Corporations Bar Exam Outline

I. Organizations of corporations

A. True business corp.

1. How formed?

a. People- incorporators (real people or entity sign and file articles)

b. Paper-articles of incorporation

1) Names and addresses

a) Corporate name need corporation, company, inc. or limited in name

b) Names and addresses of each

(i) Incorporator

(ii) Initial director and

(iii) Registered agent and office

c) Statement of duration

(i) Some states presumed perpetual

d) Statement of purpose (any)

(i) But if actual business goes past statement of purpose then

(ii) Ultra vires act

(1) = beyond scope of articles

(2) Effect; valid contract, but shareholders can seek injunction and hold responsible officers and directors liable to corp. for ultra vires losses.

e) Capital structure

(i) Stock

(ii) Authorized stock

(iii) Issues stock and numbers of shares per class and information on voting rights and preferences of each class

(iv) Outstanding stock (# issued and not reacquired)

c. Act

1) Deliver to secretary of state

2) Pay fees

3) Then Secretary of state accepts for filing

4) = conclusive proof of valid formation.

d. Then

1) Board of directors holds organizational meeting to select officers, adopt bylaws etc.

2. legal signifigance of formation (de jure)

a. internal affairs governed by state where incorporated (regardless of where do business)

b. corporation separate legal persons (can sue, own, pay taxes etc.)

c. officers, directors, shareholders are NOT generally liable for what entity does?

1) Instead limited liability for $ of stock

2) And corporation is liable.

3. what if incorporation fails?

a. Default is partnership

b. But can still be held to be a partnership IF Unaware of failure to form de jure corporation (but following doctrines Abolished in many states)

1) De facto corporation OR

a) NEED; relevant incorporation statute

b) Good faith colorable attempt to comply

c) Acting as though corp.

d) ≠ for action by state

2) Corporation by estoppel

a) One who treats business as corporation can’t deny that it is a corp.

(i) Contracts, not torts

B. By laws

1. not condition precedent to formation

2. govern internal acts (set meeting time, responsibilities, how notify)

3. amend or appeal?

a. Board or shareholders

4. conflict with articles?

a. Articles win

C. Pre-incorporation contracts

1. promoter = acting on behalf of corporation Not yet formed

2. promoter liability after formed?

a. Remains liable unless NOVATION (agreement by all parties that corp takes liability from promoter) or contract provides otherwise.

b. NOT relevant if corp adopts contract

3. corporation liability after formed?

a. NOT until adopts the contract (made pre formation)

1) Express or

2) Implied

a) If corp accepts benefit of contract

D. Foreign corp

1. foreign=out of state

2. transacting business in state must qualify and pay fees

3. transacting business= regular course of intra state business

4. qualify= certificate of authority by secretary of state (show articles, prove in good standing with incorp. State and have registered agent here)

5. IF NOT

a. Civil fine

b. Can’t sue instate (can be sued) until qualify

II. Issuance of stock

A. Only apply when issuance

1. when corp sells or trades OWN stock

B. kinds

1. subscription

a. what; written offers to buy stock from corp

b. pre-incorperated? Can’t revoke for 6 m. unless doc says otherwise or all agree

c. post incorp? Can’t revoke after acceptance (when board accepts offer)

d. treasury stock

1) previously issued, required and resold

2) watered stock

a) sold under par

b) directors liable if ok’d sale

c) buyers liable

d) subsequent buyer (not liable if good faith)

C. consideration

1. form;

a. ok $, property, past services for corp

b. Sometimes: promissory notes, future services (depends on jurisdiction)

2. amount

a. par = minimum issuance price (bd sets)

b. no par = no minimum (bd sets)

c. board determines value of consideration = conclusive if good faith

D. pre-emptive right

1. right for existing shareholder to maintain % of ownership by buying more stock whenever new issuance for $. (not property, services etc.)

2. not presumed and ONLY if articles provide

III. Directors and officers

A. Directors

1. adult and natural

2. set article and bylaws

3. initial- set by articles and

4. after elect by shareholders (each year or staggered board)

5. shareholders can remove by majority for any reason

6. vacancy

a. board appoints for rest of term unless shareholders created vacancy then shareholders

7. act?

a. Unanimous written consent (emails ok) to act w/o meeting or

b. Meeting (conference call ok)

c. IF not, void, unless later ratified by valid corporate act.

