Thursday, December 5, 2019

Defamation: Standards of Fault

Defamation is often an entire course in law school so it's certainly a complicated tort. There's more to know for the MBE than will be written in this post but what's written in this post is likely the most important information you'll need to know for defamation on the exam. The type of fault that a plaintiff must prove will depend upon the status of the plaintiff.

Public Figures:

Some plaintiffs are public figures. A person becomes a public figure by achieving a pervasive fame or notoriety or by voluntarily assuming a central role in a specific public controversy. Those who voluntarily assume a central role in a specific public controversy are often described as "limited-purpose public figures."

Classifying the plaintiff as a public figure is important because to win a defamation case, public figures must prove a higher degree of fault. Specifically, public figures (limited and otherwise) must prove "actual malice" which is defined as knowledge that the statement made about plaintiff was false at the time the statement was made or a reckless disregard as to the falsity of the statement. This is a subjective test so it will not be helpful to ask whether a reasonable person would have or should have known that the statement was false. The mindset of the actual defendant here is what matters.

Private Figures:

Unlike with public figures, for a private person to prove defamation only negligence is required. In this context that means that a reasonable person would have or should have realized that the statement made by defendant was false. Unlike the test for a public figure, this is an objective test.  Negligence is only constitutionally required, however, if the statement is a matter of public concern. If the statement is not a matter of public concern then constitutional restrictions will not apply but state law might still require a showing of some degree of fault such as negligence.

Also worth noting is that although a private figure is required to prove negligence in situations involving a matter of public concern, it might still be in the interest of a private figure to go the step further and prove actual malice. Where negligence is proven, only actual injury damages (damages to reputation, etc.) are recoverable by plaintiff. But if actual malice is proven, damages may be presumed and punitive damages are likewise recoverable.

Tuesday, November 26, 2019

Hearsay Exemptions

On the MBE, you'll need to distinguish between hearsay exceptions and hearsay exemptions. The reason for this is straight-forward: one answer choice might read "non-hearsay" (which indicates that a hearsay exemption applies) and another might read "hearsay but an exception" (which indicates that a hearsay exception applies).

So, that said, let's learn the exemptions.

Prior Statements by Testifying Witnesses:

The first category of hearsay exemptions falls under the umbrella of statements by a testifying witness. If a prior statement is inconsistent with the testifying witness's in-court testimony and if that prior statement was made under oath at a prior proceeding, the statement will be deemed non-hearsay as an exemption and may be offered for its truth. Note that if that prior statement by the witness wasn't made under oath it can still be used to impeach the witness but because it wasn't made under oath it will not be deemed an exemption to the hearsay rule and will not be admissible to prove the truth of the matter asserted.

In addition, a prior statement that is consistent with a testifying witness's in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating or offered to rehabilitate a witness whose credibility has been impeached on some other ground will be admissible as an exemption to the hearsay rule.

Lastly, a prior statement of identification of a person as someone the witness perceived earlier even if the witness cannot now remember the identification is properly admissible as an exemption to the hearsay rule.

Statements (or admissions) of a Party Opponent:

When one party offers a statement made by an opposing party, that statement is non-hearsay under the Federal Rules.  There are a few to look out for:

--Judicial admissions: Statements made in pleadings, stipulations, etc., are all admissions when offered by an opposing party.

--Adoptive admissions: If a party remains silent when a reasonable person would have responded in the face of an accusation, the silence may be considered itself as an implied admission but only if the party to be charged with the admission heard and understood the accusation and was both physically and mentally capable of denying it. It also must be true that a reasonable person would have denied the accusation. Importantly, silence in the face of an accusation by police in a criminal case is very rarely considered an admission by silence.

Vicarious Admissions:

Because there are quite a few of these, I consider them their own category.

--Authorized Spokesperson: Statements of a person authorized by a party to speak on that party's behalf can be admitted as a non-hearsay exemption against the party.

--Principal-Agent: Statements by an agent or employee concerning any matter within the scope of the agency or employment made while the agency or employment relationship exists are non-hearsay.

--Partners: After a partnership exists, an admission of one partner relating to matters within the scope of the partnership business is admissible as a non-hearsay statement.

