6 essay questions all instructions are attached below
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Exam #2 Study Guide
– The defendant is served with a summons so the defendant knows he is being
filed. The plaintiff must prove by a preponderance of evidence to prove what is in
the compliant. Affirmative defense is a which of the opposite of the normal and
the defendant proves by a preponderance of evidence to prove what is in the
complaint is wrong. Motion to dismiss or a demurrer. Then the defense lawyer
files an user to the compliant, and enters 1st affirmative defense is the amount in
controversy is not $75,000 and the burden of proof is the defendant. The second
affirm defense= contributor and the answer of the defendants complain. They
generally agree with or challenges jurisdiction. They agree with or challenges
facts as alleged in complaint. Establishes defense of affirmative defenses and as
the court for a remedy
– Motion of a summary judgement, is granted where there exists no material
issues of fact and the judge should decide who wins simply by applying the law
to the agreed upon the facts. The pretrial conference is after a motion of
Summary Judgement. Pretrial conference sharpens particular issues and
negotiations to speed the trial.
– Motion for Judgements notwithstanding the verdict: reasonable people could
have reached the verdict the jury has reached. This is given the substantial
evidence, and this is whether there is enough evidence or records and is people
could not have reached the verdict the jury reached.
– Motion for New Trial: Interest of justice, new evidence, jury prejudice.
– Hearsay: An out-of-court statement offered for the proof of the matter asserted.
This is not reliable testimony, but there are exceptions to hearsay.
• Spontaneous utterance: Is considered reliable testimony because the uttering
person is unlikely to change or format a lie to the words utters.
Limits on Judicial Relief
– There must be a concrete case or controversy. No collusive cases.
– It must be a justiciable controversy.
• Timing constraints are Mootness and ripeness. • Standing
• Political Question
• Act of state doctrine – Justiciability
Timing constraints when you cant bring a suit to early is ripeness and isn’t ripe for
judicial decision. The injury cannot be hypothetical, but injury is imminent it is
Mootness is the other end of ripe: a suit is brought too late and the controversy is
– Standing: Who can bring a law suit and the proper party to bring a suit.
One can not sue on peoples behalf, but there are exceptions such as
organizations can sue on half of members, unions can sue on behalf of
members, Parents on behalf of children.
Prudential standing: Unique injury If you suffer injury from public policy you cant
go to the courts to sue. You have to be uniquely injured.
– 1. There must be an injury in fact: They do not have to be physical or monetary.
– 2. Traceability: Is the injury fairly traceable to the actions of the defendant.
– 3. Redress-ability: If the court awards the plaintiff everyone they asked for, will
that remedy the injury.
Political Question: A controversy between two litigants but the courts may not be
the best entity to resolve the conflict. There is no test, but there is examples/
Statute of limitations: Requires the plaintiff exercise their right to file suit within a
certain timetable that is set by the legislative. The timetable starts on the injury,
or when the injury is when the injury is discovered, or an arrest. Insanity, military
service, court orders.
Equity = Laches: Money damages will not make the plaintiff whole and require a
court order. To put the plaintiff back in the same position before the case. One of
the precedents or maxims with equity is a delay in bringing a suit that damages
deferents to deferents itself.
Res Judicata or claim preclusion: Similar to double jeopardy in civil court makes
both parties barred from relitigating the same issue. Two conditions must be met
for a claim to be precluded. Identity of the parties it must be the same two parties
trying to relitigate. then a new party in privity (One who can sue on behalf of
another) with one of the 2 originals. Then the second condition can be met
identity of claim= the legal issues that were litigated in the 1st trial are essential
the same in the 2nd trial.
• Immunity (Means that plaintiff injured by an immunized deferent has no real remedy at
law) from suit.