8. notice

a. set in bylaws

b. not for regular meetings

c. required for special meetings (can be waived expressly or implied by attending meeting and not objecting)

9. proxies- for director vote

a. NO

b. No voting agreement

10. quorum

a. majority of all directors Need for meeting.

b. Once there, only need majority of those present to vote.

c. Lost if people leave meeting early

11. role of directors

a. manage business of corp.

b. delegate

1) committee of 1 or more directors

2) not fill a board vacancy

3) not declare distributions

4) not recommend fundamental change to shareholders

5) Ok committee to recommend these to board.

12. duty of care

a. owed to corp (burden on P to show)

b. liable only if breach caused loss to corp.

c. good faith and as Prudent Person to own business

d. does nothing

1) nonfeasance (must show causation)

e. does something bad

1) malfeasance (causation clear)

f. defense

1) Not liable if business judgment rule

2) Rule; ct not 2^nd guess business decision if good faith, informed rational basis. Factors;

a) does appropriate homework

b) Deliberates

c) Analyzes

13. duty of loyalty

a. burden on D to show

b. need good faith and reasonable belief that act is in corporation’s best interest.

c. Interested director transaction

1) Corp v. director or connected to director

2) Set aside unless

a) Fair when entered or

b) Conflict disclosed/knew and OK’d by majority of disinterested directors or majority of disinterested shares.

d. Ok for directors set own compensation

1) If good faith, reasonable. Excessive= corporate waste and breech

e. Competing ventures

1) Not compete directly with corporation

2) Remedy= constructive trust on profits

f. Corporate opportunity (expectancy)

g. Director can’t USURP corporate opportunity (something company has interest or expentancy in). something Director found on company time or with company resources.

1) UNLESS tell board and Waits for board to reject

2) NO defense that corporation has enough money.

3) Remedy- sell back to corp @ cost and if profit give profit to co.

h. Other

1) State law bases of director liability

a) Ultra vires acts

b) Improper distributions

c) Improper loans (ok if reasonably expected to benefit company

d) NOT loans to execs in large publicly traded corporations

i. Which directors liable?

1) Yes if concur with board action (presumed)

2) NO if absent or dissenting in writing (just before, during or just after meeting)

3) Exceptions;

a) Good faith reliance on information presented by officer, employee, committee, professional reasonably believed competent.

B. Officers

1. agents of corp.

2. same duty of loyalty and duty of care as directors

3. actions can bind corp. if authority to bind (president has inherent authority for contracts in the regular course of business).

4. OK if 1 person has multiple jobs.

5. appointed and removed by directors NOT Shareholders

C. indemnification of directors and officers

1. person sued as officer/director, reimbursement for costs?

2. NO

a. If adjudicated and held liable or held to received improper benefit.

3. MUST

a. If win jurisdictions split on (up to win or must win all)

4. OK/permissive

a. Anything not covered in Must or NO. “settlement” or if used good faith and reasonable belief in best interest of corp….

5. court can order indemnification of costs

6. articles can eliminate liability except for

a. intentional misconduct

b. usurping corp opp.

c. Unlawful distributions

d. Improper personal benefit.

IV. Shareholders

A. Shareholders can maage corp IF

1. Close corporation and few shareholders and not public

a. then Shareholders can authorize elimination of board and run.

b. Might be that shareholders have duty to not oppress others (because if not public hard to get out if don’t like deal)

2. must be unanimous by all shareholders in writing

3. then managing shareholders have duty of care and duty of loyalty.

B. Licensed professionals

1. need PC or PA in name

2. articles must state purpose “to practice in profession”

3. officers, directors, shareholders, must be licensesd

4. ok if employees aren’t professionals (as long as they aren’t doing professional services)

5. professionals still personally liable for malpractice

6. NOT liable for corporate obligations or other shareholder’s malpractice.

7. other corp. rules apply

C. shareholders liability?

1. no generally not liable for acts and debts of corp.

2. exception, personally liable if

a. ct pierces corporate veil

1) NEED

a) Abused privilege of incorporation

(i) Example; co mingling funds and creditors not paid

(ii) Sloppy administration not enough

b) Fairness requires holding them liable. (fraud etc.)

b. Or undercapitalization

1) If WHEN formed, dangerous/foreseeable and

2) Not enough money led to unfairness.

3) Ct more likely to do for tort then contract claimant

D. Shareholder’s derivative suits

1. shareholder is P, but suing to enforce corp’s claim (duty of loyalty, duty of care..)

