Simulator Exam Flashcards

A student sued his university for failing to deliver the quality of education promised in its catalogue. There is a count also for fraudulent misrepresentation of the quality, content, and accuracy of the courses offered, along with fraud regarding the qualifications of the teachers. The university filed an answer denying responsibility and listing various affirmative defenses. Two months later, the university filed a third-party complaint against a private benefactor who had pledged $20 million for the current and last two operating years, but who had not lived up to her pledge. The university, as the third-party plaintiff, claimed that the benefactor is or may be liable to it for all or part of the claim. The benefactor filed a motion to dismiss the third-party complaint. What will the court likely do and why?

Answer: Dismiss the third-party complaint due to it being late and filed without leave of court.

Federal Rule of Civil Procedure 14(a)(1) allows a defendant to serve a third-party complaint within 14 days after serving its original answer without needing court permission. If more than 14 days have passed, the defendant must obtain leave of court to file the third-party complaint. Here, the university filed its third-party complaint two months after its answer, exceeding the 14-day window and failing to seek leave of court, making the filing untimely.

A leading question is one that suggests to the witness the answer desired by the examiner. Rule 611 (c) of the Federal Rules of Evidence generally prohibits the use of leading questions on direct examination. There are, however, some exceptions to that rule. Which of the following would be a permissible instance of using leading questions on direct examination?

Answer: When the witness being examined on direct is an adverse party or a hostile witness.

Federal Rule of Evidence 611(c) generally prohibits the use of leading questions on direct examination, as they suggest the desired answer to the witness. However, a well-established exception allows leading questions when examining a hostile witness, an adverse party, or a witness identified with an adverse party. This exception is crucial for allowing the examiner to effectively elicit testimony from uncooperative or biased witnesses.

A state passed a statute that prevents the sale of violent video games to minors. The act prohibits video games being sold or rented to minors where the player may have a choice of killing, maiming, dismembering or sexually assaulting an image of a human being in a manner that appeals to a deviant or morbid interest of minors and offends prevailing community standards of what is suitable for minors. The Petitioners, representing various interests of the video game industry, brought an action in federal court to have the statute declared unconstitutional. The video game industry has a voluntary rating system (like the one relating to movies) to assist parents. The state did not present evidence showing a connection between violent videos and violence in children. Based on U.S. Supreme Court precedence, what is the most likely decision of the federal court?

Answer: The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech.

In *Brown v. Entertainment Merchants Association* (2011), the Supreme Court held that video games are a form of speech protected by the First Amendment. To restrict such speech, the state must demonstrate a compelling government interest and that the law is narrowly tailored. Since the state failed to present evidence showing a causal link between violent video games and violence in children, it could not meet the compelling interest standard, rendering the statute unconstitutional.

A retail store runs an advertisement in the local newspaper stating: “Only 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.” A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the store’s price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?

Answer: The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.

While advertisements are typically invitations to negotiate, this advertisement was sufficiently definite and explicit to constitute a binding offer. It specified a limited quantity ('Only 3 cashmere sweaters'), a specific price ($5.00 each), and a clear method of acceptance ('first-come, first-served'). The customer's immediate action of being first, picking up the sweaters, and tendering payment constituted a valid acceptance of this unilateral offer.

A man entered into a lease for an apartment with a landlord. The lease stated that the term was month-to-month. After one month, the man went to the city health and licensing department and complained about various sanitary code violations that the landlord failed to correct. The agency made an inspection and found 40 sanitary code violations. It cited the landlord, and ordered him to clear up all of the violations. After the inspection, the landlord brought an eviction action against the man and obtained a judgment against him for eviction. Will the eviction order hold up under the stated facts?

Answer: No, because the landlord’s action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise.

Most jurisdictions recognize the defense of retaliatory eviction, which prohibits landlords from evicting tenants for exercising their legal rights, such as reporting housing code violations. The landlord's eviction action immediately following the tenant's complaint and the subsequent citation for 40 violations strongly indicates a retaliatory motive. Therefore, the eviction order will likely not hold up as it is an unlawful retaliatory act.

The defendant faced trial for first degree murder. His behavior was erratic, however, and a treating physician informed the court prior to trial that the defendant was more likely than not incompetent to stand trial. The state statute said that defendant was presumed competent to stand trial unless he proved incompetency by clear and convincing evidence. Defendant failed to meet the clear and convincing standard, and the trial court found him competent under the statute. After being convicted in a jury trial, the court sentenced him to death. On appeal, the U.S. Supreme Court issued a writ of certiorari. Will the Supreme Court affirm the finding that the defendant was competent to stand trial?

Answer: No, the Supreme Court requires that a person who is proved to be more likely than not incompetent cannot be tried because it is would be a violation of due process.

