Asked & Answered: The Multistate Bar Exam

MBE Fast Fact: Contracts

2012-02-22T10:33:00.001-08:00

A few points to remember regarding the offer: Under the common law, the offer can be revoked at any time provided that the offeree has not provided some kind of consideration to keep the offer open. If consideration has been provided, then an irrevocable option contract has been formed. But don't stop there. Even under the common law, the offeror may not be able to revoke the offer, if the offeree has detrimentally relied on the offer. Always consider promisorry estopple as a substitute for consideration. Also keep in mind that if an offeree rejects the offer in an option contract, he will still be able to later accept that offer, provided he does so in the time specified in the option contract. This will not apply if the offeror detrimentally relies on the offeree's rejection.

Under the UCC, the rules change. Even if the offeree has not provided any consideration to keep the offer open, the offer will still be irrevocable if it was made by a merchant, and that merchant provided a signed offer giving assurances that the offer would be held open. The offer will be irrevocable for a reasonable time, or the stated time period, not to exceed 3 months.

MBE Fast Fact: Property

2012-02-21T09:35:00.000-08:00

This is a quick one to remember. A joint tenancy cannot be devised by will. So, A and B own property as joint tenants. In A's will, A devises his interest in that property to C.

A dies.

At this point B owns the property in its entirety as the property passed to B because of B's right of survivorship inherint in all joint tenancies. A does not share the property with C as tenants in common.

But, assume that, rather than leaving the property to C in A's will, A had taken out a mortgage on the property (in a title theory state), and C was the mortgagee, or A had conveyed the property to C within A's lifetime. A joint tenant can do both, and in those situations, B and C would share the property as tenants in common.

MBE Fast Fact: Evidence

2012-02-20T10:07:00.000-08:00

A few points to remember about Judicial Notice. There are two types of facts that can be accepted as true without formal presentation of evidence: Notorious facts, and manifest facts. Notorious facts are those facts that are indisputable and are matters of common knowledge. Manifest facts are indisputable facts that are not matters of common knowledge, but are capable of verification by resort to easily accessible sources of unquestionable accuracy. Only when dealing with adjudicative facts (facts relating to the case at hand) need you determine whether the fact is manifest or notorious. Legislative facts (those outside the scope of the case at hand, and dealing more generally with lawmaking) need not be either manifest nor notorious in order to be judicially noticed. In regards to procedure, a court can take judicial notice of a fact whether or not it is requested to do so by a party to the lawsuit, but if a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken of that particular fact. Finally, a judicially noticed fact is conclusive in a civil case, but not in a criminal case. In a criminal case, it's permissible to instruct the jury that it may accept as conclusive any judicially noticed fact, but it's not permissible to instruct the jury that it must accept as conclusive any judicially noticed fact.

MBE Fast Fact: Torts

2012-02-19T08:01:00.001-08:00

An issue I've seen tested with increasing frequency is the recoverable damages in a strict liability case. Remember that on the MBE, if you merely suffer economic damages (and no physical injury accompanying those economic damages), recovery for strict liability (including strict products liability) will not be allowed. Rather, if the case is one of strict products liability, and the plaintiff merely suffers economic damages due to the defectively designed or manufactured product, the best move for the plainitff is to sue on a theory of breach of warranty, as breach of warranty allows for recovery for economic damages even if those damages are not accompanied by any physical damages to the plaintiff.

Anticipatory Repudiation

2012-02-15T19:19:00.000-08:00

Question:

I was looking at some practice MBE contract questions, and was really confused around the area of anticipatory repudiation - ie when it's triggered. For example, if two parties have contracted with each other for a service, and one party expresses some doubt as to their performance in the contract, can the other party cancel the contract due to anticipatory repudiation? I cant get around the topic for some reason! Any advice would be greatly appreciated!

The practice question I was looking at is the following:

On March 1, an excavator entered into a contract with a contractor to perform excavation work on a large project. The
contract expressly required that the excavator begin work on June 1 to enable other subcontractors to install utilities. On
May 15, the excavator requested a 30-day delay in the start date for the excavation work because he was seriously behind
schedule on another project. When the contractor refused to grant the delay, the excavator stated that he would try to begin
the work for the contractor on June 1.
Does the contractor have valid legal grounds to cancel the contract with the excavator and hire a replacement?

Response:

It's important to remember that anticipatory repudiation must be unequivocal, and not simply an expression of doubt. The options available to the nonrepudiating party are to sue immediately, suspend his own performance and wait for the repudiating party to perform, treat the repudiation as an offer to rescind the contract, or ignore the repudiation entirely.