--Co-Conspirators: Admissions of one co-conspirator made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy are admissible as a non-hearsay exemption against all co-conspirators.

And one last point to note: Before admitting any statement as one of the above non-hearsay vicarious admissions, the court must make a preliminary determination of the declarant's relationship with the party against whom the statement is offered to ensure that a relationship exists that would warrant the exemption.

Thursday, November 14, 2019

The Uniform Prudent Investor Act

Not the most exciting of legal topics here but if you review the trust essays that have appeared on the UBE in the past, this pops up from time to time. The idea here is that in a "prudent investor" jurisdiction, only prudent investments are permissible regardless of the trust's terms.

There are similarities between the standards here and the standards learned when studying negligence. A trustee must exercise reasonable care, skill, and caution when investing and managing trust assets. But a trustee with special skills or expertise who has represented him/her self as having such skills will have to use such skills or expertise when investing.

Further, a trustee must act exclusively for the beneficiary when investing and managing trust assets. If there are multiple beneficiaries, the trustee must act impartially never benefiting one or more than one at the expense of others.

Importantly, investment decisions must be evaluated in the context of the entire trust portfolio and as part of an overall investment strategy. In other words, risk is often inherent when investing and so the fact that certain investments might seem risky should not lead to a conclusion that the trustee has not acted with prudence, especially if those risky investments were balanced with safer investments. A trustee should always diversify investment unless it is reasonably determined that the purpose of the trust is better served absent diversification.

When analyzing this issue of compliance or non-compliance with the Prudent Investor Act, there are certain elements to address. Some of those elements are as follows: general economic conditions; the possible effect of inflation or deflation; the expected tax consequences of investment decisions or strategies; the role that any individual investment plays within the overall investment strategy; the expected total return from income and appreciation of capital; other resources for the beneficiaries; needs of the beneficiaries for liquidity and regularity of income, etc.

A trustee who acts in substantial compliance with the Prudent Investor Act will not be held liable for non-compliance. A trustee may also delegate investment decisions but in doing so the trustee must act prudently in selecting an agent, establishing the scope and terms of the delegation, and reviewing the agent's investment decisions.

Thursday, November 7, 2019

UBE Essentials Volume 1 (Sample)

Below is a sample from the chapter on Corporations and Limited Liability Companies from UBE Essentials Volume 1.

The book, downloadable here on the blog, contains 9 chapters with each chapter covering a different subject tested on the Uniform Bar Exam. In total there are 471 questions and answers in the book covering the span of these 9 subjects.

The book is available for immediate download here:

UBE Essentials Volume 2 is available for immediate download here:

And a package of UBE Essentials Volume 1 & 2 is available for immediate download here:

Thursday, October 31, 2019

Res Ipsa Loquitur

Res ipsa loquitur directly translates to "the thing speaks for itself."  It doesn't always do as good a job of explaining itself and so I'll attempt to do that here.

Res ipsa loquitur should be considered when analyzing the tort of negligence; specifically, when addressing whether a duty of care has been breached. Generally, a breach occurs when defendant's conduct falls short of the standard of care required of any specific defendant.

There are a variety of theories that plaintiff might use to prove that defendant breached the duty of care required of that specific defendant. Perhaps defendant skewed from the custom that reasonable people generally adhere. It should be noted though that custom is not dispositive and it's especially important to note that just because defendant adhered to custom doesn't end the inquiry. After all, the custom itself might not be reasonable.

Another theory to prove breach is violation of a statute. Existence of a duty owed to plaintiff and the violation of that duty may be established by proof that defendant violated a statute. This is known as "negligence per se" and it merely establishes breach. Causation and damages must still be proven.

Sometimes, however, there is no direct evidence of an act that might be used to establish breach of the duty of care. Instead, circumstantial evidence of negligence is required. When there is no direct evidence, you should consider res ipsa loquitur.  It's a doctrine that allows for the inference of negligence from the very nature of the accident or injury. In other words, the fact that the act or injury occurred may in some circumstances tend to establish that a duty was breached.