– Absolute: Cannot be sued unless
Sovereign: Federal government and 50 states, but not local government. You
aren’t really seeing the sovereign, you are suing the taxpayer. A sovereign
consents to be sued by passing a law waiving its immunity. (FTCA or TCA “Tort
Torts in general
– Elements: (to collect its money)
• 1) Existence of legal duty (yes)
• 2) Breach of a legal duty.—Foreseeability (yes)
• 3) Breach is the proximate cause of injury. (yes)
• 4) Act of discretion (no)
– Policy discretion
– Implementation discretion
– If the sovereign consents to be sued, it can give condition on
how. This limit liability to untentnetion torts + assault and false
imprisonment by a federal law enforcement personnel
– Vicarious liability= employer is liable for the negligent acts of
employees if done in the scope of the government
– No federal vicarious liability if the employee committed
negligence in exercising in act of discretion.
– Intentional Torts:
• Assault, Battery, Libel, False imprisonment
– Unintentional torts:
• Negligence and product liability
– To sue for negligence you must have:
• 1: A legal duty
• 2: Breach (foreseeability)
• 3: The Breach is the proximate cause of injury—but/for+ foreseeable
– Cops are liable and the test is:
• Officers are immune so long as their actions are reasonable under the circumstances
– 1. Did the the officers conduct violate a constitutional right
– 2. Weather it would be clear to a reasonable offer that the conduct was unlawful, given
– Contactual: Parties can create immunity through contract, but it is rare
exception. • Contractual immunity will be voided if it:
– Violates public policy
– It results from an unfair disadvantage
• Subject of the contract.
• Nature of the Immunity clause itself.
• Power relationship between the parties. • Relative bargaining power of the
– Punitive: For specific or general deterrence. Legislators decide in what cases
can receive punitive damages. Insurance where they should have paid and
refuses to pay.
• General deterrence: to deter the defendant and all similar in the defendants
– No Breach of contract
– No simple or gross negligence: Simple negligence is a failure to
exercise reasonable care. Gross negligence: Reckless disregard for
consequences to the safety and protect of others: (Criminal Negligence
but not punitive) Aware that the defendant knew that there was negligence
and did not care.
– Have to get willful and wanton conduct for punitive. There has to be Malicious
or ill will. This will get punitive damages.
– * Insurance where they should have paid and refuses to pay.
– Wrongful discharge on race or sex= Compensatory ponies and equity and a
reinstatement for your job back.
– Nominal: A trivial amount where no loss can actually be proven. • Trespass
– Liquidated: Contract parties agree in advance to an amount if a breach occurs.
• Not allowed if amount is to deter a breach rather than compensate for a loss •
Ok if damages are difficult to calculate or uncertain
• Parties agree in advance about is reasonable given the loss
– General Principle
1.) A plaintiff cant say if this wouldn’t have happened i would have made
this much money
2.) Damages are typically limited t those reasonably foreseeable by the
3.) Future problems are difficult to establish.
4.) Plaintiff has a legal duty to take reasonable steps to minimize damages
Prevents recovery f that are foreseeable and could have been avoid
Plaintiff has the burden of proof (By a preponderance of evidence) to
document monetary loss.
– General Damages are natural and necessary result of the injury and do not
need to be listed in the placing by do need to be substantiated at trail (Those
• Battery Unauthorized touch which is general $$ pain and suffering and mental
– Special Damges
• Unnatural damages that arise from an injury (and are not foreseeable) Need to
be included in the complaint and documented at trial.
– Benefit rule 5
Where the defendants misconduct causes both injury to the plaintiff but also
confers some benefits, and the plaintiffs damages award will be reduced by the
amount of the benefit.
Nominal Damages: A token of dough where there has been a breach but no
Liquidated damages: the agreed to in a contact or $$ deposited against future
– Not allowed if amount is to deter a breach and not compensate
The purpose is to put to Plaintiff in a position as if the contract were performed
– Performance, damages are limited to compensatory damages.
– Judicial determination of legal rights. Declares a statue unconstitutional.
– Some states consider it an equity remedy.
Action to quiet title
– Judicial determination of rightful ownership of real property.