Let's assume, however, that X has reason to believe that Y will not perform his end of the bargain when performance is due (because Y has expressed some doubt as to his ability to perform,) but Y has not unequivocally stated as such. All of the options as stated above are not available, as there has not been an anticipatory repudiation. X, however, can suspend his performance until he receives adequate assurances that Y will perform. And, if those assurances are not provided, then X can treat the contract as repudiated, and all options for anticipatory repudiation are once again fair game.

Addressing the facts in the question above, and applying the rules as stated in this post, it follows that when the excavator expressed some doubt as to whether he would be able to perform his obligations under the contract by the agreed upon date (ie, he would try to begin the work by June 1st), that expression of doubt did not rise to the level of unequivocal repudiation, and therefore the contract was not repudiated by the excavator. An option may be available for the contractor to suspend his own performance due to the excavator's prospective inability to perform, but if the excavator provides assurances that he will, in fact, perform by the agreed upon date, then the options for the contractor end there.

Mistake of Fact vs. Factual Impossibility

2012-02-14T18:35:00.000-08:00

Could you clarify the difference between mistake of fact defense and factual impossibility and how they each apply (or don’t apply) as a defense to specific intent and general intent crimes?

Response:

It's very important to keep the differences here in mind, for the exact reason stated in the question. Specific intent crimes, and general intent crimes, are affected by mistake of fact in a way that they are not affected by factual impossibility.

Mistake of fact is relevant to a defendant's criminal liability only if it shows that the defendant lacked the state of mind required for the crime. So, for specific intent crimes, mistake of fact could negate the intent element, and that could absolve the defendant from liability for that specific crime. For example, assume that a person who buys stolen goods honestly and reasonably believes that the goods actually belonged to the seller. This would negate the criminal intent necessary to be convicted of receiving stolen goods, and the buyer would not be held criminally liable. Further, on the MBE, for specific intent crimes, the mistake of fact need not be reasonable; any mistake, reasonable or unreasonable will suffice. For general intent crimes (for example, false imprisonment), the mistake must have been reasonable.

On the other hand, factual impossibility will show up when defendant has attempted to commit a crime, but has failed to complete the crime because of his mistaken belief about the facts. (For example, a defendant who points a gun at the victim which he mistakenly believes to be loaded, and pulls the trigger, intending to kill the victim. In this case, defendant can be guilty of attempted murder, because, unlike with mistake of fact above, defendant here did have the required intent (ie, mens rea) to commit the crime.

Nonpossessory Estates (Easements and Covenants)

2012-02-13T18:06:00.000-08:00

"I don't think I saw a post distinguishing easements from covenants running with the land. This is also an area that I easily confuse. I haven't been able to get much clarification from my notes, so if you have time to do this post it would be helpful."

Response:

Easements, and covenants are both nonpossessory interests in land, but beyond that, there is much to distinguish them. A person who holds an easement has the right to use another's tract of land for a particular person. For MBE purposes, some heavily tested areas in respect to easements involve the creation, (including expressly and impliedly created easements), as well as the termination of easements.

Covenants, normally found in deeds, are written promises to do something on the land, or written promises to refrain from doing something on the land. The most heavily tested area in respect to covenants deals with determining whether a covenant "runs with the land," so that subsequent owners are benefited or burdened by the covenant regardless as to whether the covenant was in their specific deed.

Both the burden and the benefit of the covenant can run with the land. For the burden to run, the original covenanting parties must have: (1) intended that successors in interest would be bound; (2) the subsequent purchaser for value must have had notice (actual, inquiry or record) of the covenant; (3) there has to have been horizontal privity between the original covenanting parties (for example a grantor-grantee relationship); (4) there has to have been vertical privity (the subsequent purchaser must hold the entire durational interest held by the covenantor at the time he made the covenant; and (5): the covenant must touch and concern the land.

The requirements for the benefit of the covenant to run with the land are the same, though there are less of them. Intent, vertical privity, and touch and concern, are all that is required.

Adverse Possession vs. Prescriptive Easements.

2012-02-12T15:51:00.000-08:00

Question: "Would you consider doing a post on distinguishing between adverse possession and prescriptive easements? If an MBE had answer choices including the two (as separate choices), I don't know that I would be able to distinguish between them."

Response:

The similarities between adverse possession and prescriptive easements far outweigh the differences. Both result from the operation of the statute of limitations for trespass. In addition, both require that the following elements are satisfied: open and notorious, adverse, continuous and uninterrupted, for the statutory period.

