Of the classes into which I was likely to enter on a pony (not quite a high horse), Civil Procedure was near the top of the list. The more structural and rule-based a class is, the better I tend to perform. I can learn and apply rules fairly well. Where the law is more fluid and pliable, the muck seems to rise.
I attempt to eat a full, nutritious meal the day before examinations. I also like to take part in an athletic activity immediately before exams. Not only do I believe that a diet full of nutrition and an abundance of energy play a major role in intellectual abilities and success, but that a physically-fit body contributes to mental acuity.
The usual “last meal” before my final includes fish (for protein), spinach (all sorts of vitamins and nutrients), brown rice (carbohydrates, fiber and protein) and other vegetables, including mushrooms and onions. The meal is usually filling and very satisfying.
As per the athletic activity, I have taken to running. I used to go running nearly every day. However, as I have before delegitimized my life because of law school, I have had little time to take part in the activity. However, I decided that I needed to straighten the flurry of thoughts in my head, and I wanted time to myself (not to mention that it would aid me in sleeping that night). I stretched, and warmed up. Then I started running. A little know fact about me drew attention on this run: when I was a third-grader, I auditioned for the part of the young Forest Gump. When I started running, I could not stop. “I was running!” I ran a few miles. Normally an acceptable act, this was a bad idea. I had not engaged in any activities that can be classified as athletic for months. I was so out of shape, that I was not even rounded. (Insert pause for giggle here.) When I got home, I was overly winded and instantly sore. The soreness did not go away for quite some time, either. I was so out-of-shape that I hobbled into the final the next morning.
I did a few uncharacteristic things during finals this year. One of them was to study with a friend the day before the test. Having tutored athletes during undergrad (great stories were yielded from that stint in college), I know that I learn quite well when teaching others. Why not apply this method to law school, especially when my recent academic life has been quite the appositive failure.
During the study session, I tendered discussion by dreaming up test-quality questions. One of the questions I posed to my friend created a lot of debate. When she was done attempting to tell me the answer, I informed her that she was wrong. Why be verbose when a few words will suffice? I explained the correct answer, how, why it was right and important cases that discussed the reasoning and holding behind the law as it applies.
When we sat down at the exam, I performed my traditional testing procedure: (1) tilt head slightly to the right to express my state of perplexity; (2) cry; (3) place reading glasses (that do not really help my vision, but make me feel smarter) on my face and insert ear plugs dangerously far into ear canal to ensure idiots are drowned out; (4) read the exam in its entirety, highlighting and making notations as they are necessitated; (5) repeat Step 2; (6) proceed with the easiest and most heavily weighted portions of the exam, followed by the rest; (7) ask myself “why?”; and (8) repeat as needed.
When I reached Step 4, I noticed something quite interesting: the hypothetical I had posed the day prior to my friend appeared in almost verbatim form. Just when I thought that the Big Guy was not bored with playing games with me, He seemed to have taken a nap. I, obviously, aced that question. However, when I asked my friend about the question after the exam, she told me that her answer represented her first answer to me during the study session. I was really upset. She was quite downtrodden when she realized that she made the same mistake. At least I got something out of the studying.
The proverbial icing on the cake was our Professor allowing the test to occur in open-note fashion. Even though everybody is allowed notes and the exam is graded with a greater difficulty, open-note exams allow for an extra element to surface in gaining ground on the grading curve. The notes used greatly contribute to a higher level of success on these tests.
I possessed what I referred to as “Civil Procedure Gold”; the notes and diagrams were, by far, the highest quality and most useful documents with which I have come into contact. Civil Procedure Gold was an immense help on the exam, yielding high quality responses to each question posed. I am indebted to the notes. Thank you, Civil Procedure Gold.
Two days later, the Contracts examination was administered. The Professor (as duplicitously referenced previously) gave the class three sample questions. The class was told that any one of the three practice questions could, possibly, show up on the exam in part or on the whole. As has been his customary practice for years, one of the questions nearly always is the question on the exam. Even with tradition being well documented, there is always doubt that the questions will actually be used.
I split my time unevenly among the three questions. I spent what is likely 75 percent of my time on the first question, and split the remaining 25 percent on the other two questions. I put most of my “eggs in one basket.” This is equivalent to an insurance policy where the deductable may very well cost more than the repairs needed. However, should the first question be selected, I would likely make money from the policy, metaphorical speaking (this metaphor is brought to you by an actual life occurrence – a good story itself).
I noted all possible answers and cases for each question and spent a good amount of time analyzing each (as per the above-mentioned time allocation). Having studied non-stop for two weeks to that point, my brain was not operating correctly. I needed to revert to high school tactics: acronym acrimony. Creating crazy acronyms is a technique that has long served me well. For my contracts exam, “I Sparce(s) Cubic Wife Wig” was borne.
