Thursday, October 22, 2020

MBE Essentials (Criminal Procedure)

 The following is a sample from the chapter on Criminal Procedure from MBE Essentials.















MBE Essentials contains 435 questions and answers just like those posted in the sample here. The book covers every subject tested on the MBE (one chapter per subject) and is available for immediate download here on the blog.

Friday, October 2, 2020

October Exams

All best to those taking the bar exam next week and for those taking Florida the week after!  I expect the first ever NCBE online exam will be...interesting. Florida, the same. Posting to resume shortly after the October Florida exam to assist those preparing for February.

Thursday, October 1, 2020

Florida: Commercial Paper (Indorser Liability)

Outside of holders/holders in due course, one of the more important topics to understand within Commercial Paper is indorser liability. An indorser is considered secondarily liable (with the drawee of a check or the maker of a note as primarily liable). There's quite a bit to unpack on this topic.

With a question such as this, you should first address the indorser's liability in contract. The indorser is liable merely by signing his/her name on the instrument though this can be negated by including the words "without recourse" along with the signature. Importantly, there's a process that a holder must follow before seeking payment from an indorser in contract. There are 3 steps to the process:

Presentment: 

Presentment is a demand on the drawee of a check (such as a bank) or the maker of a note made by a person entitled to enforce an instrument. It may be made by any commercially reasonably means. As for a check, an indorser is discharged unless the check is presented to the drawee for payment within 30 days after the indorsement. Presentment, however, will be excused if a person entitled to present cannot with reasonable diligence do so or if the maker of the instrument has repudiated the obligation to pay (or if the maker is dead/insolvent). It's also excused if presentment is unnecessary as per the instrument's terms, if the obligation to present has been waived, or if the drawer of a check instructed the drawee not to pay. 

Dishonor: 

Dishonor occurs when the maker of a note or the drawee of a check does not pay within the allowed time after presentment. Instruments payable at a particular time are generally dishonored if not paid on the date they become payable or on the date of presentment, whichever is later. If a check is deposited at a bank so that immediate payment is not requested, the check is dishonored if the bank returns the check or sends notice that it is dishonoring the check before either final payment or before the bank's midnight deadline (midnight of the next banking day after the check is deposited).

Notice:

An indorser is not liable on an instrument unless the indorser is given timely notice that the instrument has been dishonored. Notice may be given by any commercially reasonable means and generally must be given within 30 days after dishonor (or 30 days after a collecting bank's midnight deadline if the instrument is taken by a bank for collection). Delay in giving notice will be excused if caused by circumstances beyond the control of the notifier who exercised reasonable diligence in attempting to give notice. Notice is also excused if the terms of the instrument deem notice unnecessary or if the notice requirement is waived. 

Contract liability (after presentment, dishonor, and notice) is one way to hold an indorser liable, and another way is on a theory of warranty. Warranties are made by any person who transfers an instrument, and an indorser may be included as one who transfers. There are 5 warranties to keep in mind when someone transfers an instrument, and they are known as the transfer warranties: 

The transferor warrants the following:

--The transferor is entitled to enforce the instrument.

--All signatures on the instrument are authentic and authorized.

--The instrument has not been altered.

--No defense or claim of any party is good against the transferor 

--The transferor has no knowledge of any insolvency proceedings that have been instituted against the maker, acceptor, or drawer. 

Wednesday, September 23, 2020

Premarital Agreements (Uniform Bar Exam)

A recurring issue that shows up on Family Law essays is premarital agreements. First to note is that these agreements are valid contracts, and the marriage itself is the consideration required for formation of the contract. 

The law to apply on the UBE is called the Uniform Premarital Agreement Act ("UPAA").  The UPAA provides that parties can enter into premarital agreements with respect to their rights and obligations in property. The agreement may also include directives as to disposition of property upon separation, divorce, or death. Modification or elimination of spousal support upon divorce or separation, choice of law governing construction of the agreement, and any other matter not in violation of public policy or a criminal statute will all be enforced if the premarital agreement is deemed valid. Child custody provisions in a premarital agreement, however, will never bind the parties. Such provisions violate public policy as they do not necessarily take into account the best interest of the child. 

