Editor’s Note: These answers to the essay questions on the July 2011 bar examination were drawn from passing candidates who earned very high scores on the essays selected. They have been transcribed as submitted by the candidate and may contain misspellings, grammatical errors, misstatements of law or fact and erroneous conclusions. They are not to be construed as model answers, nor are they in any respect the work of the Board of Bar Examiners.

QUESTION 1 — CRIMINAL

A and B wanted to purchase handguns and arranged with C to meet at midnight in a city park. A and B drove to the park in A’s vehicle. C met them at the park and entered the vehicle carrying a briefcase with two handguns inside. A and B paid C for the handguns and C exited the vehicle, leaving the briefcase. Officer was on routine patrol of the park, which had a reputation of being a high crime area in the past, and witnessed C exit A’s vehicle and walk away. Officer continued to observe A’s vehicle for 30 minutes during which time A and B appeared to be conversing with one another.

Officer approached the vehicle to investigate and directed his flashlight on the interior and passengers. Officer observed the closed briefcase on the front seat between A and B. He asked A and B for identification and to explain what they were doing in the park. A and B produced their driver’s licenses and said, “We’re just hanging out.” Officer asked what was in the briefcase and B responded, “None of your business.” Officer ordered A and B out of the vehicle and opened the briefcase. Upon seeing the handguns in the briefcase, Officer placed A and B under arrest and asked them where the handguns came from. A refused to speak, but B said, “We got them from C. He has a bunch of weapons at his house.” B then gave Officer the address of C’s house.

Officer handcuffed A and B, placed them in the rear of his police car and immediately drove to C’s house. On the way, Officer radioed for backup. However, before any backup arrived, he approached C’s front door, knocked, and loudly announced, “Police — open up.” There was no response to his knocking and Officer could hear unintelligible yelling from the interior of the home. Officer broke open the door and ran into the house. C, who was watching a horror movie on his television at loud volume was surprised by Officer’s entry and shot him in the leg. The backup police personnel arrived and arrested C. They discovered a large cache of weapons in the basement of the house.

You are a clerk at the Public Defender’s office, working for the attorney assigned to C’s matter. The attorney has asked you to prepare a memorandum covering all possible crimes with which C may be charged and all possible defenses available to C.

PREPARE THE MEMORANDUM

SAMPLE ANSWER 1A

MEMORANDUM

To: Public Defender

From: Bar applicant

Re: Possible Charges for C

Date: July 28, 2011

The first crime in which C may be charged with is conspiracy. Conspiracy consists of an agreement between two or more parties to commit an unlawful act, intent to the commit the lawful act, and an overt act in furtherance of the act. Conspiracy is a specific intent crime; mere knowledge that an illegal act will take place is not enough, a co-conspirator must have the specific intent to assist or carry out a specific crime. Conspiracy is an inchoate offense however unlike solicitation and attempt, it does not merge with the substantive offense. Additionally, federal law and many states takes the unilateral approach in which one person alone may not be guilty of conspiracy, therefore, if the remaining parties have been acquitted, the remaining co-conspirator cannot be found guilty of conspiracy.

In this case, A and B arranged with C to meet in a park to purchase handguns from C, therefore there was clearly an agreement for the exchange to take place. C met them at the park, entered into their car carrying a briefcase with two handguns and left the vehicle, leaving the briefcase inside. Since the parties met at the park and the exchange took place, there was clearly an overt act in furtherance of the agreement.

There is an issue, however, as to whether or not there was the intent to commit a specific crime. It is unclear why A and B wished to purchase a handgun or whether or not they were planning on committing a crime with the guns. If C was unsure of their motives, he will argue that he did not have the specific intent necessary to complete the crime of conspiracy and may not be found guilty. If the crime is merely illegal possession of a firearm, then he will not be able to use this defense.

There is also an issue as to whether or not A and B will be found guilty of conspiracy, and if they are not, C’s charge will fail as well. Similar to C, it is unclear whether A or B had the specific intent to commit a crime, so while there was an overt act, it may not have been in furtherance of a crime.

The next issue is whether or not the nature of the search and seizure of A and B was illegal, and therefore all evidence found as a result of it, would be inadmissible as fruits of the poisonous tree. The search and seizure of A and B’s car, their subsequent events, and their statements incriminating C, may have violated their rights under the 4th, 5th, and 6th Amendments. Although the park had a reputation of being a high crime area, police officers may not stop and question people out of malice or caprice. There must be some indication that criminality was afoot for an officer to stop and question people. A and B conversing in their car for half an hour does not seem like conduct that would create a reasonable suspicion that they were up to no good. Therefore, there was no obvious reason for the Officer (O) to approach A and B’s vehicle, however, once there, O would be permitted to anything in plain view whose illegality was obvious. A briefcase is not an item that seems illegal on its face so O would not be permitted to take it without probably cause. Although O saw C exit the vehicle, he did not see C enter the vehicle with the briefcase, and therefore had no reason to believe that it contained contraband. B’s response to O that what they were doing was none of his business, may have reasonably created a reasonable suspicion that criminality was afoot. This would permit O to stop and frisk A and B, but would not permit him to search their car and seize items which are not obviously illegal. An officer may stop and frisk people out of safety concerns for himself, meaning he can pat down a person to make sure they do not have any weapons on them. This would not permit the search of a car absent probably cause that there were illegal items inside. Therefore, O’s taking and opening the briefcase was a violation of A and B’s 4th Amendment right to privacy. Nonetheless, C would not have standing to challenge the seizure because he had no expectation of privacy in A and B’s car. Therefore, the guns would be admissible in a trial against C.

B’s statement to O which led him to find C is problematic as well. Upon placing A and B under arrest, O was required under the 5th Amendment to recite their Miranda rights, which would inform them that they have the right to remain silent, anything they say may be used against them, they have the right to counsel and if they cannot afford counsel, it will be appointed to them. Miranda warnings must be given when a person is in police custody and feels they are not free to leave, and when they are interrogated. A and B were clearly under police custody and were not free to leave and O asked them where the handguns came from which was an interrogation. B’s statements implicating C are therefore inadmissible against A and B. Consequently, since they led O to C, everything that occurred after finding C may be precluded as well. Once O seized the guns, however, he may have been able to trace them to C which would break the causal chain and give him an independent reason for seeking out C, so everything that followed which implicated C may be lawful.

The next crime that C may be charged with is murder or manslaughter of the O. C may argue that although O did have enough probable cause to believe that C may be guilty of illegal conduct, there did not seem to be exigent circumstances that would permit O to enter C’s house and arrest him without a warrant, thus violating C’s 4th Amendment right against unreasonable search and seizure. C selling handguns does not seem to be exigent circumstances where there was a fear that C would flee or that he could easily dispose of the illegal firearms prior to O obtaining a search warrant. Additionally, this was not a hot pursuit which may permit police officers to enter private homes without a search warrant. Although O knocked before entering, the know and announce rule applies to searches conducted pursuant to a warrant, which O did not do. Therefore O’s entering C’s house was illegal and violated C’s right of privacy. The unintelligible yelling that O heard from the interior of the home may constitute exigent circumstances because O may have felt that someone was in danger inside the house. If this was a reasonable belief, O’s entrance into the house may have been warranted.

In order to find O guilty for murder, he must have had the intent to murder. This includes intent to kill, intent to cause severe bodily injury, depraved indifference of risk of death and a murder committing during or in immediate flight of a felony. First degree murder involves premeditation and deliberation, which C clearly did not have because he was watching TV when O came into his house and C did not even know of O’s existence. All other types of murder fall under second degree murder. Although we can infer that C had the intent to kill or cause severe bodily harm to O by shooting him in the leg, murder can be reduced to manslaughter if C can raise the defense of self-defense and prove that his actions were reasonable by a preponderance of the evidence. C will argue that a stranger breaking into his house led him to reasonably believe that he was in imminent danger of life or serious injury, which would permit him to use deadly force to defend himself. In order to assert the defense of self-defense, a person may only use the amount of force reasonable to prevent the injury from occurring. Therefore, if C believed his life was at risk, he would be permitted to use deadly force against O. While killing an officer in the line of the duty will usually make a crime more severe, C was not committing a crime at the time and if it was dark while he was watching a movie and did not see that O was a police officer, it will be irrelevant that O was a police officer.

C may also be charged with illegal possession of firearms. The back-up police that arrived after O was shot in the leg discovered a large cache of weapons in the basement after arresting C. O had called the back-up team so they may have reasonably believed that this was an exigent circumstance which would permit them to enter C’s home without a warrant. Upon seeing that C had shot O in the leg, they had probable cause to arrest C. Although the general rule is that searches must be conducted pursuant to warrants, there are some exceptions to this rule, including searches incident to an arrest. Therefore, while the officers were arresting C, they would be permitted to search his person for weapons and would be able to seize anything in plain view while in his house, however, it was probably beyond the scope of legality for them to search his basement without first procuring a search warrant. Therefore C may argue that the guns may not be admitted in his trial and it may be difficult to prove that C was in fact guilty of this crime.

SAMPLE ANSWER 1B

TO: Attorney

FROM: Clerk

DATE: July 28, 2011

RE: Applicable Criminal Charges And Defenses in re C

C has engaged in a number of criminal offenses all stemming from the night in question. Of and concerning the transaction in the park between C, on the one hand, and A and B, on the other, C could likely be charged with possession, sale, and distribution of illegal weapons. Possession or sale of unlawful instrumentalities only requires that the state prove that the defendant had the instrumentality on him, or in his control, and the specific instrumentality is illegal and that the accused exchanged the illegal instrument for value.

An individual accused of possession can offer mistake of fact or ignorance of fact in his defense, in this case C could claim he was not aware he had the guns or that he was not aware that they were illegal. Mistake of law will never be a defense, however, mistake of fact will sometimes constitute a valid defense to possession. Here, given the suspicious nature of the transaction between C, A and B, it is unlikely that C will be able to claim that he was unaware the guns were inside the brief case, or that they were illegal. Therefore, he will not have a successful affirmative defense.

No inchoate crimes arise from the transaction in the park. Although it may seem that a conspiracy existed between the parties, the crime of selling illegal guns, is a crime which, by nature of the reciprocal transaction required to complete the crime, a conspiracy cannot arise unless there is an additional party. Here, and at common law, A and B are likely to be considered one party, as the buyers, and C the other party as the seller.

The second occurrence which gives rise to C’s criminal liability is the shooting of the police officer at C’s home. C’s conduct warrants a charge of attempted second degree murder. Under common law, an individual is guilty of first degree murder when he intends to kill after premeditation, any murder committed during and in the course of a committing a felony, or the murder of a police officer. While none of the facts indicate that the Officer died from the gunshot womb, C could be charged with attempted first degree murder of a police officer but for the factual scenario indicating that C was reacted as a result of surprise.

C should be charged with attempted second degree murder or malice murder, which requires only that the defendant acted so recklessly as to show a complete disregard for the value of human life. Here, C’s conduct likely rises to this level of intent. It is not likely nor reasonable that an individual would be casually armed with a deadly weapon on his sofa watching television. Additionally, C made no attempt to identify the entrant Officer, but rather appears to have blindly shot in his direction. Attempt is a specific intent crime, where an attempt to commit the underlying crime satisfies the intent requirement fir the inchoate crime.

For the shooting, C may also be charged with reckless endangerment of a person for failing to recognize the risk involved in casually having a weapon in light of his apparently skittish reaction. Additionally, C may be charged with aggravated assault because he intended and in fact did put the Officer both in fear of serious bodily injury and actually caused serious bodily injury with a deadly weapon. Again, D may be charged with possession for any and all illegal weapons found at his home.

C is likely to raise a justification defense to these charges related to the shooting. First, he is likely to claim self-defense in his home and his property. The self-defense of his property will fail as a defense because placing someone in serious bodily harm and or serious risk of death cannot be a justification simply to protect your property. His claim of self defense as to his person will be more likely to succeed and will proceed to a jury on the question of whether he used only the necessary force that would be reasonably believed to be needed to respond and protect oneself. While this is an issue of fact, it is unlikely that a reasonable person would react to nonviolent approaches as C did. Both of these claims of self-defense are likely to fail.

