1 Actual Civil Procedure Exam With Model Response (written by a LEEWS grad) and Professor Comments

"Just knowing you have a plan — i.e., the steps — keeps you from worrying about panic."
— Rob Goldbaum, U. Chicago '92 

Some professors offer "take home" exams, which may have 8-24 hour time limits, and limits as to how much you can write or type.  Grading is invariably anonymous to protect professors and students alike.  Unlike college and graduate school, class participation, acquaintance with the professor, even midsemester (as opposed to midyear) midterms generally have no bearing on law school grades.  Ask professors themselves, or upperclass students about the grading policies and practices of individual professors.

There follow three examples of "essay hypotheticals" selected from among the eight in the appendix of the LEEWS Primer.  Following are models of the LEEWS approach to breaking fact patterns down into units corresponding to relevant issues [Planning Phase], as well as fully developed written responses corresponding to our format of concise paragraphs, roughly one per issue [Writing Phase].  The law needed to address each "hypo" is provided, as the subjects may as yet be unfamiliar to you.

You may want to attempt a response before looking at the models.   Standard exam writing advice posits that you follow "IRAC."  I.e., identify the Issue, state the applicable Rule, Analyze, Conclude.  (Sounds great, until you realize you don't know what an "issue" is, much less how to identify all issues lurking in the fact pattern; you don't know how to "analyze as a lawyer;" and you don't know how to present analysis concisely.)

Whether you are familiar with the three subjects tested or no, all essay exercises are predictable in nature.  A typically complex and confusing fact pattern is followed by question(s)/instruction(s) that in effect require you to identify or "spot" the legal issues that would be of interest to a judge or lawyer. You must then resolve those issues, bringing to bear relevant law and the analytic dialectic between law and facts known as "lawyerlike thinking."

Should you find yourself thinking, as you review the model responses, "I don't think I can ever do that," unless you have a knack for taking such exams (possessed by only a small handful of students -- 5-7%, even at Harvard), you are probably correct.  Which is why so few law students manage even a single A on final exams.  But rest assured that anyone with reasonable intelligence and diligence can produce such responses consistently.  Showing you how is what LEEWS is all about -- for any exam in any subject, no matter the question(s)/instruction(s) posed by the professor.

Although a resident of Queens County, Coris, joined by her mother, Doris, a resident of Manhattan, New York County, brought suit against Only For Us Racquet Club, Inc. (OFU, Inc.) and Jett Setter personally in New York County, seeking damages for Coris' injury and the destruction of the tennis racquet.

Thereupon followed, inter alia, the following events and motions:

1 — OFU, Inc. and Setter moved for a change of venue to Queens County.

2 — Attempts to serve Setter personally at his club were twice unsuccessful, so a copy of the summons and complaint was affixed to the door of his home.  Another was mailed to him. [So-called "nail and mail" service.]

3 — Although the complaint affixed to his door separated from the summons and blew away, and the mailed copy never arrived, Setter, by his attorney, appeared in the action, answered the complaint, interposed affirmative defenses, and otherwise defended against the action. Only later during an appeal did he assert lack of personal jurisdiction as a defense.

4 — OFU, Inc. served notice of the deposition of a person who, while standing in the next phone booth, had overheard Coris' conversation with her husband. Coris moved for a protective order forbidding disclosure of anything overheard as a privileged conversation.

5 — OFU, Inc. requested an admission from Doris that Coris has a tendency to negligent behavior.  Doris ignored it.

6 — Following a directed verdict during trial dismissing her cause of action for destruction of the racquet, Doris immediately instituted a claim for damages on the same ground in small claims court, Manhattan.

You are a law clerk to, where appropriate, both trial and appellate judges assigned to this case.  Prepare a memorandum of law respecting the issues raised in the above.  Majority state law applies.
 

Discovery (scope of) — Generally, all information not otherwise privileged that is relevant to the subject matter of the action is discoverable, whether or not the material would be admissible as proof.

