Multistate Basics Sample Questions & Answers

Note: The sample interrogatories do not appear in the same order as they do in the actual materials.

A1. The doctrine of abstention holds that a federal court will abstain from ruling on the constitutionality of a state law until the courts of that state have had an opportunity to decide the issue themselves. This doctrine is not in the constitution. It is informal, but obeyed by all federal courts.

A2. A testifying expert is one that a party intends to call as a witness at trial. A consulting expert is one that assists a party in preparation of litigation, but is not expected to be called at trial. This distinction is important.

Testifying Expert: The opposing party can obtain any materials, information, and opinions prepared by the testifying expert before trial and CAN depose the testifying expert before trial.

Consulting Expert: The opposing party is generally NOT entitled to materials, information, and opinions from a consulting expert. The opposing party usually CANNOT depose a consulting expert before trial. The only time a consulting expert can be deposed or required to produce materials, information, and opinions is if the opposing party can show “exceptional circumstances,” i.e., that discovery of similar information would present a special difficulty.

A1. Contributory negligence will not be a defense when the defendant’s actions rise to the level of being willful, wanton or reckless and plaintiff’s conduct constitutes only slight or ordinary negligence. Willful, wanton or reckless behavior is tantamount to intentional actions. This exceeds even gross negligence.

A2. Malicious prosecution involves the malicious institution of criminal proceedings against a person. To prevail, the plaintiff must show that (1) the defendant lacked probable cause, and (2) that the criminal proceeding was terminated in the plaintiff’s favor. To satisfy the “malice” element of this tort, the plaintiff must prove that the defendant’s primary motive for instituting the proceedings was not to bring the plaintiff to justice, but some other ill motive.

A1. Standing and ripeness are sometimes confused insofar as they both require actual or imminent injury. The difference is that ripeness concerns the matter at hand: a law has injured or will injure someone imminently; exactly who doesn’t matter. What is important is that there is a live (“ripe”) case or controversy for the court to decide.

Standing refers to the rights of a particular person. If a particular person cannot show injury or imminent injury, then they have no standing. The case may still be ripe if another person can show injury or imminent injury.

A1. A court has the option of excluding relevant evidence if it would mislead the jury, cause undue delay, confuse the issues, or result in unfair prejudice. It must be stressed that only evidence that is unfairly prejudicial will be excluded. Most evidence is prejudicial in one way or another. The goal in a trial, after all, is to prejudice the trier of fact against your opponent. This rule just makes sure that such prejudice is not unfair.

A2. “Overbreadth” refers to the fact that a law prohibits things that are in fact legal in addition to prohibiting illegal conduct. Thus, since such a law prohibits legal conduct, it would be a violation of substantive due process to allow a conviction under such a law.

Example: The Supreme Court struck down a law that made it illegal to use opprobrious language towards a police officer. Since “opprobrious” language includes protected speech as well as unprotected speech, the law was struck down as being overbroad.

“Vagueness” refers to the fact that a law is not capable of being comprehended by a citizen of ordinary intelligence. This is a violation of procedural due process. Why? Because the cornerstone of procedural due process is notice. If a law is vague and cannot be understood, then it does not provide notice of what is forbidden. Thus, to convict someone of a crime without first giving them notice of the law violates procedural due process.

Example: A state statute that made it a crime to use “offensive” language would be vague since the term “offensive” means many different things to many different people.

A1. Yes. Information that would be inadmissible at trial can nevertheless be used to develop probable cause for the issuance of a search warrant. There is no requirement that evidence used for a showing of probable cause be admissible at trial. Thus, hearsay statements and a person’s criminal record may be considered by a magistrate when deciding to issue a search warrant. Of course, evidence obtained in violation of the exclusionary rule (i.e., 4th, 5th, or 6th Amendments) could not be considered by the magistrate.

A2. Anyone with specialized knowledge, skill, experience or training can be qualified as an expert and give their opinion. For example, a heroin addict is an expert on heroin addiction and could be qualified as an “expert” by the judge!

