Term
| When does a court have personal jurisdiction (PJ)? |
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Definition
1. Defendant resides in the state.
2. Events happened in the state.
3. Tag (service in the state).
4. Consent (failure to object or a forum selection clause).
5. Big business. |
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Term
| What are the ways you can get subject matter jurisdiction (SMJ)? |
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Definition
1. Federal Question (1331) - must be on the face of the well pleaded complaint.
2. Diversity (1332) - must be complete and the amount in controversy must exceed $75,000.
3. Supplemental (1367) - must be a related claim and you can't piggy-back claims brough by a plaintiff against a defendant brought under rules 14 (impleader), 19/20 (allows or forces the plaintiff to bring suit against multiple defendants) or 24 (don't worry about it). |
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Term
| What are the amount in controversy rules for VA state courts? |
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Definition
General District: less than $25,000
Circuit: more than $4500 |
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Term
| Where is federal venue proper? |
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Definition
District (i.e. E.D. VA: 1391
1. Where any defendant resides, if they all reside in the same state.
2. Where the events of the suit happened (can be multiple states).
3. If neither applies then anywhere a defendant is subject to PJ.
Note: For venue purposes, corporations reside wherever they are subject to PJ.
Division (i.e. Richmond, Alexandria, etc.):
1. Look at local rules for the district.
2. Apply 1391 rules to choose division. |
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Term
| Where is state venue proper? |
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Definition
1. Where any defendant resides.
2. Where the events happened.
3. In VA, where a defendant works. |
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Term
| Explain the Erie Doctrine/vertical choice of law |
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Definition
Federal choice of law doesn't really matter for diversity cases because:
1. Federal statutory law (including FRCP) is almost always procedural and the court will apply it.
2. Federal common law will only be applied if nobody cares. |
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Term
| When is a statute of limitations (SOL) not a procedural law for horizontal choice of law purposes? |
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Definition
1. Bundled SOLs (an SOL specific to a particular cause of action).
2. Where the forum state SOL is longer than the alternative. |
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Term
| What are the typical horizontal choice of law rules for tort cases? |
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Definition
1. lex loci (place where the accident happened)
2. significant contacts (state with the most significant contacts to the dispute) |
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Term
| What are the typical horizontal choice of law rules for contract cases? |
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Definition
1. vested rights (state where the contract vested/came into existence)
2. multiple interests (considers multiple factors)
3. contractual agreement (choice of law clause) |
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Term
| What are the typical horizontal choice of law rules for property cases? |
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Definition
1. Apply the law of the state where real property is located.
2. Injury to personal property is usually controlled by tort law. |
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Term
| When does a forum selection clause apply? |
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Definition
Almost always, provided the defendant has some sort of connection to the forum state.
Note: A forum selection clause can overrule a 1391 forum selection (federal cases). |
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Term
| Distinguish substantive from procedural state law (horizontal choice of law issue). |
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Definition
1. Substantive law affects non-litigative conduct - claims and defenses are usually substantive.
2. Procedural law affects litigative conduct - evidence rules, service, joinder, proof, presumptions, burdens, and usually SOLs are procedural.
3. States will normally maintiain their own public policy doctrines EXCEPT:
- contributory negligence is commonly rejected
- class action bar
Note: federal courts do exactly the same thing as the state court where they are sitting for horizontal choice of law purposes. |
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Term
| What are the rules for removal? |
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Definition
1. The venue where you end up is the venue which would encompass the state court where you started.
2. All defendants must agree to remove.
3. A home defendant cannot remove in a 1332 suit.
4. You must remove within 30 days of when the removal opportunity becomes clear; never longer than 1 year from the time of service. |
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Term
| When will a judge kick a case out of the system for forum non conveniens (FNC)? |
