Sunday, March 26, 2017

The Uniform Child Custody Jurisdiction and Enforcement Act

An area of some complexity that shows up in Family Law is jurisdiction for child custody cases.  And when I'm working with students who are preparing for the MEE, it's an area we spend some time on because it's important to know it well should it show up on the exam.  In other words, it could amount to a large percentage of the points in any given essay.

The Act to understand well in this regard is the Uniform Child Custody Jurisdiction and Enforcement Act which is far too many words and so after mentioning it once in an essay, just call it the UCCJEA.  The purpose of the Act is to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation as well as promote interstate cooperation. It also aims to facilitate the interstate enforcement of custody and visitation orders.

And so a question may be raised in a fact pattern as to which state has jurisdiction to initially enter or to modify a child custody or visitation order.  First, we look to the home state of the child. A child's home state is the state in which the child lived with a parent (or a person acting as parent) for at least six consecutive months immediately before the commencement of the proceeding.  If the child is less than six months old then the home state will be the state where the child has lived since birth disregarding temporary absences.  A court in the home state of the child will have jurisdiction to enter or modify a custody or visitation order

It's possible, though, that a child had a home state (had been living in the state for at least 6 consecutive months) and within the last six months has moved out of state.  A court in the state that was recently the child's home state will have jurisdiction to enter a custody order if a parent or person acting as a parent continues to live in that state.

Further, it's also possible that no state will satisfy the home state test as stated above.  If no state has or accepts home state jurisdiction then a court will have jurisdiction to enter or modify a custody or visitation order if that court sits in a state in which the child and at least one parent (or persons acting as parents) have a significant connection and if substantial evidence concerning the child is available in that state.

When analyzing jurisdiction for these purposes, I would first look to apply the home state rules and then move on to the significant connection test if necessary.  And then note that the court that made the initial custody or visitation determination has exclusive continuing jurisdiction over the matter until neither the child nor the child's parents (or persons acting as a parent) continue to reside in the state or the child no longer has a significant connection with the state and substantial evidence relating to the matter is no longer available in the state.

Even if a court has jurisdiction as outlined above, the court may choose to decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.  Finally, note that under some extreme circumstances, a court may have temporary emergency jurisdiction even if the general jurisdiction rules as outlined above are not satisfied.  This should be applied sparingly, though; a court will have temporary emergency jurisdiction if the child has been abandoned or if it is necessary in an emergency to protect the child because the child, the child's sibling(s), or the child's parent is threatened with or subjected to abuse.


Tuesday, March 21, 2017

Actual, Apparent, and Inherent Authority

If you happen to get a Partnerships essay on the MEE, the chances are quite high that Agency issues will be mixed within.  And a very common Agency issue deals with the authority that an agent (for example a partner in a partnership) has to act for the principal (for example, the partnership).  This post will review three types of authority that should be known well going into the exam:

Actual Authority:  Actual authority is the authority that the agent reasonably believes s/he possesses based on the principal's dealings with the agent.  This type of authority may be express or implied.  Express is pretty straight-forward; look for an agency agreement and if the authority is stated within that agreement then express authority has been granted to the agent.  Implied authority is that which the agent reasonably believes s/he has as a result of the principal's actions even if there is no express agreement stating as such.

Apparent Authority: Apparent authority arises from the reasonable beliefs of third parties.  In other words, if a principal directly or indirectly holds out another as possessing certain authority and such holding out induces reasonable reliance by another that the agent has such authority, the agent will have apparent authority to act on behalf of the principal even if as between the agent and principal the definition of actual authority (either express or implied) has not been satisfied.  One way to think about this is that the principal will be estopped from denying that the agent has authority to act for the principal if the principal has acted in a way that would lead a reasonable person to believe that such authority was in fact granted.