Often tested is the enforcement of such agreements. For a premarital contract to be enforceable, most courts require that the agreement is entered into voluntarily and that the contract is in writing and signed by the party to be charged. In addition, both parties must make a full and fair disclosure of their financial worth and all economic provisions within the agreement must be both fair and reasonable. A premarital agreement will be unenforceable if a party did not enter into the agreement voluntarily or if the agreement was unconscionable when executed. Unconscionability will often be found if a party was not provided fair disclosure and did not have adequate knowledge of the other party's property or financial obligation when signing the agreement.

It's not required by the UPAA that both parties to the agreement are represented by independent counsel, but if both parties are represented by independent counsel, it is less likely that a court will refuse to enforce the contract based on unconscionability. In other words, if one party presents the agreement to the other party a week before the wedding, that alone will not necessarily invalidate the agreement, especially if there is time for each party to obtain independent counsel. Whether that wedding will still take place is beyond the scope of this post. 👀

In determining the choice of law to apply to premarital agreements, the following holds: first check to see if there is a choice of law provision within the premarital agreement. If there is, that choice will apply. If there is no choice of law provision, then enforceability of the agreement is governed by the law of the state in which the agreement was executed or the law of the state with the most significant relationship to the parties.



Thursday, September 17, 2020

Creation & Proof of Partnerships

With all subjects on the bar exam, you should have a solid foundation of the basics. This is because without that foundation it'll be tough to follow the more complex aspects of the subject. Everything is built from the basics.

For example, for Partnerships you should know well how partnerships are created and how it's determined whether a partnership exists. This post will expand upon those topics:

As soon as two or more people associate to carry on as co-owners of a business, a partnership is formed. Because that's all that's required, it's also true that no formal written or oral agreement is necessary to create a partnership. Although no formal writing is needed, the Statute of Frauds should always be considered. For example, if partners wish to have an enforceable agreement to remain partners for more than 1 year, a writing to reflect that agreement may be required. 

Anyone who is capable of entering into a contract may be a partner. Unless otherwise agreed, no one can become a partner without the express or implied consent of all other partners. A partnership may choose to file a statement of partnership authority with the secretary of state which will then provide constructive notice to others of the existence of the partnership. Unlike in other business arrangements, though, this statement is not required. 

If more formalities were required to create a partnership, it would be relatively easy to determine the existence of a partnership. But because there are few formalities, it's not as easy. To determine whether a partnership exists, courts will often look to the intent of the parties. This can be a bit tricky; the partners don't actually have to intend to become partners; rather, they just have to intend to carry on a business as co-owners. Stated otherwise, the fact that partners did not intend to create a partnership is not conclusive evidence that a partnership does not exist. 

As in other areas of laws, intent might not be so clear. When intent to carry on as co-owners of a business is uncertain, the courts will look elsewhere in determining whether a partnership exists. Sharing of profits raises a presumption of partnership, though this presumption can be rebutted by proof that the share was received as payment of a debt, rent payment, as an annuity or other retirement benefit, etc. 

Although sharing of profits raises a presumption of partnership existence, other factors (although not rising to the level of a presumption) may provide additional evidence that a partnership has been formed. The following are such factors to consider when determining whether a partnership exists: title to property is held in joint tenancy or in common; the parties designate their relationship as a partnership (though, again, not conclusive); the venture undertaken by the parties requires extensive activity; and the sharing of gross returns.

These factors are especially important because an essay question may leave open whether a partnership exists and the remainder of the analysis will depend upon getting that determination right. 



Thursday, September 10, 2020

Florida Distinctions: Torts

In my book Florida Bar Exam Essentials, I list what I deem to be the important distinctions to know for Torts on the Florida Bar Exam. With these distinctions tested on both essays and multiple choice on the October exam, this may be especially important. 

All Torts distinctions in the book are listed below.

**note: I updated # 6 so that it's clearer which standard is required in Florida.

(1): The shopkeeper’s privilege applies in Florida which allows detainment of individuals by shopkeepers under certain circumstances as a defense to claims of false imprisonment. There must be a reasonable belief as to theft, the detainment must be conducted in a reasonable manner, and only non-deadly force may be used. The detention must be for a reasonable time period.

