1993
February 1993 Question 1 [Civil Procedure]
February 1993 Question 2 [Criminal Law]
February 1993 Question 3 [Evidence]
Mary sued Trucking Company (TruckCo) for the wrongful death of her husband, Hal Hal was killed when a log truck driven by Boyd crossed the center line and struck Hal's car. Boyd was severely injured and died a week later from complications. TruckCo asserts that Boyd was an independent contractor hauling logs for TruckCo and not a TruckCo employee. At the trial by jury, the following occurred:
At the trial by jury, the following occurred.
1 . Plaintiff called Tom, TruckCo's president, as a hostile witness. Plaintiff asked the following question: "Didn't you call Mary the day after the crash, tell her that it was Boyd's fault, and offer to pay Hal's funeral expenses?
2. Plaintiff then asked Tom: "Didn't TruckCo have a liability insurance policy covering the truck driven by Boyd at the time of the collision?"
3. Plaintiff called Officer Reno. Reno testified that Royd had given him a statement after the crash. Reno then read the following from his report: "Boyd stated he fell asleep at the wheel and ran over the enter line."
4. Mary testified that Hal loved her and was a kind and considerate spouse. Defendant then called Smith, Mary and Hal's longtime neighbor, and asked Smith the following: "What was Hal's reputation in the community, prior to the crash, for fighting with Mary?" Plaintiff's objection was sustained. If allowed to testify, Smith would have testified that Hal had a reputation for being quarrelsome and physically violent with Mary.
Assume that in each instance all appropriate objections were made.
1. Was the question asked in paragraph 1 objectionable? Discuss.
2. Was the question asked in paragraph 2 objectionable? Discuss.
3. Should Reno have been permitted to read from his report as set forth in paragraph 3? Discuss.
4. Was the objection in paragraph 4 properly sustained? Discuss.
February 1993 Question 4 [Community Property]
February 1993 Question 5 [Torts] [Professional Responsibility]
Owen has a backyard swimming pool meeting all statutory requirements for pool installation and maintenance. Recently, ten-year-old Petey attended a birthday party for Owen's ten-year-old son. After the swimming phase of the party was over, Owen emphatically announced to all that the pool was closed and that the hired lifeguard had left.
While other children and their parents were inside Owen's house eating cake, Petey sneaked out and opened an unlocked door leading to the pool. Petey saw Teen, a nineteen-year-old, reading a book near the pool. Petey did not know that Teen was Owen's older son. He wore a sweatshirt which had displayed on it in large print, "City Pool Lifeguard."
Teen observed that Petey, now in the pool, was a good swimmer. Though Teen had been given no responsibility by Owen, Teen told Petey to get out of the pool. Petey noticed the words on Teen's sweatshirt, but he refused to get out. Teen then left to go to his city lifeguard job. Petey saw him leave but remained in the pool.
From an upstairs window in the house, Owen saw Petey come out of the pool, balance on the edge with his back to the pool as if he intended to make a backward dive, lose his balance, hit his head on the edge of the pool, and then sink below the surface of the water. Owen pulled Petey out of the pool and directed that an emergency squad be called. Petey suffered some permanent brain damage.
Petey, through a duly appointed guardian, has sued Owen and Teen. Lawyer has been employed by Owen's insurance carrier, Insco, to represent the defendants. Owen says he is overcome by grief and cannot recall what Petey was doing immediately before he hit his head. Lawyer believes Owen is lying because Owen wants Petey to prevail in the lawsuit. Lawyer privately advises Insco of his beliefs, continues to investigate factual matters, and prepares to defend. However, he intends to advise Insco that if Owen continues to have a memory lapse, Insco will not be liable under the policy for the failure of Owen to cooperate as required by the terms of the policy.
1. What legal claims and defenses should be asserted in the suit by Petey against (a) Owen and (b) Teen, and how should they be resolved? Discuss.