There are specific elements to infer breach of duty based on res ipsa loquitur. Plaintiff must show that the accident causing the injury is a type that would not normally occur unless someone were negligent. The logic here is that because the injury would not normally have occurred unless someone had been negligent, it's reasonable to infer that someone was negligent since the injury did occur. Plaintiff must also show that the inferred negligence is attributable to defendant and this is often proven by the fact that defendant was in exclusive control of the instrumentality that caused the injury.

If res ipsa loquitur is established so that breach of the duty of care is inferred, plaintiff has then established a presumption of negligence so that no directed verdict may be granted for defendant on that issue. This isn't a win for plaintiff, though; the presumption or inference of negligence may still ultimately be rejected.

Friday, October 18, 2019

UBE Essentials Volume 2 (Sample)

Below is a sample from the chapter on  UCC Article 9 (Secured Transactions) from UBE Essentials Volume 2.

The book, downloadable here on the blog, contains 9 chapters with each chapter covering a different subject tested on the Uniform Bar Exam. In total, there are 499 questions and answers in the book covering the span of these 9 subjects.

The book is available for immediate download here:

UBE Essentials volume 1 is available for immediate download here:

And a package of UBE Essentials Volumes 1 & 2 is available for immediate download here:

Wednesday, October 16, 2019

Modification of Trusts

When I work on essay writing with students, they have the option to choose which subjects to focus on throughout the essays. Somewhere near the top of the list is Trusts. It's a difficult subject that is tested often. A topic that shows up with some frequency is the modification of a trust. A trust can be modified by the settlor, by the beneficiaries, by the court, or by the trustee.

The Settlor: A settlor can modify a trust unless the terms expressly state that the trust is irrevocable. Some states hold that a trust is irrevocable unless expressly stated otherwise, but this is not the rule on the Uniform Bar Exam which follows the Uniform Trust Code.

The Beneficiaries: A trust may be modified upon the consent of the settlor and all beneficiaries even if such modification or termination conflicts with a material purpose of the trust. If only the beneficiaries consent without the consent of the settlor, the trust may still be modified but only if no material purpose of the trust would be frustrated by the modification. If there is no material purpose frustrated and all beneficiaries consent to termination of the trust, the trustee must upon termination of the trust distribute the trust property to the beneficiaries.

The Court: Assume here that modification by the beneficiaries alone is not available since not all beneficiaries have consented to modify the trust. A court may still modify if the trust could have been modified had all beneficiaries consented (no material purpose would have been frustrated) and if the interests of any non-consenting beneficiaries will be adequately protected. In addition, a court may also modify a trust if unanticipated circumstances threaten the purpose of the trust, continuation of the existing trust is impracticable, or if the value of the trust is insufficient to justify the cost of administering the trust.

The Trustee: A trustee can modify (terminate) a trust if the trust purpose is less than $50,000 and the amount is insufficient to justify the cost of administering the trust as long as the trustee provides the beneficiaries with notice. A trustee can also modify a trust by combining several trusts into one trust or by dividing one trust into several trusts provided that doing so does not frustrate any purpose of the trusts or impair the rights of beneficiaries. Notice to the beneficiaries is required of such an intent to combine or divide trusts but obtaining consent from the beneficiaries is not.

Thursday, October 10, 2019

Discovery: Disclosure of Expert Testimony & Pretrial Disclosure

In a recent post, I posted about the initial disclosures required of parties as part of discovery. This post will focus on an additional two types of required disclosure: disclosure of expert testimony, and pretrial disclosure.

First, a party must disclose to other parties the identities of expert witnesses expected to be used at trial. If the expert has been specially retained to provide expert testimony or if the expert regularly gives expert testimony as an employee of the party then there is an additional requirement that the disclosure of the expert include a report prepared and signed by the expert stating the expert's qualifications, the opinions to be expressed, the basis of those opinions, and a list of cases in which the expert has testified over the previous 4 years. Also required is the compensation of the expert, among other items. If these additional disclosure rules do not apply to a given expert then only the following must be disclosed: the identity of the expert; the subject matter on which the expert is expected to present evidence; and a summary of the facts and opinions to which the expert is expected to testify.