(2): For a claim of intentional infliction of emotional distress, physical impact or physical manifestations of psychological trauma is not required.

(3): A person who is not engaged in a criminal activity and who is attacked in any place in which the person has a right to be has no duty to retreat prior to using any force, including deadly force, if it is reasonably believed by the person that such force is necessary to prevent death or great bodily harm to him/herself, or to prevent the commission of a forcible felony.

(4): Force is justified to protect property based on a reasonable belief that such conduct is necessary to prevent criminal or tortious interference with the property. But deadly force is not allowed here unless there is a reasonable belief that such force is necessary to prevent an imminent commission of a forcible felony.

(5): In all cases of defamation (and not just in matters of public concern), Florida requires proof of falsity and fault. At least 5 days before an action for defamation, plaintiff must serve written notice on defendant if defendant is a media defendant, specifying the alleged facts and defamatory article or broadcast. If the media defendant then fully retracts the defamatory statement within 10 days of receipt of notice and if the original publication was made in good faith, then only actual damages are available.

(6): Qualified privileges against a claim for defamation may generally be lost if the statement was made with malice. In Florida, the malice required to defeat the privilege requires that the primary motive for the statement is shown to be an intention to injure the plaintiff. This malice must be proven by a preponderance of the evidence (as opposed to the New York Times standard for proof of actual malice which requires clear and convincing evidence.)

(7): Florida does not recognize the tort of publication of facts that place plaintiff in a false light (a subset of invasion of privacy).

(8): Both parent and child have an action for prenatal injuries provided the child is born alive. If the fetus dies from the injuries, the parent may not bring a wrongful death action for its death and instead should bring a “negligent stillbirth” action for mental pain and anguish as well as medical expenses incident to the pregnancy.

(9): A healhcare provider in Florida will not be liable for failure to obtain informed consent if the patient received enough information so that a reasonable person would have a general understanding of the procedure and risks or would have accepted the treatment had the patient been advised as required.

(10): A landowner in Florida might be liable for conditions on the landowner’s land that contribute to injuries to plaintiff off the landowner’s land. This is true for both natural and artificial conditions on the land and will be evaluated on established principles of negligence law. Owners of commercial property owe a duty to prevent foliage from obstructing a driver’s view of the sidewalk when entering the property. Residential landowners do not owe the same duty but must prevent foliage from extending beyond the boundaries of their property.

(11): A discovered trespasser in Florida is defined as one who enters property without implied or express consent and whose presence was detected within 24 hours preceding the entrance. To avoid liability for damages sustained by a discovered trespasser, a landowner must refrain from gross negligence or intentional misconduct that proximately causes injury and must also warn of dangerous conditions that are known but are not readily observable. If the trespasser is under the influence of alcohol or drugs, then there is no duty to warn of dangerous conditions.

(12): The attractive nuisance doctrine applies in Florida with the specific requirement that the plaintiff has been lured onto the premises by a dangerous condition.

(13): If a firefighter or law enforcement officer enters property in discharge of a job-related obligation, the firefighter or officer will be deemed an invitee. The duty from the landowner to an invitee includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to injury. The burden is on the claimant to prove that the defendant had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.

(14): In Florida, stating a claim for negligent infliction of emotional distress will generally require a showing of an actual physical impact.

(15): Florida has a Good Samaritan’s Act which is applicable to all persons who gratuitously render aid at the scene of an emergency. The rescuer, however, remains liable for ordinary negligence. In emergency rooms, health care providers who are obligated to provide emergency treatment are not liable unless they acted with reckless disregard for the consequences to the life or health of another.

(16): Florida has capped the amount of noneconomic damages that a claimant can recover in a medical malpractice case. The Florida Supreme Court, however, has held that the cap is unconstitutional in wrongful death cases.

(17): Defendants may be liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that defendant was guilty of intentional misconduct or gross negligence. Further, punitive damages generally may not exceed the greater of 3 times the amount of compensatory damages awarded to each claimant or $500,000. There are exceptions here to keep in mind such as damages awarded for actions motivated by unreasonable financial gain, abuse of children or elderly, intentional harm, or intoxication.

