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Terms in this set (23)
Personal Jurisdiction Analysis
Personal jurisdiction refers to judicial power over persons or property involved in cases before it.
3 Types: In Personiam, In Rem, Quasi In Rem
4 Bases for In Personiam:
Due Process Requirements
Minimum Contacts: Contacts must be purposeful and substantial/reasonably anticipate being haled into court
Specific JDX: Arising out of accident
General JDX: Arising out of general contacts
EVEN IF no minimum contacts, ask: Fair Play/Substantial Justice
1. Interest of forum state
2. Burden on defendant
3. Judicial system interest in efficiency
4. Shared interests of states in social poliices
When is compulsory joinder justified?
A necessary party must be joined as a party if:
(i) complete relief cannot be provided to existing parties in the absence of that person;
or (ii) disposition in the absence of that person may impair the person's ability to protect his interest;
or (iii) the absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.
Claim Preclusion Elements
Claim preclusion provides that
1) a final judgement on the merits
2) precludes sufficiently identical parties
3) from successive litigation of an identical claim
Issue Preclusion Elements
1) an issue necessarily determined as part of
2) a final, valid judgement
3) where the facts and law are identical
4) cannot be relitigated by a party to the earlier action
First thing you write in a CA Criminal Evidence Question
Proposition 8 provides that "relevant evidence shall not be excluded in any criminal proceedings." Proposition 8 applies only to criminal proceedings. This rule is subject to a number of exceptions, including privileges and hearsay exceptions.
Evidence Question Mnemonic
Logical Relevance and Legal Relevance Rule Statements
Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. In California, relevant evidence must also be relevant as to a disputed fact.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In California, relevant evidence shall not be excluded in any criminal proceeding unless subject to an exemption.
Personal Knowledge, Hearsay, Authentication Rule Statemetns
A non-expert witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.
Hearsay is an out of court statement offered for the truth of the matter asserted.
All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.
Statement Made for Medical Diagnosis or Treatment
Under the FRE, a statement describing medical history or past or present symptoms is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment.
In California, this rule applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12, describing any act, or attempted act, of child abuse or neglect.
Public Records Exception
A hearsay exception applies to a record or statement of a public office or agency that sets out the:
(i) activities of the office or agency;
(ii) observations of a person under a duty to report the observation;
or (iii) factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.
Excited Utterance vs. Contemporaneous Statement
In California, a statement offered to explain, qualify, or make understandable conduct of the declarant; and made while the declarant was engaged in such conduct, is admissible. Key: about THE DECLARANT
A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception to the hearsay rule, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event. Key: Declarant NEED NOT BE INVOLVED
Lay Witness vs. Expert Witness
A lay opinion is admissible if it is based upon the perception of the witness, and helpful to a clear understanding of the witness's testimony or determination of a fact in issue.
Expert has to be qualified. The subject matter of expert testimony must be scientific, technical or some other specialized knowledge that will help a trier of fact understand evidence or determine a fact at issue that focuses on the relevance of testimony. California has adopted the Frye test when introducing novel scientific evidence. The Frye test requires a preliminary showing that the scientific theory or technique has been generally accepted as valid and reliable in the relevant scientific field.
Lawyers making loans to clients
The ABA rules prevent lawyers from making loans to their clients in excess of litigation expenses. However, California permits lawyers to make such loans, so long as the payment is actually a loan that must be repaid and not an outright gift. Additionally, the lawyer and client must enter into a written loan agreement, signed by both parties.
Lawyers' Duty of Communication to their clients
Lawyers owe a duty of communication to their clients, according to which they must relate information about a case's progression and status to the client on a periodic basis so the client can make informed decisions regarding the case.
Lawyer/Client Sexual Relations
The Model Rules prohibit a lawyer from engaging in sexual relations with a client, unless a consensual sexual relationship existed between the lawyer and client when the lawyer-client relationship commenced. This is similar to the California rule. However, in California, sexual relations with a new client would be permissible as long as they do not adversely affect the lawyer's representation of the client.
Threats to Obtain Advantage in a Civil Case
Under the ABA Rules, an attorney may threaten criminal or disciplinary action against an attorney, so long as the charges are sufficiently related to the civil action. Under the California rules, an attorney may not threaten criminal, administrative, or disciplinary action to gain an advantage in a civil case.
Gifts to Witnesses
Both the ABA and the California rules prohibit sending gifts to witnesses who testify on their behalf. The attorney is only allowed to compensate the expert witness for her services in the case such as depositions, preparing for trial, and testifying. Moreover, a gift to an expert witness may compromise the witness's ability to be fair and not to give favorable testimony in anticipation of a gift.
The ABA Rules prohibit payment to anyone for recommending a lawyer's services. A referral fee in return for merely recommending an attorney violates this rule. California permits referral fees if they meet certain criteria, i.e., written consent by the client after full disclosure; total fee not increased solely by reason of division of fee; and not unconscionable.
What is a matter on which a government lawyer worked personally or substantially?
A "matter" involves an actual dispute between parties. Drafting an ordinance is not a "matter" because it does not involve a dispute between ascertainable parties.
Under the Model Rules, a lawyer must not represent a client if doing so would be directly adverse to the interests of another current client or if there is a significant risk that the representation of the client will be materially limited by the lawyer's responsibilities to the current client, unless:
- reasonably believes can provide competent representation
- not prohibited by law
-each client gives informed consent
Directly Adverse: Same lawsuit or transaction, absolutely prohibited
Not Directly Adverse: Advocate in one matter against a person the lawyer represents in another matter
California Written Fee Agreement
In California, fee agreements between lawyers and clients must generally be in writing unless the fee to be charged will be less than $1,000, the work is routine work for a regular client, the client is a corporation or business organization, or the circumstances of the engagement make a written agreement impractical or impossible.
Duty to Reject: Violates ethical rules/physical mental abilities
Duty of Loyalty: Fees, Interests, Conflicts
Duty of Confidentiality: Privilege, Nondisclosure
Duty of Competence: Knowledge, Diligence
Duty of Communication: Informed of status
Capacity to Execute or Revoke a Will
18 and of sound mind
Sound mind: Can't be NaPPing
Nature of act
Property at issue
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