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Legal Rules
bar study
42
Law
07/24/2010

Additional Law Flashcards

 


 

Cards

Term

A Deed transferred to another person is valid if:

Definition

1. Validly Executed

2. Validly delivered (intent to give up control)

Term

Relevance

Definition
Something is relevant if it has any tendency to make a material fact more or less probable than would be the case without the evidence
Term
Exclusionary Rule
Definition

1.    Grand jury proceedings

2.    Civil Proceedings

3.    Knock and announce exception

4.    The three I’s

a.    Independent source

b.    Inevitable discovery

c.    Intervening acts of free will on the part of the defendant

Term
Priority of Assignments
Definition

1. first assignment was in writing

2. Involved transfer of indicia of ownership (deed, stock, certificates, a bank book)

3. first assignee detrimentally relied.

4. assignment for consideration

d. multiple assignments for consideration goest to first in time, unless second assignee doesn't know of first and:

1. gets the performance from obligor

2. gets a judgment against obligor

3. enters into a novation K with obligor that supersedes the K with the assignor

4. Receives indicia of ownership

Term
Malice  Crimes:Definition of intent
Definition
Reckless disregard of an obvious or high risk that a particular harmful result will occur.
Term
Arson
Definition
The malicious burning of the dwelling of another.
Term
offer
Definition
Committment, Communicated, to and identified offerree, with cetain and definite terms
Term
Pas Recollection recorded.
Definition

1. Showing writing to witness fails to jog memory

2. witness had personal knowledge are a former time.

3. writing was made or adopted by witness

4. Making or adoption occurred while event was fresh in W's mind.

5. W can vouch for accuracy of writing when made or adopted.

Term
Expert's opinion testimony
Definition

a. Expert's opinion must be based on reasonable degree of probability or reasonable certainty, which can be based on:

1. personal knowledge

2. other evidence admitted at trial made known to expert by hypothetical question.

3. Facts outside the record if of a type reasonably relied upon by experts in particular field in forming their opinions.

 

b. Expert's opinion must be sufficiently reliable. with regard to principles and methodology used by expert, court will determine reliability based on:

1. Testing of principles/methods

2. Rate of error

3. acceptance by others in the same field

4. Peer review and publication

 

 

Term
Expectancy Damages in K
Definition
Difference between value of what was promised and what was received except to the extent of what could be reasonably mitigated.
Term
Entrapment
Definition

1. Criminal design must have been originated with law enforcement.

2. Defendant must not have been pre-disposed to commit.

3. In AZ, must prove that officers urged and induced the defendant to commit the crime.

Term
Knowingly
Definition

Must know at minimum that result is very likely to occur, not that it merely might occur or has a slight chance of occuring

Term
Effect of Death of Offeror or Destruction of subject matter of Offer.
Definition

Offer has been revoked, unless the offer is irrevocable.

i.e. unilateral Ks in which performance has begun

Term
Levels of Scrutiny
Definition

Strict: The statute is necessary to achieve a compelling government interest and is the least restrictive alternative to achieving that interest.

 

Intermediate: The statute is substantially related to an important government interest.

 

Rational basis: The statute is rationally related to a legitimate, conceivable government interest.

Term
Child Trespasser (Attractive nuisance Doctrine) 
Definition
(Under 14):  a dangerous condition on the land that the owner is or should be aware of, the owner knows or should know children frequent the vicinity of the condition,  the condition is likely to cause injury (dangerous because of child's inability to appreciate risk), the expense of remedying the situation is slight compared with the magnitude of the risk.
Term
Land owner duties to invitee (Common Law v. AZ)
Definition

Duty warn or fix of hiddent dangerous conditions that they know of or should have known of after reasonable inspection.

 

Duty to warn or fix hidden dangerous conditions that they know of or should have known of after reasonable inspection, AND to warn or fix open and obvious dangerous conditions if likely to cause injury.

Term
Second degree murder (common law: Murder)
Definition

A malice crime (Not specific intent). The unlawful killing with malice of forethought

1. Intent to kill

2. Intent do do serious bodily injury

3. Extreme indifference to human life (depraved heart murder)

4. Felony murder (under common law)

*Murder can be reduced to voluntary manslaughter if Killing in the heat of passion resulting from an adequate provocation by victim

 

 

Term

Commerce Clause: Economic v. non-economic by nature

 

Definition

Court will uphold the regulation if it involves economic or commercial activity as long as there is a conceivable basis for concluding that the activity substantially affects interstate commerce.

b. if noneconomic in nature, Congress must make a factual finding that the activity regulated has a substantial economic effect.

Term
Habit
Definition
Frequency and Particularity
Term
Implied easeent by prior existing use
Definition

1. Single parcel of land (can be multiple lots but all owned by same party).

2. Severence

3. at the time of severance there must be a quasi-easement (prior existing use by original owner)

4. That is apparent, continuous, and (reasonably) necessary

 

Term
Adverse Possession
Definition

1. Actual (Starts COA)

2. Adverse (without permission)

3. Open and Notorious (constructive notice)

4. Continuous (as a true owner would)

5. exclusive (regulates like a true owner would)

6. Claim of Right (state of mind)

*Tacking

*Tolling

Term
Implied easement by necessity
Definition

1. As a result of ownership, parcel is land-locked.

a. Common law requires absolute land lock

b. MT only requires land locked for practical purposes.

4. Duration: So long as it is land-locked.

 

*Arizona only recognizes implied grants in this situation.

Term
abortions
Definition

abortion

a. Prior to viability, cannot prohibit abortions but can regulate abortions so long as they do not create an undue burden on ability to obtain.