(18): The Collateral Source rule applies to a far lesser extent in Florida, Namely, governmental and charitable benefits available to the general public are admissible for a jury to consider when determining the cost of future care for purposes of awarding damages. Further, a trial court must reduce any damages awarded to a claimant from collateral sources (not including Medicare, Medicaid, or workers’ compensation benefits). This reduction will be offset by any amount paid by the claimant for those benefits.

(19): A guardian on behalf of a minor can waive any claim or cause of action against a commercial activity provider for the minor’s personal injury from an inherent risk in the activity. For the waiver to be valid, the guardian must have been advised that even if the activity provider uses reasonable care, there is a risk that the child will be seriously injured or killed.

(20): Florida has adopted the doctrine of pure comparative negligence (the same as the default rule on the MBE).

(21): A dog owner will be liable for damages regardless of the former viciousness of the dog or the owner’s knowledge of the viciousness of the dog. A dog owner in the absence of negligence, however, will not be liable for damages caused by the dog to a person not lawfully on the property. Similarly, the dog owner in the absence of negligence will not be liable if the dog owner has displayed in prominent place on the premises an easily readable sign including the words “Bad Dog.” If a dog owner is liable, any negligence on the part of the person bitten that proximately contributes to the biting will reduce the liability of the dog owner by the percentage that the bitten person’s negligence contributed.

(22): Implied warranties of merchantability and fitness extend protection only to a buyer’s family, household, and guests who suffer personal injury.

(23): If an employee by an intentional tort causes death, injury, or other damages, the employer is presumed not to have been negligent in hiring such employee if he employer conducted a background investigation before hiring and if the background check did not reveal an unsuitability for the particular work. A decision not to conduct the check will not raise a presumption that reasonable care was not used in hiring, but the employer will not benefit from the presumption of reasonable care.

(24): An owner who consents to use of his automobile by another person is liable for the negligent damage done by the automobile. The vicarious liability of a person (who is not in the businesses of renting or leasing vehicles) who loans a vehicle to another for a short term is limited to $100,000 per person and $300,000 per incident for bodily injury as well as $50,000 for property damage. If the lessee is not insured or has insurance that covers less than $500,000, the lessor is liable for up to an additional $500,000 in economic damages.

(25): A parent or legal guardian of a unemancipated minor child who commits a theft offense may be liable for 3 times the actual damages of the victim.

(26): One who provides alcohol to a person of lawful age will not be liable for damages caused by intoxication. One who willfully and unlawfully sells or furnishes alcohol to a minor may be liable for injury or damages resulting from the minor’s intoxication. In addition, one who knowingly serves a person habitually addicted to alcohol may be similarly liable. Finally, a proprietor of alcohol may be liable if he knows or should have known of the likelihood of injuries to patrons caused by disorderly conduct of third parties and then fails to do anything about it.

(27): Joint and several liability does not apply in Florida except for intentional torts and some environmental actions. Rather, judgment against each liable party will be entered based on that party’s percentage of fault.

(28): Florida permits a child to recover for the loss of a permanently injured parent’s consortium. Florida has waived parent-child immunity when unemancipated minors sue parents for negligence (to the extent of insurance coverage) and in cases of intentional sexual abuse perpetrated by the parent against the child.

(29): Florida has waived its governmental immunity for governmental or ministerial activities, but not for discretionary activities. No tort action may be brought against the state of Florida unless the claimant has first presented a written claim to the appropriate agency. Municipal immunity is waived to the same extent as state immunity.

(30): Officers and employees of the state and its subdivisions are not responsible for damages caused by torts committed during the course of their employment except when they have acted in bad faith, with malicious purpose, or with willful disregard of human rights, safety, or property.

Florida Bar Exam Essentials has a chapter on each subject tested on the Florida Bar Exam including the distinctions to each of the MBE subjects. The book is available for purchase here on the blog.

Thursday, September 3, 2020

Impeachment by a Prior Inconsistent Statement

There are a variety of methods to call into question the credibility of a witness, and the MBE will test most of them.  One to understand especially well since it shows up more than most or all of the others is impeachment by a prior inconsistent statement.

