Counterclaim is any claim brought by defendant against plaintiff or other defendant

- All counterclaims permissive, not compulsory

- Permissive means counterclaim can arise from unrelated issue or event

IL is contra to Federal

To be protected by A/C Privilege, client's communications:

(1) Must be made confidentially

(2) Must be essential to maintaining A/C relation, and

(3) Injury to relation resulting from disclosure must be greater than benefit

Doctrine applies to documents oreoared by client or attorney in anticipation of litigtion

- Ordinary work product, such as relevant material prepared for litigation that does not disclose theories, is not protected

- Opinion work product, such as theories, mental impressions, or litigation plans is protected

Valid offer requires:

(1) Certain

(2) Complete

(3) Communitaction by

(4) Offerer with intention of creating a contract

Must include: 1) names of parties; 2) relevant subject matter of the contract; and 3) price

Counteroffer is statement from offeree to offeror on same subject as original offer, but suggesting substitute bargain with different terms

Counteroffer will reject initial offer and terminates offeree's power of acceptance in original offer

An inquiry is not a counteroffer and does not terminate offeree's power of acceptance in original offer

Acceptance is show of assent to terms

(1) Made in manner invited by offer and valid on dispatch under 'mailbox rule'

(2) Rejection is show of intent not to accept and valid on receipt

(3) When both acceptance and rejection sent, offer that arrives first is effective

Formation of contract not affected just b/c received letter is not read

MY LEGS

M - Marriage

Y - contract not to be performed within one year of the making thereof

L - Land

E - Executor

G - Guarantor

S - Sale of Goods over $500 (UCC)

1) Relationship with the state

a. Domiciled

b. In IL may be served by sherriff, coronor, 18-year-old or older

2) Consent or Waiver

a. Express - before fight and contractually (usually)

b. Implied - long arm statute

3) Contacts

a. Minimum contacts

b. Purposeful Availment

Defendant may remove civil action from state to federal court if federal court would have subject matter an personal jurisdiction if filed there first

- SMJ:  Amt in contr. > $75K

Complete Diversity

- P.J.:  In Personam-relation to state, contacts, consent

Limitation on diversity jurisdiction for removal if D is citizen of state federal court is located

Final judgment on the merits is not interlocutory in nature, not a dismissal based on lack of jurisdiction, improper venue, or failure to join a party

A default judgment is a final judgment where the D fails to respond to the complaint in the required time and the P requests the judgment be entered agaisnt the D

A valid judgment requires the issuing court to have proper SMJ and PJ and the D had proper notice and an oppty to be heard

Requires a D to state a counterclaim in an action if the claim arises out of the ocurrence or transaction that is the basis for the P's claim

A counterclaim is a claim asserted by a D against the P in the answer to the complaint

A sequene of lawsuits that are not the same claim but common issues

a. Two cases - same parties

b. The issue in common was actually litigated and actually decided in the first action

d. The disposition of that issue was necessary in the judgment of the first action

Prior judment must have been final

Prevents relitigation of claims

a. Two cases - same parties

b. The prior two cases were disposed of on the merits

c. The two cases were disposed of by a court that had jurisdiction to do so

Prior case was a final judgment

Standard: The standard is the same as for a summary judgment motion – even looking at the evidence in the light most favorable to the non-moving party, is the moving party entitled to win? 

Procedure: the party making the motion has to wait for the other side to be fully heard and they have to rest, court does not look at the credibility of the witnesses or jury

Standard: The jury came back in favor of the other side, but you feel you are entitled to win even though the jury has already found for the other side; The standard is identical to the standard for a motion for a judgment as a matter of law and as a summary judgment

Procedure: Party has 21 days from entry of judgment to make the motion

Special note on preserving the right to bring the RJML motion: This is a renewed motion, to it has to have been made initially, otherwise you have to file a motion for a new trial; If you file the renewed motion, then you file the motion for a new trial at the same time, generally Standard: Judge determines harmful or harmless error

a. Procedural error: did the error occur and was it harmless

b. The weight of the evidence: was the jury’s verdict against the clear weight of the evidence; in doing this, the trial court may consider the court’s own view of the credibility of the witnesses, unlike in its evaluation of a motion for JML or a RJML

c. Excessiveness or inadequacy of the verdict: did the jury misunderstood its duty act with extreme prejudice