2. effect; recovery usually goes to copr. Minus costs/attorney’s fees.

3. but P/shareholder liable to D for costs and attorney’s fees

a. if lose AND no reasonable cause

4. require

a. stock ownership @ time claim arose (or by law from someone who did)

b. adequate representation of corps interest

c. written demand on corp, that corp bring suit (unless futile)

d. corp must be joined as D

e. NOT dismissal or settlement w/o court approval.

5. Corp. can move to dismiss upon showing that investigator (ind. director or ct appointed) showed suit was not in corporations best interest (low chance of success, high cost and low recovery).

a. ct looks only at if investigators are disinterested.

E. Shareholder voting

1. right if record shareholder (shown as owner in corporate records) as of record date (when determined)

2. exceptions

a. Corp reacquires on record date, NO vote for treasury stock.

b. Death of shareholder; ok for inheritance

c. Proxy-

1) In writing, signed, to secretary, authorizing another to vote shares

2) Good for 11 months

3) Revocable (even if says not) unless proxyholder has some interest in shares.

3. voting together

a. voting trust

1) written, copy to corp,

2) transfers legal title to trustee

3) original shareholder trust certificates and get other rights

4) 10 year max

b. Voting agreement

1) In writing, signed.

2) Specific enforcement? (states split)

4. Where? Usually at meetings (anywhere ) or unanimous consent signed by all

a. Meeting? Annual meeting is required, can have special meeting

b. Special meeting?

1) Called by board, president or owner(s) of 10% of stocks

2) Must be proper purpose

5. notice

a. written to every shareholder who can vote

b. any meeting

c. 10-60 days before

d. Need

1) Where, when, why (limits what you can do at meeting)

e. Consequence

1) Action @ meeting is void unless those ≠ sent notice waived (express or attend mtg without objection)

6. quorum

a. for meeting;

1) majority of # of shares

2) Not lost if people leave

b. For voting

1) Majority of votes cast

2) Cumulative;

a) Only for voting for directors, only if express

b) # of shares x # of directors to be elected

7. stock transfer restrictions

a. how restrict? Ok if reasonable under circumstances and

1) no undue restraint on alienation

2) 1^st refusal OK

3) And NEED

a) Conspicuous on certificate or

b) Actual knowledge

8. right of shareholder to see books

a. also applies to records

b. written demand with what you want and proper purpose (related to role as shareholder)

c. Directors don’t need this process

d. consequences if don’t comply

1) court order and

2) P gets costs and attorney’s fees if win.

F. Distributions

1. types

a. dividend

b. repurchase shareholder’s stock

c. redeem stock (forced sale in articles)

2. no right until declared

3. who

a. common –divide equally

b. preferred = pay first

1) participating = pay again

2) cumulative = add them up since last dividend paid

a) # years x _($ preference)

4. what $ used?

a. YES earned surplus- generated by business activity

1) Earnings, loss, previous distributions

b. NO stated capital- by issuing stock

c. Par ?

1) All par value goes to state capital

2) Rest goes to Capital surplus

d. Non Par? Bd decides.

e. MAYBE ok capital surplus if inform shareholders

f. OK if lost money last year

g. NOT OK if insolvent or would make insolvent

h. directors are jointly and severably liable for improper distributions

i. shareholders liable if know improper

V. Fundamental corporate changes

A. Characteristics

1. extraordinary occurances so

a. merger/consolidation

b. transfer of substantially all assets and ≠ ordinary course of business

c. transfer of shares in share exchange

B. require

a. 1 board of director action AND

b. 2 approval of majority of shareholders

c. 3 (that are entitled to vote)

C. right of dissenting shareholders

1. right of appraisal

a. =forced sale at fair value (if parties can’t agree on the $, ct appoints)

b. ≠ when publicly traded or 2,000 or more shareholders.

c. To protect right

1) Before date, file written notice,

2) Vote against AND

3) Written demand to be bought out after AND

4) Give stock back.

D. Kinds

1. amendment of articles

a. if approved need 3 and file with secretary of state

b. no right of approval

2. mergers/consolidations

a. need 1 and 2

b. no need 3 if short form merger

1) if 90% or more owned subsidiary merged to parent

c. yes right of approval

d. effect surviving corp has all rights and liabilities of old corp (successor liability)

3. transfer of most business assets

a. rules for transferring company

1) NEED

a) Board of director act and notice shareholders

b) Majority Approval by transferring corp,. shareholders

c) File articles of exchange Not to states

b. Acquiring company

1) no votes needed by buying company

2) Acquiring company not liable for debts of selling company unless contract says or merely a continuation of successor liability.