There are various avenues one might take to impeach a witness by claiming that the witness is talking "hot and cold." In other words, the witness's credibility is called into question by demonstrating that the witness has previously said something that contradicts something that the witness says while testifying. A party may show both by cross examination or by extrinsic evidence that the witness has on another occasion made statements inconsistent with the present testimony. To prove the statement by extrinsic evidence requires that a proper foundation be laid. In addition, the statement must be relevant to some issue in the case; otherwise, it's in danger of being deemed collateral and irrelevant.

Although extrinsic evidence is allowable, there are limitations. Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is at some point given an opportunity to explain or deny the statement and the adverse party is at some point given an opportunity to examine the witness about the statement. This limitation, however, will not apply if the prior inconsistent statement is an opposing party's statement (an admission by a party opponent) or if the inconsistent statement is made by a hearsay declarant. In addition, more generally, the limitation will not apply when justice so requires. 

Perhaps the most common area tested as to prior inconsistent statements deals with the purpose for which the statement is offered. To offer the statement merely to call into question the credibility of a witness is rarely problematic, subject to the limitations stated above. But rather than offering the prior statement merely to call into question the credibility of a witness, a party might want to offer the prior statement to prove that the prior statement is in fact true. And that's a potential hearsay problem.

Prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the prior inconsistent statement was made under oath at a prior proceeding, it is admissible non-hearsay and may then be admitted both for purposes of impeachment and as substantive evidence (to prove that the prior inconsistent statement is in fact true).

But don't stop there. You might come across questions in which a prior statement is offered but that prior statement was not made under oath at a prior proceeding. The trap there is to assume that therefore the statement may only be offered for purposes of impeachment, since the non-hearsay exemption stated above does not apply. But knowing that the prior statement was not made under oath only tells you that the statement is hearsay. As is true with all hearsay problems, the next step should be to determine whether an exception to the hearsay rule applies because if an exception applies, the statement may be admitted not only to impeach but also for substantive purposes. 

Thursday, August 27, 2020

Holders & Holders in Due Course

Looks like Article 3 is fair game for the October 13th Florida Bar Exam. It has shown up rarely on the exam and when it has it's been important to understand (among some other topics) the topics of negotiability as well as "holder in due course" status. 

Although every holder in due course is a holder, not ever holder is a holder in due course. 

A holder is a person in possession of an instrument with the right to enforce the instrument. For a person to qualify as a holder, there must be a transfer to that person that qualifies as a negotiation. And so determining whether a person is a holder requires determining whether the instrument transferred to that person was negotiable. And, like so much else, there are elements.

For an instrument to be negotiable requires that it's signed and in writing. Further, there must be a promise or order to pay a fixed amount of money that is either payable to order or payable to bearer. It must be payable on demand or at a definite time and it must not state any unauthorized undertaking or instruction by the person promising or ordering payment. 

You'll want to memorize these elements. In doing so you can then determine whether the instrument is negotiable. If it is and it's negotiated (transferred) to another, the other will become a holder of the instrument.  There are nuances to each of these elements but one to especially keep in mind is the requirement that the instrument state a fixed amount of money. Requiring payment in something other than money (even if stated in the alternative such as "$30,000 or the keys to my new car") will render the instrument non-negotiable.

Once you've determined that a negotiable instrument has been negotiated to a holder of the instrument, the next step is to determine if that holder is a holder in due course. "Due course" requires that the holder take the instrument for value, in good faith, and without notice. 

Value: Any of the following will constitute value: performance of agreed consideration; acquisition by the holder of a lien or a security interest in the instrument (other than a judicial lien); taking the instrument as payment of or security for an antecedent debt; trading a negotiable instrument for another negotiable instrument; or giving the instrument in exchange for incurring an irrevocable obligation to a third-party.

Good faith: To be a holder in due course, the holder must take the instrument in good faith which means honesty in fact (a subjective rather than an objective test) with observance to reasonable commercial standards (an objective test).

Notice: For "due course" status, the holder must purchase the instrument without notice (actual notice or reason to know) that the instrument is overdue or that there are unauthorized signatures or alterations on the instrument. In addition, there must be no notice as to other claims on the instrument or as to defenses that might be raised regarding payment (infancy, duress, etc.). 

It's essential to understand the significance of "holder in due course" status. A holder in due course can enforce an instrument subject only to real defenses. In other words, a holder in due course need not worry about personal defenses. Simply put, it's easier for a holder in due course to collect. 