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Definition
1. Convenience of witnesses, evidence, expertise of the judge, alternative forum.
2. Convenience of the parties is irrelevant. |
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Term
| What are the rules for transfer? |
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Definition
1. Same standards as forum non conveniens.
2. Choice of law rules transfer with the case. |
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Term
| What are the elements of the tort of fraud? |
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Definition
- intentional misrepresentation
- material fact
- intent to induce reliance
- reasonable reliance
- damages |
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Term
| What are the elements of the tort of constructive fraud? |
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Definition
- negligent misrepresentation
- reasonable reliance
- material fact
- damages
Note: This is unavailable in some jurisdictions, but otherwise you should only use this if intentional fraud is too high of a standard because intentional fraud conveys punitive damages. |
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Term
| What are the rules for breach of fiduciary duty? |
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Definition
Who has a duty?
- Agents (someone who works on your behalf and subject to your control)
- Officers/co-owners
What is the duty?
- Care (duty to be reasonable)
- Loyalty (think like you're the boss) |
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Term
| What are the elements of intentional interference with contract relations? |
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Definition
- intentional interference
- with a known K or a prospective K
- by improper method (independently unlawful, violence, threats, bribes, or violation of industry norms)
- bad things happened to the plaintiff |
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Term
| What are the rules for respondeat superior (vicarious liability of an employer for an agent)? |
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Definition
1. negligence - an employer is liable for the negligent torts of an employee if the employee is acting within the scope of employment
2. intentional torts - if an intentional tort could potentially be part of the regular course of business (i.e., a bouncer punches someone), the employer is liable |
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Term
| What are the elements of a valid contract? |
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Definition
1. Offer
2. Acceptance
3. Consideration |
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Term
| What is the parole evidence rule? |
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Definition
1. If a contract is integrated (the full expression of the agreement)you can only use prior statements to explain or interpret terms; outside evidence is not admissible to supplement the terms of the contract.
2. If a contract is not integrated you can introduce evidence to explain or supplement the contract, but not contradict it.
3. Parole evidence is always admissible to prove fraud and defeat the validity of a contract, whether it's integrated or not. |
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Term
| When can you use the defense of mistake in a contract case? |
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Definition
- unilateral: when there is a clerical error or the other party knew of the mistake
- bilateral: doesn't happen very often |
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Term
| When can you use the defense of impossibility in a contract case? |
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Definition
1. Needs to be some act of god that interferes with contract performance.
2. Doesn't happen very often. |
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Term
| What is the statute of frauds? |
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Definition
A contract must be in writing for:
- real property
- the sale of goods over $500
- contracts lasting longer than 1 year |
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Term
| What are the elements of promissory estoppel? |
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Definition
- promise
- reasonable reliance on the promise
- detriment to the plaintiff |
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Term
| What are the possible defenses in contract cases? |
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Definition
1. Mistake
2. Impossibility
3. Misrepresentation/fraud/nondisclosure
4. Statute of frauds
5. Promissory estoppel
6. Unjust enrichment
Alternatives:
- half house rule: if you build half a house you are entitled to payment for half a house
- rescued cow rule: if you do someone a big favor that they would have contracted for if possible, you can get consideration |
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Term
| What are the agency rules in contract cases? |
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Definition
1. Actual authority
2. Apparent authority (when the principal reasonably manifests that someone is an agent with authority and a third party reasonably relies on it to their detriment) |
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Term
| When can you get injunctive relief? |
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Definition
- current or likely harm.
- harm must be irreparable
- court considers public purpose |
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Term
| How do you calculate damages for tort cases? |
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Definition
1. Value of loss +/- adjustments.
2. Contracts can limit liability to the cost of the contract except in cases of personal injury.
3. You will be taxed on your damages if they replace taxable income, except in personal injury cases; pain and suffering is not taxed, punitive damages are. |
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Term
| What are the categories of damages to a person in a tort case? |
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Definition
- medical costs
- loss of income
- pain and suffering
- loss of consortium (spouses only) |
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Term
| What are the categories of damages to propery in tort cases? |
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Definition
- diminution in market value; determined by repair costs, consequential costs (renals, etc.)