1. 24 hour waiting period is ok

2. that they be preformed by licensed physicians is ok

3.Prohibiting partial birth abortions is ok.

b. After viability, state may prohibit abortion unless necessary to protect woman's life or health.

c. Government has no duty to subsidize abortions or provide in public hospitals.

d. Spousal consent and notification laws are unconstitutional unless unmarried minor, then either parent consent or approval from a judge.

Term
Covenants (PITS and NITS)
Definition

Benefitted Land

*If there is no horizontal privity, then successor can enforce covenant on original party but will not be able to enforce against another successor.

Term
Joint Tenancy
Definition

Time, Title, Interest, Possession

 

Title theory: severs JT if JT mortgages/leases her interest.

c. In an issue of exclusive possession, no duty to pay rent absent ouster (physical attempt and physical denial).

d. Only right to contribution is with respect to carrying costs (keeping title)

e. Duty to account to co-tenants for $ generated from 3rd party use of land

6. Modern Trend only requires intent to create or terminate JT

a. Lien theory does not sever JT if JT mortgages/leases her interest

c. Mortgage/lease extinguishes on death of co-tenant.

d. Judgment liens do not sever JT

e. Exclusive possession does not require duty to pay rent absent demand to vacate or demand for money.

f. Only right to contribution is Carrying costs and necessary repairs.

g. duty to account

7. Right to partition in kind (physical) or partition in sale (preferred).

a. Non-improver will not get improvements. If he does, he will have to pay for added value.

8. Felonous or intentional murder of another

a. Majority: Turns killer's share into TIC

b. Minority: treats murder as having pre-deceased decedent.

 

*This was the common law default. However, now there must be express intent or it will be a TIC.

Term
Robbery
Definition

Taking of personal property of another from the other person's presence  by force or threat with intent to permenently deprive him of it.

 

Aggravated Robbery (AZ): Robbery with at least one other accomplice.

 

Armed Robber: robbery with use or threat to use of real or simulated deadly weapon or instrument.

Term
Trespass
Definition
Physical Invasion
Term
Business Records
Definition

a. Records of a business of any type

b. made in the regular course of business

c. the business regularly keeps such records

d. made contemporaneously at or about the time of the event recorded.

e. contents consist of information observed by employees of the business or a statement that falls within an independent hearsay exception.

Term
Public Records
Definition

 

a. activities of the office or agency

b. matters observed pursuant to duty imposed by law

c. findings of fact or opinions resulting from an investigation authorized by law.

1. Exception: Police reports prepared for prosecution

Term
Testimonial Evidence
Definition

Criminal D's right to confrontation:

1. P may not use hearsay statement against the criminal defendant if the statement is testimonial, the declarant is unavailable and the D has had no opportunity for Cross-examination

a. Testimonial

1. Grand jury testimony

2. If primary purpose of questioning is to establish or prove past events potentially relevant to later criminal prosecution.

3. Affidavits prepared for use at trial

4. Police reports prepared for prosecution.

b. Non-testimonial if primary purpose of questioning is to enable police assistance to meet an ongoing emergency.

Term
Presentment Warranties
Definition

Warranties that all transferors make to the Drawee or maker:

1. For Checks

a. Good title (forged indorsement, but not forged drawer's signature breaches this).

b. No Material Alteration

c. No knowledge drawer's signature is unauthorized.

2. Other Instruments

a. Good title.

Term
Notice of Claim
Definition
1. Notice of Claim: in order to sue the Arizona government, you have to send them a "notice of claim" letter 180 days before the claim
itself containing a specific amount for which the claim can be settled and the facts supporting that amount (more details in the outline). 
Term
Conflict of Interest
Definition

representation will be directly adverse to interests of another client or significant risk that the rep. will be materially limited by lawyers interests or by his responsibilities to another client, former client, or third person

 

In a lawsuit between current client and former client, you may represent current client in an action against former client if 1) matter is not the same or substantially related matter and that person's interests aren't materially adverse to those of the former client Unless 2) former client gives informed, written consent.

1. Cannot use any confidential information from representation with former client to former client's disadvantage

Term
PMSI in Consumer goods
Definition
Automatically Perfects
Term
buyer in the oridnary course of business
Definition
buyer takes free of security interest created by the seller in an unauthorized sale if 1. the buyer is buying goods from the seller that are the type that is ordinarily sold in the seller's ordinary course of business and 2. buyer has no knowledge that she is violating any rights of another.
Term
Principal's are responsible for their Agent's Inentional Torts if:
Definition

1. Authorized

2. Natural from type of employment

3. Motivated by desire to benefit.

Term
Zlaket Rules of Disclosure
Definition

a.       Factual basis

b.       Legal theories

c.       Witnesses and substance of expected testimony

d.       People with knowledge of events and what knowledge that is

e.       Experts and substance of expected testimony, including basis and sources for opinions.

f.        Computation of damages and sources of those damages

g.       Evidence

h.       Other documents that may lead to discovery.

 

Term
State Publication
Definition

must file affidavit swearing 1. D owns real property in AZ OR 2. after due inquiry, D cannot be served in any other way. P must mail process to last known address if known, then publish in reliable source once a week for 4 weeks.

A. No Federal rule for publication, but may barrow any allowable method in state where it sits.

Term
Notice of Claim
Definition

1. An affirmative defense that must be asserted in the complaint

2. Must be filed within 180 days of COA

3. Contain specific amount for which the claim can be settled and facts supporting that amount.

Term
Experts (Civil Procedure)
Definition

Trial experts are not protected by work product.  Experts not designated for trial are protected.

 

One expert per issue

Term
Compulsory Arbitration, ADR, Mandatory Settlement
Definition

claim is only monetary and does not exceed 50,000

 

Parties must confer within 90 days after the first appearance of andy D about possibility of settlement and if they might benefit from ADR process.

 

Mandatory settlement conference will be set by court if requested by party.

Term
Definition