C will most likely raise constitutional challenges to both the statement that lead to Officer going to his home as well as the warrantless entrance and resulting search and seizure. Although there is some question as to the methods employed by the police officers in questioning A and B, while they were under arrest, and therefore presumably a custodial interrogation, C will not have standing to enforce any 5th amendment violations claims to exclude their A and B’s statements.

The entrance and search of C’s home is unconstitutional, although not as fruit of the poisonous tree, due to C’s lack of standing to exclude evidence on those grounds, but because a warrantless search of someone’s home violates an individual’s 4th Amendment rights unless it falls within certain specified categories. The Officer could claim that he intended to go to C’s home to arrest him because his possession of “a bunch of weapons at his house,” was an emergent situation which risked great harm if required to obtain a warrant, however, this is unlikely to be a valid argument. Furthermore, the police officer did not have probable cause. Her received information from two individuals, A and B, and had no proof of the veracity of their statements, therefore he lacked the requisite level of suspicion to enter the home. Any evidence obtained from C’s home is likely to be excluded. The apparent 4th amendment violation will have no bearing on the outcome of the other charges resulting from the shooting.

QUESTION 2 — CONTRACT

Buyer needed new software and computers to update its package tracking system. Buyer invited bids based on the following written specifications (“Specs”):

1 The ability to track 25,000 packages or more per day throughout the world.

2 Software capable of running on a standard PC network at an 85% efficiency rate.

3 Purchase and install 500 standard PCs capable of network function. Cost and installation of standard PCs included in the overall bid price.

4 Software expandable to accommodate 100,000 packages daily one year from execution of the contract without loss of required efficiency rate.

5 Software system and hardware fully operational within 90 days of contract’s execution and “time is of the essence.”

6 No subcontracting without written permission from Buyer.

Seller won the bid. On January 1, 2010, a written contract was executed that mirrored the Specs and provided that Buyer pay Seller $1,000,000 upon execution and another $1,000,000 on June 30, 2011. Seller received the first payment and immediately began work. Seller, with Buyer’s written permission, subcontracted to Contractor the order for the purchase and installation of the 500 standard PCs at a cost of $250,000.

During the first two months of the contract, Seller’s software would not function properly on the standard PCs. As the 90-day deadline approached, Seller discovered that its software functioned properly if run on an upgraded PC that cost twice as much as a standard PC. Seller ordered 500 upgraded PCs from Contractor and planned to pass this additional cost on to Buyer. Seller justified this expense because the standard PCs could never handle the expanded 100,000 packages per day called for in the Specs.

Contractor refused to install the upgraded PCs until it was paid its original fee of $250,000 for the standard PCs and an additional $100,000 for removal of the standard PCs. Contractor asked for the additional $100,000 fee because it was aware of the 90-day deadline.

Buyer refused to pay the additional cost for the upgraded PCs and refused to give permission to subcontract the installation to any other contractor who could install the upgraded PCs because it feared a different contractor could not meet the 90-day deadline.

Seller paid Contractor the $250,000 for the standard PCs and the $100,000 “removal fee” but did not pay the $500,000 for the upgraded PCs. The upgraded PCs were installed by Contractor and were fully operational on the 90th day.

Seller’s software operated at an 85% percent efficiency rate throughout the first year of the contract. In January 2011, Buyer started handling 100,000 packages per day. From January 2011 until June 30, 2011, Seller’s software efficiency rate was only 65% resulting in Buyer’s loss of $250,000 in profits over the six-month period.

Buyer refused to pay the second $1,000,000 payment due June 30, 2011.

Seller comes to your law office seeking advice. You are asked by the partner to prepare a memorandum of all potential causes of action, likely defenses, and probable outcome of each cause of action among Seller, Buyer, and Contractor.

PREPARE THE MEMORANDUM

SAMPLE ANSWER 2A

Memorandum

To: Partner

From: Attorney

Re: Computers

Date: 7/28/11

You have asked me to prepare a memorandum on all liability and defenses and causes of action in this case. They are as follows.

A contract requires an offer, acceptance, and consideration, or a bargained for exchange. Contracts for the sale of goods, as occurred here, are governed by Article 2 of the Uniform Commercial Code. When contracts involve a mix of goods an services, whichever one is the main purpose of the contract is what governs. Since this is really a sale of goods with services on those goods, the UCC controls. In a sale of goods over $500, as occurred here, a writing is required under the Statute of Frauds, signed by the party to be charged. All of that occurred here. The real issue is what are the liabilities of each party and for what breaches.

Buyer:

The issue here is, what are the damages for breach under the UCC and what is the effect of substantial performance? Buyer contracted computers to fit specific standards during a specific time frame. The contract had a “time is of the essence” clause, which means that the software had to be fully operational by that deadline or else there was a breach of contract. If a contract does not have that clause, a small delay is not a breach. Here, the 90 day deadline was met. Another clause required the PCs to run at 85% efficiency, which they did, until they computers started handling more packages. The increase in packages was a basic assumption of the contract and was explicitly stated in the contract. Therefore, when the PCs only operated at 65% capacity, the Seller was in breach of contract.

Under the common law, a material breach of a contract (when one does not substantially perform), allows the nonbreaching party to refuse to perform. Under the UCC, any breach gives the nonbreaching party several options. It may cancel the contract, obtain cover and get reimbursement, and receive damages. Here, even if there was substantial performance by seller, there was still breach. Thus Buyer was correct in refusing to pay the final payment because Seller breached the contract. One of the types of damages a Buyer can recover under the UCC are consequential damages, which are damages and lost profits that are foreseeable at the time of a contract. Here, there was a $250,000 loss due to the loss in efficiency. This was foreseeable at the time of the contract, as it was a basic assumption of the contract. Thus, Seller will be responsible for paying Seller for this loss. In addition, Seller will be responsible for the cost to cure the problems with the computers to get them to conform to the contract. However, Buyer will not be off the hook completely with respect to the $1,000,000 they refused to pay, as will be explained.

Seller:

The issue here is, is a breaching party entitled to payment for the work it performed under the UCC? Even when a party breaches a contract, that does not mean that the breaching party receives nothing. In order to prevent unjust enrichment, the breaching party will receive payment for the reasonable value of the benefit conferred on the nonbreaching party, less any damages caused by the party’s breach.

Here, Seller expended a great deal of money in performing the contract and gave a great benefit to the Buyer. Though the systems only worked to 65% capacity, they still provided computer systems that met most of the specs required and certainly gave a great benefit. Seller paid $350,000 to Contractor. Seller will not receive the contract price, because of its breach, but will receive the reasonable value of the benefit conferred. This may even be higher than the $350,000 expended by Seller, though note the Buyer also has damages, as is explained above.

Contractor:

The issue here is, what are the remedies available to a subcontractor and who is liable for their damages?

When a party to a contract delegates or subcontracts duties to another party, the party who was to receive the benefit of that deal is an intended third party beneficiary. The promisor (the party making the promise) may not sue the beneficiary, as there is no privity of contract between them. The promisor may sue the promisee, however, as they are in privity of contract.

Here, the Contractor and the Seller entered into a contract. This contract was to benefit the Buyer, but there was no privity between the Contractor and the Buyer. The Buyer was a third party beneficiary of their deal. Even though the Buyer consented to the subcontracting, this was merely consent for the Seller to subcontract and delegate duties and did not put Buyer and Contractor in privity. The real issue is whether the Contractor may sue the Seller for damages.

When a party contracts to do a job, it has a duty to perform that job. If a party then attempts to change the contract, this would be a modification of the contract. Modifications under the UCC are allowed if they are made in good faith. The Statute of Frauds applies to modifications of a contract for the sale of goods over $500.

Seller paid the contractor for what it contracted for, which was the original fee and the removal fee. Contractor demanded additional money to complete the job. Contractor was aware of the deadline and appeared to demand additional money not in a good faith belief that the job required more money. Additionally, not only was there not a writing to comply with the statute of frauds, as this was a sale of goods over $500 in the modification, but Seller specifically refused to agree to the modification. Thus, the $100,000 additional money that Contractor asked for is not enforceable against Seller (or Buyer for the reasons already stated).

The final issue is the nonpayment of the $500,000 for the upgraded PCs. Seller ordered these PCs from Contractor under the belief that they were justified because the PCs Buyer required could not handle the performance Buyer wanted. Seller may argue that there was a mutual mistake in the contract regarding a basic underlying assumption, but even if there was a mutual mistake that is grounds for rescission, not rewriting the contract. Additionally, if Seller was aware that the specs Buyer required were not possible on a normal PC, this makes a case more closely for a unilateral mistake, in which case a court will lay the risk of loss for a unilateral mistake on the party who knew about the mistake (Seller). Seller ordered and contracted for the upgraded PCs from Contractor, so Seller is liable for the $500,000 under basic contract principles.

However, Seller may be able to recoup the $500,000 cost from Buyer. When a party accepts goods and has a reasonable time to inspect them and accepts the benefits of the goods, contract law deems this as acceptance, even absent a contract. The problem here is that Buyer already had a contract with Seller for computers to do a specific job and that is what they received. But, since these computers were upgraded and provided a great benefit, this enhances Seller’s earlier argument for recouping there money in restitution for the benefit conferred.

SAMPLE ANSWER 2B

MEMORANDUM

To: Partner

From: Applicant

Date: July 28, 2011

Re: Seller Matter — Possible Causes of Action, Likely, Defenses, and Probable Outcome

You asked me to prepare a memorandum of all potential causes of action, likely defenses, and probable outcome of each cause of action among our client Seller, and Buyer and Contractor.

I. Background and Applicable Law

Buyer put out a specification for bids for a tracking system. Seller and Buyer executed a written contract on January 1, 2010. The contract was for the software and purchase and installation of computers to use the software. Under the predominant purpose test this is a contract the main subject matter of which is sale of goods and its is governed by the UCC as adopted by NJ. The contract between Buyer and Contractor was for the purchased and installment of PC’s. Here too the weight of the subject matter is the sale of goods.

II. Seller & Contractor

Under the terms of its contract with Buyer, Seller was able with written permission to subcontract the purchase of the PCs. Seller and Contractor entered a contract for the installation of 500 standard PCs which were installed.

Seller ordered 500 upgraded PCs from Contractor. This order was in effect an offer. Contractor rejected the offer because it had not been paid for the previous computers. It conditioned its acceptance on being paid for the other order plus a $100,000 removal fee. The removal fee was based on their knowledge of the 90-day deadline. This sounds like they are demanding a modification without consideration which under the UCC is only available if acting in good faith. It also sounds like duress as Seller’s situation sounds like it did not have a meaningful choice. Nonetheless Contractor may be justified in requesting this sum because it faces substantial costs and risk of completing its performance in an expedited manner and the consequences of not meeting the deadline. Although Contractor likely did not act in good faith, they may be able to justify the $100,000 fee. Seller has a cause of action for the reduction in price due to duress but is not likely to succeed.

Contractor has a claim against Seller for the unpaid $500,000 for the upgraded PCs. There was a contract and they performed. UCC requires perfect tender, no indication they did anything but as they delivered by the delivered and installed by the 90th day. Therefore they are due the contract price from Seller. Seller may be able to offset this claim if they succeed on the duress defense regarding the $100,000 removal fee.

III. Seller & Buyer

Breach of Contract

Seller wishes to recover the $1,000,000 remaining on the contract from Buyer. Seller has a claim for payment but it will be offset by Buyer’s claims for damages which will be discussed below. The UCC requires perfect tender for sale of goods. If there is not a perfect tender and the deadline for performance has not passed and the Seller gives seasonable notice it can provide substitute performance by the deadline. A buyer may reject goods if they do not conform but must not accept them or if upon reasonable inspection immediately after receipt (reasonableness depends on the type of defect) they can revoke their acceptance. In a situation such as here where the defects were found later the Buyer’s remedy is breach of warranties. Seller substantially performed and is entitled to payment but it will be offset by damages based on the issues below.

