Statutory interpleader (§ 1335) → 2 parties

diverse; $500; venue is wherever a claimant resides

FEDERAL JURISDICTION AND PROCEDURE


ABSTENTION Pullman → federal courts should abstain from interpreting

constitution if state law claim can knock out issue Burford → federal courts should abstain if important state

interest and sufficient state regulatory scheme Younger → federal courts should abstain if ∏ in state court

proceeding and in trial unless ∏ can show great an immediate irreparable injury and no adequate remedy at law (meaning state court proceeding is defective)

DISCOVERY Anything reasonably calculated to lead to discoverable

evidence is discoverable (broader than only admissible evidence)

Required disclosures Initial disclosure → identify persons/things likely to have

discoverable information Experts who may be used at trial Discovery tools Depositions → no more than 10 Interrogatories → only sent to other parties; no more than 25;

must respond in 30 days Request to produce → must respond in 30 days Counsel signs discovery requests certifying that: (1) It is warranted (2) It is not for an improper purpose (3) It is not unduly burdensome

SUMMARY JUDGMENT (RULE 56) (1) No genuine dispute as to material issue of fact (2) Entitled to judgment as a matter of law All evidence viewed in light most favorable to the non-mover

PRECLUSION Claim preclusion (res judicata) (1) Case 1 and 2 brought by same ∏ against same

∆ (2) Case 1 ended w/ final judgment on merits (3) Case 1 and 2 asserted the same claim Issue preclusion (collateral estoppel) (1) Case 1 ended in final judgment on merits (2) Issue was litigated in case 1 (3) Issue was essential to case 1 (4) Person against whom collateral estoppel

being asserted was party to case 1 (5) Person asserting collateral estoppel was party

to case 1 (called mutuality) — not required by all jurisdictions

JUDGMENT AS MATTER OF LAW Can be made at any time during the trial after the

∏ has been fully heard OR at close of case (called renewed judgment at close of case)

Standard: reasonable person could not disagree on result

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