The differences lie primarily in determining what is accomplished by satisfying those elements. With adverse possession, the goal is to acquire title to real property. For that reason, in addition to the elements above, an additional element is actual and exclusive possession of the property. If x has actual and exclusive possession which is open and notorious, adverse, continuous and uninterrupted for the statutory period, and the owner of the property does not take action to eject x within that time, then title to the property will vest in x.

Acquiring an easement by prescription, however, is not directed towards the goal of acquiring title to property. Rather, it's directed towards acquiring an easement, even though the formalities usually required to create an easement (for example a writing signed by the grantor) are not present. So, if x uses (rather than possesses) the land of y, and the use is open and notorious, adverse, continuous and uninterrupted, for the statutory period, the x has acquired an easement and can continue to use that land in the same manner as his previous use.

Restraints on Alienation

2012-02-11T11:55:00.000-08:00

Questions come up on the MBE involving restraints on alienation. These questions require you to know the different types of restraints, as well as whether these restraints are automatically void.

The first type of restraint are disabling restraints which attempt to make any transfer of interest ineffective. Next, there are forfeiture restraints. These restraints state that any attempted transfer of an interest will forfeit that interest. Finally, there are promissory restraints under which an attempted trasfer breaches a covenant.

The important points to remember for the purposes of these questions is that all disabling restraints on any legal interest (for example, a life estate, or fee simple) are void. In other words, the interest can be trasferred regardless of the attempt to make the transfer ineffective.

On the other hand, forfeiture restraints and promissory restraints on life estates are valid. Also valid are forfeiture restrants on transferability of future interests (for example, if the holder of an executory interest attempts to transfer that interest, the interest can be forfeited). Rights of first refusal, often seen on the MBE, (and sometimes implicating the rule against perpetuities), are valid restraints on alienation. Questions sometimes involve landlords placing restrictions on assignment and subleases by the tenant, and this, too, is a valid restraint on alienation.

In general, the best way to approach these questions is to first determine whether the grantor has placed a restraint on alienation of the interest granted. Then determine the type of restraint. Remember that some restraints are valid, and some are invalid, and apply the rules above.

Measuring Damages for Breach of Service Contracts

2012-02-08T13:38:00.000-08:00

On the MBE, you'll need to know how to calculate damages for contracts for the sale of goods, as well as for common law contracts. Further, a variety of common law contracts can appear on the test, and how you calculate the damages depends upon what type of service is being provided. This note will provide a short review of the most common types of service contracts that show up on the exam.

Contracts for the Sale of Land: Damages are measured by the difference between the contract price and the fair market value of the land at the time of the breach. You should also always consider specific performance in land-sale contracts.

Employment Contracts: Here, you'll need to determine whether the employee or the employer breached the contract. If the employer breached, the employee gets the full contract price (less wages earned elsewhere after the breach). If, on the other hand, the employee breached, the measure of damages is whatever it costs to replace the employee (for example, if a new employee demands higher wages than the breaching employee.)

Construction Contracts: Again, determine who breached--the owner, or the builder. If the owner, the builder will be entitled to the profits that would have resulted from the contract plus costs expended in reliance on the contract. If the builder breaches, the owner is entitled to the costs of completing the project, plus reasonable compensation for the delay. Even if the builder breaches, however, most courts allow the builder to recover for work already performed to avoid unjust enrichment of the owner.

All of the above are the methods for calculating expectation, and reliance damages (ie, compensatory damages). In addition, to compensatory damages, you should also consider consequential damages. These will be awarded if a reasonable person would have foreseen at the time of entering the contract that such damages would result from the breach. In other words, if the damages were foreseeable.

Rather than compensatory damages, liquidated damages will be allowed if there was a provision in the contract for such damages, and the damages were difficult to ascertain at the time the contract was formed. In addition, the amount agreed upon had to have been a reasonable forecast of compensatory damages.

As a final note, punitive damages are generally not awarded for breach of service contracts, though nominal damages (for example, $1) may be awarded where a breach is shown but no actual loss is proven.

Criminal Law: Felony Murder & Proximate Cause

2012-02-05T17:04:00.000-08:00

The following question was asked on the Asked & Answered Facebook page @ http://www.facebook.com/barexaminstruction

"I'd be interested to hear your view on the relationship between foreseeability and the felony murder rule. E.g. If during the commission of a burglary, the house owner comes upon the burglar and is so startled that they suffer a heart attack and die. Could the burglar be convicted of felony murder or is this too remote?"

Response:

Before I address the specific question asked, I think it's important to review felony murder. Felony murder essentially removes the requirement that a person has to have had the intent to kill or intent to cause seriously bodily injury (or recklessness), in order to be guilty of homicide. Rather, the intent to commit the felony is transferred to the intent generally required to be found guilty of homicide (ie, the requirement of malice).