4. dissolution

a. voluntary

1) by board of directors

2) approval by shareholders

3) notice intent

4) existence to wind down

5) notice to creditors

b. involuntary

1) by ct order (court can also just order buyout of offending director)

2) shareholder can petition

a) because of

(i) director abuse, waste of assets, misconducts

(ii) director deadlock and harming co.

(iii) shareholders failed @ 2 meetings to fill vacant board position

3) creditor can petition because

a) unsatisfied judgment or

b) company admits debts in writing.

c. Winding down?

1) Convert assets to cash, pay creditors

2) Distribut excess to shareholders (equally unless express preference)

VI. Federal securities

A. Securities are investments

1. debt or – rarely tested- loan mortgage bond

2. equity- stock or ownership interest

B. 10b-5 aimed at deceit

1. Unlawful if fraud, misrepresentation, nondisclosure in connection with purchase or sale of any security

2. NEED

a. Instrumentality of interstate commerce

b. Type

1) Misrepresentation

2) Trading on material information (when duty to disclose = relationship of trust and confidence with shareholders)

3) Tipping (for wrongful purpose)

4) Gift/enhancing rep (enough to satisfy benefit for tipping)

c. Materiality

d. Intent to deceive, manipulate or defraud- reckless counts too

e. Reliance (presumed in public misrepresentation and nondisclosure cases

3. parties

a. P = securities and exchange commission

b. Private by buyer or seller of securities

c. D = any person (company, buyer/seller, tippe/tipper-need tippe for tipper, insider trading).

C. 16B aimed at speculation by directors officers, + 10% of the shareholders

1. strict liability- no need intent.

a. recovery for copr for insiders buying and selling co. stock

b. when apply

1) reporting corp (listed on national exchange or 500 shareholders and 10 million dollars)

2) d’s director- when bought or sold

a) officer (when bought or sold)

b) shareholder owns 10% (when bought and sold)

c. to what

1) buying and selling within 6 m if profit (if bought within 6 m before or after of when sold).

d. What happens

1) All profits go to corp.

2)

Civil Procedure for the Bar Exam

I. Personal jurisdiction

A. Question: in what states can P sue D? (doesn’t matter in which court)

B. Answer:

1. satisfy a statute (ex. Long arm) AND

2. satisfy constitution (due process)

a. test; does D have such minimum contacts with forum that exercise of jurisdiction would not offend traditional notions of fairplay and substantial justice?

b. Easy times; when domicile, consents or is present when served.

c. Tougher to judge;

1) Factors; (my parents forgot to read children’s stories)

a) Minimum contacts (must be something)

(i) Purposeful availment (D voluntarily reached out to forum)

(ii) Foreseeable that D could be sued here

b) Substantial fairness

(i) Relatedness – between contact and claim

(1) did claim arise from contact?

(2) NOT NEEDED if substantial ties, because then has general jurisdiction (for any claim by D)

(ii) Convenience – ok unless severe disadvantage in litigation

(iii) State’s interest – in subject/action

II. Subject matter jurisdiction

A. Question: which court can P use to sue D in a state? Fed or state

B. Answer

1. state; ok (but could be removed)

2. fed; limited

a. diversity of citizenship

1) citizens of different states AND

a) Not ok if any of the p’s are same state as any d’s.

b) No conclusive factors

c) Citizenship; if United States citizen, then domicile is

(i) Presence AND

(ii) Intent to make home (move not automatic)

d) Every citizen has exactly 1 at a time.

e) TEST at time of filing

f) Corporations; where incorporated and principal place of business (nerve or muscle)

g) Unincorporated associations; use citizenship of all members (general and limited partners)

h) Decedents, minors and incompetents, still use their citizenship not their representatives’ citizenship.