The Supreme Court has held that requiring a criminal defendant to prove incompetence to stand trial by 'clear and convincing evidence' violates the Due Process Clause. Due process requires that a defendant cannot be tried if they are more likely than not incompetent, meaning the standard must be at least a preponderance of the evidence. Since the defendant was found 'more likely than not incompetent,' the state's higher burden of proof was unconstitutional, and the finding of competence will be reversed.

A retail store sales person was accused of taking money from the cash register. She was taken into a back room and interrogated by the manager and two security guards. They told her that she was caught on camera, there was a customer who witnessed her theft, and she should confess. She refused, persisting in her innocence. She became highly agitated and tried to leave twice but each time the security guards stood in her way, saying they would call the police if she chose to leave. She eventually broke down and started sobbing, still claiming innocence. They then revealed that there was no customer witness and no video. It was simply a test to see if she was the thief. They now believed she was innocent, and allowed her to go home. The hour-long ordeal caused her emotional trauma, headaches, and nightmares, all of which required medication and treatment. She sued for false imprisonment. Does she have a liability case for that tort?

Answer: Yes, because the employer restrained her movement without reasonable cause to do so.

False imprisonment occurs when a person intentionally confines another without lawful privilege, and the confined person is aware of the confinement or harmed by it. Here, the security guards physically blocked the employee from leaving and threatened to call the police, demonstrating an intent to confine her. Since they later admitted there was no reasonable cause for suspicion, their confinement was without lawful privilege, making the store liable for false imprisonment.

Two employees of a large multi-state corporation sued the company for violations of the wage and hour laws of state A, where the two worked and resided. They sued in a state court in state A, and requested class certification on behalf of their co-workers who also worked and resided in State A. The company filed to remove the case to the federal district court in state B based on federal diversity jurisdiction. The plaintiffs objected to removal because they asserted that the company's principal place of business was in State A, which destroyed diversity jurisdiction under the circumstances. The company argued that its principal place of business was in State B, thus creating diversity jurisdiction in the federal court. Which of the following would be the main basis for the court’s determination of where the company had it principal place of business?

Answer: In the state where the highest volume of activity is conducted in terms of volume of sales.

For purposes of diversity jurisdiction, a corporation's 'principal place of business' is determined by the 'nerve center' test, as established by the Supreme Court in *Hertz Corp. v. Friend*. This test identifies the principal place of business as the place where the corporation's high-level officers direct, control, and coordinate the corporation's activities. It is typically the corporate headquarters, not necessarily where the highest volume of sales or production occurs.

A small business owner was sued for breach of contract. In his answer, he claimed that he acted upon advice of his prior counsel to return the truckload of widgets that were delivered by the plaintiff company. He later repeated that contention in a deposition but refused to elaborate on the details because of the attorney-client privilege. At trial, the plaintiff company called the business owner’s prior attorney to question him on what advice he gave his client regarding the shipment and refusing to perform on the contract. The business owner objected on the basis that the conversations with his former lawyer were privileged. What is the most likely decision of the trial court regarding the objection to the evidence?

Answer: The testimony must be admitted because the business owner’s answer raised the advice of former counsel and thus placed the subject matter of that advice in issue; that is a waiver of the privilege

The attorney-client privilege can be waived when a party puts the privileged communication 'at issue' in the litigation. By asserting an 'advice of counsel' defense in his answer and deposition, the business owner directly placed the content of those communications into contention. This act constitutes a waiver of the privilege regarding the specific subject matter of that advice, preventing the business owner from using the privilege as both a sword and a shield.

A state statute provides that any public official found guilty of misconduct in office by his superiors should be permanently banned from holding any state employment or being appointed to any state office at any time in the future. Would the statute pass constitutional muster and why?

Answer: The statute is unconstitutional as a bill of attainder.

A bill of attainder is a legislative act that singles out an individual or group for punishment without a judicial trial, which is expressly prohibited by the U.S. Constitution. This statute, by permanently banning 'any public official found guilty of misconduct by his superiors' from all state employment, constitutes a legislative determination of guilt and imposition of punishment without the safeguards of a judicial process. Therefore, it is unconstitutional as a bill of attainder.

A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying “Please send 10 truckloads as promised.” No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?

Answer: Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract.

Under the Uniform Commercial Code (UCC), which governs the sale of goods between merchants, a contract is formed if there is a clear offer and an unequivocal acceptance demonstrating an intent to contract. Here, the manufacturer's letter was a definite offer specifying quantity and price, and the retailer's email was a clear acceptance. The absence of a specific delivery date does not invalidate the contract, as the UCC allows for reasonable terms to be implied.