Does not Work on Standard PCs

An express term of the contract, which mirrors the specifications, is that Seller would provide software that among other things would work on standard PCs. This what they agreed to do. Their software package did not run on standard PCs. Sellers express obligation was to provide 500 standard PCs and software to run on them. They provided they PCs but their software did not run on it.

Seller may argue a contract defense of mutual mistake. Both Buyer and Seller were operating on the false assumption that this type of software could run on standard PCs. This however will probably fail as a defense. Seller is a merchant in software, it is a regular seller of software and holds itself out as having knowledge of it. It should know that its software would not run on these computers. As such the risk of mistake was on them and therefore they are liable for damages.

Seller may be able to make the case that this was a good faith modification which does not require additional consideration. However this was not based on a mistake or unforeseen costs, that their software wouldn’t meet the contract specs is foreseeable and they bore the risk.

Seller’s purchase of upgraded computers was necessary because of Sellers breach. If Buyer had purchased them independently it would have been in fulfilling its duties to mitigate damages and could have recovered against Seller. Here Seller took steps to correct their error and therefore must bear the cost. Seller could make an argument that Buyer is enriched by having 500 better computers. This is a factual question based on what other uses and benefits are derived from these computers including resale value. Seller may be able to get some offset from this increased benefit to Buyer of having the upgraded computers but this does not excuse its breach.

65% Efficiency

The 65% efficiency level does not meet the contract requirements. This is a breach of an express term of the contract by Seller. As a result buyer has lost $250,000 in profits. Buyer has several options in pursing damages. It may seek replacement performance and request the difference from the contract price and what it actually cost to obtain the required performance, this is likely the damages measure they will select and is fair. They can however obtain consequential damages of $250,000 lost profit. This is available because losing profits from the system not meeting their detailed specifications was absolutely a foreseeable consequence of breach. Seller is likely on the hook for this as well. Seller may be able to argue that Buyer failed to mitigate its damages by buying new software or an upgrade but this may not be in Seller’s interest as it could cost a lot more than the lost profits. Nonetheless these are all potential damages issues.

Warranty of Merchantability & Warranty of Fitness for a Particular Purpose

A seller of goods warrants that the goods it sells are of average character and quality of the type of goods and are suitable for their usual use. A merchant violates this when they sell goods that are sub-par, defective, or below the acceptable quality for goods of that type. When any seller knows the purposes for which the buyer intends to use the goods and buyer relies on sellers skill in selecting those goods or seller holds himself out as an expert in those goods, the seller is liable if the goods are not suitable for that use.

Here Seller is a merchant dealing in software. The software does not appear to violate the warranty of merchantability as it seems reasonably fit for the purposes of which it is designed, the problem lies with the selection. Seller used its knowledge to design or select this software package to meet Buyers very exacting specifications. Seller should have supplied a different software or not warranted that it was fit for standard PCs when it needed upgraded PCs to meet Buyers purpose. As such Buyer may have a cause of action for warranty of fitness against Seller.

Good Faith

One other issue should be noted. Seller may be able to further offset its damages based on providing the upgraded PCs if Seller unreasonably withheld its consent to subcontract. The court will read in an implied term of good faith. Buyer can not unreasonably withhold its consent to allow the Seller to subcontract. If Seller was able to obtain performance from a different subcontractor it may have been able to mitigate some of its losses and certainly not pay the $100,000 duress related fee discussed above. Buyer had a fairly good reason and this may meet the requirement of good faith.

Finally, good faith may play a bigger part in this dispute. It seems that overall these specifications were unreasonable. Although it may be attributed to software performance there may very well be no software that could have met these specifications. If this was not known by either party and arose later Seller may have an argument for modification. Under the UCC a contract modification need not have additional consideration so long as it is in good faith. Here that could very well be the case. This would deal with much of the claim relating to the upgraded PCs. It also may be the basis for a discussion on what can be done to get the efficiency level up to the requirements.

January 1, 2010 contract execution $1 mil

June 30, 2011 $1 mill

Subcontracted for PCs at $250

Contractors Request for $100,000

QUESTION 3 — REAL PROPERTY

Rich owns Lot 1 and agrees to lease it to Liz for twenty years provided Liz maintains the trees on Lot 1. Rich and Liz thereafter enter into a written lease. Five years into the lease term, disease infects the trees on Lot 1 and local health officials require their removal. Liz removes the trees. Rich tells Liz to replace the trees, but Liz refuses. Rich wants Liz to leave Lot 1.

Rich enters into an agreement to buy Lot 2 from Steve. Before closing occurs, Steve passes away leaving a valid Last Will and Testament devising his real property to Lou and his personal property to Sue. Additionally, before a closing occurs, a fire destroys the building on Lot 2 and therefore Rich does not want to complete the purchase.

Rich owns Lot 3. Rich enters into a written ten-year lease with Donna for Lot 3. Donna moves onto Lot 3 and begins paying rent. After the first year of the lease term, Donna tells John that he can move onto Lot 3 for three years. John moves onto Lot 3 and Donna moves out. Thereafter Donna sends John an e-mail indicating that their agreement is “subject to my lease with Rich.” Once John Moves onto Lot 3 Rich receives no further rent payments.

Rich comes to your law firm with the following issues: (1) Rich wants Liz out of Lot 1;

(2) Rich does not want to close on Lot 2, but if required to close he wants to know who should receive the purchase proceeds; and (3) Rich wants to know his rights regarding Lot 3

You are asked to prepare a memorandum outlining all of Rich’s potential rights, obligations, and liabilities with respect to these issues.

PREPARE THE MEMORANDUM

SAMPLE ANSWER 3A

MEMORANDUM

To: Partner

From: Associate

Date: 7/28/11

Re: Potential Client Rich-Real Property

1. The issue is whether a lease provision is enforceable when compliance therewith becomes impossible as a result of illegality. Here, Rich has conveyed to Liz a lease of Lot 1 for a term of years. Liz is entitled to lease the property for 20 years. The parties agreed to that the lease would be terminated, however, if tenant Liz failed to maintain the trees on the parcel (Lot 1). After properly maintaining the trees on the lot for 5 years, a disease infected the trees and the city health officials required their removal. When the trees are removed, Landlord Rich tells Tenant Liz to replace the trees, and she refuses. For Rich to succeed in an action to eject Liz from Lot 1, he must show that she breached their agreement. Because Rich did not carve out his right to re-enter the property in the event of a breach, he must use available judicial remedies in order to evict Liz. Under NO CIRCUMSTANCES should Rich engage in self-help, and remove Liz from the property.

Rich’s best argument for the eviction of Liz is that as a condition concurrent to her lease, she was charged with maintenance of the trees. Since health officials ordered the trees’ removal due to disease, it can be presumed that Liz did not maintain the trees and therefore breached the agreement, automatically terminating the lease.

The court frowns upon ouster of people from residential homes. Here, Rich can argue that, although Liz breached their agreement, he offered her a fair chance to cure her breach by purchasing new trees. Because she refused to do so, Rich is entitled to a judgment of eviction.

Liz may argue that her lease was unduly restricted and that due to the provisions of the lease, Rich violated the landlord’s duty not to interfere with tenant’s quiet enjoyment of her property. Further, Liz may argue that any damage to the trees was not due to any fault of her own, and that any replacement of the trees would constitute ameliorative waste, which tenants are not permitted to commit.

If Rich can establish that Liz’s negligent care of the trees constituted waste, he may also seek damages.

2. The first issue is whether a contract for the sale/purchase of land survives the seller’s death prior to closing. A contract to sell real property binds the parties to their agreement, and its terms control until the deed is conveyed. In most states, once the contract is signed, the buyer has manifested intent to buy, and the seller has manifested intent to convey title to the property. Therefore, the buyer holds constructive title to the property, and the decedent-seller’s estate is bound by the agreement. Here, a valid agreement to sell Lot 2 to Rich was entered into before seller Steve’s death, and therefore, his intent to convey title and intent to be bound by the agreement binds his estate. The contract is enforceable.

The second issue is which party bears the risk of loss when, between contract and closing, a fire destroys the building on the property in contract. In most states, the purchaser of land bears the risk of loss between the contract date and the closing. The policy reason behind this law is because once the contract has been entered into, the purchaser has constructive title and is in the best position to obtain long-term insurance on the property, whereas the seller is likely in the process of winding-down an connections he may have to the property. Therefore, the buyer bears the risk of loss when the loss is not attributable to the seller. Here, because the facts do not indicate that the fire was caused by the seller, Rich bears the risk of loss, and must complete the sale. Some jurisdictions hold the seller liable for property damage that occurs prior to the buyer taking actual title or possession (usually at the closing).

It should be noted that Rich may have an argument in contract for frustration of purpose, or impossibility. Additionally, many jurisdictions will provide for a price reduction commensurate with the damage to the property, yet still enforce specific performance. Based on the aforementioned rules, because Rich, as the purchaser of Lot 2, entered into a valid contract to purchase the parcel, he bears the risk of loss and must take title at closing.

The third issue is who takes the profit in the event Rich acquires Lot 2? In most jurisdictions, when a specific gift is distributed through a will, and that gift is sold prior to the death of the testator, that gift adeems and the devisee takes nothing. In other jurisdictions, where the proceeds from the sale of the gift, or the proceeds from a policy benefitting a specific beneficiary, are paid after the death of the testator, then the devisee is entitled to the proceeds. Here, because Steve entered into contract and manifested an intent to sell Lot 2, he effectively removed the lot from the class of “his real property” and converted the property into cash. Therefore, the proceeds should be paid to Sue.

3. The issue is whether Rich may pursue Donna and John for rent owed to him. Rich is in privity of contract with Donna. Rich and Donna have a valid, written 10 year lease under which Donna agrees to pay rent on time. There is no restraint on Donna’s ability to assign or sublet her interest in the leasehold, therefore, her sub-lease to John is proper. A sub-lease occurs when a tenant conveys less than her entire interest to another party, whereas an assignment occurs when a tenant conveys her entire interest to an assignee. Donna sub-leased her interest to John because she retains the right to re-enter after 3 years, for the remainder of her lease. Donna’s e-mail to John indicating that their agreement is “subject to her lease with Rich” is immaterial because (1) it was made after the sublease agreement, and (2) it is not signed by John, the party to be bound. When a tenant sub-leases an interest to a sub-tenant, that tenant remains liable to the Landlord for rent, while the sub-tenant is liable to the original tenant. Therefore, Donna is liable to Rich for the rent owed, and Donna may then pursue John in an action to recover under their sublease.

SAMPLE ANSWER 3B

MEMORANDUM

TO: Rich

FROM: Associate

DATE: July 28, 2011

RE: Your Rights, Obligations, and Liabilities Regarding Lots 1, 2, and 3

You asked me to review the transactions concerning Lots 1, 2, and 3. My review of the transactions and conclusions follow.

Lot One

You seek to evict Liz from Lot 1. Your 20-year lease was reduced to writing (and presumably signed by Liz, the party-to-be-charged), thereby satisfying the statute of frauds.

A tenant, and especially a tenant of many years, is obligated to maintain the property in the condition in which it was provided, less normal wear and tear. Although a tenant may be required to repair the property and keep it in good working order, it is not obligated to rebuild the property in case of destruction. In addition they must satisfy the conditions of the lease. Here, a condition of the lease was that L maintain the trees on the lot.

Five years into L’s lease, a disease infected the trees on Lot 1. It is unclear based on the facts provided whether the disease was caused by L’s negligent care of the trees during the 5-year period, or whether the disease was entirely natural. In any case, it appears that the removal of the trees was not the choice of the tenant but was mandated by the government, the local health officials.

Conditions to a lease will be strictly construed. The condition was that L maintain the trees on lot one, not to plant them. Based on the facts and assuming that she properly and reasonably maintained the trees during the first five years, if the disease was not her fault and the city forced her to remove them, replacing the trees would exceed the scope of her obligations as a tenant. In addition, just as a tenant could be imposed with an obligation to maintain or repair, but not with the obligation to rebuild, there will not be an implied obligation that L replace the trees here. Assuming her conduct was non-negligent, it does not appear you have a justification for evicting her.