2) More then 75,000$

a) Test; whatever P claims in good faith

b) Unless no legal way to get it (statutory ceiling etc.)

c) Ok even if actually recovers less.

d) Aggregation

(i) Adding claims to meet 75,001

(ii) Only if 1 P and 1 D.

e) Equitable relief;

(i) D’s view of relief or P’s view of cost to comply

b. federal question

1) complaint must show a right or interest founded substantially on federal law. Claim must arise under federal law (well pleaded complaint rule). “p is enforcing a federal right”

2) Citizenship of parties does not matter (but additional claims must go through new tests)

c. supplemental jurisdiction

1) ok if NO diversity or fed. Q if

2) P must have 1 claim in fed ct already. AND

3) Same transaction or occurance

a) Except can’t use when would violate complete diversity.

b) Ok if first one was federal question and adding $ of claims gets over 75,000

4) Discretionary factors- ct can turn down if

a) FQ dismissed early in proceeding or

b) State issues complex or

c) State issues dominate.

III. Removal

A. Gives D power to have a case filed in state court, moved to federal court.

B. Test; ok if federal subject matter jurisdiction

1. diversity or FQ

C. where ok in federal court embracing state ct where filed.

D. When; no later then 30 days after service of first removable document (but not over 1 year)

E. Who; all D’s must agree, NEVER P’s.

F. Except

1. not if any D is citizen of the forum

IV. which law to use

A. erie doctrine

B. in diversity cases does the federal court use state or fed. law?

1. Use state when

a. Elements of claim or Defense

b. SOL (tolling)

c. Choice of law

d. No federal law conflicts

e. Or issue is substantive

1) Outcome determinative

2) Balance of interests says yes

3) Consider effect on forum shopping

V. Venue

A. Know fed ct and which state.

B. Question is which district?

1. removed case to fed district embracing state court where originally filed

2. Re; land (ownership, possession, injury), then filed in district where land lies

3. transitory

a. any district where all D’s reside or substantial part of claim arose.

b. Reside? Domicile, corporations broad definition.

c. But if all d’s reside in different districts in same state, any district ok

C. Transfer of venue

1. court’s discretion

2. test

a. only to where could have been tried.

b. for

1) convenience of parties and witnesses (private factors) or

2) interests of justice (public factors- burden on new court)

3. ct uses same choice of law rules and same other rules as original fed ct.

4. if original venue improper, ct can transfer or dismiss

VI. service of process

A. symbol of courts power over you

B. must give notice to D

1. deliver the= service of process= personal jurisdiction

a. summons and

b. complaint

C. service

1. who can serve? Any non party over 18 years

2. How?

a. Personal in state (or outside if forum allows)

b. Substituted service OK if

1) D’s usual abode AND

2) Serve someone of suitable age and discretion who resides there

c. Service on D’s agent OK

1) If within scope of agency (contract or law) or

2) Corporations registered agent, managing agent, or officer

3. OK if ok under state law

4. OK if waiver by mail

a. Process is mailed and D returns form in 30 days. Or

b. D doesn’t return and serve using other ways. Then D may have to pay for the cost of service.

VII. Pleadings

A. Notice pleading= only enough detail to provide notice and allow response

B. Rule 11; attorney or pro se party must sign all docs.

1. signing= certification that

a. not improper purpose

b. legal contentions are warranted by law

c. factual contentions/denials have evidentiary support (or are likely to after further investigation)

2. effective every time you present to court (argue during trial etc)

3. sanctions;

a. discretionary

b. for deterrence (non $ penalties ok and $ goes to court)

c. attorney/firm/party

4. 21 day safe harbor-

a. after notice fix w/o sanctions

b. Filer must wait 21 days to file with court

5. Sua sponte can be raised by court but still need (notice and chance to be heard)

C. Complaints

1. NEED

a. Statement of subject matter jurisdiction

b. Short and plain statement showing you are entitled to relief

c. Demand for judgment

2. special matters

a. for fraud, mistake and special damages (not normally flow from event)

b. NEED detail (particularity and specificity)

D. D’s response

1. two ways (motion or answer) within 20 days

2. motion or

a. Not a pleadings

b. Asking for a court order

c. What

1) Too vague or motion to strike

2) Lack of subject matter jurisdiction (made anytime)

3) Lack of PJ, improper venue, insufficiency of process, insufficient service of process ( made in first response or waived)

4) Failure to state a claim, failure to join indispensable party (made anytime through trial).