A tenant moved into a single-family residence. She and the landlord signed a lease-purchase agreement, which applied $200 of each month’s rent to the purchase price of $50,000. The tenant agreed to get a mortgage within 33 months and to pay the full balance due, less the payments credited, on the final settlement date, which was set for 90 days after the 33rd month. A default by the tenant caused a forfeiture of all credits and voided the agreement. The tenant made 31 consecutive payments, but stopped on month 32, when part of the roof caved in causing an uninhabitable situation in the dead of winter. She put the rental payments in an escrow account. The landlord sued for eviction and termination of the lease-purchase agreement. The tenant answered that the landlord had breached the warranty of habitability. She also counterclaimed to compel specific performance of the agreement because she was ready to tender the balance due and take full title to the property. Under the circumstances, what is the most likely ruling of the court?

Answer: The landlord breached the warranty of habitability, which released the tenant at least temporarily from further rent payments, but the purchase agreement was still valid and it would be enforced.

The landlord's failure to maintain a habitable property, resulting in a caved-in roof, constitutes a breach of the implied warranty of habitability. This breach generally allows the tenant to withhold rent or place it in escrow until repairs are made, without breaching the lease. While the lease aspect is affected, the lease-purchase agreement's purchase option typically remains valid, and if the tenant is ready to tender the balance, specific performance can be compelled.

The police were at the scene of an accident, assisting injured victims and clearing traffic. One car stopped in traffic was creating a distraction by blasting rap music. A police officer told the driver to turn it down, which he did. While explaining this, the officer spotted a handgun next to the driver on the seat. State law allowed the carrying of a concealed or unconcealed weapon. The officer ordered him out of the car for safety concerns. The officer drew her gun and pointed it at him as he got out, threatening to shoot him if he was not compliant. Other officers approached with weapons drawn. The driver was put on the ground and handcuffed. Drugs were found inside the car and he was charged with drug possession. He filed a motion to suppress, claiming a Fourth Amendment violation. What is the most likely decision of the court?

Answer: The officer in effect overreacted to the initial purpose of the stop, and initiated an arrest procedure without probable cause to do so, and thus the drugs will be suppressed.

While an officer may order a driver out of a vehicle during a lawful traffic stop, the mere observation of a legally carried weapon does not, by itself, establish probable cause for arrest. The officer's immediate escalation to drawing guns, threatening to shoot, handcuffing, and placing the driver on the ground constituted an arrest. Without probable cause for an arrest at that point, the subsequent search of the car and discovery of drugs were unlawful under the Fourth Amendment, leading to suppression of the evidence.

A young man had a venereal disease called genital herpes. He had unprotected sexual relations with a young, married female co-worker but did not tell her of the disease. She later had relations with her husband, who became infected. The husband sued the young man for negligence in not telling the wife of the danger, thus being the cause of her passing it on to him. The defendant filed a motion to dismiss the complaint, alleging that the husband had no action against him because there was no legal causation. Will the court dismiss the complaint as a matter of law?

Answer: Yes, the wife’s having sexual relations with her husband was a superseding cause that broke the chain of causation.

For a defendant to be liable in negligence, there must be a direct causal link between their actions and the plaintiff's injury. Here, the wife's decision to have unprotected sexual relations with her husband, after being infected by the defendant, constitutes an intervening act. This act was not a foreseeable consequence of the defendant's initial negligence towards the wife, and thus it breaks the chain of causation, making the wife's act a superseding cause that relieves the defendant of liability to the husband.

Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the plaintiff's vehicle while he was stopped at a stop light. The plaintiff made timely disclosure to the defendants. After 60 days, the plaintiff did not receive any disclosures from defendants. The defendants’ lawyer did not respond to phone calls and letters from plaintiff’s attorney. The plaintiff filed a motion to compel disclosure and the answers to interrogatories, and asked for monetary sanctions compelling the defendants to pay for plaintiff’s expenses and legal fees. Will the court likely grant the motions, and why or why not?

Answer: Yes, the plaintiff did everything required under the rules, and now is entitled to a court order compelling disclosure and for the imposition of sanctions by having the defendants pay the legal fees for the motion to compel.

Federal Rule of Civil Procedure 37(a)(5)(A) mandates that if a motion to compel discovery is granted, the court must order the non-disclosing party to pay the movant's reasonable expenses, including attorney's fees, incurred in making the motion. Given the defendants' complete failure to make disclosures or respond to communications for 60 days, the plaintiff is clearly entitled to both an order compelling discovery and the imposition of sanctions for the costs of bringing the motion.

A witness in a criminal case testified to observing the defendant engaging in certain incriminating activities tending to show guilt of the charged crime. The defense tried to establish on cross-examination that the witness was the member of a street gang, and that he was probably trying to protect other, higher-up members of the gang. The defense attempted to detail the witness’ gang activities, the gang’s rules about protecting and lying for each other, and other in-depth descriptions of gang values and practices. The purpose of the line of questioning was to show the motives for the witness to slant or fabricate testimony against the defendant. The prosecution objected vehemently to the line of questioning and the judge sustained the objections. After the defendant was convicted, he appealed and argued as one of his issues the erroneous decision of the trial judge to preclude necessary cross-examination of the witness. What was the most likely decision and reasoning of the appellate court on that issue?