Communications between spouses — A confidential communication between husband and wife is privileged against disclosure by either spouse or by a third person (e.g., an eavesdropper).

Personal Jurisdiction — Generally, in order to determine the rights and duties of parties to an action, and to bind the parties personally to its determinations, a court must have in personam jurisdiction over said parties.  Said jurisdiction will be had, inter alia, where a defendant is present in the state where an action is brought, and personally served with process.  Where personal service on a defendant cannot be effected through due diligence, a plaintiff is entitled to substitute such service by affixing a copy of the summons and complaint to the door or other conspicuous place at the defendant's last known address, and also mailing a copy of same by regular mail to said address (so-called "nail and mail").  A court has held that three attempts at "in hand" service at a defendant's place of business, without attempting to serve the defendant at home or leave the summons and complaint with a person of suitable age and discretion at the place of business does not satisfy the requirements of due diligence.

Waiver of — Where a defendant appears, answers the complaint, interposes defenses, and at no time during or after trial moves to dismiss based on, nor claims lack of personal jurisdiction, the defense will be deemed waived on appeal.

Requests for admission — A request for admission imposes a duty on the party served to acknowledge the existence of facts that are not in doubt and that should not be necessary to prove at trial.  The party served normally has 30 days to respond.  Failure to timely respond results in the matter being deemed admitted.

Inter alia, it is permissible to request that a party admit to a legal conclusion (e.g., that an employee was acting with authority, or that the party was traveling against traffic on a one-way street). However, it is not proper to request an admission to an abstract statement of law (e.g., that allowing a minor without a license to drive is negligent, per se).

Res Judicata — A doctrine that for reasons of economy, prevention of harassment, and avoidance of inconsistent judicial rulings (policy!), the relitigation of claims and issues is generally prohibited.

Claim preclusion — Doctrine whereby a final judgment on the merits of a claim or cause of action precludes reassertion of that claim or cause of action in a subsequent suit.

Venue — Refers to the proper place for trial of a lawsuit. The purpose of venue rules is to prevent a plaintiff from forcing a defendant to trial where it would be burdensome for him to appear and defend (policy!). Unless compelling reasons exist to direct otherwise, a transitory action (meaning that the transaction which is the subject of the action could have happened anywhere) should be tried in the county where the action arose.

Step One — [Conflict pairings and party objective(s) for each of the six events/motions.]

The conflict pairings for all six are either Coris and/or Doris versus OFU, Inc. and/or Jett Setter.

[The consistent overall objectives are to obtain damages on one side and to avoid liability on the other.  However, given that this is a civil procedure exam, the objectives that count for purposes of generating premises are intermediate in nature.  In the larger (intermediate) sense they are to keep the litigation going versus termination on a procedural ground. More immediate to the six events/motions:]

1  = Change venue to Queens County vs. keep it in Manhattan County.

2  = Establish personal jurisdiction vs. not.

3  = have lack of personal jurisdiction defense ruled moot vs. exists and viable.

4  = Preclude disclosure of overheard conversation vs. have it ruled discoverable.

5  = Have fact admitted vs. not admitted.

6  = Have claim heard in small claims court vs. dismissed.

[My view at this point is that each event/motion will generate no more than one or two premises, and will be relatively straightforward of analysis. Therefore, the time to be allotted each will be roughly the same.  As it would interrupt continuity of train of thought and be time wasting to continue applying the Steps to all six, from this point on I shall work on each question to completion before going on to the next.]

Step Two — [Consider each pairing, party, and objective.  Cull facts (and course outline) for relevant premises.]

1  = Venue of transitory action is overriding, (i.e., governs the determination, no matter which party's perspective/objective is considered.  See definition of Step Two and footnote, page 104.)

2  = "Nail and mail" service vs. due diligence rule.

[Complete analysis/discussion of No.2 (7-8 minutes??), then on to No.3; . . . No.4; . . . 5; . . . 6.]