Whether an obligated party will be forced to pay depends on whether the holder of the instrument is a holder in due course. If the holder is not a holder in due course, the obligated party may assert any contract defenses to payment, both real and personal. But if the holder is a holder in due course, then the holder in due course will be shielded from those personal defenses; the obligated party will be limited to asserting real defenses only.  

Wednesday, August 26, 2020

Florida Bar Exam Rescheduled: October 13th

The Florida Bar Exam has been rescheduled, and it's looking a bit strange.  Here's the format:

Multiple choice subjects will pull from the following areas: Florida Rules of Civil Procedure; Florida Rules of Criminal Procedure; Business Entities; and Wills.  Pretty standard there. But also for this exam you may see multiple choice questions on both Torts and Trusts.  

As for the essays, the subjects include the following: Federal Constitutional Law; Torts; Property; Florida Constitutional Law; Ethics; Contracts, and UCC 3. 

That's what we know for now.  It's less content than is usually required, but the test is made up in a way that certain subjects that were never before tested in a multiple choice format now will be. 

The Florida posts here on the blog through October will focus on the subjects tested on the October exam.


Sunday, August 16, 2020

Florida Bar Exam: Cancelled

Just now hearing the news but it seems that the Florida bar exam scheduled for August 19th has been cancelled.  At the moment, the plan seems to be to have the same test (with the same planned content) for October. I'm sure much more information will come out about all this over the next couple of days. 

The blog here will also be updated to reflect any new information provided by the Board of Bar Examiners.


Friday, August 14, 2020

Florida August Exam

All best to those taking the Florida exam next week (both on the test and with the software!!)

Posting to resume soon after the exam for those taking the September and October exams. 

Tuesday, August 11, 2020

Florida Civil Procedure: Depositions and Interrogatories

There are few certainties on the Florida Bar Exam. So many subjects are tested and much of preparing requires taking reasonable risks by gambling on which subjects are more likely to appear based on available data. One certainty, though, is that Florida Civil Procedure will show up. 

An area to know well is discovery. In Florida, a deposition of a nonparty requires a subpoena to compel the nonparty's attendance. Depositions may be taken orally or by written questions. 

Defendant may provide notice of deposition without court order at any time after served with the complaint. In contrast, plaintiff may not take a deposition within 30 days after service of the complaint except with leave of court or without leave of court but only if the notice states that the person to be examined will go outside the reach of the subpoena power before the 30-day period ends. An early deposition such as this, however, may not be used against a party who is unable to obtain counsel during that time.

Plaintiff must generally go to where the action is pending for the deposition. Defendant's deposition is usually taken at defendant's county of residence or business if it differs from where the action is pending. A corporate defendant's deposition is usually taken at its principal place of business, and a nonparty who is a resident of Florida may be compelled to appear for a deposition only in the county in which the non-party resides, is employed, or transacts business in person. In contrast, a nonparty who resides outside the state of Florida may be deposed only in the county in which that nonparty was served with a subpoena or as fixed by court order. In all instances, depositions must be relevant to the subject matter of the action and cannot be privileged. 

Evidence objected to during a deposition is taken subject to the objection. Any error that might have been cured if the objection had been made is waived if not made at the deposition. However, objections to competency of witnesses as well as competency, relevancy, or materiality of testimony and evidentiary rules such as hearsay and best evidence are not waived even if those objections are not made before or during deposition. 

Depositions may be used for a variety of purposes at trial.  The deposition testimony of a party may be used by an adverse party for any purpose, and the deposition of any person (party or nonparty) may be used by any party to impeach or contradict the deponent as a witness. In addition, the deposition testimony of a any person (party or nonparty) may be used by any party for any purpose if the court finds that the witness is dead or at the time of the hearing or trial is more than 100 miles from its location or is out of state. The same is true if the party or nonparty is unavailable due to illness, infirmity, age, or imprisonment. Lastly, the deposition testimony may be used for any purpose if the following is true: the party or nonparty was unable to be subpoenaed; the party or nonparty is subpoenaed but refuses to appear; or if other circumstances justify use of deposition testimony only. 