2. What breaches of professional responsibility, if any, have been committed by Lawyer? Discuss.
July 1993, Question 1 [Torts]
Dina, aged sixteen, lives at home with her mother, Mary, in a state where the age of majority is eighteen. Mary is aware that Dina has recently exhibited a sometimes violent and delusionary nature diagnosed as schizophrenia and has attacked persons in the neighborhood. Medication that can control Dina's behavior has been prescribed, but without Mary's knowledge, Dina has stopped taking it.
A week after Dina stopped taking her medication, she approached a neighbor, Paul, as he walked along the sidewalk fronting Mary's home. When she was face to face with Paul, Dina, without provocation, gestured threateningly and screamed, "I know you're out to get me and I'm going to get you first," and then strode away.
Paul, who had no knowledge of Dina's mental illness, phoned Mary about the incident. Mary told Paul that "Dina has sometimes made threats to others, but I do not think she will try to hurt you and I assure you that this will not happen again."
Paul believed Mary's assurances and, for that reason, did not seek to avoid Dina.
Mary questioned Dina about the incident, scolded her, and asked if Dina was taking her medication. When Dina said she was, Mary did not pursue the matter. Two days after Dina confronted Paul, Dina saw him raking leaves which had fallen into the street fronting their adjoining homes. Dina got on her bicycle and rode it as rapidly as she could directly at Paul. Although Dina swerved away from Paul at the last moment, Paul reacted by diving to one side. He struck his head on the curb and suffered a severe concussion and facial injuries.
Paul has sued Dina and Mary, alleging tortious causes of action.
1. Is Paul entitled to recover against Dina for:
a. Assault? Discuss.
b. Battery? Discuss.
2. Is Paul entitled to recover against Mary:
a. On the ground that Mary was negligent as to Paul? Discuss.
b. On the ground that Mary is vicariously liable for Dina's conduct? Discuss.
July 1993, Question 2 [Criminal Procedure]
July 1993, Question 3 [Business Associations]
Al, Bob, Carl, and Dan each own 20% of the outstanding shares of the common stock of Etco, a profitable corporate retailer, and they are the corporation's four directors. Al and Bob are Etco's officers. The remaining 20% of the outstanding shares are divided among ten individuals, including Fred, who is a 5% shareholder. Etco has only one class of stock.
At a board meeting six months ago, Al announced that he had negotiated a contract to have all of Etco's stores cleaned nightly by XYZ, a partnership jointly owned by Al and Bob. Al disclosed XYZ's ownership at this Etco board meeting, but neither he nor Bob disclosed that the price for cleaning services to be charged Etco by XYZ under the contract was double the market rate. The board approved the contract with XYZ by unanimous vote of all four directors. XYZ immediately began its cleaning services and has been receiving payments under the contract with Etco.
At the same meeting, the Etco board unanimously voted in favor of Carl's proposal to have Etco redeem most of his shares at $25 per share, to provide funds to Carl for a sudden family emergency. At the time, Etco did not have retained earnings equal to the cost of redeeming Carl's stock, but Etco's earnings in the preceding fiscal year, which erased a prior earnings deficit, did exceed the cost of redeeming Carl's stock. Etco's articles of incorporation have no provisions about redemption of its stock.
1. After recently finding out about the XYZ contract, Fred has brought a shareholder derivative action against all four directors seeking a judgment rescinding the XYZ contract and for damages to Etco arising from the approval of the contract by the directors. What should be the result? Discuss.
2. On his own behalf, Fred has sued Etco and its four directors for a judgment rescinding the redemption of Carl's stock or, in the alternative, to require redemption by Etco of Fred's stock at $25 per share, or for involuntary dissolution of Etco. To what relief, if any, is Fred entitled in this suit? Discuss.
July 1993, Question 4 [Professional Responsibility]
Attorney represented Wife in an action for divorce by Wife against Husband. During the course of representation, Attorney submitted bills totaling $11,000 for his legal services to Wife. After credit for payments by Wife, the amount due on Wife's obligation was $5,000. Attorney wrote Wife a letter informing her that he would perform no further services in connection with her case until she paid the outstanding balance of her account.