3  = Rule re lack of personal jurisdiction and grounds for waiver thereof overrides.

4  = Rule re discovery of spousal communication overrides.

5  = Requests for admission, and failure to respond thereto overrides.

6  = Res judicata rules override.

Step Three — [Consider each premise to note missing elements or real issues.]

[Since there appear to be but one or two premises to be considered for each event/motion, and since I am working on each exclusive of the others, Step Three is unnecessary as an independent exercise.  It is part and parcel of inspecting the law giving rise to the premise under consideration to determine whether it is necessary to state all of the law to begin the first paragraph of analysis, or whether one or more elements can be focused on as pivotal.]

Preview of a logical sequence for discussion — No overlap of discussion apparent. No reason apparent not to proceed in the chronology given.

Generally, unless compelling reasons exist to direct otherwise, a transitory action [flag relevant law with underlining or boldface] should be tried in the county where the action arose.  "Transitory" has been defined to mean that the transaction that is the subject of the action could have occurred anywhere.  Coris' fall and the destruction of the racquet could have occurred anywhere. [Concludes statement of relevant premise, i.e., controlling legal precept, that abruptly begins every paragraph.]  Moreover, Coris, Only For Us, Inc. (OFU), and Jett Setter all reside in Queens County.  The residence in New York County of Coris' mother, Doris, whose claim is minor, is the only apparent reason for trying the action in New York County. It is hardly "compelling."  [Concludes "lawyerlike analysis" -- application of law to relevant facts.]

Conclusion: The motion should be granted. [No hedging, as this seems open and shut.]
 

Conclusion: The attempted "nail and mail" service was likely [Hedging!] ineffective for lack of due diligence.
 

Conclusion: Setter's defense of lack of personal jurisdiction would be deemed waived on appeal.
 

Conclusion:  The motion will fail.  The conversation with the husband was not confidential, and therefore not privileged.

Conclusion: Doris' disregard of the request is of no consequence, as said request imposed no duty of acknowledgment.

Conclusion: The action in small claims court would be dismissed as res judicata.

Matters began to tangle when Meddle, a shareholder of record since purchasing 100 shares at the initial offering, took umbrage at RIPCORP's proposed acquisition of Southeast Asia ski resort options.  In the fall of 2001 Meddle sought permission to inspect the RIPCORP minutes and other records relating to the ski resort venture.  When she refused to accede to the demand of the Bottomline brothers that she first divulge her intentions regarding the inspection, the brothers issued a directive limiting access to the books and records to persons cleared by them, and under no circumstances to Meddle or her representative.

Thereupon Meddle brought suit in her own right and on behalf of RIPCORP against the corporation and the Bottomline brothers personally to gain access to the books and records, to block the ski resort venture as an ultra vires act, and for repayment by the RIPCORP board of directors of any expenses incurred in connection with the pursuit of said venture.  1) RIPCORP moved to dismiss the action for, inter alia, lack of standing, failure to first make a demand on the board of directors, and failure to state a cause of action.  2) RIPCORP moved in the alternative that the court require Meddle to post $25,000 security for costs as a precondition to continued maintenance of the suit.  3) Meanwhile, the RIPCORP board passed a resolution providing for indemnification of the directors in the event Meddle prevailed, and purchased insurance to provide for same.  Meddle immediately moved to quash these actions.

Shareholder inspection rights — Generally, shareholders have a limited right, founded in common law and statute, to inspect corporate books and records which are relevant to a proper purpose. Courts will determine whether a purpose is proper.  A shareholder may examine the stock book and minutes of stockholder meetings on demand if 1) he has been a stockholder of record for at least six months immediately preceding the demand; or 2) he is a holder of 5 percent of any class of outstanding shares.