A1. As is the case with first degree intent-to-kill murder, the defendant who commits voluntary manslaughter had the intent to kill. However, if the defendant was acting in the heat of passion when he or she committed the murder, the crime will be reduced from first degree premeditated murder to voluntary manslaughter. In basic terms, first degree intent to kill murder is “cold blooded” murder; voluntary manslaughter is “hot blooded” murder since it occurs in the “heat of passion.” To reduce a charge of intentional murder to voluntary manslaughter, the defendant must show that:

1. A. A reasonable person would have felt provoked AND
B. This defendant felt provoked.
AND
2. A. A reasonable person would not have had time to cool off AND
B. This defendant did not cool off.

This is really a two-part test measured both objectively (would a reasonable person have felt provoked?/could a reasonable person have cooled off?) and subjectively (did this person feel provoked?/was this person unable to cool off?)

A2. Consent will operate as a valid exception to the warrant requirement only when it is (1) voluntarily and knowingly given by (2) someone who had actual or apparent authority to give consent.

(1) Voluntarily & Knowingly. This element is a favorite on the essay section of the test. This element will usually be at issue if the person giving consent is NOT an adult.

Example: If the police come to search my house without a warrant and my 14-year old daughter gives them permission to enter and search, is the consent valid? There is no clear answer here. You must advocate! If you are my attorney, you would argue that consent was not valid because my 14-year old daughter could not understand the legal significance of the search and therefore her consent was not “knowing.” You could also argue that she was intimidated by the police because of her tender age and therefore her consent was not “voluntary.” The prosecution would argue that consent was “voluntary” and “knowing” because a 14-year old has the maturity to understand what will happen if she gives her consent. You must marshal your facts to support whichever side you are representing.

(2) Actual or Apparent Authority. This element will usually be at issue if the person giving consent IS an adult. Thus, the consent can be valid even if the person granting it did not have actual authority. This assumes, of course, that the police can show that they had a good-faith reason to believe that the person who gave consent had the apparent authority to do so.

A1. A mortgage is an interest in real estate. It is created by a written instrument providing security for the performance of a duty or the payment of a debt. Accompanying the mortgage is a promissory note. The note acknowledges that the mortgagor (e.g., homeowner) promises to pay the mortgagee (e.g., the bank) the money she borrowed plus interest. The mortgage is the instrument that gives the bank the interest it has in the property. Should the mortgagor default, the bank would commence the process of foreclosure. Once this process is completed, all interests the mortgagor had in the property are terminated. The property then belongs to the bank.

A2. There are two categories of involuntary manslaughter. Category 1 is “criminally negligent” manslaughter. Category 2 is “unlawful act” manslaughter.

Criminally negligent manslaughter usually requires a degree of negligence that exceeds the level of negligence needed to establish tort liability. Thus, if someone dies because of another person’s negligence, it is not automatically involuntary manslaughter. Look for facts that would indicate that the defendant acted recklessly or wantonly. Ordinary negligence will usually not suffice for a charge of involuntary manslaughter.

Example: A nightclub owner who failed to provide sufficient fire exits was convicted of involuntary manslaughter when a fire killed 490 persons at his club. Since a person of ordinary intelligence would have appreciated the danger, he had no defense in claiming that he was not aware of the risk.

Example: A skier in Colorado skied into another person resulting in the latter person’s death. Eyewitness testimony established that the defendant skier was going down the mountain at a reckless speed, thus warranting a conviction of criminally negligent manslaughter.

Unlawful act manslaughter is the proper charge when a death occurs during the commission of, or because of, an unlawful act. This includes acts that are misdemeanors and felonies. A death that occurs during the commission of a felony that would not support a charge of felony murder is involuntary manslaughter.

Examples of felonies that would not support a charge of felony murder are selling alcohol to minors, statutory rape, or forging a prescription for drugs, and so on. A death that occurs during these felonies would be involuntary manslaughter, not felony murder.