3. answer

a. is a pleading

b. within 20 days of complaint or 10 days after court rules on motion

c. NEED

1) Respond to allegations

a) Deny

b) Admit

c) Lack sufficient information to admit/deny

(i) Can’t use if information is under your control or public knowledge

(ii) Acts as denial

d) no denial (or no response)

(i) Acts as admit

2) Raise affirmative defenses (SOL, res judicata, self defense etc.) or waive

a) The even if I did, I still win because…

4. counterclaim

a. against opposing party

b. filed with answer

c. MUST/compulsory if same T/O (if don’t file, waive)

d. Permissive/may can raise in separate case

e. Need federal jurisdiction

1) Diversity

2) Fed Q

3) Supplemental

5. cross claim

a. against co-party

b. May permissive, same T/o

c. Federal jurisdiction (diversity, fed Q, supplemental)

6. amend pleadings

a. right

1) P right to amend once before D serve’s answer (not motion)

2) D right to amend once within 20 days of serving answer

b. Court will if justice so requires

1) Factors; delay, prejudice

c. Variance

1) If evidence at trial does not match what is pleading

2) D can object to conform to the evidence.

d. Amendment after SOL runs

1) Ok to amend if relate back if same T/O conduct (can avoid SOL)

VIII. Joinder of parties

A. May if

1. arise from same T/O AND

2. raise at least one common question

B. Must if

1. necessary indispensable (required)

a. court needs for complete award

b. new parties interest may be harmed

c. D faced with risk of multiple obligations

d. joint tortfeasors are not necessary

2. feasible

a. personal jurisdiction and

b. not ruin diversity

c. court decides if P or D

d. if no

1) court proceeds without or dismisses entire case

2) factors

a) alternative forum

b) actual likelihood of prejudice

c) can court shape relief to avoid prejudice

C. impleader

1. defending party wants someone to help pay

a. insurance (indemnity), jt. Tortfeaser (contribution)

b. need personal jurisdiction (diversity, fed Q, supp J)

2. RIGHT

a. 10 days to answer

3. CT

a. Other

4. steps file 3^rd party complaint and serve

5. P can assert claim to new D: if same T/O

6. new D can assert claim against P if same T/O

D. intervention ≠ tested lately

E. class action

1. Rep sues on behalf of group

a. Need ALL

1) Numerosity- too many to be practicable

2) Commonality

3) Typicality- rep = typical of class

4) Representative adequate (fairly and adequately)

2. type

a. (rare) necessary to avoid harm to class members (claimants to fund)

b. Injunction/declaratory damages

1) Class treated alike by D

c. Damages

1) Common Q predominate over Ind. Qs

2) Class action best method to handle

3. procedure

a. ct determines early if OK to certify

b. define class and appoint class counsel, rep, claims and defenses

4. notice

a. for type 3. Yes, including ind. Notice to all reasonably identifiable members

1) ok to opt out

2) bound if don’t can’t use other counsel.

3) Rep pays for expenses

b. Type 1 or 2 no

5. who bound

a. all except those who opted out (type 3)

6. settlement/dismissal

a. court has to approve

b. notice to class members

c. if type 3 second chance to opt out.

7. jurisdiction

a. still need SMJ

b. but for diversity only use Rep’s citizenship and money

IX. discovery

A. required disclosures (don’t need ask)

1. initial

2. experts who will testify (after identify)

3. pretrial

B. discovery tools

1. NOT until after rule 26 conference unless court allows

Applies to parties?	tool	Applies to non party?
X	Depositions= sworn oral testimony	X only compelled if subpoena (might require to bring stuff)
X	Interrogatories Q in writing, under oath, must respond in 30 days
X	Requests to produce or make docs available	X if subpeona
X	Physical or mental exam NEED CT ORDER and Actual controversy and Good cause	X
X	Request for admission

2. parties and attorney’s sign tools under oath and duty to supplement.

a. Warranties

1) Proper purpose and

2) Unduly burdensome

C. Scope of discovery

1. anything relevant to claim or defense (pleading)

2. ct can order “relevant to subject matter of case for good cause

3. relevant = reasonably calculated to lead to the discovery of admissible evidence

D. limits

1. privileged matter is NOT discoverable (evidence rules)