These disclosures must be made at the time directed by the court or in the absence of such directives, any time period stipulated by the parties provided the time is at least 90 days before trial. If the evidence is intended solely to rebut another party's disclosure of expert testimony, it must be made within 30 days after disclosure of the evidence rebutted.

Also required are pretrial disclosures. At least 30 days before trial a party must disclose the following: the witnesses the party expects to call at trial; the witnesses the party will call if the need arises; the witnesses whose testimony will be presented by deposition along with a transcript of the pertinent portions of the deposition; and a list of documents or exhibits the party expects to offer or might offer if needed.

Within 14 days after this disclosure, the recipient party may serve objections to use of the depositions at trial and to the admissibility of disclosed documents and exhibits. Such objections are waived if not made in that time period except for objections that the evidence is irrelevant, prejudicial, or confusing under Federal Rules of Evidence 402 and 403.

Tuesday, October 8, 2019

MBE Essentials (Sample)

Below is a sample from the chapter on Real Property from MBE Essentials.

The book, downloadable here on the blog, contains 9 chapters with each chapter covering a different subjects tested on the MBE. In total, there are 514 questions and answers in the book covering the span of these 9 subjects.

The book is available for immediate download here:

Thursday, October 3, 2019

Discovery: Initial Disclosures

A party to a lawsuit must make a reasonable inquiry into the facts of the case and then disclose all information then reasonably available that is not privileged or protected by work product. Without waiting for a discovery request a party must make initial disclosures. Initial disclosures include the following:

--The names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses unless the use would be used solely for impeachment.

--Copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party's possession or control that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

--A computation of damages claimed by the disclosing party and copies of material upon which the computation is based.

--Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

All of the above must be made within 14 days after the conference of the parties at which they plan discovery unless a different time is set by court order or by stipulation.

Worth also noting that initial disclosures such as those stated above are not required in cases such as actions to review an administrative record, actions to enforce an arbitration award, pro se litigation brought by prisoners, actions to quash or enforce subpoenas, and habeas corpus petitions.

Monday, September 30, 2019

Florida Bar Exam Essentials Volume 3 (Sample)

Below is a sample from the chapter on Juvenile Delinquency from Florida Bar Exam Essentials Volume 3.

The book, downloadable here on the blog, contains 8 chapters with each chapter covering a different subject tested on the Florida Bar Exam. In total, there are 372 questions and answers throughout the book covering the span of these 8 subjects.

The book is available for immediate download here:

Florida Bar Exam Essentials Volume 1 is available for immediate download here:

Florida Bar Exam Essentials Volume 2 is available for immediate download here:

And a package of Florida Bar Exam Essentials Volumes 1, 2, and 3 is available for immediate download here:

Thursday, September 26, 2019

Shareholder Voting

I often hear from students that Corporations is a dry subject. I can't deny that but it's also tested with relative frequency on the essay portion of the UBE. One area you might be required to know well is shareholder voting.

Voting generally takes place at shareholder meetings and only shareholders of record on the record date may vote at the meeting. The record date may not be more than 70 days before the meeting and if a record date is not set it is deemed to be the day the notice of the meeting is mailed to the shareholders. Unless provided otherwise (as in, for example, the articles of incorporation), each share held by a shareholder is entitled to one vote.

A shareholder need not vote his/her shares in person. Instead, the shareholder can execute a proxy in writing which will entitled another to vote the shares. Proxies are valid for 11 months unless provided otherwise and are generally revocable at the will of the shareholder. A proxy will be irrevocable only if it so states and if it is coupled with an interest or given as a security to another. There can be no fraud, material misstatements, or omissions in connection with the solicitation of proxies.

For a vote to take place at a shareholder meeting, there must be a quorum. A quorum is usually a majority of outstanding shares entitled to vote unless the bylaws of the corporation or articles of incorporation require a greater number. Notably, once a quorum is present, it is not broken by withdrawal of shares at the meeting.

If a quorum is present, shareholders will be deemed to have approved a matter if the votes cast in favor of the matter exceed the votes cast against it. Once again, the bylaws or articles can adjust this requirement by requiring a greater proportion. Directors, however, may only be elected by a plurality of the votes cast.