If, however, L failed to satisfy the condition of her lease and the disease in the trees was due to her failure to comply with the terms of the lease, R may seek to evict L for the failure to comply with the lease terms. The effect of that failure — disease of the trees and mandated removal — will support his necessary contention that the term was breached.

Lot Two

An executory contract exists when an agreement has been formed but both parties have yet to perform. Thus, your agreement to buy Lot 2 from Steve is an executory contract: You are obligated to convey money; Steve will convey the deed. The doctrine of equitable conversion applies to executory contracts for the sale and purchase of real estate. Upon forming the agreement, the seller’s interest in the property is deemed “personal property” and the buyer is deemed to have title in the property. Please note, the statute of frauds applies to all contracts to convey real estate. The agreement must be in a writing signed by the party to be charged, which describes the property with particularity and the details of the transaction. The following discussion assumes that your agreement with Steve satisfies the statute of frauds.

Unlike other contracts, an executory contract for the purchase or sale of real estate is not extinguished upon the death of either the purchaser or the seller. The property will pass through the estate subject to the executory contract. Because S’s interest in Lot 2 is deemed “personal” upon signing the agreement, it will pass through his estate to Sue. Sue must perform subject to the terms of the agreement, and therefore the a sale would have to occur.

During the executory contracting period, because buyer is deemed to have title of the property, a buyer is generally deemed to bear the risk of loss of any non-negligent destruction of the property. Thus, you cannot avoid the purchase, and that purchase price should be paid to Sue. If, however, S has insurance on the property, those proceeds must be held in trust for the purchaser of the property, you. Thus, I suggest that you take steps to see if insurance proceeds are available.

Lot Three

A lease exceeding 1 year in length must satisfy the SOF. Your written ten-year (assuming it is signed by Donna, the party to be charged) satisfies the SOF.

Your lease with D appears to be silent on the issue of whether subleasing or assignments are allowed. In such case, tenants are allowed to sublease or assign w/o the consent of the owner. Donna provided J with a 3-year term on her 10-year lease (of which she had only used a year). Because she had reserved part of her interest in the property (e.g., six remaining years of the lease), her agreement with J is a sublease. However, her agreement with J appears to be oral, failing to satisfy the SOF.

Since J is a sublessee, you have no rights against him. He is in both privity of contract and privity of estate with D only. Had the lease, upon signing, stated that J assumed all the obligations in the original K, you could have enforced the terms of your agreement with D on J as an intended third-party beneficiary. That is not the case here. D’s e-mail stating that her agreement with J is “subject to her lease with Rich” is not sufficient to make you an intended 3PB. In addition, the fact that the e-mail was sent after the agreement was made would not make it binding on J.

Despite the fact that J is subleasing the property, you are still in privity of contract with D, because she signed the original 10-year lease with you. Thus, you should attempt to recover directly against her for the rental payments that J has failed to make. Should she desire, D may attempt to have J indemnify her. (That, however, may be difficult if her sublease is indeed oral, which would allow J to merely avoid the agreement). In any case, regardless of D’s ability to recover against J, you may legally recover directly against her for the past rent due based on your privity of contract.

Please contact me should you have any further questions or concerns.

Sincerely,

Associate

QUESTION 4 — EVIDENCE

Judy was injured during a visit to her divorce attorney when the elevator malfunctioned and dropped several feet. The law firm owns the building. It has a maintenance contract with the elevator installation company. Judy suffered a back injury and sued the law firm and the elevator maintenance company. Trial resulted in a jury verdict in Judy’s favor, with her damages reduced based on a special jury finding that she had a pre-existing injury. The following evidentiary rulings are raised on appeal:

1 The law firm was permitted to introduce a log maintained at its reception desk of all calls to the elevator maintenance company for service and of all service visits made. Over the relevant time period three different receptionists were employed and made entries in the log. None of the receptionists testified.

2 Defendants were not permitted to introduce the testimony of Judy’s former roommate, Wanda, who is no longer on speaking terms with Judy. Wanda accompanied Judy to several meetings with her personal injury attorney for “moral support,” and sought to testify about statements made by Judy to her attorney during those meetings.

3 Defendants were permitted to introduce the testimony of the technician who conducted MRI scans of Judy’s back, that in his eight months of experience he had never seen back injuries to this extent caused by a single trauma, and that “Some of this condition must have been present before the elevator accident.”

4 Judy was permitted to testify that when the elevator doors opened she heard someone say “Oh Lord, I was afraid this would happen when those guys insisted on repairing the cable instead of replacing it.”

5 Judy was permitted to introduce testimony of a film director that before the accident she was a “real contender” for the supporting lead role in a movie about to go into production.

6 Judy’s divorce attorney was not permitted to testify that Judy had repeatedly asked if she would receive more alimony from her soon-to-be ex-husband if she were injured and unable to work.

You are the law clerk to the appellate judge who has asked you to research and to write a memorandum about the propriety of each of the evidentiary rulings now on appeal.

PREPARE THE MEMORANDUM

SAMPLE ANSWER 4A

To: Appellate Judge

From: Law Clerk

Re: Evidence

The evidence of the log maintained at the reception desk is hearsay. Hearsay is an out of court statement which goes to the truth of the matter asserted. Here the maintenance log goes to the truth of how often the elevator was out of service and when the company was called. Hearsay is inadmissible unless it falls within an exception.

The business record exception applies to the maintenance log. In order to comply with the exception, the record must be made during the ordinary course of business by an employee responsible for maintaining accurate records; the record must not be created for the purposes of litigation and must be authenticated by the proponent.

In this case, the log was maintained by the receptionist and was entered every time the maintenance people were called. It was not created solely for the litigation and was entered at different times by three different receptionists who were expected to record information as part of their job.

The only problem with this evidence is that it does not appear to have been properly authenticated at trial; none of the receptionists were called to testify, and without this an element required for the admission is not present. The question now becomes whether the error was harmless; if it was the court will not need to overturn the ruling of the lower court.

The testimony of Judy was improperly excluded from the trial because the statements made to the attorney in the presence of the third party are not privileged communications. In order to have privileged statements between an attorney and a client, the communication must be confidential; this means that individuals who are not either an attorney, an agent of the attorney or a current spouse of the client are typically not privileged. Wanda waived the attorney client privilege when she allowed Judy into the attorney’s office with her. The comments might still be hearsay but their exact nature would need to be disclosed before that can be determined.

The defendants should not have been allowed to introduce the testimony of an MRI technician on the severity of the injury to Judy. Expert witnesses are allowed to express an opinion in the courtroom as long as the basis for that opinion is established scientific conclusions. The court must also consider the credentials of any expert witness before they are allowed to testify.

In this case, the witness did not have a scientific basis when he stated that he had never seen injuries to this extent caused by a single trauma. The MRI technician is not a physician and used only eight months on the job as the basis for his testimony. There is no scientific evidence to support his conclusion. Furthermore, his qualifications as an expert are suspect as to any medical condition, given his is not a physician and has not been employed as an MRI technician very long. His testimony should be inadmissible.

Judy is attempting to admit hearsay with the statement, “Oh, Lord, I was afraid this would happen when those guys insisted on repairing the cable instead of replacing it.” The admissibility of this statement would depend on who said it. If it were an employee of the building or the elevator company, then it could be admissible as a statement against interest, and if it was apparently the cause of the injury when the elevator doors were opened, it may be admissible as a present sense impression. It would also, and most likely be admissible as an excited utterance because it took place immediately following the accident.

The testimony of the film director would be irrelevant. Relevant evidence is any evidence that has a probative impact on the certainty of a fact. Here the statement of the director was not relevant because it does not give any information to the listener. If admitted into evidence on the basis of damages, the statement would essentially be that she might have gotten the part. There is no certainty to this statement so it would not be probative of any fact. Therefore this testimony should have been ruled inadmissible for relevance.

Judy’s attorney was correctly not permitted to testify. If the attorney had been permitted to testify, the effect would have been to violate the attorney client privilege. Any communication between an attorney and a client is privileged unless that privilege is waived through the informed consent of the client. In this case, the communications were regarding alimony payments pursuant to her divorce and do not appear to have been public conversations. Furthermore, the nature of these conversations could be such that the prejudicial effect outweighed the probative value. Judy’s divorce attorney was correctly not permitted to testify at trial.

SAMPLE ANSWER 4B

MEMORANDUM

To: Appellate Judge

From: Clerk

Re: Evidentiary Rulings on Appeal

The following is an analysis of the six evidentiary issues that are on appeal before this Court. For the purposes of this memorandum, all of the items of evidence are sufficiently relevant unless it is otherwise noted. All admissible evidence must be relevant. Evidence is relevant when, if admitted, it allows the trier of fact to draw an inference that a fact in issue is either more likely or less likely to have occurred.

1. The Receptionists Log

The log kept by Defendant’s receptionists detailing the times that the elevator was maintained was properly admitted by the trial court under the business records exception to the hearsay rule.

Generally, hearsay is not permitted to be admitted into evidence. Hearsay is defined as an out of court statement that is admitted into evidence for the truth of the matter asserted. However, there are several exceptions where courts will deem evidence to be sufficiently reliable under a recognized hearsay exception. One such exception is the business records exception, which allows the admission of records kept in the ordinary course of business. Business records must be kept by the person in the business who has personal knowledge and would ordinarily keep such records. Documents are not validly admitted under the business records exception if they are prepared for litigation or some other unusual purpose.

Here, the log was properly admitted. The log meets the relevance test because it provides evidence of whether Defendants were diligent in calling the contractor for elevator repairs. The log is hearsay because it is an out of court statement that is being offered for the truth, but the log falls under the business records exception. It was prepared by receptionists at that time that they had personal knowledge of the calls being made to the contractor. The three receptionists do not need to testify that the record reflects the record that they made. It is sufficient that the record was made in the ordinary course of business by he person who would ordinarily make it. The record can be authenticated — validated as being what it purports to be — by any member of Defendant’s firm that is familiar with the record.

2. Wanda’s Testimony

The trial court was incorrect to exclude Wanda’s testimony because she was prepared to testify about non-privileged statements made by Judy, the plaintiff in the case.

Statements and communications made between an attorney and client are generally privileged. Such a privilege is held by, and can only be waived by a client. However, there are instances where the attorney-client privilege will not apply. One such instance is where the communication between the attorney and the client is made in front of a 3rd party. Such an intentional disclosure to a third party will not protect a statement under the attorney client privilege.

Here, Wanda accompanied Judy to meetings with her personal injury attorney and heard conversations Wanda made to her attorney. These conversations involved the attorney’s representation of Judy, but they are no longer privileged because they were made before Wanda, a third party. The fact that Wanda was there for Judy’s “emotional support” does not affect the privileged status (or nonstatus) of the statements. Additionally, assuming that the statements are relevant, any potential animosity between Judy and Wanda is not pertinent with respect to the admission of the statements. This bias would be brought out during cross examination.

Furthermore, Judy’s statements are not prohibited by the hearsay rule. As stated above, prohibited hearsay is defined as an out of court statement that is admitted into evidence for the truth of the matter asserted. However, admissions by party opponents is defined as non-hearsay. Therefore, this statement does not fall under the hearsay rule because the Defendant sought to introduce a statement made by Judy, a party opponent.

3. Defendant’s Expert

Defendant should not have been permitted to introduce the testimony of the MRI technician as an expert because his qualifications, basis for knowledge, and methodology were not established by the trial court.

The rules of evidence will not allow “junk-science” expert witnesses. Experts must meet a number of qualifications before they are permitted to testify. The expert testimony must have a reasonable fit to for the reason being offered by being based on a reliable methodology. The expert must be qualified. The expert must base his opinion in facts that an expert in his field would ordinarily consider. The expert must be reasonably certain in his opinion. And the expert opinion must be helpful to the trier of fact.

