February 1994 Question 1 [Professional Responsibility]
Knowles was retained to represent Baker on a federal bank robbery charge. The indictment charged that Baker robbed Freedom Bank on Third Street. The prosecutor's case depends on, among other things,
photographic evidence from hidden cameras in the bank. None of the photographs clearly depicts the robber's face.
At their firstmeeting, Baker told Knowles that at the time of the robbery he was watching television at the home of his friend Peterson.
Knowles noticed that one of the bank photographs shows the robber wearing a ring on the fourth finger of his right hand. At one of the trial preparation sessions, Knowles saw that Baker had a ring on the same finger.
Knowles mentioned this to Baker, and the following conversation occurred:
Baker: "So what? There must be lots of rings that look like this one."
Knowles: "Yours has a 'B' on it."
Baker: "You can't see the one in the bank photo clearly enough to see if there's a 'B'."
Knowles: "You might if they blow it up."
Thereafter, Baker removed the ring and Knowles never saw it again. Knowles later suggested that Baker get a new ring to cover a mark left by the old ring.
During the trial, but before Baker testified, he asked Knowles what might happen if the prosecutor asked him if he had a ring with a "B" on it.
"Because you insist on testifying, you have to tell the truth," Knowles said.
On the evening before the day of closing arguments, Baker gave Knowles the balance of his legal fee in $100 dollar bills. Knowles noticed that the serial numbers on fourteen of the $100 bills were the same as the serial numbers on some of the stolen bills, which numbers had been revealed during the course of the trial.
Knowles returned the fourteen $100 bills to Baker and told him to bring an equivalent sum in other denominations. The following morning, Baker came to court with twenty-eight $50 bills, which Knowles accepted.
In his closing argument, Knowles argued that the prosecutor was going after the wrong man and urged the jury to believe Peterson's alibi testimony.
What standards of professional responsibility, if any, has Knowles violated by his conduct in representing Baker? Discuss.
February 1994 Question 2 [Business Associations] [Contracts]
Al was a painting contractor who was in the process of incorporating his business under the name Paintco, Inc. Al frequently purchased materials on account from Retailer. On May 17 Al entered into a written contract to purchase 200 gallons of latex paint from Retailer for $2,500. Al signed the contract as follows: "Al, as President of Paintco, Inc., a corporation to be formed." A boldface clause on the front of the contract read that the paint was being sold on an "as is" basis. The $2,500 purchase price was carried as a balance on Al's existing account with Retailer.
On May 10, Al concluded the formation of Paintco by filing Articles of Incorporation with the Secretary of State. Al is the president and principal shareholder of Paintco. At its first meeting, the board of directors of Paintco adopted a resolution accepting the contract with Retailer. On June 1, Retailer delivered the 200 gallons of latex paint to Paintco, which was conducting business in the same location where Al had previously operated his sole proprietorship.
Al used the paint on a new project that had been undertaken by Paintco after the formation of Paintco. The job specifications on the project called for a single-coat application, and Al had bid the job on that basis. The work was done the day after a rain, which had left the painting surfaces damp. Ordinarily, latex paint can be applied over a damp surface. On this occasion, the paint failed to adhere properly, requiring that Al apply a second coat.
The next day, Al called Retailer and demanded a credit in the full amount of the purchase price for the paint. Initially, Retailer refused. Al then said, "I'll never buy another thing from you unless you refund the price of the paint, and I'll see to it that nobody else does, either." Retailer, which was already experiencing financial problems, said it would give Al the $2,500 credit.
Several days later, Retailer assigned all of its open accounts to Finance Co. In return, Retailer received the full amount of the accounts, less the usual ten percent discount charged by Finance Co. The assignment included Al's account with Retailer, which was still shown on Retailer's books with a $2,500 balance.
At month's end, Finance Co. notified Al that his account with Retailer had been assigned to Finance Co. and demanded payment. Al refused to pay, asserting first, that Retailer had agreed to give him a $2,500 credit and, second, that Paintco had adopted the contract with Retailer.
What rights and remedies, if any, does Finance Co. have against:
1. Al? Discuss.
2. Paintco? Discuss.
3. Retailer? Discuss.
February 1994 Question 3 [Real Property]
In 1950, Al properly executed and delivered a quitclaim deed granting his neighbor, Betty, an "easement of way, thirty feet wide" along the southern boundary of Al's five-acre residential parcel. Betty never recorded the deed. In 1951, Betty graded and graveled a twenty-foot wide road along the southern boundary of the five-acre parcel. Since then, Betty has used the road daily to reach her house and has maintained the road as needed.