- no money for sentimental value |
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Term
| How do you calculate damage to a business in a tort case? |
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Definition
| The court seeks to return the business to the pre-tort situation. |
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Term
| What are the categories of adjustments in tort remedies? |
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Definition
1. Pre-judgment interest (interest you would have earned on your judgment if you had gotten it when the tort occurred).
2. Collateral vs. direct benefit (if you recover a benefit from a collateral source, the tortfeasor still owes you the full amount, but if the collateral source is an insurance company, you will have to pay them back if you recover in tort).
3. Punitives (no more than 9 times the compensatory damages, but most states limit it to 3x; punishment for malice, etc.).
4. Avoidable consequences (duty to mitigate damages). |
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Term
| How do you calculate expecation for the purposes of a contract remedy? |
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Definition
1. Loss in market value
- difference in market value
- cover (repairs)
- must be proven to a certainty
2. Plus other loss
- consequential damages (unforeseeable, particular to case)
- you can only recover these if the defendant implicitly or explicitly agreed to it (but implicit acceptance can often be determined by pricing considerations)
3. Minus loss avoided
- avoidable consequences (duty to mitigate)
- limitation of liability provisions (doesn't prevent you from bringing action in tort if a breach caused personal or property damage) |
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Term
| What is a liquidated damages clause? |
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Definition
| A contract clause that pre-determines the amount of damages at the time the contract is formed. You must show uncertainty of damage value and that the liquidated damages are in the ballpark of the contract value. |
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Term
| When can you get recission as a contract remedy? |
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Definition
- available only when there has been a substantial breach
- you should only use recission in contracts you wish you hadn't made because you can't get damages (like if the market value on a product tanks) |
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Term
| When can you get specific performance as a contract remedy? |
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Definition
- if the object of the contract is unique
- land is always unique; personal service never is |
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Term
| What are the requirements for a TRO or a preliminary injunction? |
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Definition
1. Irreparable harm
2. Burdens
3. Public interest
4. Likelihood of success on the merits |
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Term
| Why would you get a TRO instead of a preliminary injunction? |
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Definition
- TROs are available ex parte if you tried to contact the other party or if telling them would defeat your claim
- TROs are for emergencies and you can follow them up with a PI hearing a few days later
- TROs last for 10 days, but can be extended for 10 more for good cause; eventually you have to convert it into a PI |
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Term
| When would you get a declaratory judgment? |
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Definition
| When a breach hasn't happened yet and the parties are at odds as to whether a certain action would be a breach; often useful in the middle of a contract. |
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Term
| What is a cause of action? |
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Definition
- the ability to vindicate a substantive right
- COAs are implicit in common law, but not statutes or constitutions
- if you want to sue, you must have a COA |
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Term
| What are the elements of a complaint? |
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Definition
- complaint ("comes now" sentence)
- nature of action
- jurisdiction and venue
- facts
- counts (specific claims) |
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Term
| What constitutes proper service? |
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Definition
- in person
- family member at abode
- tack to door (last resort) |
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Term
| What are the time limits for service? |
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Definition
VA: 1 year from filing
Federal: 120 days |
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Term
| What are the joinder rules? |
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Definition
FRCP 18: You can bring as many claims as you want against one defendant (still need SMJ)
FRCP 13a: A defendant must bring a counterclaim against a plaintiff if it arises out of the same occurrence; 13b: a defendant may bring any counterclaim (still need SMJ)
FRCP 13g: Crossclaims (one defendant against another) are allowed as long as they arise from the same transaction or occurrence; BUT once the first defendant opens the door, all complaints from the second defendant against the first are counterclaims
FRCP 20: You can have as many plaintiffs and defendants as you want as long as they are all involved in the same transaction or occurrence (but you can't rely on supplemental jurisdiction to join a defendant under this rule)