What this means is that one should not consider felony murder if the intent for murder is satisfied, even if the murder occurs during the commission of a felony; one should only consider felony murder if, during the commission of a felony, a death results, and the intent required for murder is not present.

Specifically, the requirements for felony murder are as follows: (1) the defendant must be guilty of the underlying felony; (2) the felony must be distinct from the killing itself; (3) the death must have been caused before the defendant's immediate flight; and (4) death must have been a foreseeable result result of the felony.

Number 4, above, relates to causation. Cause-in-fact simply means that the result would not have occurred but for the defendant's conduct. Proximate cause is a limitation on liability, and provides that defendant will only be guilty of felony murder if the death of the victim was the natural and probable consequence of the the defendant's conduct. As in torts, superseding factors break the chain of causation.

The issue raised in this question regarding whether a person can be guilty of felony murder if, during the commission of an inherently dangerous felony, a victim has a heart attack after being startled by the person committing the felony, requires an analysis of proximate causation. Generally (and on the MBE), a victim's preexisting weakness, even if unforeseeable, will not break the chain of causation, provided that the death itself was foreseeable. Even though the victim may have had a weak heart, the victim was startled, and his heart gave out as a result of being startled. The facts provide for a situation in which cause-in-fact is likely satisfied. In addition, it's foreseeable that a person will be startled if surprised by another committing a felony in his home, and because the law requires us to take our victim as we find him, the fact that a heart attack resulted from the foreseeable reaction is unlikely to shield the defendant from liability under the facts as given.

MBE Fast Fact: Constitutional Law

2012-02-05T10:12:00.001-08:00

When applying Equal Protection analysis, the general rule is that if a state law (not federal) classfies based upon alienage, strict scrutiny must be applied, so that the law will be found unconstitutional if the government does not prove that the law is necessary to further a compelling government interest. You must note the exceptions, though. Strict scrutiny does not apply to state laws that discriminate against illegal aliens (the law will pass provided it is not arbitrary), or, more importantly, to laws that discriminate against legal aliens if the law is related to self-governance, involves policymaking, or requires exercise of important discretionary power over citizens. So, for example, a state law claiming that legal aliens can not work as public school teachers will be valid provided that it passes rational basis scrtutiny (as opposed to the higher standard of strict scrutiny), because a public school teacher performs an important government function. The same would hold for police officers, etc.

Torts: Defenses to Products Liability

2012-02-04T16:17:00.000-08:00

The following question was asked in a comment on the blog:

Could you clarify how the defenses to a product claim differ depending on whether the claim is based in a strict product liability, negligent product liability or a breach of warranty claim?

Response:

As an initial matter, it's important to remember (especially when writing an essay), that there are five theories of liability that a plaintiff can use when suing a supplier of a defective product if someone is injured by that product. Those theories are intent, negligence, strict liability, implied warranty of merchantability and fitness for a particular purpose, and express warranties (which includes a cause of action for misrepresentation). This answer will focus on the defenses available to one who sues using a theory of negligence, strict liability, or warranty (express or implied).

Negligence:

The defenses here are the same as in a general cause of action for negligence. In other words, on the MBE pure comparative negligence applies, but watch for a situation in which the question specifies to apply contributory negligence. Assumption of risk is also an option. Disclaimers are irrelevant.

Strict Products Liability:

Unlike with negligence, contributory negligence generally will not be a defense to strict products liability. A common fact pattern presents a situation is which plaintiff is said to have misused the product (to an extent that would rise to negligence on his part). In deciding whether the misuse of the product can form the basis for a defense to strict products liability, you need to determine whether the misuse was foreseeable. If the misuse was foreseeable, then it is no defense. If the misuse was not foreseeable, then comparative or contributory negligence can be applied. In addition, assumption of risk is a valid defense to strict products liability. Here, too, disclaimers are irrelevant.

Warranty:

Defenses to the implied warranties include assumption of risk and contributory negligence to the same extent as in strict products liability. (ie, it has a limited effect, and should only be applied if plaintiff was the cause of his own injury). In addition, failure to give notice of breach of warranty is a defense under the UCC.

The disclaimers, you'll recall from the UCC, have their own set of rules. To disclaim the implied warranty of merchantability, the word "merchantability" must be mentioned, and, if in writing, must be conspicuous. The warranty for fitness for a particular purpose may be disclaimed by a conspicuous writing. In addition, both warranties may be disclaimed by language such as "as is" or "with all fault," or by inspection as to defects that a reasonable inspection would have revealed, or by course of dealing, course of performance or usage of trade.