In 1955, Al conveyed his entire parcel to Cal by a properly executed and delivered quitclaim deed. The deed to Cal made no mention of any easement. Cal paid Al $15,000 for the conveyance.
In September 1988, Cal and Dot signed the following contract concerning the five-acre parcel:
"Cal agrees to sell and Dot agrees to buy the following land [valid legal description]. Price, $90,000 cash, closing December 15, 1988."
On December 15, 1988, Dot paid Cal $90,000 cash, and Cal properly executed and delivered a warranty deed conveying the land to Dot. The deed contained no mention of the easement. Dot promptly recorded the deed. Betty has continued to use and maintain the road.
In June 1989, Dot built a fence blocking the road to Betty's house.
1. What right, if any, does Betty have to continue to use the road? Discuss.
2. What rights, if any, does Dot have against Cal based on the contract, the deed, or both? Discuss.
February 1994 Question 4 [Remedies]
Fidelity Development Company (Fidelity) recently opened a large fifteen-story office building. Since it opened, brick masonry on the building has developed cracks, and some bricks have fallen to the sidewalk below. The defective masonry poses a danger to pedestrians. The cause of the cracks was negligence by brick masons in preparing the mortar. The rest of the building is structurally sound, although it is very unsightly.
Fidelity had contracted with Bildco to build the multimillion-dollar building. Bildco was the general contractor which, using due care in its selection process, contracted with Mason, an independent entity, to do the masonry work. The preparation of the mortar and the laying of the bricks was done by Mason's employees, who were using Mason's equipment. Mason also employed a head mason who told the other employees what to do. Bildco had a project supervisor who was constantly on the site and who monitored the masonry work. When Bildco's supervisor made suggestions concerning such things as bricklaying procedures to Mason's head mason, those suggestions were routinely followed.
It will cost $300,000 to repair the masonry so that the bricks will not fall and another $200,000 to remedy the unsightliness.
On what theory or theories, if any, may Fidelity sue Bildco and Mason and what damages should it recover from each? Discuss.
February 1994 Question 5 [Constitutional Law]
The jury trial of a confessed serial killer, who is asserting a defense of insanity, is beginning in a State X court in City. The judge has agreed to permit the murder trial to be televised, with the restriction that the camera must avoid showing the jurors. Fearful of emotional outbursts by spectators, and because courtroom space is limited, the judge has ordered all members of the public excluded from the courtroom, except for journalists and the members of the defendant's family. This was done with the agreement of both the prosecution and defense. However, relatives of the victims are also demanding the right to attend the murder trial.
City's major newspaper has printed a front-page editorial about the case, signed by Pat, the publisher. Declaring that the community had "lost patience with gullible jurors who fail to protect society from vicious criminals," the editorial listed the names, addresses, and telephone numbers of the murder trial jurors so that "readers can communicate their outrage in the unthinkable event this merciless killer is acquitted or shown leniency."
A State X criminal statute makes it a crime for the "publisher of any newspaper, magazine, or other publication to print the name, address, telephone number, or place of employment or business of any juror seated in any criminal case in which such information has been ordered suppressed by the court." The criminal statute does not mention other media. In the murder trial, the judge has ordered that the jurors not be publicly identified, an order that had been respected until Pat's editorial.
1. The members of the victims' families have filed suit in federal district court in State X for a decree granting them access as spectators for the murder trial, based upon rights under the U.S. Constitution. What should the result in this case be and why? Discuss.
2. The judge has cited Pat for contempt of the court's order protecting the identities of the jurors, and Pat has defended the contents of his editorial based on rights he claims are guaranteed by the U.S. Constitution. What should the result be of the hearing of the contempt citation and why? Discuss.
3. Pat has also been indicted in State X court for violating the State X statute. Pat has moved to dismiss the indictment, asserting that the statute is invalid as applied to him under First and Fourteenth Amendments to the U.S. Constitution. How should the court rule? Discuss.
February 1994 Question 6 [Civil Procedure]
Paul sued Danco in federal court for $100,000. He alleged that Blackacre had been damaged by Danco's negligent use of explosives. In addition, Paul sought an injunction to prohibit future blasting and timely requested trial by jury. The request for a jury trial was denied.