FRCP 14: impleader (use to get contribution or indemnity; again no supplemental jurisdiction) |
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Term
| When can you amend a complaint? |
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Definition
As of right: - once within 21 days of service, or - once within 21 days of Answer/Motion to Dismiss
With Leave: - as justice requires
Note: You can add a new claim, even if SOL has since passed, as long as it arises out of the same T/O, but you can only add a new defendant after the SOL if it arises out of the same T/O AND he would have expected to be sued. |
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Term
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Definition
Personal injury: 2 years
Oral contracts: 3 years
Written contracts: 5 years
Property injury: 5 years
1. Clock starts when the injury happens (not when it's discovered, except for fraud and med. mal.); clock stops when the suit is filed
2. Counterclaims, crossclaims, and impleaders get an extra 60 days from service if the original claim is filed within 30 days of the end of the SOL and the new claims are related to the T/O
3. If a plaintiff nonsuits and then changes his mind, he must bring suit again within 6 months |
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Term
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Definition
Do not show up in court and use:
- bad faith
- bad law
- bad facts
There is a 21 day safe harbor rule; if the other side points out what you've done wrong, you have 21 days to fix it before you are subject to sanctions (but this doesn't apply to discovery disputes) |
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Term
| What are mandatory disclosures and when must they be provided? |
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Definition
1. Key people
2. Key documents
3. Computation of damages
4. Insurance agreements
5. Identity and reports of testifying experts
- everything except for experts must be provided at the beginning of the case
- experts must be provided 90 days before trial
- if you fail to disclose something without good reason, you can't rely on it later |
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Term
| What is the scope of discovery? |
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Definition
You can get discovery unless:
1. Information is irrelevant
2. Information is privileged (A/C or W/P)
3. Production is burdensome
4. Information pertains to non-testifying experts or is a draft report or communication from a testifying expert
Note: You CAN get info on testifying experts regarding compensation and assumptions/data provided |
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Term
| Define relevance for discovery purposes. |
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Definition
| Any information that is likely to make a fact relating to a claim or defense more or less true; very discretionary. |
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Term
| Define A/C and W/P privileges. |
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Definition
1. Attorney/Client: communications between an attorney and client for the purposes of obtaining/rendering legal advice.
2. Work Product: documents or tangible things prepared in anticipation of litigation by an attorney; this privilege can be overcome if information is important to the case and can't be obtained elsewhere |
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Term
| When is information burdensome for discovery purposes? |
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Definition
- unreasonably cumulative, duplicative, or can be obtained from a less burdensome source
- burden or expense outweighs likely benefit considering amount in controversy, resources of parties, importance of info, etc.
Basically, if you are being a jerk and it is costly. |
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Term
| What discovery tools can you use against parties in a case? |
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Definition
1. Interrogatories (super cheap)
2. Requests for production of documents (RFPs) (can be expensive to produce and review)
3. Depositions (about $200/hr plus cost of court reporter and transcript cost)
4. Inspection (applies when you want to look at something that can't be copied) |
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Term
| What discovery tools can you use against non-parties in a case? |
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Definition
1. RFPs
2. Depositions (must issue subpoenas) |
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Term
| What are the subpoena rules for non-party depositions? |
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Definition
Federal: within courthouse district or within 100 miles
State: within state or with an interstate agreement (VA has one) |
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Term
| What are the subpoena rules for non-parties for trial? |
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Definition
Federal: within state only; you can offer to pay expenses for out of state witnesses, but not compensation, and a court won't order them to come
State: within a state only |
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Term
| When can you use a deposition instead of a live witness at trial? |
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Definition
1. Impeachment purposes
2. Unavailable witnesses (including those outside subpoena power)
3. 306(b)(6) for corporations; requires a corporation to provide one person who represents the knowledge of the corporation |
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Term
| How do you enforce disclosure rules? |
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Definition
1. Protective orders (to get the other side to back off or not reveal information)