Inherent Authority:  Even if the agent has no actual or apparent authority, the agent might still have the inherent authority to act on behalf of the principal.  Sometimes, courts wish to protect innocent third parties rather than the principal when an agent acts on behalf of the principal.  As such, the law will hold the principal liable for the acts the agent.  A very common example of inherent authority is respondeat superior in which an employer will be held liable for the acts of an employee that occur within the scope of the employee's employment.

There is more to say on this topic for sure (for example, how authority is terminated.)  Future posts will delve deeper into this commonly tested area.

Sunday, March 12, 2017

Limited Liability Companies

Limited Liability Companies ("LLC's") is a trendy topic on the MEE.  So much so that the most recent update to my book MEE Essentials will contain a more in-depth discussion of this topic.  A foundational area to understand here is the differences between member-managed LLC's and manager-manager LLC's.

Member-Managed LLC's:
With this type of management structure, each member owes to each other member as well as to the LLC duties of care and loyalty.  In addition, each member must discharge their obligations consistent with good faith and fair dealing. Most importantly to remember here is that there are obligations that members have that they do not necessarily have under other management structures such as will be listed below (under manager-managed LLC's).

Regarding the duty of loyalty, a member must account to the LLC for any benefit derived in connection with the LLC's business and must refrain from dealing adversely with the LLC (unless the transaction is deemed fair by the LLC).  Further, the members must refrain from competing with the LLC's business.  These acts, however, may be authorized even though they would generally violate the duty of loyalty if authorization is provided by the other members after full disclosure has been provided to the other members.

Under the duty of care, members must act with the care that a person in a like position would exercise under similar circumstances, in a manner reasonably believed to be in the best interest of the LLC.  This standard shows up elsewhere and is known as the 'business judgement rule.'

Manager-Managed LLC's:
Here, the duties of loyalty and care are different for managers and members.  Although both retain the obligation of good faith and fair dealing, only the managers are subject to the duties of loyalty and care as discussed above for member-managed LLC's.  Further, only the members may authorize or ratify an act by a manager that would otherwise violate the duty of loyalty.

Lastly, it should be noted a member-managed LLC is presumed unless the operating agreement of the LLC provides otherwise.

Tuesday, March 7, 2017

Intestate Distribution

When studying for Wills on the MEE, the Uniform Probate Code is the governing law.  Wills can get complicated, though, and it's sometimes best to contrast the uniform rules with state rules that might differ from the Uniform Code.  One such area deals with the means by which descendants (such as children) of a decedent take their shares of the estate.

In some states a decedent's descendants take their shares per capita with representation.  Essentially, this means that property is divided into equal shares at the first generational level at which there are living takers.  Each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation.  I've always found that language to be difficult, and an example might help:

Let's say that A has three children: B, C, and D.  One of A's children, B, has 2 children: E and F.  Another of A's children, C, has 3 children: G, H, and I.  The last of A's children, D, has no children.   When A dies, 2 of his children, B and C, have already died.

Let's say that A dies with an estate worth $300,000 and all the property is going to pass to his children.   If applying per capita by representation, the $300,000 will first be split equally among A's children (B, C, and D) so that each gets $100,000.   B, however has already died so his $100,000 will pass to his 2 children (E and F) and C has already died so his $100,000 share will pass to his 3 children (G, H, and I).

How will this all result?  D who is alive will take $100,000.  E and F will share $100,000 equally ($50,000 each).   And G, H, and I will share $100,000 equally ($100,000/3 each).

Things change with the Uniform Probate Code, however.  The Uniform Code applies per capita at each generational level.  Here, the initial division of shares is again made at the first generational level in which there are living takers.  But the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.  Let's look at the differences:

Applying the same situation as above, when A dies, two of his children, B and C, have already died.  This time, however, we will take the shares of B and C and combine them and then distribute that combination equally to all who are entitled to take from both B and C.

In other words, using this method (and this is the method to apply on the exam), D still takes his $100,000 as he is alive.  But we will combine the shares of B and C ($100,000+$100,000=$200,000) and divide them equally among all 5 children of B and C.