Danco denied that Blackacre was damaged, and claimed that Paul, who asserted ownership of Blackacre by adverse possession, was not the owner. The court heard extensive evidence and concluded that because Paul had no interest in Blackacre, and because Blackacre had not been damaged, Paul could not recover. Judgment for Danco was entered.
Owen had not been notified of Paul's suit against Danco.
Two months after judgment was entered, Owen, the true owner of Blackacre, filed a complaint in federal court against Danco, claiming damage to Blackacre from the same conduct involved in Paul's suit. Danco moved for summary judgment against Owen, asserting the defenses of res judicata and collateral estoppel. The motion was denied on the ground that there was no legal basis upon which Danco could use the doctrine of either collateral estoppel or res judicata to defend itself.
Paul sought to intervene as a plaintiff in Owen's suit, alleging that Danco's conduct damaged Whiteacre, a nearby parcel he did own but did not include in the prior suit. The court granted Paul's motion for intervention. Danco then moved for summary judgment against Paul. The motion for summary judgment was denied.
Assume that all federal jurisdictional requirements are met.
1. Did the court err in denying Paul's request for a jury trial? Discuss.
2. Did the court err in denying Danco's motion for summary judgment against Owen? Discuss.
3. Did the court err in denying Danco's motion for summary judgment against Paul? Discuss.
July 1994 Question 1 [Community Property]
In 1983, Tom and Sue married in California, where they have continually resided. In 1986, Sue started Compuco, a sole proprietorship that sold computer equipment, using community property savings. She devoted at least six days a week to this business during the marriage. She did not draw a salary and instead used Compuco's profits to expand the business. Tom performed no services for Compuco. On Tom's birthday in 1990, Sue gave him a Picasso drawing which she had purchased with $15,000of community funds. Tom placed the drawing in his office where he was employed by XYZ Corp.In 1993, Tom and Sue began to have marital problems. Tom moved his belongings from the home in May 1993. Tom and Sue continued to see one another, however, and they were consulting a marriage counselor. Tom sometimes would spend the night with Sue.In July 1993, Tom was severely injured in an automobile collision. Tom incurred significant medical expenses which were paid with community funds. In November 1993, Tom settled a claim for his injuries and received $100,000. In December 1993, Tom and Sue concluded that their marriage could not be preserved, and a dissolution action was commenced. Compuco has prospered continuously from its beginning and is now quite valuable. The Picasso drawing is now worth $30,000.In the dissolution action, what are the rights of Tom and Sue to:
1.Compuco? Discuss.
2.The Picasso drawing? Discuss.
3.The personal injury settlement proceeds? Discuss.
Answer according to California law.
July 1994 Question 2 [Constitutional Law]
Ricks County is a rural, sparsely populated county of State X. There have never been enoughfemale prisoners to make it economically feasible to have separate facilities for them in the RicksCounty jail, which is located in Hickory. Consequently, Ricks County has always placed itsfemale prisoners in the Rock County jail, some thirty miles from Hickory, under a contractual perdiem arrangement with Rock County. Betty recently moved to Hickory from the state capital of State X. She had worked there forfive years as a guard in the large State X prison. Betty has applied for one of two vacantpositions as a deputy jailer at the Ricks County Jail. She is thirty-four years old, five feet fiveinches tall, weighs one hundred forty-five pounds, and is a junior collegegraduate.Marie, who has just returned to Hickory after a four-year enlistment in the Marine Corpsfollowing graduation from high school, has also applied for one of the deputy jailer jobs. Mariewas a corporal in the military police for the last two years of her Marine Corps enlistment. She istwenty-two years old, five feet seven inches tall, and weighs one hundred fifty-five pounds.Dan, the Ricks County sheriff, has stated that he will not hire either Betty or Marie as deputyjailers because of their gender. Dan said that having a woman inside the Ricks County Jail wouldcreate unmanageable security problems for two reasons. First, a woman would not be strongenough to deal with unruly inmates, and second, there would be the danger to her of sexualassaults by male prisoners. Dan also claims that having a woman as a jailer would infringe on theprivacy interests of the male inmates who must use toilet and shower facilities in full view of thejailers. Finally, Dan claims that Betty did not meet the minimum height and weight requirementsfor deputy jailers under State X law: five feet six inches and one hundred fifty pounds. Theserequirements have always been enforced.Dan agreed that both women applicants met the age and educational requirements of State Xlaw: being at least twenty years old, and having a high school diploma or its equivalent. BothBetty and Marie have letters from their supervisors in their previous employment stating thateach was a competent, reliable, good-to-average employee, with no job performance problems.Betty and Marie have each filed a complaint in federal district court in State X against RicksCounty and Dan. The complaints seek injunctive relief requiring defendants to approveplaintiffs' job applications and to employ them as deputy jailers, under rights guaranteed by theU.S. Constitution. Given the similarity of major issues, the actions have been consolidated.How should the court rule on the claims of Betty and Marie? Discuss.