Here, the expert offered by Defendant was an MRI technician. The did not have established qualifications with only eight months experience. The technician only conducted the scans of Judy’s back, and it is uncertain for the basis of his statement that “Some of the condition must have been present before the elevator accident.” Additionally, the testimony did not represent a reasonably fit to the issues at hand because the methodology that the expert used, just looking at the scans and comparing them to the ones he remembers, is not reliable. Therefore, the expert should not have been allowed to testify.

4. Judy’s Testimony

Judy was properly allowed to testify because her statement falls under the excited utterance exception to the hearsay rule.

As stated above, prohibited hearsay is defined as an out of court statement that is admitted into evidence for the truth of the matter asserted. However, there are certain exceptions that will allow a statement to be admissible. Under the excited utterance exceptions, statements made during the passion and excitement of an incident will be allowed into evidence.

Here, Judy testified that she heard someone say, “Oh Lord, I was afraid this would happen when those guys insisted on repairing the cable instead of replacing it.” This 3rd party statement was made immediately after Judy’s elevator accident, in the heat of the moment. Therefore, this statement was properly admitted as an excited utterance.

5. Film Director

The Director should not have been allowed to testify because his testimony was not relevant. As mentioned above, Evidence is relevant when, if admitted, it allows the trier of fact to draw an inference that a fact in issue is either more likely or less likely to have occurred. Here, the Director testifies as to the extent of Judy’s damage. His testimony of prospective rolls is simply too remote to be allowed to be admitted.

Furthermore, the trial judge should have excluded this evidence under the discretionary evidence standard, and failing to due so was an abuse of discretion. Evidence that is substantially more prejudicial than its probative worth are excluded. Here, the statement of such a lost long-shot opportunity has marginal probative worth and is likely to unfairly prejudice the jury.

6. Divorce Attorney

The trial judge was correct to exclude Judy’s attorney. As mentioned above, statements and communications made between an attorney and client are generally privileged. Such a privilege is held by, and can only be waived by a client. Lawyers are permitted to testify against clients when involved with litigation against clients and the subject matter of the testimony relates to the litigation.

Here, Judy is suing her law firm, but the lawsuit is not about their representation of her but about a defect in their elevator. A disclosure of her confidential communications about her divorce strategy is therefore improper because it does not relate to the subject matter of the litigation and is generally protected under the attorney client privilege.

QUESTION 5 — CONSTITUTIONAL

Anytown, New Jersey has one public high school. Late one Friday evening, one week before graduation, the high school gymnasium was destroyed by fire, which the Anytown Fire Department immediately declared “suspicious.”

On the night of the fire, Anytown Police Officer Smith was on duty in his marked patrol car. Less than one mile from the high school, when he heard a call over his police radio that the high school gym was on fire, he had just pulled over a car for driving 50 m.p.h in a 25 m.p.h. zone. As Officer Smith was asking Johnny Jones, the 18-year-old driver of the speeding car, for his driver’s license, registration, and insurance information, the officer saw through the vehicle window three gasoline cans and a book of matches on the back seat. Officer Smith immediately ordered Jones and his 18-year-old passenger, Richard Rogers, out of the car. He searched the car and found both Jones’ and Rogers’ student IDs showing they were seniors at Anytown High School. Smith also found handwritten notes detailing a plan to burn down the high school. Smith immediately arrested both Jones and Rogers.

With the gymnasium destroyed, Anytown High School was forced to find an alternate location for the graduation ceremonies for its 300-student senior class. The pastor of Anytown Bible Church offered the use of the Church’s auditorium, the only venue in town big enough to hold all the graduates and their guests. The high school principal quickly accepted the offer, notwithstanding the fact that the auditorium is decorated with numerous crosses and large signs displaying Bible readings. The pastor also informed the principal that the rules of the congregation require men and women to sit separately and that both the graduates and any person attending the graduation must follow those rules. The principal sent out a notice to all seniors letting them know about the new location for graduation and the rules for attendance, as set forth by the Anytown Bible Church.

You are an associate at a law firm that represents Johnny Jones in his criminal case. The firm also represents Amy Anderson, the mother of a senior at Anytown High School who is an atheist and wants to sue the school to stop it from holding graduation in a church auditorium. The senior partner directs you to prepare a memorandum (1) addressing all the constitutional arguments Jones can make to suppress the evidence found in his car, and the likely counterarguments the prosecution will raise and (2) detailing the legal arguments that can be made for and against Anderson’s lawsuit against Anytown High School.

PREPARE THE MEMORANDUM

SAMPLE ANSWER 5A

To: Senior Partner

From: Associate

Re: Anytown

Date: 7/28/2011

Per your request, below you will find my analysis of (1) Constitutional arguments Jones can make regarding the circumstances surrounding his arrest, and (2) an analysis of the Establishment Clause and Equal Protection Clause as it relates to Anytown High School’s decision to relocate the graduation ceremony.

1. Jones

Jones can attempt to suppress the evidence found in his car pursuant to his Fourth Amendment rights against unreasonable search and seizures, but his attempt will ultimately be denied.

The Fourth Amendment protects only against unreasonable searches and seizures by the government conducted against an interest in which a person has a reasonable expectation of privacy — both subjective and one that society recognizes as reasonable. Generally, a search and seizure is unreasonable if it is effectuated without a warrant. There are, however, exceptions to the warrant requirement, such as exigent circumstances, search incident to an arrest, consent by the suspect, automobile searches (in limited circumstances), plain view, inventory searches, and terry stop and frisks. The plain view exception holds that a warrant is not needed and the resulting seizure is not violative of the Fourth Amendment if a government actor sees evidence of criminality from somewhere the government actor is lawfully situated. The automobile exception holds that a government actor may search an automobile without a warrant provided the officer has probable cause. Importantly, the officer need not have probable cause when the officer pulls the car over, but only needs probable cause before he conducts a search of the vehicle. The inventory search exception holds that the government may search a vehicle in custody of the police provided that the regulations surrounding the search of the vehicle are reasonable, the search complies with the regulations, and the officer conducts the search in good faith. Evidence obtained as a result of an unlawful search and seizure is excluded from the prosecutor’s case in chief, as is all derivative evidence discovered as a result of the unlawful search and seizure. Evidence obtained unlawfully, however, may be used if the evidence would have been inevitably discovered, or the evidence is sufficiently attenuated from the illegal search.

In the instant case, Johnny Jones was pulled over for speeding. Johnny Jones was not just speeding, he was doing nearly twice the speed limit. At the time Jones was pulled over, the officer did not have probable cause to search the vehicle. A search of a vehicle effectuated for reasons disconnected from the reason the vehicle was stopped is presumptively unlawful. Jones may contend that the officer did not have probable cause when he searched the car, but the officer, however, is likely to have obtained probable cause to search the vehicle at the moment the officer received a radio call that the school gym was on fire. Being only a mile away from the school, the fact that Jones was doing nearly twice the speed limit could be perceived as fleeing from a crime scene, and together with the fact that he was a high school student, this probably constituted enough evidence to amount to probable cause to search the vehicle. Even if this did not constitute probable cause, however, knowing that a potential arson had taken place not a mile away, the officer saw the gas cans and matches in plain view from a place he was lawfully located. Thus, the search of the automobile was reasonable despite the lack of a warrant because it was effectuated under the automobile and/or plain view exceptions.

Moreover, because all an officer needs to arrest someone in a public place is probable cause, the officer’s decision to arrest Johnny Jones because of the evidence of criminality in plain view was permissible. Even if the subsequent search of the car was unlawful, it would still not be excluded from trial because it would have probably been inevitably discovered as a result of an inventory search.

Thus, Jones’ suppression motion will fail.

2. Establishment Clause

Anderson’s suit will probably fail on the merits.

Anderson may claim that the high school’s decision to relocate the high school ceremony to a church is violative of the Establishment Clause of the First Amendment. The Establishment Clause prevents the government from establishing religion. The Supreme Court of the United States, in Lemon v. Kurtzman, handed down what has become known as the “Lemon Test.” The Lemon Test holds that government policy that (1) has a secular purpose, (2) does not have the effect of advancing or endorsing religion, and (3) does not create excessive entanglement between the government and religion is permissible.

Here, the government’s decision to use the church as the venue has a clear secular purpose of facilitating the high school’s graduation ceremony. This is further supported by the fact that the church is the only venue in town large enough to hold all of the graduates and their guests. Thus, the first element of the Lemon Test is satisfied.

As for the second element of the Lemon Test, Anderson might attempt to claim that the school’s decision to acquiesce to the Church’s demand that women and men be sat separately endorses the religious purposes behind the Church’s policy. Looking at the policy facially, however, the requirement does not seem to endorse any specific religious policy. The policy of men and women sitting separately is in many ways no different than any other venue imposing a seating requirement. Thus, it is unlikely that the policy advances religion.

Finally, Anderson might claim that the numerous religious decorations located around the building fosters an excessive entanglement with religion. There may be some merit to this claim, but ultimately the graduation ceremony is a one-time event and is only being held at the new venue out of necessity. This, coupled with the fact that the town meets the first two prongs of Lemon, probably would persuade a court to find that the town’s actions are not violative of the Establishment Clause, and thus not to issue an injunction.

3. Equal Protection Clause

Anderson may also claim that the policy requiring men and women to sit separately is violative of the Equal Protection Clause. This argument ultimately will be a misnomer and is unlikely to be successful.

The Equal Protection Clause of the Fourteenth Amendment restricts the ability of government to hold different classes of people to different laws, or the application of the same law, differently. Gender classifications are normally viewed as requiring the State to meet “Intermediate Scrutiny,” which means the state must have an important interest, and the reason for the suspect classification is substantially related to that interest.

Here, however, there is no classification. The policy of requiring men and women to sit separately applies to both men and women equally. All men and women are held to the same policy, and receive no disparate treatment as a result of their gender. Thus, the claim will not succeed.

SAMPLE ANSWER 5B

To: Partner

From: Applicant

Date: July 28, 2011

Re: Jones & Anderson Lawsuits

This memorandum address all the constitutional arguments Jones can make to suppress the evidence found in his car and the prosecution counterarguments, and (2) the legal arguments for and against Anderson’s lawsuit against the High School.

Part I: Jones Lawsuit

Jones will ultimately fail in attempts to suppress the evidence seized from his car.

Under the Fourth Amendment of the US Constitution, and the analogous provision of the NJ Constitution, citizens are guaranteed the right to be free from unreasonable searches or seizures of their person, home, papers, or effects. Generally, this requires law enforcement to obtain a warrant based on probable cause, stating in particularity the thing to be seized and where it’s located, and issued by a neutral magistrate. Probable cause is a fair probability that evidence of crime will be found in particular location. 4th Amendment protection is triggered when the defendant has a subjective expectation of privacy, and that privacy is one society recognizes. Katz.Further, a defendant must have standing to challenge a search. Rakas.There are, however, many exceptions to the warrant requirement, including automobile searches, plain view, and Terry stops. Additionally, an officer’s good faith reliance on a bad warrant will not trigger the Exclusionary Rule. Under the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine, any direct and derivative evidence obtained in violation of the 4th Amendment is inadmissible, unless that evidence would have inevitably been found, was available from an independent source, or the nexus between the illegal search and the evidence has been destroyed.

Here, the officer seized Jones when he pulled over his car. This seizure was lawful because he was speeding which provided probable cause. Therefore, when the officer approached the car during a lawful traffic stop, he was lawfully standing near the car. Under the plain view exception to the warrant requirement, an officer does not require a warrant to seize evidence when its criminality is obvious (i.e. probable cause) and he has discovered it from a lawful position. Jones could argue that the criminality of gas containers is not obvious but in light of the big fire, their close proximity, and Jones speeding, the officer had enough evidence to support his conclusion.