So, D takes $100,000.  And E, F, G, H, and I, each take $200,000/5=$40,000.



Sunday, February 19, 2017

Good Luck!

All best to those who are taking the bar exam this week!!

Posting to resume shortly to assist those who are preparing for the July exam.


Tuesday, February 14, 2017

Eliminate

"The sculptor produces the beautiful statue by chipping away such parts of the marble block as are not needed - it is a process of elimination."

Remember the above quote when taking the MBE next week. There are no tips or tricks that are going to make this test easy but in my view it is easier to spot errors in the distractors than it is to spot the one perfect answer in any given question. Every wrong answer must be wrong for a very specific reason.

In fact, if you're looking for the perfect answer you may never find it; oftentimes the correct answer on the MBE is correct only because it is better than all of the others.

And so work your way to the correct answer by eliminating all the answers that are worse than the last one remaining.  This alone will increase your score!  Confirm that you believe it to be correct, but even if you aren't certain, be confident in that answer since it remains after the rest have been eliminated.

Friday, February 10, 2017

Spendthrift Provisions (Trusts)

A common question I often get in the final weeks before the bar exam deals with study strategy.  As the exam approaches it becomes much harder to cover everything that might potentially show up on the exam.  I think it's important to be sure not to go into the test having not reviewed a subject hoping that subject won't show up.  But it is also important, especially when time is short, to focus your studying on the subjects that are most likely to be tested.

Trusts has shown up with some real frequency on the MEE.  A spendthrift clause in a trust precludes a beneficiary from voluntarily or involuntarily transferring his/her interest in the trust.  As such, creditors are precluded from reaching the trust to satisfy their claims. Importantly, note that once income has been distributed to the beneficiary, the creditors can then reach that income; it is only the income interest that the creditors cannot reach!

There are some exceptions to note:  A spendthrift clause cannot be used shield the beneficiary from his/her own creditors where the beneficiary is also the settlor.  In other words, a settlor cannot create a trust whereby the settlor is the beneficiary of the trust with a spendthrift clause if the purpose was merely to shield him/herself from creditors  Further, claims for support, alimony, and necessities as well as claims by the government are valid and will withstand a spendthrift provision.  Lastly, any creditor can reach a mandatory distribution of income or principal if the trustee did not make that distribution within a reasonable time.

Saturday, February 4, 2017

MEE Fast Fact: Attachment (Secured Transactions)

Not only is secured transactions a very complex subject but it is tested with some frequency on the MEE.   There's plenty to say about this subject but an initial place to begin is with the concept of attachment. A security interest will not be enforced unless it has first attached.  Essentially, this means that the secured party will have no rights against the debtor unless there has been an attachment of a security interest.  And attachment requires the following:

(1): The parties (the secured party and the debtor) must agree to create a security interest.  Evidence of this agreement can be accomplished in a few ways, one of which is the creditor taking possession of the collateral (personal property of the debtor).  In addition, the interest can be evidenced by the debtor authenticating a security agreement describing the collateral.  Finally, the agreement can be evidenced by the secured party taking control of certain types of collateral.

(2): In addition to the evidence outlined above, value must be given by the secured party to the debtor.

(3): Lastly, the debtor must have ownership rights in the property used as collateral.

If all three elements above are satisfied, a security interest has attached.  That's just the beginning, but it's a good place to start.

Tuesday, January 31, 2017

Zoning

As stated earlier on this blog, any attempt to predict exactly what will be tested in the new topics in Real Property for the February exam will inevitably contain some speculation.  That said, the NCBE has claimed that additional topics in the area of zoning will be tested and two concepts I'd think worth understanding are 'grandfather clauses' and the differences between cumulative and non-cumulative zoning. 

