Bar Prep 2022 Q and A

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Bar Prep 2022 Q and A Actual Authority ans: Exists when a principal makes a manifestation that causes the agent to reasonably believe that the agent is authorized to act on the principal's behalf ... Apparent Authority ans: Exists when a third party reasonably relies on manifestations by the principal concerning the agent's authority to act on his behalf. Undisclosed Principal Consequences ans: If a third-party has no knowledge of the principal's existence, an agent who enters into a contract on behalf of the undisclosed principal becomes a party to that contract Partially Disclosed Principal Consequences ans: If the third-party knows of the principal's existence, but not the identity, unless the agent and third-party agree otherwise, the agent becomes a party to that contract. When can a principal ratify a contract? ans: Four Requirements: (1). Principal must ratify entire contract; (2). Principal and Third Party must have legal capacity to enter into the contract; (3). Ratification must occur before the third-party withdraws from the contract; (4). Principal knows the material facts of the transaction. When is Discovery permitted? ans: Discovery is generally permitted with regard to any non-privileged matter relevant to any party's claim or defense. Does information need to be admissible for it to be discoverable? ans: No May a party discover documents or tangible things prepared in anticipation of litigation or for trial by or for another party or its representation? ans: Generally, no, unless the party can show that it (1) has a substantial need for the materials to prepare its case AND (2) cannot, without undue hardship, obtain the information by other means. Note: Mental impressions of an attorney are never discoverable. When may a party be subject to sanctions for failing to take reasonable steps to preserve electronically stored information? ans: When such information should have been preserved in anticipation of litigation? What does the court take into consideration when determining sanctions for failure to preserve evidence? ans: The prejudice to another party AND the intent of the party that failed to preserve the evidence. In cases involving failure to preserve electronically stored information, what measures may the court order. ans: (1). Generally, the court may order measures no greater than necessary to cure the prejudice OR (2) if the court finds intent, the court may instruct the jury that they may or must presume that the information was unfavorable to the party that destroyed the information. When does a federal court have diversity jurisdiction? ans: When no plaintiff shares a state of citizenship with any defendant AND the amount in controversy exceeds $75,000. When is the defense of subject-matter jurisdiction waivable? ans: The defense of subject-matter jurisdiction is not waivable at any time AND may be properly raised by any party at any time, even on appeal. What does the full faith and credit clause do? ans: Requires state courts to give full faith and credit to other state and federal court judgments. Likewise, it requires federal courts to give full faith and credit to other federal and state court judgments. When may a party against whom enforcement of a judgment collaterally challenge the original court's jurisdiction? ans: Only when the jurisdictional claims were not litigated or waived in the original action. What is claim preclusion (res judicata)? ans: CP provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. For claim preclusion to apply, the claimant and defendant must be the same in both actions (or they must be successors in interest). When does issue preclusion (collateral estoppel) apply? ans: Issue Preclusion precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, only that party against whom the issue is precluded must have been a party to the original action. (1) the issue must be the same from the prior action; (2) the issue must have actually been litigated; (3) the issue must have been determined by a valid and binding final judgment; AND (4) the determination of the issue must have been essential to the judgment. Trial courts generally have broad discretion for when issue preclusion applies? If a plaintiff could have easily joined an earlier action, a trial judge should not allow the use of offensive issue preclusion. Which party may remove a case to federal court? ans: The defendant (the plaintiff would have had to initially file in federal court) When may the defendant remove a case to federal court? ans: A defendant may remove a case to federal district court when the civil action was filed in state court and the federal court has original jurisdiction. NOTE: A defendant may not remove a case to federal district court under diversity jurisdiction when the [Show More]

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