Beyond plain view, there is an exception to the warrant requirement for automobiles. Under this exception, if the officer lawfully stops a vehicle, as occurred here, then he may search the vehicle is he has reasonable suspicion that there is a dangerous weapon or evidence of crime in the vehicle. Here, the cumulative facts provided the officer with reasonable suspicion that the items in Jones’ car were evidence of criminality. The purpose of the Auto exception is to prevent the destruction or loss of critical evidence due to the mobility of a vehicle. These facts comport with the policy concerns implicated by the exception.

Alternatively, the officer could search the car as part of a Terry stop, for his protection since Jones and Rogers were not secured and near the vehicle.

In any event, the search would probably fall under the inevitable discovery exception to the exclusionary rule. Because the officer had grounds to arrest Jones just for the excessive speeding and subsequent to an arrest can lawfully search the vehicle as a search incident to arrest. Alternatively, there may have been an administrative search is the vehicle was impounded.

In sum, Jones should take a plea offer.

Part II: Anderson Lawsuit

A. First Amendment: Freedom of Religion

Under the First Amendment of the US Constitution, all citizens are guaranteed freedom of religion. In practice, this means the government cannot infringe the free exercise of religion or establish a state-supported or preferred religious orthodoxy.

The state action doctrine limits this protection to acts by the government or an entity acting on behalf of or in conjunction with the government in its governmental role.

A law that burdens the free exercise of one’s religion does not trigger strict scrutiny, if it is a neutral law of general applicability. (Exception: federal government actors under RFRA). If a regulation explicitly burdens religion then it triggers strict scrutiny. Finally, US Supreme Court precedent has established that high school graduates have a vested interest in participating in a graduation ceremony without being coerced to participate in a religious activities. This includes both school administration led, administration endorsed, or independent student religious invocations. A religious belief is any “sincerely held belief.”

Ms. Anderson, as an atheist, may try to assert that the public school, as a government actor, is burdening her religious freedom by adopting the church and its rules as the exclusive forum for participating in a important community and civic event, high school graduation. The school may argue that this is a neutral rule of general applicability, but the adoption of the churches rules is enough to trigger strict scrutiny. Under strict scrutiny, the school carries the burden of showing the means are narrowly tailored and a compelling end. This is a high burden and under these facts the School would lose.

In defense, the high school can rely on a recent US Supreme Court precedent that found a father, in an analogous case, did not have standing to challenge the “in God we trust” phrase during the pledge of allegiance. Here, like in that case, the parent is trying to assert a burdening of HER religious rights based on her child’s graduation. This claim does not satisfy Article III standing requirements. Under Article III, an individual only has standing if she has suffered an injury, it was caused by a government actor, and the harm is redressable. Therefore, Ms. Anderson will probably lose to the High School on her Free Exercise claim because standing is dispositive.

Ms. Anderson can also raise an Establishment claim. Under the Lemon test, any government act is lawful if it has a secular purpose, does not support or hinder religion, and does not excessively entangle government actors with religion. The High School’s conduct fails the Lemon test because there is a colorable argument that adopting the churches rules support the churches agenda, and hosting it there with all the religious symbolism and text excessively entangles the public school with religion.

B. Fourteenth Amendment: Equal Protection

Ms. Anderson also has a colorable claim under the Equal Protection clause of the 14th Amendment. Under Equal Protection, any government act that explicitly classifies on the basis of a suspect class is subject to constitutional review. Gender is a suspect class, and any classification must survive intermediate scrutiny. Intermediate scrutiny requires the government to show that its means are substantially related to an important government purpose. Beneficial classifications are only acceptable when they do not rely on traditional gender stereotypes.

Here, the school has wholly adopted the churches rules related to separation of men and women. Thus a government actor is making a classification, and must show survive intermediate scrutiny. The government has an important ends, carrying out an important collective civic ritual, and there are no other buildings. However, the means are under/over-inclusive. The High School should not have adopted the churches rules, or found a way to pressure the church to relax its expectations under the circumstances. The school will lose an equal protection claim by Ms Anderson.

QUESTION 6 — TORTS

Brothers, Tom and Jerry, ages 13 and 14, were waiting in a long line to pay for several items they wanted to buy at the Store. Tom, tired of holding all the items in his hands, put two bags of candy into his pocket and wandered over to the nearby magazine rack while Jerry stayed in line. Tom was standing at the rack for about 3 minutes when Sam, Store’s security guard, who had been watching Tom, walked over to Tom and said, “You better come with me, now!” Sam was new to the job and had not yet attended Store’s formal training program for security personnel.

Tom replied, “No way, I didn’t do anything and my turn is soon.” Jerry said, “Take a hike, you’re just a pretend cop.” Sam became so enraged that he forcefully grabbed Tom’s arms and tried to put plastic handcuffs around his wrists. Tom tried to pull away and in so doing hit Sam in the mouth causing Sam’s new tooth implant to dislodge. Sam then grabbed Tom’s hands and placed them in cuffs. He told both Tom and Jerry to come with him or he would call the police.

Sam held each boy by the arm, marched them to the manager’s office, and told them to stay put until the manager arrived. Leaving the cuffs on Tom, Sam closed the door and left them alone. Tom and Jerry did not have cell phones with them; they were frightened and very upset.

The store manager arrived 45 minutes later. He asked Tom if he had anything in his pocket. Tom said, “Yeah, the candy I was going to buy, but now I don’t want it.” After listening to the boys describe what happened, the manager told them they were free to go.

Both boys were so upset by this incident that they had trouble sleeping, refusing to go to school, and were treated for anxiety. Tom and Jerry’s parents come to your office seeking to bring a civil lawsuit. Prepare a memorandum outlining what claims they may file and what defenses and counterclaims could be raised. Assume no statute protects merchants or shopkeepers in these circumstances.

PREPARE THE MEMORANDUM

SAMPLE ANSWER 6A

To: Parents of Tom and Jerry

From: Lawyer

Re: Lawsuit against Store

Tom and Jerry’s parents may wish to bring a lawsuit against Sam for assault, battery and false imprisonment and additional claims against Store for negligent hiring and training and vicarious liability.

Claims against Sam:

Assault is intentionally placing another in reasonable apprehension of an immediate battery. Here, when Tom told Sam that he didn’t do anything, Sam became enraged and forcefully grabbed Tom’s arms. Sam acted intentionally because he wanted to apprehend the boys. During this exchange, it would be reasonable for Tom or Jerry to reasonably apprehend an imminent battery.

A battery is an intentional touching of another’s body that is either harmful or offensive. When Sam grabbed Tom he acted with the intent to restrain Tom and when placed him in handcuffs he committed a battery on Sam because his contact was offensive.

False imprisonment is the intentional act of containing someone within a bounded area without reasonable means of escape. Here, Sam acted intentionally because he took the two boys to the office and told them to stay. The area was bounded and the boys were confined there because Tom was in cuffs, and the door was shut. Additionally, Sam’s threat to call the police would qualify as an act of confinement because the boys would reasonably believe that they could not leave. Even if the door were left unlocked and the boys were able to exit, their fear and fact that they had no cell phones to contact their parents would cause them to be without a reasonable means of escape.

Sam’s Defenses:

Sam may claim self-defense as a defense to a claim for assault or battery. When someone reasonably fears that force is about to be used on them, they are justified in using reasonable force necessary to prevent the attack. Here, Tom hit Sam in the mouth, causing one of his tooth implants to dislodge. He may claim that he feared another hit from Tom and this is why he restrained him. This argument is not likely to prevail because Sam was the first aggressor, and a first aggressor is generally prohibited from asserting self-defense. The facts state that Tom, Sam and Jerry were only engaged in a verbal exchange when Sam became so enraged that he tried to forcefully grab Tom. Thus, Sam cannot assert self-defense.

Sam’s Counterclaims:

Sam may counterclaim in a suit against Tom for battery, but this is not likely to be successful. As stated above, a battery is the intentional touching of another’s body that is either harmful or offensive. Here, Tom did not act with any intent because he was trying to pull away from Sam when he accidentally hit Sam in the month.

Claims against Store:

Tom and Jerry’s parents may wish to sue Store for the negligent hiring and training of Sam. In a negligence action, a plaintiff must show that the defendant owed the plaintiff a standard of care, that the defendant breached this standard of care, and that the breach was the actual and proximate cause of the plaintiff’s damages. The general duty of care that is owed is that of a reasonably prudent person under the circumstances.

Here, Store owed its patrons a duty of a reasonably prudent store when hiring and training its employees. The store breached this duty when it hired Sam and allowed him to start working before attending the Store’s formal training program. This is a breach because a reasonably prudent Store would ensure that all its security personal were properly trained. Tom and Jerry suffered anxiety, trouble sleeping and refused to go to school. The Store was a cause of these injuries because, but for the Store’s negligence in training Sam, Sam would not have tried to restrain the boys in the manner that he did. If Sam had not restrained them, they would not have suffered anxiety. Store’s negligence was the proximate cause of their injuries because it is foreseeable that if one improperly trains their security, patrons will be injured. Thus, Store should be liable for negligence.

An employer may be vicariously liable for the torts of its employees that are conducted while within the scope of their employment. Generally, an employer cannot be liable for the intentional torts committed by its employees, unless foreseeable or force is a part of their employment duties. Here, Sam was acting within the scope of his employment because he was a security guard and he apprehended the boys for suspecting them of shoplifting. Thus, the parents may be able to hold the store vicariously liable for the torts committed by Sam.

Store’s Defenses:

Store may defend a claim of negligence by stating that Tom was contributory negligent for placing the candy in his pocket and that they cannot be liable for the intentional torts of Sam.

Contributory negligence occurs when the plaintiff breached a duty of care owed to himself which contributed to the cause of his injuries. The general duty owed it that of a reasonably prudent person, however children will owe a duty of a hypothetical child of the same age, experience and intelligence under similar circumstances.

Here, Tom, age 13 would owe the duty of a child of like intelligence, same age and education. The issue would be whether it is reasonable for a 13-year old of Tom’s intelligence and education to place candy in his pocket and wander away from the line to a magazine rack. Given how closely this standard of care is tailored to the actual child, it is unlikely that the Store will be successful in proving Tom was contributory negligent.

The store may also claim that they cannot be liable for the intentional torts of their employees, but this argument is likely to fail because Sam was a security guard and it would not be unforeseeable that a security guard would use force in apprehending shoplifters.

SAMPLE ANSWER 6B

Memorandum regarding claims to be raised by Tom and Jerry, possible defenses and counterclaims to be raised by Store and Sam.

Negligence against Store

T and J’s parents may file a claim against Store (S) for negligence, for not properly training Sam, S’s security guard, before allowing him to perform in his role.

A negligence claim has the following elements: duty, breach, causation, damages. T and J’s parents must prove all of these elements for a successful claim.

Store had a duty to act as a reasonably prudent store would under the circumstances, in both hiring Sam, and in ensuring he was properly trained. Given Sam’s critical role to secure the store, and the possibility that Sam become involved in physical altercations, it would have been important for Store to ensure that Sam was advised and properly trained on the limits and responsibilities of his new role.

Store breached their duty to properly train Sam and ensure he knew how to act in his role, but not requiring that he attend their formal training program prior to letting him work as a security guard.

Here, given that a reasonably prudent store under the circumstances would have trained Sam, and given that Store did NOT train Sam prior to Sam beginning his work, Store has breached their duty of care to T and J.

Parents must now show that the breach was both the actual (cause in fact or ‘but for’ cause) and proximate cause of the harm that T and J incurred.

Here, but for S’s failure to train Sam, Sam would have completed the formal training program, and may have acted differently under the circumstances. It is likely that with formal training, Sam would have approached and questioned T and J, who were only 13 and 14 years old, in a different manner. Thus, Store is the actual, but for, cause of T and J’s damages.

In terms of proximate cause, we look at whether the damages were the foreseeable consequences of the breach. Here, it was foreseeable to Store that a failure to properly train a security guard, who is in a position to physically grab customers and potentially detain customers, would lead to a customer being improperly detained and harmed.

Parents must show damages, which typically require evidence of some physical harm.

Here, Sam forcefully grabbed T’s arm. It is unclear whether this has left any scars or bruises. Additionally, T and J now have trouble sleeping, they refuse to go to school, and have been treated for anxiety.