– Equity Remedies: You can ask for equity when a common law will not be
sufficient to make them whole again. The judge acts as a court of conscience,
and no jury for equity. You can have both monetary loss and an equity
– Injunction: Most common equity remedies
• Mandatory: Compels one to act to make (someone) do something they (Writ of
– Prohibitory: Prohibits one from acting
Permanent (can disappear and be modified): After a full adversary hearing
meaning that it is just like a trial and all the due process and looks like a
– Because it is a full civil trail and the proof is by a preponderance of
Preliminary: Notice and hearing but not a full adversary hearing (testimony
but no compulsory witness or cross). Typically to preserve status quo until
determines legal rights
– A probable success on merits and or irreparable harm (The greater the harm,
the less likelihood of success necessary).
– Serious legal issues are raised and bale trips in movant favor
• Temporary Restraining order
– Ex parte is only a one side. No notice and no hearing and typically domestic
violence cases and stalking cases.
– Irreparable harm to the moving party and there is no time for the hearing
because there is the harm and there is no time to do either injection and does a
– Recession and reformation: • Apply only to contract law.
– Recession: Have to proof that the contract was made via deception or mistake
and if granted the court cancels the contract.
– Reformation: Contract fails to accurately express the intent of the parties via
mistake or bad language.
– Equitable Maxims: Short statements that epitomize an equity principal.
– Specific performance: You can not ask for a specific performance unless the
good is unique. Is not a good remedy when it requires a personal service of
somebody, Breaking a contract and the other party wants a task for them.
Clean hands Doctrine: Anybody that is a plaintiff acting for a equitable remedy
cant do anything wrong in the remedy process
Equity will not enforce a one sided contracts
Equity wont tolerate unfair delay.
For every wrong there is a remedy.
– Restitution: return of property of possession of deferent to the plaintiff
• Can either be equity where it is returned to the plaintiff, and common law it is
replevin and sometimes the property is not returnable, in that case the amount of
money is determined by the deferent gained rather than the plaintiffs loss.
There are a lot of concepts that limit access to the
courts to resolve disputes
1) Jurisdiction: subject & personal
2) disputes must be a “concrete case or
No advisory opinions
No collusive cases
3) it must be a justiciable controversy
Mootness & ripeness
Act of state doctrine
Judicial power to resolve a dispute requires: a
case or controversy that is real (not
hypothetical or conjectural) between 2 or more
parties with adverse interests in the outcome
No advisory opinions (legislation is held up
until the Supreme Court certifies its
No collusive suits (both parties come out
winners). A law suit presumes a zero sum
1) timing constraints: When can you bring the suit?
A suit is brought too soon—it isn’t ripe for a judicial decision
INS & fishermen
If injury is EMMINENT it is ripe
A suit is brought too late—the controversy is already over
Defuness v. Odergaard
Padilla v. U.S. Navy Brig
Must be the right party to bring suit—can’t sue
on someone else’s behalf.
organizations can sue on behalf of members
parents on behalf of children
Typically not a problem
Case of Conn, Dr. & contraceptives
One of the hottest areas of standing today is
when people attempt to use the courts to
challenge public policy they dislike
If you live in a democracy you should go to the
legislature or the ballot box to change policy but
don’t go crying to the courts
Prudential standing is that concept that limits
courts to legitimate conflicts between citizens
and government over public policy.
Only citizens who have been injured by a
public policy can challenge it in courts
Endangered species act (ESA) requires the Sec. of Interior to sign
off on any policy affecting endangered species
Agency for international development (AID) spends tax money on
projects in foreign countries
1986 Pres. Reagan signed an exec. Order limiting the ESA to
AID is proposing to spend billions on dams in Egypt & Sire Lanka
that will wipe out the habitat for certain species of elephants,
crocodiles & leopards
DOW got 2 of their members to bring suit and they allege that
they have been to Sera Lanka & Egypt to view the elephants,
crocodiles and leopards and would like to return but will be
unable to view them because they will be extinct
The relief they pray for is for the courts to void President Reagan’s
exec. Order so that the Sec. of interior will get the opportunity to
nix this project
1) Injury in fact?