July 1994 Question 3 [Criminal Law] [Criminal Procedure]
Jane, a police officer who was not in uniform, attempted to make a lawful arrest of Al for distribution of a controlled substance. Doug, who did not know either Al or Jane, arrived on the scene, a poorly lit alley, and did not realize that Jane was a police officer. Because Jane was wearing civilian clothes and holding a gun on Al, Doug thought Jane was robbing Al.
Doug ran up and shoved Jane away from Al, who fled down the alley. Jane fired a shot at Al, killing Al. Doug then wrested the gun from Jane and shot Jane, killing Jane.
Doug was indicted for murder of Jane under a statute which mandates imposition of the death penalty for first degree murder of a peace officer who is in the performance of her duties. During jury selection, over Doug's repeated objections, the prosecutor used his peremptory challenges to remove all African-Americans and death penalty opponents from the jury.
1. What factual and legal defenses are available to Doug and, if they are accepted by the jury, of what crime, if any, should Doug be convicted? Discuss.
2. If Doug is convicted, how should the appellate court rule on an argument that the prosecutor's actions during jury selection denied Doug rights under the Sixth and or Fourteenth Amendments to the United States Constitution? Discuss.
3. If Doug is convicted of first degree murder as charged and the jury is instructed that it has no discretion as to penalty, would imposition of the death penalty violate Doug's rights under the Eighth Amendment to the United States Constitution? Discuss.
4. Did Jane act lawfully when she shot Al? Discuss.
Answer
July 1994 Question 4 [Evidence]
Phil's car and Don's car collided in the intersection of Main and Elm Streets. Phil sued Don for his injuries and for damage to his car. Phil alleged that Don went through the stop sign at Main and Elm Streets. In the jury trial of Phil's suit against Don, Phil called Officer Jones as his witness. The following questions were asked and answers given:
Q. Tell us your name.
A. Jo Jones.
Q. Your business?
A Police officer.
[1] Q. You've been assigned to the traffic division for sixteen years?
A. Yes.
Q. Did you go to the intersection of Main and Elm on July 1, 1993?
A. Yes.
Q. What did you see?
A. A red car and a blue car in the intersection.
Q. Describe the condition of the cars.
A. The front of the blue car was smashed up against the driver's side of the red car.
Q. Did you later learn the identity of the drivers of the cars? A. Yes. Phil drove the red car and Don drove the blue car.
Q. Were any persons present?
A. Yes, Phil and Don.
Q. Did you hear them say anything?
[3] A. Yes. Don said to Phil, "I'm sorry I blew the stop sign. Let me pay your hospital bills."
Q. Did you observe Phil at that time?
[4] A Yes. He had a concussion, a bloody nose and a cut lip.
Q. What did you do next?
A. I checked out the cars and made some measurements, using my tape measure.
Q. Based on what you heard and what you did, what did you think occurred?
[5] A Don ran the stop sign and plowed into Phil.
Q. What did you next do at the scene?
[6] A. I issued a ticket to Don for failing to obey the stop sign.
Q. By the way, did you know what happened to that ticket?
[7] A. Yes. Don was found guilty and his license was suspended for six months.
[Cross-examination by Don's attorney]
Q. Didn't you make a police report about this incident?
A. Yes.
Q. Isn't this the report? (Tendering document)
[8] Q. In your report where you refer to Don's statement, all you have written is, "Don said, 'Let me pay your medical expenses."' Isn't that correct?
A. Yes. That's all that's there.
[9] Q. Isn't it true that you have received four departmental reprimands for using excessive force?
A. Yes.
What objection or objections could Phil's attorney or Don's attorney reasonably have made to the question or answer at each of the places indicated above by the numbers in the left-hand margin, and how should the court have ruled in each instance? Discuss.