Whether all of these damages are the foreseeable consequences of Sam’s actions is questionable, and this will be a question for the jury to decide. However, it is evident that T and J were most certainly damaged. Not attending school and feeling anxiety could cause many years of harm, and eventually lead to them not being able to get a proper education or job.

Thus, given that parents can show duty, breach, causation and damages on the part of Store, for their negligence in not training S, parents have a solid cause of action in negligence that will likely succeed.

Vicarious Liability

An important doctrine with regard to employee-employer relationship is that of vicarious liability. When an employee, acting within the scope of their employment, injures a customer or another individual, the employer will be held to be vicariously liable, under the doctrine of ‘respondeat superior’, which essentially concludes that the employer is responsible for the harmful, or unlawful actions of their employees, given their level of control.

However, there is an exception here, that would allow Store to be relieved from any potential liability from Sam’s actions. When the role is one that involves physically restraining customers (as is the case with a security guard); when the actor/employee acts beyond the limits of his role the employer cannot be held vicariously liable.

Thus, if Sam is indeed held to be liable for a tort (see below — battery — likely), if he exceeded the scope of his employment duties, Store will not be held liable under vicarious liability theory.

Battery

T’s parents will raise a claim of battery against Sam, and Store for being vicariously liable for Sam’s actions.

A battery is the intentional harmful or offensive touching of another person. Here, Sam grabbed Tom’s arms, when he became enraged after T told Sam to take a hike.

Sam’s volitional act of grabbing T’s arm satisfies the intent component of battery. S’s forceful grabbing and attempting to put handcuffs on T would satisfy the harmful or offensive touching element (as per a reasonable person standard) a reasonable person would find this type of grabbing and trying to force handcuff’s on them to be harmful and offensive).

Thus, Sam has committed a battery against T. Whether Store will be liable is a question for the jury. Parent’s must show that Store had authorized Sam as a security guard, the right to physically detain customers. The position itself is one that leads to physical altercations, thus it is a natural component of this role.

But, if Sam exceeded the scope of responsibility, perhaps if Store’s policy is that the guards must ONLY confront a potential thief with words and questions, then Store will be relieved of liability and cannot be held to be vicariously liable for Sam’s battery of T. Here, we will need more facts about Store’s policy, what they told Sam prior to him starting in his role, to determine if Sam was acting within the scope of employment authorized by Store.

Assault

An assault is the intentionally placing of another individual under reasonable apprehension of an immediate harmful or offensive touching. An assault can be charged as a specific intent crime, when it occurs per an attempted battery, or a general intent crime when it occurs per intent to place another under apprehension of immediate harmful contact.

Here, when Sam told T he had “better come with me”, T may have been placed under apprehension of an immediate harmful touch. It is unclear, but we can infer that a reasonable person would likely not, at this point, apprehend an imminent touch, given the situation. It does not appear T felt apprehension at this point, because he told S “no way” and brushed aside the confrontation.

However, when Sam then became very enraged, it is likely an assault occurred at this moment. If T can show that he felt apprehension of immediate battery at the point S became enraged, which is likely given what transpired just moments later, than an assault will be present.

Again, whether Store will be vicariously liable is questionable, and the same analysis as per above with the battery must be applied.

Sam v. Tom — Battery

Sam will also, incidentally, file a claim against T for batter, given T’s hitting of Sam in the mouth. T intentionally hit Sam when he pulled away and his arm swing up and hit S. However, T has a valid claim here for self-defense; and so, S’s battery cause of action will fail.

Self-Defense

An individual has a right to defend themselves from imminent harm, so long as they take actions in proportion to the potential harm. Thus, for example, they cannot use deadly force to defend themselves against a possible punch on the arm.

Here, T will assert that he acted in self-defense, because S had grabbed his arm. T did not believe he had done anything wrong, because he told store manager that he was going to buy the candy that he had put into his pocket.

False Imprisonment (FI)

FI is the unlawful detaining of another, against their will, without a reasonable means of escape. Plaintiff must show damages. Here, T and J were detained for 45 minutes. T had cuff’s on him still, so it was clearly not possible for him to escape, as he would have still had the cuff’s on. Additionally, Sam closed the door of the manager’s office. It is not clear if the office door was locked; but, what was clear is that the boys were detained for 45 minutes.

It does not appear that boys had a reasonable, obvious means of escape. They were clearly harmed, as they were frightened and very upset by these actions. Additionally, the false imprisonment may be responsible for the boys’s sleepless nights, and their high anxiety.

Thus, all elements of a false imprisonment claim are present.

Shopkeeper’s Privilege as a Defense to FI

Store has a valid defense to the FI claim. A shopkeeper who has a reasonable suspicion that a customers has committed shoplifting or a similar crime within their store, may detain the individual for a reasonable period of time.

Here, store and S clearly had a reason, and S had seen T put the candy in his pocket. Thus, Store had a valid defense to the FI claim, under the shopkeepers’ privilege.

Whether holding the boys for 45 minutes would be within the privilege will be for the court to determine. Given that the boys were frightened, and one of them was handcuffed, it is likely the court will find that the 45 minute delay in bringing the store manager in was unreasonable. Thus, the Store will be found to have exceeded the scope of the shopkeeper’s privilege.

Intentional Infliction of Emotional Distress (IIED)

IIED occurs when the defendants extreme and outrageous conduct causes severe emotional distress in the plaintiff.

Here, S’s conduct was extreme and outrageous. He put handcuffs on a 13 year old boy, and then made both boys sit inside the office for 45 minutes. There is no evidence he gave them any water or checked in on them.

The boys do not need to show physical harm for an IIED claim. Clearly, they were severely emotionally distressed, as the facts state they cannot sleep, they refused to go to school and are being treated for anxiety.

This is a clear case for IIED and the parents will be successful. Sam may argue that his actions were not extreme and outrageous, but given the age of the boys, the physical altercation btw Sam and T, and the 45 minute detention, it is clear that S’s defense here would fail.

Of Note

It is worth noting that T is likely guilty of larceny, for the taking and carrying away the property of another. The issue however, is whether he had the intent to permanently deprive the store of the candy. It does not appear he did, as he told the store manager he was going to buy it.

QUESTION 7 — CIVIL PROCEDURE

Plaintiff, Movie Producer, filed suit for alleged copyright infringement in the Federal District Court for the District of New Jersey against thousands of computer users — 2 named New Jersey residents and 4,534 “John Doe” Defendants — identified only by their computer’s Internet Protocol (“IP”) address. All defendants were users of a peer-to-peer (“P2P”) file sharing protocol and allegedly infringed copyrights through Internet sharing of Plaintiff’s copyrighted movies. On Plaintiff’s motion, the assigned federal district judge has issued an order for expedited discovery permitting Plaintiff to serve Rule 45 subpoenas on Internet Service Providers (“ISP”) for identifying information associated with each IP address. With respect to the “John Doe” Defendants, Plaintiff served a Subpoena upon ISP Bombast demanding the name, street address, e-mail address, and telephone number of each individual associated with an IP address identified by Plaintiff as involved in the file sharing. Reverse domain name service lookup (“reverse DNS”) is available free of charge on the Internet and, using an IP address, indicates where a computer is likely to be located. Reverse DNS suggests that 468 of the John Doe defendants are located in New Jersey, and the rest appear to be in the other 49 states.

You are the law clerk for the federal district judge assigned to the case who has asked for a bench memorandum concerning the following issues: (1) a motion by Bombast to quash the discovery Subpoena; (2) whether the John Doe Defendants should be permitted to move to quash or file other motions anonymously or under protective order to guard release of their identity; (3) potential grounds for motions by the specifically identified Defendants and the as yet unidentified John Does to dismiss the complaint; (4) whether, if the district court judge denies Bombast’s motion to quash, the John Doe Defendants may appeal his ruling and their likelihood of success; (5) whether Defendants can seek class action certification for a counter-claim against Plaintiff for alleged misuse of federal courts for extortionate mass lawsuits.

PREPARE THE MEMORANDUM

SAMPLE ANSWER 7A

To: Federal Judge

From: Law Clerk

Date: 7/28/2011

Re: Lawsuit Issues

(1) A discovery subpoena can is a document that is used to obtain certain information from a non-party to the action. Most discovery documents related to parties are simply discoverable through regular discovery motions. The subpoena has the legal effect of requiring such production through threat of law. However, a subpoena will not be allowed if it is too comprehensive or over-bearing on the non-party as to create an undue burden. A motion to quash a subpoena is the appropriate document to accomplish the denial of such an over-extensive request on a non-party.

In this case, Bombast’s motion to quash was in response to certain private contact information concerning certain ISP users. Although the contact information requested is seemingly limited in nature, an argument can be made that it is both confidential and unnecessary because of the public availability of the information. However, the subpoena stemmed from a valid court order for expedited service directed at the particular parties and the information that is publicly available will NOT allow the plaintiff the ability to determine who actually is using the ISP addresses used for illegal purposes. Rather, the reverse domain search reveals only where the computer may be located, not particulars about the potential defendants that the plaintiff seeks. Therefore, the Bombast subpoena is most likely valid and will survive the motion to quash because it seems to be reasonably necessary, does not create any undue burden on the non-party, and stems from a valid court order.

(2) The John Does should not be permitted to file motions under protective orders or anonymously because there is no confidentiality concern as to their identity within the actual suit itself. This allowance is only provided when there is some real concern with the party’s confidentiality, such as national security, not a mere concern about being named in a lawsuit based on copyright law.

(3) A motion to dismiss is a motion that is filed before a defendant’s answer in order to adjudicate the case based on certain preliminary defects in the lawsuit. There are a litany of potential reasons to request a motion for dismiss, but the most important of such are based on the lack of subject matter, personal jurisdiction, and forum non conveniens.

A motion to dismiss for lack of subject matter jurisdiction focuses on the ability of the court to actually be able to grant the type of relief that the party seeks. In Federal Court, there are 2 bases of subject matter jurisdiction: diversity and federal question. Diversity exists when a claim is over $75,000 and involves complete diversity of parties, such that any one defendant be domiciled in the same state as any one plaintiff. Looking at this case, if a motion to dismiss was brought on these grounds, it would be guaranteed to be granted, as plaintiff must be domiciled somewhere and defendants are domiciled in every state across the United States, defeating diversity of citizenship. However, this motion will fail because the suit is brought under copyright law, which presents a Federal Question. Federal Courts are granted general subject matter jurisdiction over all suits that are brought under federal law, thus such a motion, which is sure to be brought, will fail.

A motion to dismiss for lack of personal jurisdiction focuses on a court’s ability to adjudicate and pass judgment over the particular parties to a lawsuit. In regards to this determination in Federal Court, the court must follow the rules of the state in which it is located. Therefore, since this is the District of NJ, the court is required to follow NJ personal jurisdiction rules. Thus, this requires that the court have some basis of jurisdiction of the parties, that process is properly filed, and that process is properly served. Also, NJ allows John Doe defendants when due diligence is made in order to determine the identity of unknown parties so long as the real names of such parties are substituted upon determination. However, since these parties are unknown at this time, it is hard to determine the success of a personal jurisdiction argument, as they have yet to be served. As for the 2 named defendants, it may be an easier determination. A basis of personal jurisdiction can be acquired in several ways — by personal service and presence within the state, by domicile within the state, by waiver, and by sufficient minimal contacts in the state such that exercising personal jurisdiction doesn’t offend notions of fair play and substantial justice. Additionally, service can be accomplished by personal delivery to a person or to his abode or by other forms with court approval. In the case of the 2 named defendants, a basis exists in NJ because they are both residents, but there is no indication how they were served.

As for the John Doe’s, we can foresee a litany of issues with basis of personal jurisdiction, as over 4,000 are from out of state and thus must have some minimal contact or availment with the state. Also, fairness arguments are abound as well, as there is no real connection between the state and the out-of-state John Does and it would likely be a large burden on these parties to adjudicate within the state. Therefore, a motion to dismiss on this basis is hard to evaluate at this time, although there could potentially be problems because over 4,000 of the defendants have no discernible tie to the state of NJ.