To disclaim an express warranty is difficult because to the extent that the disclaimer is inconsistent with the warranty as given, the disclaimer will not be given any effect.

Judge vs Jury on Preliminary Determinations of Admissibility

2012-02-02T17:31:00.000-08:00

The following question was asked on the Facebook page @ http://www.facebook.com/barexaminstruction/;

"Can you shed light on questions in evidence where it is up to the jury to decide certain things and up to the judge to instruct the jury etc."

Response:

On the MBE, these questions revolve around the preliminary determination as to whether evidence is admissible. In other words, sometimes the existence of a preliminary fact is a condition to the admissibility of evidence, and a question is raised as to whether a judge or jury should make a determination as to that fact.

As a general rule, the judge decides on facts that involve the competency of evidence while the jury decides on facts that involve the relevancy of evidence.

More specifically, the jury decides matters such as the authenticity of a document, whether a witness had personal knowledge of an event to which the witness testified, as well as the credibility of any witness that has testified.

The judge, on the other hand, decides on matters such as the requirements of hearsay exceptions, the existence of a privilege, whether an expert is an expert for the purposes of expert testimony, etc. This is not an exhaustive list, but, generally, judges decide on matters of law, while juries decide on matters of fact.

As an additional matter, at least in respect to the MBE (as opposed to state-specific rules) when the judge is making these preliminary determinations of admissibility, the judge can consider any relevant evidence, even if that evidence would not be admissible under the Federal Rules for other purposes.

Real Property: The Rule Against Perpetuities

2012-01-31T16:45:00.000-08:00

Here is a link to a helpful program for learning the dreaded Rule Against Perpetuities. There are always a few questions on this topic on the MBE.

http://www1.law.umkc.edu/faculty/carbone/rap/title.htm

Evidence: Spousal Privilege vs. Privilege for Confidential Marital Communications

2012-01-31T16:06:00.000-08:00

The following question was asked on the Facebook page @ http://www.facebook.com/barexaminstruction:

When is spousal privilege invoked and when is marital privilege invoked? I know what is protected and when it is lost or not. Just confused as to when which is used.

Response:

The first thing you’ll want to note regarding the spousal privilege is that it only applies in criminal cases. If an MBE questions involves a civil action, such as a tort, then spousal privilege does not apply. The privilege states that a married person may not be called to testify against the spouse in a criminal trial. Because the status of spouse ends at divorce, this privilege only applies throughout the time that a valid marriage exists, but, if a valid marriage exists, the witness-spouse can claim the privilege for communications that took place prior to entering into the marriage. Importantly, for MBE purposes, you should note that the privilege belongs to the witness-spouse. This means that if the witness-spouse wants to testify against the other spouse in a criminal proceeding, the witness-spouse can do so, but the witness-spouse cannot be compelled to do so.

In contrast to the spousal privilege, the privilege for confidential marital communications applies in both civil and criminal proceedings. And, unlike in the spousal privilege, communications that occurred prior to the marriage do not apply; this privilege only covers those communications that occurred during the marriage. And, in further contrast to the spousal privilege, this privilege will not terminate upon divorce. In other words, communications after the marriage will not be privileged, but even if there has been a divorce, either former spouse can claim this privilege after the divorce for communications made prior to the divorce. Finally, for this privilege to apply, the communications must have been made in reliance upon the intimacy of the marital relationship. (This is very similar to the attorney/client privilege analysis; look to see whether the communication, when made, was intended to remain private.)

MBE Fast Fact: Evidence

2012-01-31T09:30:00.000-08:00

Do not jump directly to the hearsay exceptions when a fact pattern presents an out-of-court statement offered into evidence. A recent trend on the MBE is to provide facts of out of court statements that are not being offered to prove the truth of the matter asserted, and therefore do not amount to hearsay, and so the exceptions are unncessary. A few examples are legally operative facts (for example when a statement is offered to prove there was an offer in a contracts case); statements offered to show their effects on the hearer (for example a statement offered by the plaintiff to prove that the defendant was put on notice in a negligence case where negligence requires that defendant was put on notice of a given fact); and statements offered as circumstantial evidence of the declarant's state of mind (for example, a statement offered by the defendant as to something that the defendant said to show that defendant was insane, for the purposes of proving the defense of insanity.)