July 1994 Question 5 [Torts]
Paul was injured two years ago by a defectively constructed machine while working in anindustrial plant in State A. The machine had been manufactured by Manco, a State Bcorporation. Doctor (Doc) treated Paul for his injuries in a State A hospital (Hospital). Duringthe course of the treatment, Doc prescribed medication to which Paul was allergic. Paul'scondition worsened gradually after that, but it is unclear whether this decline was due to the drugor to the progression of his injuries.Paul sued Hospital in a State A state court for negligence. Hospital's defense was (1) that it wasnot responsible for the acts of Doc because he was an independent contractor, (2) that Doc hadnot been negligent, and (3) that the worsening of Paul's condition had resulted from the injury,rather than from the medication. After a trial before a judge sitting without a jury, the court ruledthat Doc had not acted negligently and that he was not an agent of Hospital. The court furtherruled that it need not reach the causation issue. No appeal was taken.Paul later died from his condition, and Wanda, his widow, who had lived in State A for fiveyears, returned to her original home in State C, located about 1,500 miles from State A. Asexecutor of Paul's estate, she sued Manco and Doc for the injuries to and death of Paul. The suitwas filed in a State C state court.Manco sells its products in forty states and has a small sales office in State C. For fifteen years,Manco has sold its industrial machinery in State C, its sales there having ranged from $400,000to $500,000 a year. The machine that injured Paul was originally sold to Dealer, located in StateA, who in turn sold it to Paul's employer. Manco was served by mail at its corporateheadquarters as provided for under the State C long arm statute.Doc lives and practices medicine only in State A but he was personally served with process at anairport hotel in State C. Doc, who was on a highly-publicized speaking tour, arrived in State C onthe morning of his speech, and left four hours later to speak in another state.It is undisputed that (1) State C asserts personal jurisdiction to the full extent permitted by theUnited States Constitution, and (2) Wanda's suit was not barred by the statute of limitations.Manco timely moved to dismiss the complaint as to it on the ground that the court lackedpersonal jurisdiction over Manco. The motion was denied.Doc timely moved to dismiss the complaint as to him on the grounds that the court lackedpersonal jurisdiction over him. The motion was denied. Subsequently, Doc timely moved todismiss the complaint on the grounds that the suit against him was barred by the principles of resjudicata and collateral estoppel. A certified copy of the judgment in Paul's suit against Hospitalwas attached to the motion. The motion was denied.Did the court rule correctly on:
a. Manco's motion to dismiss? Discuss.b. Doc's motion to dismiss on the grounds of lack of personal jurisdiction? Discuss.c. Doc's motion to dismiss on grounds of res judicata and collateral estoppel?Discuss.
July 1994 Question 6 [Wills]
Tess, a widow and resident of State X, a state with the same probate code as California, died in 1994. She was survived by a son, Bill, and a daughter, Jan. After Tess's death, a document was found that appeared to be her will. It is a printed will form, such as one would purchase at a stationery store. Several lines are written in what appears to be Tess's handwriting, including her signature and a date at the bottom of the document. The date indicates that the document was signed just after Bill was born and one year before Tess adopted Jan, who was ten years old at the time of the adoption. The document provides (the handwritten portions are underlined):
I, Tess, being of sound mind, hereby revoke all previous wills and codicils. I make the following testamentary disposition of my property: Everything to Bank in trust, to pay the income to those persons named on the accompanying list until they are 21 years of age, as needed for their support and education, each to receive an equal share of principal upon reaching that age.
Dated this ninth day of May 1961.
Tess
Witnessed: 1 [left blank]
2. [left blank]
Paper-clipped to the will form are six newspaper clippings. Each is a story about a needy child.
In 1963, Tess had established an inter vivos trust of $100,000 for Jan. In 1970, Tess told Jan that a trust had been created for Jan in lieu of leaving Jan anything in Tess's will. Jan later reported Tess's statement to her husband, Harry, but to no one else.
Bill and Jan each want that part of their mother's estate to which each claims he or she is legally entitled. Harry thinks Jan is being greedy, and would testify, if necessary, to what Jan told him about Tess's statement of intention regarding the trust. Jan denies that Tess told her any such thing, and does not want Harry to testify to the contrary.
Tess's net assets at her death consists of $1,000,000 cash.
1. Is Tess's will valid? Discuss.
2. Is the testamentary trust valid, and if not, what result? Discuss.
3. If the testamentary trust is valid, to what share of the estate, if any, are each Bill and Jan entitled? Discuss.
4. In a judicial proceeding regarding the rights of Bill and Jan in Tess's estate: a) would Harry's testimony be admissible, b) assuming it is admissible, could he testify against Jan's wishes; and c) could Harry's testimony affect the outcome? Discuss