Shareholder rights of action — Generally, a shareholder may sue the corporation in his own name to enforce his rights as a shareholder, and/or on behalf of the corporation to procure a judgment in favor of the corporation.  The latter "derivative action" may be maintained only if 1) the plaintiff is a shareholder when the action is brought; 2) the plaintiff was a shareholder when the alleged wrong to the corporation occurred; and 3) the plaintiff shows in his complaint that he has demanded that the board of directors commence the action, or that there are sufficient reasons for not making the demand (e.g., the board members are the defendants). Note that in order to minimize the possibility of derivative actions without merit being brought merely for "nuisance value" settlements or counsel fee awards, the corporation may require the plaintiff to post security for costs, unless 1) the plaintiff or plaintiffs hold at least 5 percent of any class of outstanding shares; or 2) the value of their shares exceeds $50,000.

Indemnification — Generally, a director or officer may not be indemnified (reimbursed) against a judgment obtained against him in a direct action by the corporation, or a derivative action on behalf of the corporation, or for amounts paid in settlement thereof.  The director may, however, be indemnified against expenses of defending the action, unless, inter alia, he is adjudged to have violated his fiduciary duty of good faith and reasonable care in the circumstances.  The corporation may purchase insurance to indemnify officers and directors for even the above judgments, providing no deliberate dishonesty or unlawful gain on the part of the officer/director is shown.

Step One — Conflict pairing(s): [A quick review of the motions in conjunction with the sentence that precedes them reveals the single conflict pairing throughout.] RIPCORP, Inc. v. Meddle, etc., or vice versa for each motion (i.e., question).

Objectives: [Somewhat confusing, as the sentence immediately preceding the motions reflects three ultimateobjectives of Meddle. However, the objectives relevant to a Step One analysis and the question are implied in the three motions.  Note that motion #1 also provides Movant RIPCORP's premises (!!).  Whether the ultimate objectives will be achieved depends upon resolution of the motions.]

1)  dismiss the action versus keep it going;

2)  $25,000 security be required to be posted, versus not;

3)  board indemnification resolution and purchase of insurance be quashed, versus maintenance of same.

Step Two — [RIPCORP is movant for motions 1 and 2, Meddle for 3. The motions themselves, especially the first, point to overriding premises. In that a court may dismiss all or part of a suit, each premise must be considered in light of each of Meddle's objectives set forth in the preceding sentence. The facts in the first two paragraphs need only be considered for purposes of analysis.]

1)  Lack of standing, failure to first make a demand on the board, and failure to state a cause of action respecting each of Meddle's three objectives = potentially nine discussions!!, but probably not.

2)  [Must refer to relevant portions of corporations toolbox.]  The law [Noted in toolbox only.  Don't write it in your outline.] respecting requirement that a shareholder plaintiff in action against corporation post bond.

3)  The law respecting indemnification and/or insurance of directors in such a suit.

Step Three — [The motions seem more or less equivalent in weight.  Given the complexity of the relevant premises noted in Step Two, the effort necessary for a Step Three analysis seems needlessly duplicative of the analysis to be performed in writing the actual response.  Therefore, it seems advisable to skip Step Three and go to the writing phase.]

Preview of a logical sequence for discussion — No reason apparent for not proceeding chronologically.

Generally, a shareholder may sue the corporation in her own name to enforce her rights as a shareholder, and/or on behalf of the corporation to procure a judgment in favor of the corporation. Inter alia, the latter "derivative action" can be maintained only if the plaintiff is a shareholder when the action is brought and when the alleged wrong to the corporation occurred. Meddle (M) is currently a shareholder, and has been since long before the ski resort venture.

Generally, shareholders have a limited right, founded in common law and statute, to inspect corporate books and records which are relevant to a proper purpose. Courts will determine whether a purpose is proper.  A shareholder may examine the stock book and minutes of stockholder meetings on demand if she has been a stockholder of record for at least six months immediately preceding the demand; or she is a holder of five percent of any class of outstanding shares.  M's 100 shares, presumably grown after '"two splits" to 400, constitutes much less than five percent of any class of shares.  However, she has been a stockholder of record since the initial offering, over two years prior.