If part of the deposition is offered by a party, any adverse party may require that party to introduce any other part that in fairness ought to be considered. If a party is substituted or if the case is first dismissed and then refiled, any previously taken deposition may be used. 

Another avenue for discovery is interrogatories. Written interrogatories may be served on any other party to the lawsuit. The party receiving the interrogatories will then have 30 days to either answer or object. (The defendant will have 45 days after service of the complaint.) Answers are signed by the party and objections are signed by the attorney. When interrogatories are directed towards an organization, answers may be given by an officer of the organization or by an agent designated by the party. 

Interrogatories in Florida may not exceed 30 questions unless the court on motion and for good cause allows a greater number. If challenged, the proponent of the interrogatories exceeding 30 has the burden of justifying the additional questions. 

Thursday, August 6, 2020

Homestead

I remember when studying for the Florida bar exam, the books kept on stressing that homestead is tested often and and that it should be expected to show up on the exam. It didn't show up but I'll give that same advice since it's a long-time favorite.

Homestead is all about protection from creditors that the Florida Constitution provides for certain types of property. Specifically, protected property is residential property owned by a natural person of up to 1/2 acre within a municipality or 160 acres outside a municipality. Also protected is personal property up to $1,000. For homestead protection to apply, the homestead must be established before the judgment creditor's levy on the property. Also note that proceeds from the sale of the homestead retain homestead status if the owner has a good faith intent to reinvest in another homestead within a reasonable time after the sale. 

Those are the basics, but there are some details to know as well. Homestead property as defined above is protected from levy by creditors of the owner but is not protected from forced sale by a creditor if sold to satisfy any obligations associated with the purchase, improvement, or repair of the property (for example, a mortgage or a mechanic's lien). It's also not protected from creditors collecting on taxes or assessment of the property. If fraud is involved in obtaining any kind of a loan, an equitable lien may be placed on the property so that the creditor can collect on the loan regardless of any homestead status of the property.

Homestead protection may be abandoned if the property is abandoned. Abandonment is a question of fact but generally a homestead is abandoned when it is no longer a bona fide home and place of permanent residence. Intent is important here. 

Also important is that homestead property may not be conveyed by one spouse without the other spouse's consent and may be freely devised upon death only if there are no surviving children or spouse. This aspect of homestead protection, however, may be waived in an antenuptial agreement.


Tuesday, August 4, 2020

Florida Constitutional Law: Bonds

Florida Constitutional Law is a favorite of the Florida Board of Bar Examiners. I've noticed from teaching this exam for quite a few years that many are hoping that if the subject is tested, bonds and other financing issues don't show up. As such, a post about bonds. 

Florida has to balance its budget. To that end, it may borrow money but not for ordinary operating expenses. Rather, it may borrow for capital improvements (roads, airports, buildings, etc.). For these purposes, the state may borrow by issuing bonds, and two types of bonds that the state may issue are revenue bonds and general obligation bonds.  It's essential to understand the differences well.

Revenue bonds designate and limit the source of funds from which repayment is made. The source of these funds are generated from the project for which the bond was issued. So if bonds are issued to build a road, the source of the funds that will be used to pay back the loan could come from the tolls that people will pay to use the road. Importantly, bondholders (those who are waiting to be paid back) may not look to funds raised from general taxation or other non-designated sources. 

General obligation bonds pledge the full faith and credit of the issuer (in this case the state) to use the general taxing power to raise funds to repay the loan. Though these bonds are valid, if they are to be payable from ad valorem taxes (taxes that a local government levies on real property and certain items of personal property) and if these taxes will mature more than 12 months after issuance, then they must be approved by the electors. There are exceptions to this 12-month rule, however: bonds financing pollution control, property acquisition for state roads, construction of state bridges, water projects, school construction, and local road acquisition and construction are exempt. 

On the topic of balancing the state budget, one final point should be noted: the governor and cabinet are authorized to establish reductions necessary to achieve a balanced budget. Each branch of government implements its own reductions. 

Tuesday, July 21, 2020

Good Luck!

It's surprising (very!) to me that there are any bar exams happening in July. That said, it seems that there are and best of luck to those who will be taking it next week. Posting will resume shortly to assist those who will be taking the August exam in Florida as well as the September exam or the October remote exam.