In response to Attorney's letter, Wife called Attorney and informed him that because of financial problems she could not then pay past due or additional legal fees. She asked Attorney if there was any arrangement under which he would be willing to continue to represent her. Attorney stated that he would continue to represent her if she would agree to pay him for his services, in addition to the $5,000, 25 percent of any property award she would receive in the divorce proceedings.
Wife told Attorney she would think about it and call him back.
Several days later, Wife called Attorney and informed him that she had decided to retain another lawyer. She asked Attorney to give her the file in her case. Attorney informed Wife that it was her right to obtain another lawyer, but that if she wanted her case file, it would be necessary for her to pay the outstanding balance of her account and sign a general release of liability. Wife said she would try to raise the money and would call Attorney back in a few days.
The next day, Husband's lawyer called Attorney to ask Attorney to withdraw from his representation of Wife. Husband's lawyer reminded Attorney that several years ago Attorney represented a now-dissolved partnership, of which Husband was a limited partner, in an unsuccessful effort by the partnership to acquire an apartment building for investment purposes. Attorney refused to withdraw.
Discuss all ethical considerations raised by Attorney's conduct.
July 1993 Question 5 [Real Property]
Owner owns several apartment buildings. He uses a standard form agreement in leasing apartments in all his buildings. The agreement includes the following relevant provisions. 1) the lease term is one year; 2) the tenant is not to disturb other tenants; and 3) the landlord's written permission is required before the tenant may sublease.
Lisa rented Apt. #1 from Owner on February 1. The same day, her friend, Mary rented Apt. #2 in another Owner building. Each signed Owner's standard form lease agreement. In April, Mary learned that Lisa would be leaving the area in May, and asked Owner for permission to sublease Apt #1 because Apt #2 had flooded in recent rains. Owner denied permission because Mary was already a tenant.
Lisa nevertheless made a written "assignment of all interest" in Apt. #1 to Mary, and Mary notified Owner on April 29 that she would leave Apt. #2 May 31, and occupy Apt. #1.
Mary moved into Apt. #1 on June 1 and paid the June rent on Apt. #1. Later than month, the police were called by neighboring tenants to Apt. #1 at 4:00 a.m. and asked to break up a very noisy party hosted by Mary. On July 1, Mary informed Owner that she had paid out an amount equal to the entire July rent to replace an exposed, uninsulated electric wire which she had discovered in a closet within Apt. # 1 , and that she would not pay the July rent.
On July 12, Owner brought an action to repossess Apt. #1, to collect July rent from both Mary and Lisa for Apt. #1. and to collect June and July rent from Mary for Apt. #2, which he had not endeavored to rerent because he had other unrented apartments.
1. Is Owner entitled to possession of Apt. #1? Discuss.
2. Is rent owed by Lisa or Mary on either apartment? Discuss.
July 1993 Question 6 [Wills] [Professional Responsibility]
Ted, a resident of California, executed a valid, typed will in 1987 devising his property, as follows:
1/2 to my wife, Wilma, if she survives me by 10 days.
1/4, to my friend, Fred, with the hope that he will use his share, if necessary, for the benefit of any children I may have.
All the residue to my Aunt May.
Anyone who contests this will or any of its provisions shall take nothing under the will.
Fred was one of the two witnesses to the will.
In 1989, Ted’s only child, Sam, was born. In 1991, Ted’s wife, Wilma, died. Ted did not remarry. Ted died in June 1993, survived by Sam, Aunt May (Aunt), and Fred. Sam and Aunt were Ted’s only surviving relatives.
Both Sam and Aunt have sought the advice of Lawyer, claiming that Fred, as Ted’s astrologer and financial adviser, had such influence over Ted from 1985 until Ted’s death that Ted hardly knew what he was doing.
1. What arguments can Lawyer make which, if successful, would give Sam his greatest possible share of Ted’s estate, and what would be the expected counterarguments and results? Discuss.
2. What arguments can Lawyer make which, if successful, would give Aunt her greatest possible share of Ted’s estate, and what would be the expected counterarguments and results? Discuss.
3. Is it appropriate for Lawyer to represent both Sam and Aunt in proceedings to resolve claims to Ted’s estate? Discuss.