Answer: The right to show a witness’ motivation to lie is sufficiently important to justify constitutional protection in criminal cases, and the impeachment examination of the witness should have been allowed.

The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to cross-examine witnesses to expose their potential biases or motives to lie. This right is paramount for ensuring a fair trial and testing the credibility of testimony. Precluding a line of questioning designed to reveal a witness's motivation to fabricate, such as gang affiliation and its associated loyalties, is a significant infringement on this constitutional right, even if it might have a prejudicial effect.

A “disturbing the peace” ordinance passed by a city government prohibited the “sidewalk assembly of three or more persons who conduct themselves in a manner annoying to persons passing by . . . ." A group of three college students assembled on a busy and crowded sidewalk and gave speeches about the decline of democracy in America. They were arrested and prosecuted under the ordinance. Their appeals led to challenging the constitutionality of the provision in a federal district court. What is the likely decision of the federal court?

Answer: The ordinance is unconstitutional because it violates the “void-for-vagueness” doctrine.

The ordinance prohibiting conduct 'annoying to persons passing by' is unconstitutional under the void-for-vagueness doctrine. This doctrine requires laws to be sufficiently clear so that ordinary people can understand what conduct is prohibited and to prevent arbitrary enforcement. The term 'annoying' is subjective and provides no objective standard, allowing for arbitrary application and chilling protected speech, thus violating due process.

A bill collector came to the door of an elderly widow. The collector showed her a credit card bill for $20,000 owed by her recently deceased husband. He told the widow that she could be arrested and prosecuted if the bill, which was now her responsibility, was not paid. He left her a promissory note for $20,000 with interest and urged that she sign and send it back to him. After a few days, the widow signed the note, hoping in her mind to restore and maintain her husband’s good name. Six months later, the collection company sued on the note because the widow had made no payments. The widow’s attorney filed a motion to have the note declared void due to duress. What is the most likely decision of the court based on the principles of duress?

Answer: This was not duress because the threat was not imminent and did not deprive her of time to think, and to take the papers to a lawyer for help and advice, and thus the contract is enforceable.

For duress to void a contract, the threat must be improper and deprive the victim of their free will, leaving no reasonable alternative but to assent. While a threat of criminal prosecution can be improper, the widow had 'a few days' to consider the promissory note and consult an attorney. This time period indicates she was not deprived of a reasonable opportunity to seek advice, thus negating the element of duress that requires an imminent threat leaving no reasonable alternative.

A parcel of land was owned by owner one and owner two, as tenants in common. The owners signed an agreement with a real estate investor giving her the right of first refusal. If the owners offered the property for sale and if they got a bona fide offer to purchase, the investor would be given the exclusive right to purchase at the amount offered. At some time after that agreement was executed, owner one died and his property passed automatically by intestate succession to his two sons. The sons signed a deed of their interest over to owner two for $10,000. Owner two became the owner in fee. Shortly after that conveyance was recorded, the investor sued owner two and the sons on the basis that owner two should have first offered owner one’s 50% interest to the investor per the agreement. Will the court enforce the investor’s right of first refusal with respect to the transfer to owner two?

Answer: No, because they did not offer the property for sale and there was no bona fide offer to purchase; instead, the property passed by operation of law and then there was a private transaction to put total ownership in owner two.

A right of first refusal is typically triggered only when the property owner receives a bona fide offer from a third party and decides to sell. In this case, the property initially passed by operation of law through intestate succession, not through an 'offer for sale.' The subsequent transfer from the sons to owner two was a private transaction between co-tenants, not a bona fide offer to purchase from an outside party, and therefore did not trigger the investor's right of first refusal.

Three men in masks entered a bank to commit an armed robbery. A bank guard quickly pulled his gun and told the men to stand down. One of the robbers began to put his hand in his pocket, which the guard believed indicated that the robber was going for a gun. The guard promptly shot the robber dead. The police entered at that moment and arrested the other two robbers. Both men were arrested for robbery and for the murder of the third robber. The prosecution claimed that this was allowed under the felony murder rule. What will be the most likely outcome of the murder charges against the two robbers?

Answer: They are not guilty of murder because modern felony murder jurisprudence does not hold a co-conspirator criminally liable for the unintended death of an accomplice who was shot by a victim, an officer, or a bystander.

Under modern felony murder jurisprudence, particularly the 'agency theory' adopted by many jurisdictions, co-felons are generally not held criminally liable for the death of an accomplice when that accomplice is killed by a victim, police officer, or bystander. The rule typically applies when a death is caused by one of the felons or their agents, not by someone lawfully resisting the felony. Therefore, the two robbers will likely not be found guilty of murder for their accomplice's death.