1. Negligence action by P against D’s Heating and Cooling for injuries suffered when D allegedly failed to fix P’s heater during a sub-zero cold snap. P, who is elderly and housebound, alleges that she phoned D as soon as the heater failed, that D promised to respond “within two hours,” that P waited in vain for an entire night, and that D never appeared. While waiting for D, P alleges that she suffered cold-related injuries to her fingers and toes. P testifies that she placed her call to the number for D listed in the phone book, and that a voice answered, “heating service.” D denies ever receiving the call, and moves to strike P’s testimony for the record.
How should the court rule?
A. The court should deny D’s motion because there is sufficient evidence to support a finding that the call was actually placed to D.
B. The court should grant the motion because the party answering the phone did not identify itself as D’s Heating and Cooling
C. The court should deny the motion if it finds that the call was not placed to D
D. The court should deny the motion because P has already testified, and it is too late to keep the evidence from the jury.
E. None of the above
Which of the following statements is true regarding witness lists?
A. Their production does not require a discovery request
B. Their production requires a subpoena
C. Their production requires court approval
D. Their production requires the consent of each witness on the list
E. None of the above
Abusive tactics are fostered by the court system because
A. Attorneys know that lawyers are given only one opportunity to comply with discovery requests
B. Lawyers have an incentive to increase discovery costs as they can bill their clients for more hours worked
C. No penalties exist whatsoever for using abusive tactics
None of the above
If a party refuses to answer an interrogatory, the opposing party may file a motion to compel an answer. A motion to compel an answer
A. Will be granted if the moving party shows the answer is necessary to prepare for trial
B. May be denied if the question asked is subject to a timely and valid objection
C. May be denied if the question asked is an invasion of privacy of the other party
D. Will be granted if the opposing party does not file a motion to refuse to respond
E. None of the above
1. Mike files a lawsuit against Miami Drugs Inc. in federal court. Mike wishes to conduct discovery by deposition, but is unsure which of the Miami Drug employees has the necessary information and does not know whose name belongs on the notice of deposition. Should Mike file interrogatories to obtain the appropriate employee’s name? Why or why not?
2. Smith was injured using a lawnmower produced by ABC Lawnmower Co. Smith sues ABC claiming the firm negligently made the lawnmower. Smith further claims he has been disabled from doing his job and seeks damages for loss of earning capacity. ABC sends a request for production of Smith’s income tax returns for the five years before the injury and two years after the injury. What is the result? Why?
3. Johnny was hurt in a car accident involving a vehicle driven by Sam. Johnny brought a federal diversity suit against Sam on a negligence theory. After commencement of the action, Sam’s lawyer, Ben, conducted an interview with an eyewitness to the accident, Carl. Ben wrote down those aspects of Carl’s account of the accident that seemed most interesting to Ben. Johnny’s lawyer, after learning of this interview, submitted to Sam a Rule 34 Request for Production of Documents, requesting “any notes taken by Ben of any interviews with Carl.” Sam and Ben refused to comply, so Johnny made a motion to compel discovery. Should the court grant Johnny motion to compel production of the notes? If so, why?
4. Mary sues Alex for nonpayment of a promissory note of $100,000. Alex’s answer contains only this averment: Defendant neither admits nor denies Plaintiff Mary’s claim, and puts Mary to her proof at trial. Mary moves for judgment on the pleadings arguing that Alex has admitted liability. Should the motion be granted? Why or why not?
5. Jorge brings an action against Amy for infringement of a copyright Jorge holds on a book about forensic accounting. The case is tried to a jury. Amy moves for judgment as a matter of law at the close of Jorge’s evidence. The motion is denied. Amy renews the motion after presenting his own evidence. The motion is denied again. The jury is instructed, deliberates, and returns a verdict for Jorge. May Amy now move again for judgment as a matter of law? Why or why not?
6. A small but valuable piece of jewel-encrusted statuary was stolen from an antique shop, and all foot patrol officers in the area were notified by radio to look for the thief. When an officer saw Paul running down the street away from the direction of the antique shop, she became suspicious of him. The officer stopped Paul and asked him his name and his reason for running down the street. When Paul said, “Just trying to get away from some Seminole fans,” the officer ordered him to raise his hands and then frisked him to see if he was in possession of the stolen statue. She felt a hard object in his pocket and reached inside. The object which she felt turned out to be a handgun for which Paul did not have a permit.
Before Paul’s trial on the charge of unlawfully possessing a concealed weapon, he moved to suppress the use of his handgun. Should his motion be granted? Why or why not?
7. Alex is on trial in federal court for conspiring with Susan to defraud Mark. At Alex’s trial, the prosecutor calls Alex’s wife to the stand to testify as to a conversation between Alex and Linda that she heard while married to Alex. Can Alex’s wife testify if she so chooses (over Alex’s objection)? Why or why not?
8. Olfactory is a dog who searches for drugs for the Miami/Dade Sherriff’s office. His territory is the Miami airport. While checking out luggage, Olfactory barks incessantly to indicate drugs in a particular suitcase. When the suitcase owner, Crack Cocaine, is arrested and tried on drug charges, Olfactory’s handler, Andy, testifies for the prosecution that, “Olfactory pointed out the presence of cocaine in the luggage.” Is this hearsay? Why or why not?
Please read each of the following fact patterns and perform the requested work. No bullets permitted unless the question states otherwise.
1. A police detective finds a bloody brown left-hand glove, size 11 Isotoner, at a murder scene. A similar glove, for a right hand, is later found at the residence of the victim’s ex-husband, Luke. No left glove is found at Luke’s residence. Luke is charged with the murder. The glove is offered as evidence that Luke is the murderer. Is the glove direct or circumstantial evidence? Why?
Please provide your reasoning.
2. Three months after Moe, Larry, and Curley rob the Sun Trust Bank, Curly is stopped on the highway and ticketed for speeding. When the patrolman approaches the car, Curley blurts out, “The Sun Trust Bank job was Moe’s and Larry’s idea.” At Moe’s and Larry’s trial, the state seeks to introduce the patrolman’s testimony as to Curly’s statement. Under the FRE, is the statement admissible as an admission by a party opponent? (Hint: What crime did we study that might allow admission). Please explain in detail.