Test Taking Skills: Endurance

2012-01-30T16:26:00.000-08:00

The following question was asked on the facebook page @ http://www.facebook.com/barexaminstruction:

Can you comment on tips/strategies for combating examination fatigue and maintaining focus throughout the entire 200 question gauntlet? Please also share any suggestions you may have about studying/reviewing in the morning and lunch break on MBE day. Thanks!

Response:

With the amount of time spent learning the law tested on the MBE, it is easy to overlook these types of questions, so I'm glad this was asked. I, personally, do not believe that there is any way to completely combat fatigue on this test, but I do think that there are ways to minimize it. The length of the test, and the dense fact patterns, will inevitably lead to fatigue at some point (especially in the afternoon session), but it's important while studying to make sure that you set aside opportunities to practice taking full-length exams. By full-length exams, I mean 3 hours of 100 mixed questions, then one hour off, and then 3 hours of another 100 mixed questions. It would certainly be a mistake to take your first 6 hour exam the day of the test.

The other less obvious answer is that the better you know the law, the less fatigued you will become. This is because the more thought you have to put into each question, the harder you are working your brain, and the quicker you will become fatigued. You want some, and hopefully many, questions to be relatively easy on the exam, and if that is the case, you'll find you have more mental energy to focus on the one's you find to be difficult.

Finally, the obvious answer is to get enough sleep the night before. Don't cram, it's a mistake. You need to be at your best to do well on this test, and your best is when you are rested.

And that transitions into the next question. I don't believe you should be working on questions the morning of the test in order to learn any more substantive law. I do, however, believe that it's a good idea to "warm up" the brain in some way that morning, whether it's by reading an article in a newspaper, doing a crossword puzzle, etc. And one way to do so is by doing a few MBE questions. But the purpose of those questions is not to learn the law (it's too late for that), but, rather, it's to "stretch" a bit before the exam.

In regards to whether you should do questions during the lunch break, my answer is an emphatic "no." Your lunch break is an opportunity to rest your mind between the two sessions; do not squander it. I'd highly recommend eating something healthy, relaxing, and mentally preparing for the difficult task ahead, the afternoon session of the exam.

Torts: Bystander Cases

2012-01-29T16:43:00.000-08:00

The following question was asked in a comment, here on the blog:

Could you recap the elements of Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress?

Also is there such a claim as bystandar Intentional Infliction of Emotional Distress?

Response:

The elements for intentional and negligence infliction of emotional distress are very similar. Intentional infliction of emotional distress requires an act amounting to extreme and outrageous conduct, causation, and damages. With intentional infliction of emotional distress, intent on the part of defendant or recklessness on the part of defendant is required. With negligent infliction of emotional distress, the defendant breaches a duty to avoid causing emotional distress to another by either causing physical impact to another that leads to emotional distress, or by causing severe emotional distress to another that is accompanied by physical symptoms. The fault requirement is merely one of negligence, rather than intent or recklessness.

Bystanders:

There are rules for bystanders (in other words when bystanders can sue for these torts) for both intentional and negligent infliction of emotional distress. In regards to intentional, you'll have a situation in which a bystander views the defendant intentionally or recklessly causing emotional distress to another. For that bystander to recover, he will either have to prove the elements for intentional infliction of emotional distress as listed above, or prove that he was present when the injury occurred, that he is a close relative of the injured person, and that the defendant knew both of these facts.

In regards to negligent infliction of emotional distress, one avenue for a bystander to recover is to prove that he, himself, was threatened with physical injury by the plaintiff's breached duty of care, and that emotional distress has resulted. This is often deemed the zone of danger. Plaintiff, if using this avenue to recover damages, will need to prove that he was threatened with physical impact; it will not be enough that he merely witnessed the impact.

Another possibility is for plaintiff to recover even if he was not in the zone of danger. Here, plaintiff will have to prove that he saw defendant negligently injure another, and that he (the plaintiff) and the person injured are closely related.

In either case under negligent infliction of emotional distress (zone of danger, or seeing the injury of another) plaintiff will recover only if some physical symptoms accompany the caused emotional distress. This is an important distinction to make, because under intentional infliction of emotional distress, there is no requirement of physical symptoms.

MBE Fast Fact: Torts

2012-01-26T21:32:00.001-08:00

Though pure comparative negligence in the default rule on the MBE, it's important to note the differences between pure comparative, partial comparative, and contributory negligence, as the question might require you to apply anything other than pure comparative. Contributory negligence completely bars plaintiff's right to recover for an action in negligence (provided that no exception to the defense applies). In other words, if plaintiff is 1% at fault, and defendant is 99% at fault, plaintiff recovers nothing. Partial comparative negligence (also known as modified comparative negligence) provides the plaintiff with an opportunity to recover, provided the plaintiff is not more than 50% at fault. Pure comparative negligence, on the other hand (and, again, this is the default rule on the MBE), allows plaintiff to recover regardless as to the percentage of fault attributed to the plaintiff. So, the plaintiff recovers even if the plaintiff is 90% at fault. Plaintiff can recover 10% for his injuries, though, of course, the opposing party can counter-claim for 90%.