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Damages
Incidental
Specific Performance
Punitive
Anticipatory
Reliance
Consequential
Expectation
(S)peculative
Important Points
Conv. Recip. Inducement
Unconscionability
Breach (Induced and Contract)
Interference with Contract and Business Relations
Consideration
Warranty (Breach and Fitness)
Induced Reliance
Fraud
Equitable Estoppel
Willful Misrepresentation (… of facts)
Illusory Promise
Good Faith
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It worked wonderfully for my memory. However, the acronym was not the amazing occurrence as I sat down to proceed through my examination protocol. Again, Step 4 did not disappoint.
The basket with the vast majority of my eggs went to market! It was the second time I experienced an insurance pay-day. The first question, in 99 percent original form was the examination question. Winner! Coupled with the Opera experience, I feel relatively solid about the exam. There is much more I wish I had discussed in the answer, but if we were given five more hours to write an answer, I would have used the entire time, and still felt this way.
I am hesitant to feel good about exams because last semester, when I felt I did a solid job, I did the opposite (even though there was more to grading than my performance, which was an issue itself).
Having completed two examinations (with two more to go) I needed to purge my brain of all the info I stuffed within. I took the rest of the day to relax and do light studying for my property exam that was to occur in five days (the upcoming Monday).
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Contracts Final Question*:
Personal Hauling, Inc., is one of the largest companies in the country that rents out trucks and shipping materials for hauling. In 2005, after a lengthy search for a painting system that would give its trucks a superior paint finish at a reasonable cost, Personal contracted with Denkel Corp. to construct and install Denkel's patented paint equipment at Personal's main plant and to supply its own paint ingredients, which are specially made for use in the system.
In the negotiations between Personal and Denkel in 2005, Denkel said that its paint system was completely reliable. The contract warrants that the paint will last at least three years after each application. However, the contract also includes the following provision:
Denkel's liability under this contract for any damage whatsoever that may be caused to Personal's trucks by use of the paint or by chemicals in the paint shall be limited to full reimbursement of the cost of the paint ingredients. There shall be no other liability or damages to Denkel because of any such damage.
The system was installed late in 2005, and was immediately put to use for painting Personal's entire fleet of trucks with a large reproduction of Personal's logo and the words, "Another Happy Customer of Personal Hauling." However, the system never worked properly. Within a few months, thousands of trucks started losing substantial amounts of paint, and ultimately all of the trucks had to be taken out of active service and repainted by hand.
The installation of the system (which is now useless to Personal) cost $600,000, and the paint ingredients cost $450,000. After lengthy discussions between the two companies, Denkel has offered to settle the case for $400,000, but Peter Personal, the chief executive of Personal Hauling, is reluctant to accept that amount. He is especially incensed because he has recently learned through industry sources that Denkel had been having trouble with the mixing and spraying mechanism in its paint system at least since 2003. However, Personal is unwilling to embark on expensive litigation unless there is a reasonable chance of a substantial recovery.
Personal has now come to the law firm at which you are an associate. The partner in charge of the case has asked you for a memorandum analyzing Personal's case (including an explanation of what additional information, if any, that you need from Personal), and recommending how best to proceed on its behalf.
Write the memorandum.
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Civil Procedure Final Questions*:
Scenario 1 (Question A): Trial and Error
Federal District Judge Virginia Emerson has just presided over a jury trial in which Plaintiff was awarded $10 million damages in a products liability action brought under the federal court’s diversity jurisdiction. A week after she entered judgment on the jury’s verdict, Judge Emerson and her law clerk Sam were discussing the trial in her chambers. Troubled by some of her rulings during the trial, Judge Emerson asked Sam to make a list of the potentially reversible errors which occurred during the trial. Later that day, Sam gave her the following list:
- The court denied Defense counsel’s request for a one-day adjournment so that he could produce a witness who had been out of the country;
- The court refused to allow the introduction of a relevant engineering report prepared by Defendant’s expert witness; and
- Plaintiff’s counsel made, during her closing argument, several improper references to matters outside the record.
After reviewing the list that same day, Judge Emerson becomes convinced that these errors were serious enough to warrant action on her part. Neither side has made any post-trial motions.
Question A: What, if anything, does Judge Emerson have power to do to address the errors? Please explain your answer.
Scenario 2 (Questions B & C): Will Swoboda Strike Out?
On May 1, 2004, Ron Swoboda was on his way from his home in Pennsylvania to a friend’s wedding in Michigan. He was driving through Ohio when his car was rear-ended by a truck traveling in the lane behind him, severely injuring Swoboda. The truck was owned and operated by Chang Products Corp., an office supply enterprise which was incorporated in Illinois and also had its principal place of business in Illinois. The truck had been en route from Illinois to make a delivery in Ohio. Chang Products regularly conducted business in several states, including Illinois and Ohio, but not Pennsylvania.