Grandfather Clauses: Assume that at the time you purchase property it is not subject to a certain zoning regulation, and then later the regular is implemented. When you try to sell that property will the buyer be burdened by the regulation?  A grandfather clause in a zoning ordinance is a provision in which business enterprises or class of persons are exempt from the provisions of a new rule, regulation or law.  In other words, if the use was established before the implementation of the zoning ordinance then the use will be deemed a lawful prior non-conforming use.  Generally, however, it is presumed that these non-conforming uses will eventually come to an end.  So, if owning a factory in an area that is now zoned for residential use is deemed a lawful non-conforming use, it still may be prohibited to upgrade the factory as that will indicate a lack of intent to eventually abide by the new regulations. 

Cumulative vs Non-Cumulative Zoning: Under cumulative zoning, different zones or districts are ranked in hierarchy. Districts zoned for residential uses are known as higher districts or higher zones while other districts (such as those zoned for business) are known as lower zones.  Uses allowed in higher zones are likewise allowed in lower zones, but no use will be allowed in a higher zone than the zone in which it was first listed.  In other words, a person can build a single-family residence (a high zone) in all zones but retail shops (a lower zone) will be prohibited from building in an area deemed to be a higher zone such as a residential neighborhood. 

As an alternative to cumulative zoning, some jurisdictions use non-cumulative zoning.  Also known as exclusive zoning, only authorized activities will be permitted in each district.  So, in contrast to the above, under non-cumulative zoning, a person would not be permitted to build a single family residence in an industrial district.

Monday, January 30, 2017

MEE Posts Coming Soon

These days, I tutor almost as much for the Multistate Essay Exam as I do for the Multistate Bar Exam.  As such, I'd like to start posting on the essay subjects tested on the MEE (that are not tested on the MBE) as well as continue to post on the MBE subjects.    The subjects covered in these posts will be the following:

Agency & Partnerships
Corporations & LLCs
Family Law
Conflict of Laws
Secured Transactions
Wills
Trusts

As always, I hope that you find the posts helpful in your preparation for the exam!

Monday, January 23, 2017

Use Immunity and Impeachment

Came across an interesting issue in a tutoring session that I thought worth posting about:

Assume a situation in which a witness at a grand jury proceeding refuses to answer a question by claiming the 5th Amendment privilege against self-incrimination.  Use immunity is granted and the witness then answers the questions asked.  Later when the case goes to trial, the witness states something contradictory to what was stated at the grand jury proceeding, and the prosecution wants to use the previous statement at the grand jury proceeding as a prior inconsistent statement for purposes of impeaching the witness at trial. Will the fact that the witness was granted use immunity at the grand jury proceeding prevent the prosecution from using that statement during the trial to impeach the witness?

The use immunity will not prevent the opportunity for impeachment by the prosecution. A witness who testifies under a grant of use immunity is protected against use of that testimony in any subsequent criminal trial against that witness.  But since in the above hypothetical the witness was not the defendant in the subsequent trial, use immunity will not prevent offering the statement made at the prior grand jury proceeding for the purposes of impeaching that witness at trial.


Saturday, January 21, 2017

MBE Fast Fact: Remand

There are a few posts here on the blog focusing on the ability of a defendant to remove a case to federal court if the plaintiff has chosen to bring the case in state court. And no doubt, knowing the details of removal is very important for the MBE.  There are also times when after the defendant has removed the case to federal court, the plaintiff will have the opportunity to remand the case back to state court.

In general it's important to note that the first step to get the case remanded back to state court is for the plaintiff to make a motion to have the case remanded.  A case will be remanded if there is no federal jurisdiction.  But even if there is federal jurisdiction and even if the prior removal to federal court by the defendant was entirely proper, the federal court has discretion to remand a case to state court if federal jurisdiction was based on the fact that there were federal claims at the time of removal and the only claims that remain are state claims over which there is no diversity jurisdiction.

And if the case is remanded,  the order remanding the case may require payments of costs and expenses including attorney fees incurred as a result of the removal of the case to federal court.

Sunday, January 15, 2017

Expert Witnesses

Expert witness questions can show up both in Evidence questions and in Civil Procedure questions. In Evidence, the questions are likely to focus on such topics as the qualifications to be an expert witness, the bases of testimony for an expert, and the proper subject matter for expert testimony.