MBE Fast Fact: Contracts

2012-01-25T13:03:00.000-08:00

On the MBE, you should know the rules for a variety of different contracts, for example employment contracts, construction contracts, contracts for the sale of goods, etc. One rule to remember for employment contracts is that if it is not specified in the contract that the job is not "at will" then the job is "at will," allowing an employee to leave the job at any time without the employer having the option of suing the employee for breach of contract. This is true, even if the contract is characterized as "permanent." Specific wording (such as the amount of notice necessary before leaving the job), is required to take the employment contract out of "at will" status.

MBE Fast Facts: Torts

2012-01-24T14:45:00.000-08:00

An owner of a wild animal can be held strictly liable for injuries caused by that wild animal, even if steps have been taken to limit the dangerous propensities of that animal (for example, by defanging a poisonous snake). So, if someone enters the property at the request of the landowner (who also owns the snake), is frightened by the snake (not realizing that the snake has been defanged), and slips and injurs himself, that visitor has a valid suit in strict liability against the owner, even though the owner had taken measures to make the snake less harmful.

Constitutional Law: Eminent Domain

2012-01-22T12:27:00.000-08:00

The following question was asked on the Asked & Answered Facebook page @ http://www.facebook.com/pages/Asked-Answered-The-Multi-State-Bar-Exam/122156504533565

Can you comment upon condemnation of leasehold and it's effect on tenant's obligation to pay rent?

Response:

Before addressing this question directly, this question provides a good opportunity to discuss the topic of Eminent Domain. It's seen in both Property questions and Constitutional Law questions.

The concept of Eminent Domain originates in the Fifth Amendment, which states that private property may not be taken for public use without just compensation. If the federal government is doing the taking, the question is, therefore, analyzed under the Fifth Amendment; if it's the states doing the taking, it is analyzed under the Fourteenth Amendment.

The amendments only allow the government to take private property for public use, so an initial consideration is to determine whether the use is public. The test is whether the government's action is rationally related to a legitimate government purpose. This is a fairly easy test to satisfy, so the public use requirement will not act as much of an obstacle for the government.

The next issue is to determine if the government's action is, in fact, a taking. In other words, the government can use private property for pubic use, and that use may be deemed a regulation, rather than a taking. If so, the constitutional amendments requiring the government to compensate the private individual do not apply. An actual physical appropriation of property will almost always amount to a taking. In addition, if the government regulation denies a landowner of all economic use of his land, the regulation amounts to a taking. Watch, however, for situations in which principles of nuisance law require an individual to stop using his land in a certain way; if that's the case, then the government can deny a landowner that particular use of the land, and not be required to provide compensation to the landowner.

In addition, temporarily denying an owner of all economic use of property does not necessarily constitute a taking. Considerations include the length of the delay, the effect that the delay had on the value of the property, the reasonable expectations of the landowner, etc. This can be somewhat of a gray area, so the analysis is more important than the conclusion. If a regulation merely decreases the value of property, it will not constitute a taking if an economically viable use for the property remains.

Assuming the 'public use requirement" and the "taking" requirement have been satisfied, the government will be required to provide "just compensation" to the landowner. This can amount to either the fair market value of the property, or, if the government chooses to terminate the taking, the damages that occurred while the regulation was in effect.

All of the above are principles of Constitutional Law. An area of Real Property law that touches upon these issues deals with a situation in which the government is deemed to have taken the property that is currently being leased to another, and now must provide compensation for that taking. An issue is how should that money be distributed among the owner of the property and the tenant of the property, as well as whether the tenant's obligation to pay rent remains after the taking.

The issue is determined by whether the entire leasehold is taken by eminent domain. If so, then the tenant's liability for rent is extinguished because both the leasehold and the reversion have merged in the condemnor, and there is no longer a leasehold estate. In addition, the tenant is going to receive compensation in proportion to his interest in the property. If the taking is partial rather than entire, then the tenant will not be discharged from his obligation to pay rent, but will still be entitled to compensation (ie, a share of the award), for the taking.

Evidence: Admissibility of Specific Instances of Conduct.

2012-01-20T19:28:00.000-08:00

The following question was asked on the Asked & Answered Facebook page:

In evidence, in certain cases character evidence is allowed. In which cases can specific conduct be admissible?