2. Motions to compel (to get the other side to turn information over) |
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Term
| What is a litigation hold and when is it triggered? |
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Definition
- once litigation is initiated, you have to hold on to information (no shredding documents)
- triggered when you reasonably expect litigation (demand letter or basic context)
- you must preserve anything relevant or potentially relevant
- if you destroy information, the court will instruct the jury to presume there was incriminating evidence you were trying to hide |
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Term
| When will a court dismiss a case with prejudice? |
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Definition
- when you lose a 12(b)6) MTD (failure to state a claim)
- default judgment
- summary judgment |
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Term
| When will a court dismiss a case without prejudice? |
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Definition
- when you lose a 12(b)(1-5, 7) MTD
- if you use your first nonsuit (you get one prior to Answer, or any time with leave of the court; after that, if you nonsuit, you can't bring the case again) |
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Term
| What are the three types of summary judgment? |
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Definition
1. Law - basically, a delayed 12b6 motion; you agree with all of the facts, but the law is on your side
2. Fact - lack of evidence; you agree with the law, but the other side doesn't have evidence to prove facts that would incriminate you or hold you liable
3. Combo - fact and law |
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Term
| What are the requirements for a new trial under Rule 59? |
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Definition
- must motion for it 28 days after judgment is entered
- grounds: trial error (jury instruction, misconduct, evidentiary issues) or against great weight of the evidence |
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Term
| What are the requirements for relief from judgment under Rule 60? |
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Definition
- Grounds: mistake, excusable neglect; only REALLY good excuses work here
- Newly discovered evidence can only be used if it existed at the time of trial but was discovered after, was not discoverable through diligent means, and will likely change the result
- you can also get relief from judgment for fraud, deceit, or misconduct |
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Term
| How much can you get on a judgment from garnishing a person's wages? |
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Definition
| 25% of their take-home pay (after taxes) |
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Term
| What are the property exemtions from judgments in Virginia? |
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Definition
1. Homestead exemption: $5000 + $500 per dependent; doesn't apply for intentional torts or child support judgments
2. Personal property exemptions:
- heirlooms up to $5000
- household furnishings up to $5000
- work materials (not vehicle) up to $10,000
- vehicle up to $6000
- clothing up to $1000 |
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Term
| When is a claim precluded? |
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Definition
1. Same parties
2. Same claim (any claim that was or should have been brought because it arose from the same T/O)
3. Valid final judgment on the merits. |
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Term
| When is an issue precluded? |
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Definition
1. Same issue
2. Actually litigated and decided
3. Essential to judgment
4. Party had the opportunity to litigate the issue in the first case |
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Term
| When does a new law affect a lawsuit? |
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Definition
- once an injury has happened there is a presumption that new statutes are irrelevant
- new precedent applies to every pending case (i.e. until there are no further opportunities for appeal) |
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Term
| What are the pros and cons of arbitration? |
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Definition
Pros:
1. Privacy
2. Flexibility
3. Cost (double-edged sword; better for big cases)
4. Timing
Cons:
1. Cost
2. No jury
3. No appeal
4. Bias? |
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Term
| Who decides challenges to arbitration clauses? |
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Definition
1. If the argument is that an entire contract is void, the arbitrator decides.
2. If the argument is that only the arbitration clause is void or that it doesn't cover the dispute, the court decides. |
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Term
| What are the two types of court orders relating to arbitration? |
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Definition
1. Motion to Stay Litigation - motion to move a case from court to arbitration
2. Motion to Compel Arbitration - court order forcing parties to attend arbitration |
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Term
| What can you argue in court if you are unhappy with the results of arbitration? |
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Definition
1. Award procured by fraud
2. Corruption of arbitrator
3. Arbitrator railroaded arbitration
4. Arbitration failed to decide the claim or decided the wrong claim
5. Manifest disregard of the law (law must be clear and disregard must be intentional) |
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