As stated above, the general rule is that each share held by a shareholder is entitled to one vote. The articles of incorporation may instead provide for cumulative voting when electing directors. Under cumulative voting, each shareholder is entitled to vote a number of votes equal to the number of the shareholder's voting shares multiplied by the number of directors to be elected. That total can be divided among various directors or may be cast in total for just one director.

For example, assume a shareholder with 10 shares is participating in a vote for 2 open board seats. Under a cumulative voting scheme the shareholder would have 20 votes to cast.

Worth noting is that in certain situations shareholders may take action without a meeting. To act without a meeting though will require unanimous written agreement of all shareholders entitled to vote.

Friday, September 20, 2019

Default Rules (Article 9 UCC)

For sure, three areas to know well for Article 9 UCC on the MEE are attachment, perfection, and priorities. Another area that is tested that is often overlooked is default. Specifically, the rules that determine the responsibility of the secured party as to the collateral after the debtor has defaulted by not paying back the loan.

The secured party (the creditor) has some options. The secured party can sue on the debt itself, take possession of the collateral (importantly, only if doing so will not be a breach of the peace),  or sell the collateral by a public or private commercially reasonable sale and then collect any deficiency after sale.

In the case of a sale, the debtor as well as other secured parties (if any) are generally entitled to notice. The notice must be sent within a reasonable time and must be detailed as to the parties, collateral, time and method of sale, etc.

A detail worth noting is that if the debtor has paid 60% of the cash price on a purchase money security interest ("PMSI") in consumer goods or 60% of the loan on a non-PMSI in consumer goods, the secured party must dispose of the collateral within 90 days after re-possessing it or the debtor will be entitled to recover it in conversion. This rule is very specific to consumer goods (a type of collateral). With respect to any other type of collateral, the secured party may retain the collateral in full satisfaction of the debt but only if the debtor consents to the retention in an authenticated record after default or if the debtor (or any other secured party) does not object to the retention within 20 days after notice is sent by the secured party.

Until the secured party has sold the collateral or has discharged the debt by retention of the collateral, the debtor or other secured party may redeem the collateral by paying all obligations plus additional reasonable expenses.

If a secured party fails to follow the requirements as to how to handle the collateral after the debtor has defaulted, the secured party will be liable for actual damages caused by that failure which could amount to entirely denying the secured party the right to collect a deficiency from the debtor or allowing the secured party to recover a deficiency but subtracting from that amount any actual damages that the debtor can prove has resulted from the secured party's failure to follow the default rules.

Thursday, September 5, 2019

Nonconforming Uses

I've written previously about certain topics on the subject of zoning that are showing up with greater frequency on the MBE and on the MEE. This post will dig a bit deeper into one of those topics: nonconforming uses.

The purpose of a zoning ordinance is to prevent certain land uses within the zoned area. These ordinances are generally enacted by municipalities to control and direct the development of property within their borders. But even those ordinances that prohibit a given use may allow others to continue the now-prohibited use of their property if they were using their property in the now-prohibited way prior to the ordinance taking effect.

These uses that are allowable notwithstanding the zoning ordinance are known as nonconforming uses and are said to be justified both on grounds of fairness and practicality. The goal of the nonconforming use doctrine is to protect prior investments. Problems arise when a person attempts to take a prior use and change it in such a way that in effect a new investment is created.

The takeaway here is to remember that a nonconforming use cannot be extended or intensified in ways that constitute a substantial change to the property. In contrast, insubstantial changes are allowable and in general repairs to the property that render the property practicable for current purposes will be deemed as insubstantial changes. Doubts as to whether a change is substantial or insubstantial are generally resolved against the change, however.

The basis for disallowing substantial changes to the property that is claiming protection under the nonconforming use doctrine is that the policy behind allowing nonconforming uses is aimed at protecting investments undertaken prior to the zoning ordinance. But when the property undergoes substantial change, it's more likely that the nature of the investment is changed in such a way that the changes are intended to protect a future investment rather than a prior one. And because the protection of future investments was never a policy driven by the doctrine, the use of that property with the substantial changes will lose its status as a protected nonconforming use and may then violate any zoning ordinance in place at that time.