A2. A special warranty deed is one in which the grantor warrants that HE did not create any defects in the title to property. However, this warranty does not protect the grantee from defects in title created by prior holders of the property. Thus, the grantee should get title insurance to protect against defects not created by the grantor.

Compare this with a general warranty deed which, as stated in Answer 34, supra, contains a covenant for quiet enjoyment, a covenant of warranty, and a covenant for further assurances. These three warranties protect the grantee against title defects created by third parties.

Don’t be fooled by the name! A “special” warranty deed gives the holder of land much less protection than a general warranty deed.

A1. An option contract is one where the offeror suspends her power to revoke the offer for the duration of the option contract in exchange for consideration received from the offeree.

A2. Legally speaking, duress is any serious & immediate threat to one’s life, limb or property. Duress will allow a party to avoid a contract when it can be shown that the party benefitting unreasonably from the contract actually caused the duress.

Example: I come upon a man dying of thirst as I am driving through the Arizona desert and I charge him $1,000 for a bottle of water. He may not avoid the contract on grounds of duress. The contract may be unconscionable, but it was not the product of duress. Duress would succeed as a defense only if it could be shown that I was responsible for getting him stranded in the desert in the first place.

A1. The difference between a good and a service is not as clear cut as you might think. A “good” in some situations will be considered to be a “service” in another context. This distinction is important because services are not covered by Article II of the U.C.C.

To determine whether something is a good or a service, look to the “primary nature” of the transaction. For example, a mechanic might put oil and transmission fluid in your car during a tune-up. In this situation, the oil and transmission fluid are part of a service and are not goods. Thus, in this situation, they are not covered by Article II of the U.C.C.

If you were to go to an automotive supplies store and buy oil and transmission fluid, they would be goods since the “primary nature” of the transaction was goods.

Another example: if you receive blood during surgery, the blood is a service because the primary nature of the transaction is a service, i.e., surgery.

A2. An express warranty is one that is expressly given by the seller to the buyer at the time the sale is consummated. In order to be an express warranty, the buyer must prove that the express warranty was the “basis of the bargain.” To be the “basis of the bargain,” the warranty must be given contemporaneously with the sale so that the buyer could have relied on it. The buyer does not have to show that they actually knew of or relied on the warranty, or that it was the deciding factor in the sale. The buyer only has to prove that they “could have” relied on such information. If the chattel does not perform in accordance with the warranty, the buyer has a cause of action against the seller for breach of express warranty.

An express warranty can arise in one of three ways:

  1. Oral or written representations about what the chattel will do, e.g., “this bug spray will repel mosquitos.”
  2. An oral or written detailed description of what the chattel is made of, e.g., “this bug spray contains 30% DEET.” [DEET is a powerful insect repellant.] OR
  3. A sample or model. This will create an express warranty that all the goods conform to the sample or model.

Two important things should be noted about express warranties. First, if the seller gives an express warranty to a buyer, the seller may not legally include language in the contract that disclaims or counteracts the warranty. Of course, on the bar exam, this is exactly what the seller will try to do. It is up to you to point out to the bar examiner that any such language will have no legal effect.

Second, if there is no express warranty in the contract, point this out to the bar examiner before you discuss whether there are any implied warranties.

One last thing: Don’t let the bar examiners fool you by basing the essay on an atypical chattel. Pets – dogs, cats, and bunnies – are chattels. So are camels.

A1. Yes. Future interests are presently protectable. Since the holder of a reversion may ultimately become the owner of the property, she may properly object to “waste” committed by the present holder of the estate.

A2. An easement by prescription is one that is acquired in a manner similar to adverse possession. To succeed, the claimant must show that she made actual use of the land, and that this use was open & notorious, hostile, and continuous for the statutory period.

Unlike adverse possession, the element of exclusivity is not required with an easement by prescription since the easement holder is not excluding anyone from the land.