2. work product /trial prep is not discoverable

a. “prepared in anticipation of litigation”- fearing suit counts

b. Not necessarily made by lawyer (only by rep of party)

c. Sometimes

1) Evidence/facts IF

a) Substantial need

b) ≠ otherwise available

d. NEVER

1) Mental impressions

2) Opinions

3) Conclusions

4) Legal theories

E. Expert witness

1. testifying at trial= must provide information that may be used at trial

2. consulting expert= only if exceptional need

F. enforcement

1. problems

Overly burdensome	Protective order-
Trade secrets
Answers some/objects to some and objections not upheld	Partial violation of discovery rule= light sanction
≠ respond at all	Complete violation of discovery rule= heavy sanctions
False denial to admit (and proved)	then only costs and attorney’s fees
Failure to make required disclosure	Can pick full or partial

a. person seeking protective order must certify that they tried in good faith to get it w/o court intervention

b. light sanctions

1) order to finish answers THEN

2) sanctions, cost, attorney’s fees, and get contempt (unless refuse to submit to medical exam)

c. heavy sanctions

1) NO chance to fix

2) Immediate: sanctions, cost, attorney’s fees and get contempt

d. Sanctions

1) Establishment order (makes facts true)

2) Strike pleadings of disobedient party

3) Disallow evidence at trial on that issue

4) Dismiss P’s case ( if in bad faith)

5) Default judgment (if in bad faith)

e. Exceptions

1) No sanctions for electronically stored information if lost in good faith and by routine operation of electronic system

X. Pretrial adjudication

A. Failure to state claim (demurrer)

1. D moves

2. test; assuming all allegations true would P win judgment?

a. Don’t look at evidence

b. Only at face of complaint

3. if made after D’s answered

a. then motion for judgment on the pleadings.

B. Summary judgment

1. not need trial and ≠ disputes of fact

2. NO dispute on matter of fact

3. view evidence in light most favorable to non-moving party (including affidavits)

4. entitled to judgement as a matter of law

5. OK to weigh if one side has NO evidence, but not ok to weigh sufficiency or quality of evidence. (look only at evidence which uses first hand knowledge)

C. Conferences and meeting

1. pre trial conferences ct can expedite case and foster settlement

2. final pre trial conference

a. ct decides issues to be tried, evidence to be offered and that supercedes pleadings, it is a road map for trial.

XI. Trial, judgment and post trial motions

A. Jury trial

1. jury determines fact and instructed on law by judge

2. right to if $ (7^th amend, fed ct only)

3. NO if equitable (nonmonetary)

4. mixed? Jury decides facts under $ and judge under equitable

5. how

a. must demand in writing within 10 days after service of last pleading (w/ jury issue)

6. selection

a. voir dire

1) unlimited for cause (bias, prejudice, related)

2) 3 preemptory strikes

a) Not for gender or race (jury selection = state action)

B. Motion for judgment as a matter of law (directed verdict)

1. take case from jury

2. after otherside has been heard

3. standard “reasonable people would not disagree on the result”

4. before jury decides

C. renewed judgment as a matter of law

1. after jury decides

2. have to have made motion for judgment as a matter of law

3. losing party files

4. standard;

a. “jury reached conclusion that reasonable people would never reach”

D. Motion for a new trial

1. errors @ trial- judge thinks parties should start over

2. not as radical as judgment as a matter of law

3. move within 10 days after judgment

4. possible grounds

a. prejudicial error makes judgment unfair

b. new evidence (no fault)

c. prejudicial misconduct

d. judgment against weight of evidence

E. appeal

1. only from final judgment

a. on merits of entire case

b. notice in trial court within 30 days of entry of final judgment

c. final = after making order did trial court have anything left to do? (on the merits)

2. interlocutory (non-final) review

XII. claim and issue preclusion

A. whether a judgment already entered (case 1) precludes litigation of any matter in another case (case 2)?

B. Claim preclusion/res judicata

1. only get to sue on claim once

2. NEED

a. Brought by same P against same D

b. 1 ended in valid final judgment on the merits

1) =Any judgment unless says otherwise

2) ≠ judgment on

a) Jurisdiction

b) Venue

c) Indispensable parties

c. 1 and 2 asserted same claim (same T/O) minority says same rights (personal injuries, property damage etc.)

C. Issue preclusion/collateral estoppel

1. can’t relitigate same issue litigated before

2. NEED

a. Case 1 ended in valid final judgment on merits

b. Same issue litigated AND determined in case 1

c. Issues was essential to judgment in case 1

d. Against who only if party to case 1

e. By whom (most courts say mutuality) if party to case 1

1) Nonmutuality-

a) defensive (not party to 1, but D in 2)

(i) ok if against party who had full and fair opportunity to litigate in first case

b) offensive (not party to case, but P in 2)

(i) NO but trend and some courts say

(1) Ok if not unfair

(i) Factors; full and fair opportunity to litigate, could foresee multiple suits, user could not have easily joined case 1, not inconsistent judgments on record.

(ii)