As for a motion based on forum non conveniens, a court should grant this based on fairness to the parties. If there is personal jurisdiction, a party can still move for this due to some unfairness that may result with having to adjudicate within the particular forum. Therefore, even if a party is subject to adjudication within a court, the rules of procedure will excuse such if there is some substantial burden, bias creating the chance of an unfair trial, or some evidentiary concern with the current forum. In this case, this can be anticipated, as a wide majority of the parties are from out of state and would face a substantial burden in adjudicating within NJ. Therefore, this grounds for dismissal is certainly a concern in the case at hand.

(4) The issue is whether 3rd parties have a right to appeal the denial of a non-party’s motion to quash. Generally, a party can only appeal when they themselves are denied relief. However, in this case, the issue of the appeal is the confidential information that effects the John Doe parties. Therefore, they would be permitted to file an appeal to the decision even though they were not actually the party whose appeal was denied in the first place.

(5) Class actions are lawsuits brought by a large number of people in order to consolidate a particular claim against a particular defendant. As it is a powerful tool to put pressure on a defendant, courts are wary in granting such class certification. Generally, there are several requirements before a class can be certified — numerosity, typicality, adequacy, and commonality. If a court finds that these requirements are met, they may allow a class action suit by certifying the class and appointing a representative. This is because although Defendant has sued them separately, they are permitted to file a counter-claim that is related to the same transaction or occurrence that has led to Defendant’s suit. Because Defendant’s counterclaim would be related to the actual filing of his complaint to seek enforcement of the copyright law, the lawsuit arises out of the same transaction, the violation of these copyrights, that has led to the suit.

Numerosity — for this requirement, a class of potential parties must be so big as to make joinder and use of normal procedures impractical. Therefore, there must simply be a sufficient and extraordinary amount of claimants. In this case, this seems to be met, as there are over 4,534 potential plaintiffs that could file the suit for extortionate mass lawsuits. It would be nearly impossible to join all these parties into a particular suit in order that they be able to bring their mandatory claim against defendant; therefore, numerosity is met.

Typicality — this requirement requires that all parties that are to be bound by class action certification share some similar harm due to the actions of defendant as to require similar claims. In this case, all 4,534 plus plaintiffs are facing the same harm in being subject to the mass lawsuit of Defendant, thus it seems that there is typicality because they seem to be looking to get the same remedy from the same cause of action. Therefore, typicality seems to have been met.

Adequacy — this requirement requires that the representative party be able to provide adequate representation of all class action member interests. This means that they be able to provide sufficient services and legal representation in trying and following through on the lawsuit. In this case, there is no indication that there is any representative that is looking to represent the class, so it is indeterminate whether there would be adequate representation.

Commonality — this requirement focuses on the classes commonality of both claims and defenses as to create a desire to decide their case in one adjudication. So long as the parties have a similar cause of action and interest in the outcome, this will be met. In this case, all the potential class members would be asserting the same suit against Defendant stemming from the same action of the filing of the lawsuits. Therefore, this requirement appears to be met as well.

Therefore, it seems that a class action could be potentially certified for a counterclaim against the defendant in order to allow efficiency in both time and resources. There is a real interest in deciding a cause of action in one decision; therefore, class actions are encouraged, but limited due to the binding nature they may have against a party’s pursuance of their own cause of action.

SAMPLE ANSWER 7B

MEMORANDUM

To: Federal District Judge

From: Law Clerk

Date: July 28, 2011

Re: Movie Producer v. NJ Residents and John Does

The following is the law concerning the issues pertaining to the above case:

Motion by Bombast to Quash the Discovery Subpoena

The Motion by Bombast to quash the discovery subpoena should be granted.

Discovery requests may be served on any party to the litigation, or on any party with information that is likely to produce information relevant to the case. There is broad discretion in issuing discovery requests unless the request imposes an undue burden upon the party or is unreasonable under the circumstances. For example, requesting the discovery of millions of electronic documents that be found to be unduly burdensome.

Here, the Plaintiff has obtained a Rule 45 subpoena on Internet Service Providers to identify the IP addresses, but has placed the entire burden on Bombast, demanding that the expedite the discovery on over 4,500 potential names, street addresses, e-mail addresses, phone numbers and individuals of each and every person with the IP address by the Plaintiff. Bombast, however, is not the only method of obtaining this information, as there are free reverse domain name service look-ups that the plaintiff can use to obtain the location of the 4500 John Doe’s named as Defendants. It is unduly burdensome for the plaintiff, even with the Rule 45 Subpoena, to request that one ISP provide all of the names of the people with these IP addresses and it imposes a heavy fee, many ‘man-hours’ and a significant amount of time and energy for a service that is free on the Internet for the Plaintiff to use.

When the subpoena is for information that is as easily discoverable by the plaintiff as it in on the non-party, the court may have the discretion to rule that the subpoena is unreasonable under the circumstances and it is likely that in this case, the judge will find that Bombast cannot be mandated to produce this amount of information for the plaintiff by use of a subpoena.

It is my recommendation that the court quash the discovery subpoena on Bombast,. The information required is unduly burdensome on this one company that has been arbitrarily chosen by the plaintiffs to conduct a massive amount of work for them. The information they seek is available by much less intrusive means than by placing the burden on Bombast, and it is my recommendation that the subpoena be quashed.

Protective Orders

The John Doe Defendants should not be permitted to move to quash or file other motions anonymously or under protective order to guard release of their identity.

Again, New Jersey has very broad discovery rules. It is in the interest of justice to allow the plaintiff to prosecute any defendant that is infringing upon their copyrighted moved through the use of peer-to-peer file sharing. The use of an IP address is not privileged information.

The court will issue protective orders when the discovery of the information will likely lead to unreasonable harm to the defendants. The John Doe defendants in this case do not have a strong case for stating that the release of their identity is likely to lead to an unreasonable infringement upon their privileged identify, as using a computer and a IP address is not a privilege. As a consequence, this information is discoverable.

Additionally, it must be noted that the reverse DNS is available, and that motions to quash or motions for protective orders are not going to be successful since using an IP address is a matter of public knowledge. It is not an infringement upon privileged information to obtain information of who is using a certain IP address and it is easily discovery by online databases. As such, there is not a reasonable basis for granting the protective orders as there is no likely harm that result from the identification of the defendants.

It is my recommendation that the Defendants should not be permitted to file protective orders to guard the release of their identity, as use of their IP address is not a protected right and it unfairly prejudices the plaintiffs in combatting copyright infringements against their company.

Potential Grounds for Dismissal

There are several potential grounds for dismissal in Federal Court by the NJ residents and the John Does.

The first claim that can be brought is failure to state a claim for which relief can be granted. The Plaintiff sued in the Federal District Court for the District of New Jersey without naming the remedy it seeks. A complaint against defendants must only have a notice pleading, but it must plead (not plausible or with particularity) some damages that the Plaintiff seeks to acquire as a result of the lawsuit. The Plaintiff has not set forth whether it is seeking an injunction, damages, or what its injuries are as a result of the peer-to-peer sharing. While it may be inferred what the plaintiffs will claim as their injury, there is no indication that the notice pleading to the defendants has sought a cause of action for which the complaint is based upon. Without this, the claim can be dismissed for failure to state a claim for which relief can be granted.

It is my opinion that the court should grant the motion to dismiss for failure to state a claim for which relief can be granted; or the court can grant the plaintiff’s the ability to reform their pleading to include a demand for damages or an injunction against use of the P2P file sharing. As the way the pleading stands now, there is no call for relief and it does not put the defendant’s on fair notice as to what they are being accused of in court and how they should defend themselves against suit.

Additionally, the defendants from different states may claim forum non conveniens if they must come to NJ to plead their case. While the Federal Court will likely have jurisdiction, as copyright is a subject matter that the federal courts have jurisdiction over, the plaintiffs from around the country are likely to claim that it is substantially unfair to force the plaintiffs to come to New Jersey to litigate their claims. The facts indicate that approximately 500 of the 4500 potential defendants are in NJ, so it must be determine whether NJ is the proper venue for this litigation.

It is my opinion that the court should not yet grant a forum non conveniens motion. Many of the defendants have been identified as NJ residents and the remainder of the defendants have not yet been determined by domicile. Accordingly, it is increasingly hard to find a forum that would meet the needs of defendants from every state in the country. New Jersey has a substantial interest in the litigation, and there are a substantial amount of defendants. As such, the forum non conveniens motion should not be granted.

Additionally, the defendants may claim there is a lack of subject matter jurisdiction. In order to be in federal court, there must be diversity jurisdiction, or a federal question. While it is determine that a federal copyright issue is probably a federal question, granting the federal court jurisdiction, the defendants might argue that there is not diversity among the defendants and plaintiffs, and no stated amount for which the plaintiffs seek to allow jurisdiction in federal court.

Again, this claim is likely unsuccessful because the federal court has jurisdiction over federal questions and diversity jurisdiction,. There need not be both. Therefore, the lack of diversity jurisdiction will not cause this a motion to be granted for lack of subject matter jurisdiction.

John Doe’s Appeal of the Denial of the Motion to Quash

In order to have the right to appeal, there must be standing to sue and the right to appeal. In order to have standing, there must be a case or controversy, and the issue cannot be moot or ripe. Additionally, an appeal is only granted where there is a final decision on the merits. There is typically no third party standing although this is occasionally allowed when organizations have standing on behalf of their members or parents on behalf of the children; doctors on behalf of their patients.

Here, the motion was brought by Bombast to quash the Motion and the defendants are seeking to appeal the decision. The defendants must have substantial rights under the motion to appeal its decision, as to make it a case or controversy on behalf of them. Additionally, appeals are usually not granted in the middle of a law suit, unless there is an interlocutory appeal. An interlocutory appeal will stop the proceeding, and require that the court decide a pertinent issue to the pending case before proceeding forward.

The defendants here are likely going to have standing to appeal the motion, as their identity will be released if Bombast is required to comply with the subpoena. Their supposed right to anonymity will be affected by the motion, and they therefore have standing to bring an interlocutory appeal on this matter. Yet, the judge may not find that the members have standing, since the information is obtainable by other sources. It is likely that if the judge denied the motion by Bombast, it was not because Bombast did not want to reveal the names of the defendants, but because of the amount of work and imposition the plaintiffs are imposing on one company of many that render this type of service, a service which is also free on the internet.

Therefore, it is my opinion that the defendants probably do not have the right to appeal the decision by District Court. They have no reserved their right to appeal, and the motion was not brought by them. They can, however, bring the same motion before the court and ask that the subpoena be quashed; and if the court again denies this relief, they may appeal it.

Class Action by Certification

There is a process for with the defendants must try to be certified as a class action.

A class action is certified when a group of people have the same cause of action, and one member can act on behalf of all of the members in substantially arguing for their interests. The court will only grant a class certification if the certification class representative adequately can represent the interests of all of the parties. If the parties interests are contradictory to each other, they will not be able to certify the class.

Certification of the class is within the judge’s discretion. If the judge does decide to certify a class, it may do so by appointing a representative and counsel to represent the class. The Class action cannot be settled without court approval, as it has been certified by the court and any settlement must be approved with the court.

The defendant’s would seek to have a class action certification against the Plaintiff for the alleged misuse of federal courts for extortionate mass lawsuits. The class would seek damages, and it seems as though each member of the class has significantly the same interest in the lawsuit. The court, under its discretion, may certify this as a class action lawsuit on a counter-claim and appoint a representative. This representative would therefore represent the class as a whole, and the class would be notified of ongoing case-updates by mail instead of having to individually obtain counsel.

It is my opinion that a class certification would be proper in this instance. The defendants are from all around the country and have substantially the same interests in the litigation. They all are seeking damages against the Plaintiff for what they believe to be a misuse of the federal court for extortionate mass lawsuits. A representative on behalf of the class would adequately represent the interests of the whole and the court should certify the class.