Assume that Pennsylvania’s long-arm statute conferred personal jurisdiction to the full extent permitted by the Fourteenth Amendment’s Due Process Clause. Assume further that Pennsylvania has a statute which requires that all out-of-state corporations wishing to transact business within its boundaries appoint a Pennsylvania agent for service of process. According to the statute, if an out-of-state corporation appoints such an agent, it will possess “within the state the same rights and privileges that a domestic corporation would possess, and shall be subject to the laws of this state.” Because Chang Products was considering expanding its business to Pennsylvania, it had appointed a Pennsylvania agent for service of process on April 15, 2004. The corporation has not yet conducted any business in Pennsylvania; indeed, it has not yet decided whether it will do so in the future.
Swoboda sued Chang Products Corp. in federal court in Pennsylvania under diversity jurisdiction. Swoboda served Chang Products in two ways: (1) he served the Pennsylvania agent Chang Products had appointed for service of process; and (2) he served the president of Chang Products while she was attending a “21st Century Office Products Symposium” in Philadelphia. Chang Products moved to dismiss on the ground that the court lacked personal jurisdiction. Chang Products argued that personal jurisdiction in Pennsylvania was improper because the incident did not occur in Pennsylvania, the corporation was not incorporated in that state, and it conducted no business there.
Question B: Is this case controlled by Burnham v. Superior Court? Why or why not?
Question C: What is Swoboda’s best argument for asserting personal jurisdiction in Pennsylvania?
Scenario 3 (Question D): The Twisted Truth
Pretzel lives in Massachusetts; Donut lives in Arizona. Pretzel sued Donut in Massachusetts state court on a defamation claim. Donut refused to waive service of the summons, and Pretzel waited to serve Donut until Donut was changing planes in Boston’s Logan Airport (on a trip from Arizona to Nova Scotia). Pretzel then filed an affidavit of service describing personal service upon Donut at Logan Airport. Donut filed a motion pursuant to Rule 12(b)(5), arguing that he had missed his flight that day and never arrived at Logan Airport, and thus could not have been served. He attached an affidavit from a friend, Cookie Crumb, which stated that Crumb had witnessed the personal service in this case effectuated on a man who bore a striking physical resemblance to Donut, but was not Donut. The trial court denied Donut’s motion but Donut did not participate any further in the proceedings. Pretzel then obtained a default judgment against Donut in the defamation action. Donut did not appeal the judgment, nor did he pay the amount of the judgment.
Pretzel is now seeking to sue on the defamation judgment in Arizona, where Donut owns substantial property. Donut has appeared in the Arizona enforcement proceeding to argue that the Massachusetts judgment should not be enforced because the Massachusetts court lacked jurisdiction, since Donut was never actually served in Massachusetts.
Question D: How should the Arizona court rule on Donut’s argument, and on what rationale?
Scenario 4 (Questions E & F): Anziel & Brix
Anziel and Brix are neighbors who live on adjoining farms and used to be on good terms. The breakdown in their relationship occurred on January 15, 2008, when Anziel saw Brix driving Anziel’s tractor without permission. Anziel became extremely upset and demanded a large payment from Brix. Mediation efforts failed, and Anziel sued Brix for the tort of conversion for using the tractor without permission. At trial, the parties waived a jury and Brix’s only defense was that he and Anziel had agreed that, during the year 2008, each could use any motorized vehicles belonging to the other without seeking advance permission. The court accepted this defense, rendered a verdict for Brix, and entered judgment for Brix on February 15, 2008. Anziel did not appeal.
Anziel has now filed another lawsuit against Brix. He alleges that on April 1, 2008, Brix drove Anziel’s tractor and damaged it. His complaint contained two counts: (1) conversion; and (2) property damage. Assume that Brix admits using Anziel’s tractor on that date, but claims he did not damage it:
Question E: What, if any, pre-trial motion should Brix file to seek dismissal of Count 1? In what manner will this count likely be resolved?
Question F: What, if any, pre-trial motion should Brix file to seek dismissal of Count 2? In what manner will this count likely be resolved?
Scenario 5 (Questions G, H, I, and J): No Salad Days for Meebecker
Mary Meebecker is suing the Arugula Brokerage Co. in state court, alleging fraud under the federal securities laws. In that lawsuit, she is also asserting a state law claim for fraud in connection with the same conduct as her federal claim. Assume that good faith is a defense to fraud under the federal securities laws, but is not a defense to fraud under the state law. Meebecker is seeking both damages and injunctive relief. Arugula has now filed a notice of removal.
Question G: If Meebecker argues that the federal court lacks jurisdiction because the state court did not have jurisdiction over the federal securities law claims, what will be Arugula’s best response?
Question H: Will the federal court have jurisdiction over the state law claim? Why or why not?
Question I: Will the federal court allow a good faith defense to the federal securities law claim? Why or why not?
Question J: Will the federal court allow a good faith defense to the state law claim? Why or why not?
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*Openly distributed by Professors without any terms regarding disclosure.