For Civil Procedure, it's important to go into the exam understanding the obligations that a party has towards the opposing party if a party intends to use an expert witness at trial.  Knowing the following should put you in a good position to answer these questions correctly:

A party using an expert witness must automatically supply to the opposing side a written report containing all of the following:

(1):  A complete statement of all opinions the expert witness will express and the basis and reasons for those opinions.

(2):  The facts or data considered by the expert witness in forming the opinions that the witness will express.

(3):  Any exhibits that will be used to summarize or support the opinions that the expert witness will express.

(4):  The expert witness's qualifications, including a list of all publications authored in the previous 10 years.

(5):  A list of all other cases in which, in the previous 4 years, the witness testified as an expert either in trial or by deposition.

(6): A statement of the compensation to be paid to the expert.


Sunday, January 8, 2017

Accretion vs. Avulsion

Even though I've been teaching the MBE for many years now, occasionally I'll come across a distinction in a question that surprises me.  It may seem rather insignificant with so much else to know in the area of Real Property, but a testable (and tested) distinction is that between avulsion and accretion.  Here's what's to know:

Both of these concepts deal with the fact that the natural effects of water upon land has the potential to change the nature and extent of the land in a way that might affect real property rights.

Accretion: A key point to keep in mind regarding accretion is that the changes to the land happen over a lengthy period of time.  For example, if you were to view over a long period of time the bank of a river or the shoreline of a lake you would notice that the water from the river or lake was depositing soil on the bank or the shoreline.  And this deposit of soil is known as accretion.  Importantly for the MBE, land formed by accretion is generally recognized to be owned by the owner of the bank or the shoreline upon which the accretion occurs.

Avulsion:  An important distinction between avulsion and accretion is one of time.  Whereas accretion takes place over a long period of time, avulsion is a sudden change in land (for example by depositing soil far downstream) brought about by water.  It may result in addition or removal of land from a bank or shoreline.  Importantly, the law generally provides that soil removed by avulsion remains the property of the original owner.

There is one other point worth noting about avulsion.  There may be a situation in which a stream acts as a boundary between two parcels of land.  Avulsion might cause that boundary to shift, and when it does the law generally holds that the landowners will retain the property that they owned before the shift in the course of the stream if the shift is due to avulsion.

Tuesday, December 20, 2016

MBE Fast Fact: Modification of Contracts

Whenever the rules differ between the common law of contracts and the UCC, an added level of difficulty exists within the question.  One topic that stands out in this regard deals with modification of contracts, and two types of questions that show up quite a lot within this topic deal with the need for consideration to modify a contract and the need for a writing to modify a contract

Consideration:  Under the common law of contracts, a contract cannot be modified unless the modification is supported by new consideration.  The UCC, however, differs.  Under the UCC, good faith promises of new and different terms than were stated in the original contract between the parties are valid even if those new and different terms are not supported by any additional consideration.

Writing:  Generally, and under the common law of contracts, a written contract can be modified orally.  And furthermore, under the common law, even if a written contract expressly provides that a contract may be modified only by a writing, the parties may still orally modify the contract. Under the UCC, though, any modification must be in writing if the contract as modified falls within the Statute of Frauds.  What this means is that if the contract as modified is for $500 or more (thereby falling within the UCC Statute of Frauds), the modification must be evidenced by a writing.  If, however, the contract as modified is for less than $500, then no writing is required.

One other point worth noting is that the parole evidence rule will not prevent the admissibility of evidence dealing with the modification of a contract.  This is because the parole evidence rule only applies to exclude from evidence written or oral statements made prior to the writing as well as oral statements made contemporaneously with the writing if those statements are going to contradict the writing and if the writing was intended as the final expression of the bargain between the parties.  But modifications fall outside the scope of the parole evidence rule because by their nature they occur after the written agreement has already taken place (as opposed to prior to or contemporaneously with the writing).