1. Conclusions or rulings on law: de novo

2. Findings of fact: court of appeals is deferential and reverse only if findings of fact are ‘clearly erroneous’

3. Other determinations by trial judge, such as rulings on discovery motions: court of appeals is highly deferential to district court and will only reverse for ‘abuse of discretion’

1. Numerosity: # of members so numerous it is not practical to join separately

2. Commonality: something in common of the claim of all members

3. Typicality: the named P or representative party is typical of the class and their interests are aligned

4. Representativeness/Adequacy: the representative party can adequately protect the class – this is adequacy of counsel usually to protect the absent class members

(i)   Lack of SMJ

(ii) Lack of personal jurisdiction

(iii) Improper venue

(iv) Insufficient process

(v) Insufficient service of process

(vi) Failure to state a claim upon which relief can be granted

(vii) Failure to join an indispensible party

A partnership is association of 2 or more persons carryong on as co-owners of for-profit business

- Must intend to take actions to create partnership, but don't need to realize creating partnership

- No need to be in writing

- Presumed partner if taking share of profit, unless payment for specific purpose

Decisions in ordinary course of bysiness decided by majority

Acts outside ordinary course of business requires all partners

Each partner has authority to bind partnership for apparently carying on in ordinary course of business

- Act must be for apparently carrying on ordinary course of business

- If so, partnership liable unless proven that the other party (the person being hired) had actual knowledge or notification that partner had no authority to hire him

Partner jointly and severally liable for partnership obligations

- Claimant can only take action against person assets if partnership assets fail to satisfy judgment

- Must be separate judgment against partner

- Federal Rule of Evidence 703 permits an expert to base her opinion testimony on facts perceived by her or made known to her at or before the hearing, which, if the facts are of a type reasonably relied upon by experts in the particular field, need not be admissible in evidence at the hearing

- Therefore, an expert may base her opinion solely on facts made known to the expert at trial

- Criminal battery is defined as the unlawful application of force to the person of another which results in bodily harm or offensive touching

- Unlike tortious battery, which requires specific intent, criminal battery is a general intent crime

- As such, recklessness is sufficient mens rea for culpability

- Depraved-heart murder is an unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury, absent any defense negating the defendant's awareness of the risk

- Depraved-heart murder involves extremely negligent conduct (or recklessness) that is of a higher degree than gross or criminal negligence

- Under Federal Rule of Evidence 1002, in order to prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph is required, subject to numerous exceptions

- The rule applies only when the writing, recording or photo is the controlling instrument (e.g., deed, will, or contract) or when the witness is testifying about facts he or she read (e.g., a letter, a license plate number, etc.)

- The rule does not apply to collateral matters; as such, when the contents of a writing, recording, or photograph are not closely related to a controlling issue, the contents may be proved by other than production of the original

- Prior inconsistent statements are admissible as substantive evidence (not hearsay) if the declarant testifies at the trial and is subject to cross-examination, and the prior statement was given under oath at a prior proceeding

- If they do not meet these standards, prior inconsistent statements are hearsay that is admissible for the limited purpose of impeachment

- The physician-patient privilege applies when the patient consults the doctor for purposes of diagnosis or treatment

- A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of diagnosis or treatment

- A communication is confidential if not intended to be disclosed to third parties, except people present to further the interest of the patient in the consultation, examination, or interview; people reasonably necessary for the transmission of the communication; or people who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family

- Larceny is the taking and carrying away of the personal property of another with intent to permanently deprive that person of the property

- Larceny is a crime against possession

- Under Federal Rule of Evidence 801(d)(1)(B), a declarant's prior statement that is consistent with her testimony is not hearsay only if offered to rebut a charge of recent fabrication or improper influence or motive

- The declarant must testify and be subject to cross-examination concerning the statement

- If these conditions are met, the statement may be used as substantive evidence