Response:

In all the time I've been tutoring students for the MBE, character evidence is among the topics that have caused students the most amount of difficulty.

When discussing character evidence it's essential to distinguish between situations in which the evidence is being offered in a criminal case, and situations in which the evidence is being offered in a civil case. The analysis is different for each, and I'll begin with civil cases.

In a civil case, character evidence may be offered for substantive purposes (as opposed to simply for impeachment purposes) to prove character when it is the ultimate issue in a case. For the purposes of this particular question, it should be noted that in a civil case, if character evidence is permitted, there is no limit as to how that evidence can be offered. In other words, the evidence can be offered as opinion testimony, reputation testimony, or evidence as to specific acts.

It gets a bit more complicated in a criminal case. In a criminal case, the defense can "open the door" by offering positive character evidence about the defendant. The door can only be opened, however, in the form of opinion or reputation evidence. If the defense chooses to open the door by offering such evidence, then, and only then, can the prosecution rebut that evidence, by cross examining the defendant's character witness and asking that witness whether he is aware of specific instances of defendant's misconduct or by calling its own character witnesses to testify as to the defendant's bad reputation or to provide their negative opinions of the defendant.

The defense also has the option of offering reputation or opinion evidence as to the bad character of the victim when such evidence is relevant to prove the defendant's innocence (often in a self-defense context). If the defense chooses to open the door in this manner, then the prosecution can rebut that evidence by calling its own witnesses to give their positive opinions, or to testify as to the good reputation of the victim (or the defendant's bad reputation for the same trait,) but specific instances of misconduct are not allowed.

Finally, there are situations in which the prosecution can offer evidence of specific instances of defendant's misconduct, even though the defense has not yet opened the door by first calling up its own witnesses. That will only be true, however, if the evidence being offered is relevant to some issue other than the defendant's character. This is often stated as the MIMIC rule, which is a helpful mnemonic device for remembering the various reasons why such evidence might be offered. Specific instances of conduct can be offered by the prosecution to prove that: (1) defendant had a motive for committing the crime that is the subject of the current trial; (2) that defendant had the intent to commit the crime; (3) that the crime was not the result of an accident or mistake; (4) to prove the defendant's identity; or (5) to prove a common plan or scheme.

Torts: Invasion of Privacy

2012-01-18T18:11:00.000-08:00

Invasion of privacy questions don't show up all that often on the MBE, but they do appear. You'll want to note that they can sometimes appear to be testing Defamation, and so it'll be important to distinguish between these torts. More on that below, and this note will specifically distinguish between the four main types of invasion of privacy that you'll need to know along with defenses.

(1): Appropriation of Plaintiff's Picture or Name: First, plaintiff will have to prove that the use of his picture or name was unauthorized. In addition, the use has to have been motivated by defendant's desire for commercial advantage. You'll want to look for situations in which defendant is using plaintiff's picture or name in a commercial or advertisement, even though plaintiff has not provided authorization to use his picture or name.

(2): Intrusion upon Plaintiff's Affairs or Seclusion: This would be a situation in which plaintiff objects to defendant's prying into his personal affairs. There is an objective, rather than subjective, standard (more on this @ http://mbetutorial.blogspot.com/2012/01/torts-objective-vs-subjective-standards.html), in determining whether the intrusion was objectionable. Furthermore, the thing into which there is an intrusion must be private. In other words, if a photograph is taken of plaintiff in a public place, regardless of how offended plaintiff is, he can not rely on this type of invasion of privacy as a basis for a lawsuit.

(3): Publication of Facts Placing Plaintiff in False Light: This exists where one attributes to plaintiff views he does not hold or actions he did not take. Once again, an objective standard is used, so that it's not enough that plaintiff finds the attributions objectionable; rather, plaintiff will have to prove that the attributions would have been objectionable to a reasonable person. In addition, like in Defamation, there must be publicity (the objectionable attributions have to have been made to a third party).

(4): Public Disclosure of Private Facts: This involves public disclosure of private information about plaintiff. Unlike False Light, it is not a requirement that the facts are false, but similar to False Light, the public disclosures must be objectionable to a reasonable person.

Note: In addition to the elements listed above, plaintiff will also have to prove that the invasion of his privacy was proximately caused by defendant's conduct. In regards to damages, emotional distress, and mental anguish will suffice.

Defenses: Consent is a defense to Invasion of Privacy. In addition, the absolute and qualified privileges that are a defense to a cause of action for Defamation will also apply to an action in Invasion of Privacy.