Legal injuries do not need to be physical or
monetary, the can be aesthetic
When the Oakland Riders left Oakland for the greener
pastures of L.A., the City of Oakland sued for a loss of
Kansas uses UNIQUE injury in fact
2) TRACASBILITY: is the injury fairly traceable
to the actions of the ∆?
3)REDRESSABILITY: If the court awards the ∏
everything they asked for, will that remedy the
Injury in fact
Inability to view extinct animals a legally recognizable
Court said NO
Injury traceable to ∆?
Lujan is the Secretary of Interior—is he the one that
caused the injury? NO-who did? Answer= Egypt & Seri
If the Secretary reviews this project and stops it, will that
ensure the existence of elephants, crocodiles, & leopards?
NO, Egypt & Sera Lanka will go elsewhere to find the
funds (Soviet Union)
Sullivan v. state
Sullivan’s are in the N.C. Nat’l. Guard and got
orders to deploy to Afghanistan.
They are suing in N.C. state court (Governor,
Adjutant Gene4ral, etc.) to rescind the orders of
Issue: Ӆ have standing?
Reasoning not a good case as the Ӆ’s attorney
filed in the wrong court
There may be a very serious case & controversy
between to litigants but the courts may not be the
best place to resolve that conflict
the constitutionality of the Viet Nam war for example
Cases that are political questions
Foreign policy/cessation of hostilities
Republican form of government
Issue clearly given to another branch of government
Decision risks embarrassment abroad
Decision risks grave disturbance at home
No clear judicial standard to apply (strunk v. strunk)
American courts will not pass judgment on
public acts of another government
Statute of limitations
Immunity from suit
1) requires that a ∏ exercise their right to a trial
with in a certain time period, set by the legislature.
To preserve evidence, witness recollection, and witness
2) time clock starts to run upon injury, or the
discovery of injury, or arrest
3) the clock can be tolled (temporarily stopped)
Insanity, military service, imprisonment, court orders,
fraud that conceals an injury by a fiduciary (think Bernie
Filing of a complaint stops the clock
Atkins v. Jiminy Peak, Inc. (1987)
Remember when we said in America, a ∏ can
pursue two kinds of remedies (next chapter):
Common law—money damages
Equity—money damages will not make the ∏ whole.
Requires a court order (injunction, declaratory judgment)
Equity law is rarely written law, always common
law and courts have developed maxims to guide
One of those maxims is Laches=a delay in bringing
a suit that damages ∆’s ability to defend itself.
∏ has a legal conflict where she can ask for
$$damages for past behavior + an injunction
for the future. The legal action has a 10 year
statute of limitations.
∏ waits 8 years to bring the suit.
∆ moves to dismiss the equity claim on
Latches- has the burden to show ∆’s case has
been harmed by the delay
As a court of conscience, the judge may dismiss
the equity claim on Laches, leaving ∏ with
only the common law case.
This is the civil counterpart to double jeopardy.
Once a competent court (one w/ jurisdiction)
renders a verdict and a judgment, both parties are
barred from relitigating the same issue. Their sole
remedy is an appeal.
Two conditions must be met for a claim to be
1) identity of the parties—it must be the same 2 parties
trying to relitigate OR
A new party in PRIVITY with one of the 2 original
Privity=one who can sue on behalf of another
(executor/deceased; parent/child; manufacturer/seller
Second condition for res judicata
2) identity of claims= the legal issues that were
litigated in the 1st trial ( or COULD HAVE BEEN
LITIGATED) are essentially the same in the 2nd trial.
Kruckenberg v. Harvey (2005)
Immunity means that a ∏ injured by an
immunized ∆ has no legal remedy at law
Comes from England in 1200s when the King
could do no wrong
Today in America it is justified by the purse
When you sue the sovereign, you are suing the
Sovereign immunity=the sovereign cannot be
sued without its consent
Sovereigns in America are the federal gov’t and
the 50 state gov’ts. (not local gov’t.)
A sovereign consents to be sued by passing a
law waiving its immunity
Frequently referred to as a TORT CLAIMS ACT
This means the sovereign has consented to be
sued for its torts but nothing else
Today, the federal government (1947) and 40
states have waived …
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