December 3rd Notes

Fundamentals of Legal Practice
December 3, 2009

General Assent
- free, informed, & voluntary

1. Alcohol - insanity - minor
    -no meeting of the minds
    -child can not give consent

-Dealing with Minors
    -Minor can disaffirm a contract
    -When you deal with minors they can void a contract at any time
        -even after a reasonable time once they are 18
    -***a contract is voidable at the option of the minor***

-Contracts with Minors that are Not Voidable
1.Contracts of necessaries
    -food, shelter, health insurance, clothing
2. Release Contracts
    -personal injury release
3. Student Loans
4. Life Insurance

Aftermath of a Minor disaffirming:
Traditional : Adult gets nothing, do not deal with minors
Modern: Minor has a duty to return anything left, and pay for part used
Very Modern: Make the adult whole


-If the Minor lied about their age:
Traditional: Doesn't matter, do not deal with minors
Modern: Minor loses right to disaffirm if they lie about their age

-Parents are not liable for their children's contracts

Alcohol
-intoxicated by drugs or alcohol
-must be so much they had no idea what was going on

Insane
-K are voidable
-if they have a guardian, the contract is void

2. Bilateral mistake
    -you have an obligation to find out details of the deal
    -in some circumstances it can be voidable

3. Fraud
    -1. material misrep. of fact
    -2. false
    -3. scienter (knowledge)
    -4. intent to induce
    -5. actual reliance
    -6. reasonable
    -7. damages

4. Undue influence
    -confidential relationship
    -unfair bargain
        -one party fools another into signing a contract
        -usually family taking advantage of other family members

5. Misrepresentation - 6 parts

6. Duress/Coercion
    -never really see this happen except really hard economics times



How to have a contract:
Offer
    -definite
    -communicated to offeree
    -10 ways to terminate

Acceptance
    -any manifestation of assent (not silence)
    -"master of offer" otherwise any reasonable method
    -mailbox rule

Consideration
    -legal valve, not economic value
        -both parties do not need equal value
    (anything the promisor has a legal rights to do or refrain from doing)
    -ample consideration
    -illusory
    -past/legal duty

    -Peppercorn Theory:
        -old English cases where a house can be considered for a peppercorn   
        -as long as each party is getting something
            (courts don't care if it's a bad deal)

-If there are no considerations, it is a gift
    -Example: "I'll pass you." (no requirements from you)
    -gifts are unenforceable

Past consideration is no consideration.
    -consideration has already taken place
    -Example: "Paint my house, for the rides I gave you!"
        -Not a contract, needs to be something new ("Paint my house for a ride next week.")
    -Doesn't count if you are required by law or contract to do it
        -firefighters, must put out fires can't ask for payment
"ten dollars and other good and valuable consideration"
    -boilerplate reference to make sure the consideration is met

Objective theory of Ks (not subjective intent)
Master of the Offer (bears the risk of misunderstandings in manner/method of acceptance)
"Meeting of the minds"

Exception to the rule of consideration for each side:
1. Pledges to Charity
    -there is consideration to the charity
    -quasi-contract formed
        -detrimental reliance to the charity

2. Modify a contract for the sale of goods

-Courts do not generally examine the sufficiency of consideration
    -illusory consideration
        -later seeing consideration is only on one side
        -promise to do something but don't have to do it
    -unconscionability
        -one side has a greater value consideration than the other

Usury
    -charging illegal rate
    -Banks, credit unions exempt
    -really made for loan sharks

Licenses
    -contract for services to perform and they are not properly licensed
    -failure of consideration
        -if it requires certificate of competency than it is failure
    -mala prohibita: not morally reprehensible (bad thing but not a true crime)

Agreements to not compete
    -employment contracts where they can not work in the field/miles
        -truly are illegal contracts on restraint on trade
        -BUT the law does enforce them though
            -as long as they are reasonable in scope and time
       
*******Contracts are easy to form but many are not enforceable*******


REVIEW FOR FINAL

Start page 219

Civil Litigation
    -lightly covers this, no essay, just the basics
    -some questions covered in class
    -basic formats, Not where things go
    -Need to know: complaint, counter claim, cross-claim, third party complaint,
    -Summons: explain due process, role of a summons
    -nothing on serving,  *who can serve though* paralegals can serve!
    -no pleadings
    -affirmative defense: what do they give you that denials don't
        -nothing specific

    Counterclaims
        -permissive rather than compulsory
            -one has to be done
            -same nexus of operative facts (same event)
            -must be brought or you give up the right to bring it up
                -why? repeat traffic, it is the same lawsuit
    Third party complaint
        -what times would you not bring in another party that caused you injury?
            -doesn't know him (guy that fixed brakes for defendant)
            -laziness on rep.
            -relationship (boss, brother in law)
    No defaults, no motions, no subpoenas
    Dismissals
        -involuntary or voluntary
            -involuntary (by opposition or court to throw it out)
            -voluntary (you have the right to dismiss your pleadings)
        -with prejudice or without prejudice
            -with (it can not be raised)
            -without (this is defective but you can try again)

    subpoena duce tecum
        -documents requiring party to attend and bring documents with them

    trials, nothing in depth
    jury selection -
        false used to be registered voters, now it comes from driver's licenses
        book wrong

    voir dire - french "to speak the truth"
    Page 251
        peremptory challenge -
        challenges for cause -
    Jury usually 12
    district 6
   
    Why is it called an opening statement?
        -no evidence presented, nothing to talk about yet
   
Direct examination
    -civil trial has both right to cross examine
        -criminal too
    -only that the other side discussed

CIVIL DISCOVERY
-what it is, where we are going with this
page 265 Why?  the more we find out, the more we can reach settlement
-federal rule 26  how broad that is, but not unlimited
-3 examples where discovery limited page 267
        -doctor, lawyer, spouse
        -work product
        -lacking relevance
    -why it is better to have injustice done in trial than destroy
        importance of confidentiality
page 271
    -5 discovery tools
        advantages and disadvantages

most from notes, some book, just from class discussion

discreet subpart:
    -separate interrogatory (can not get around them with extras)
physical and mental examinations:
    -must be relevant topic in lawsuit, be an issue in the lawsuit

All short essays

request for admissions
    -streamlines trial
    -need to do homework in order to use this
    -are one of the five tools but not discovery at all
    -using it to use the other side to admit things so you dont have to prove them
        -they do not discover anything, not learning information
            -to simply and streamline trial

-sanctions available for parties that don't cooperate with discovery
    -problems

CRIMINAL LAW
-not a lot on the examination

-mala in se, mala prohibita
-motive is an element of crime: false
-do not confuse motive and intent (mental state) did you know?

-hate crimes women, sexual orientation

-insanity: know the two tests M'naghten test and irresistible impulse (NY rule)
    -must be insane legally

criminal law burden of proof
    -presumption of innocence, jury, no appeal

Mens re
small children do under 8 , 8-12, over 12
Not all minors are small children
get rid of presumption - rebutt the presumption
page 308
Discovery
-exculpatory: you did it and
-inculpatory:
---know the reversal Brady v. maryland

what amendment 4th: suppressing evidence  Matt v. Ohio
exclusion of evidence

Miranda rights and decisions

Tuesday: contracts and then finish review

No essays, just short answers