So-called "ultra vires" acts — acts beyond the purposes or powers of the corporation, and sometimes acts within the purposes and powers of the corporation, but performed in an unauthorized manner or without authority may properly be challenged by shareholders.  Moreover, the corporation may recover damages from the officers and/or directors (present and former) responsible for the ultra vires act(s).  Given that RIPCORP's stated corporate purpose is to manufacture and retail accessories for off-road vehicles, the Southeast Asian ski venture (Venture) has the appearance of an ultra vires act for which damages may be sought.

Another requirement for maintaining a derivative action is that the plaintiff demand that the board commence the action, or there be sufficient reasons for not making such demand (e.g., the board members are the defendants).  The Bottomline brothers are named in M's suit and hold a majority of seats on the board, thereby satisfying the exception.

Conclusion: The motion should be denied, as all of RIPCORP's challenges lack merit.

Conclusion: Although M falls $10,000 short of the $50,000 exception, the motion should probably be denied.  Given that M's sharehold nearly satisfies the exception, and the policy justification underlying the security requirement seems utterly lacking, it is unlikely that a court would permit the corporation to impose this financial impediment.  [Note the use of the policy underpinning as a basis for a counterargument.]

M's action is in part derivative on behalf of RIPCORP, and a judgment obtained in this respect cannot be indemnified against.  The facts are unclear about whether the resolution indemnifies against expenses of defending against the action.  Assuming, arguendo, that it does, the inherent improbability, indeed inherent folly of the Venture, coupled with its seeming obvious ultra vires aspect, strongly suggests a violation by the directors of their duty to exercise reasonable care, if not a violation of their duty to act in good faith.  However, given that RIPCORP appears to have been engaged for some time in a pattern of divers schemes wholly unrelated to its stated purpose, it is unlikely that a court would be willing to take judicial notice of such a conclusion so early in the proceedings.

Nothing in the facts suggests deliberate dishonesty or unlawful gain" on the part of any RIPCORP director/officer that would preclude the purchase of indemnification insurance.

Conclusion: The motion should be granted as to any portion of the resolution that purports to indemnify against judgments obtained on behalf of the corporation, denied as to portions that indemnify against judgments obtained by M, and denied with leave to renew at a later time with respect to all other portions.

First: I bequeath my racehorse, Swayback, to my friend, X.

Second: I bequeath $100,000 to my brother, Y.

Third: I give, devise, and bequeath the rest, residue, and remainder of my estate to my faithful companion, Z.

In 1998, having fallen out with Z, T properly executed a new will with the following terms:

First: I bequeath $100,000 to my brother, Y.

Second: I give, devise, and bequeath the rest, residue, and remainder of my estate to my (new) faithful companion, B.

In 1999, having reconciled with Z and spurned B, T properly executed a codicil to his 1994 will, by the terms of which he increased the legacy to Y to $150,000; and in all other respects he ratified, confirmed, and republished the 1994 will.

T died in 2001.  In a probate proceeding the evidence established the following:

1)  Although sober when he made the codicil in 1999, T was "drunk out of his mind" when he executed the 1994 will.

2)  T sold Swayback to a syndicate in 1997 for $200,000.

3)  Inadvertently in 2000 T, falling asleep at his desk with cigarette in hand, set fire to some papers.  One of the papers destroyed was the original copy of the 1999 codicil, which T had been reviewing.

4)  Y died in 2000.

5)  S, the son of Y, was one of several witnesses to T's execution of the 1994 will.

Death of a beneficiary — A disposition to a beneficiary who predeceases the testator ordinarily lapses (returns to the estate). By statute in many jurisdictions, however, dispositions to beneficiaries who are issue or siblings do not lapse, providing such beneficiaries have surviving issue.  Such surviving issue will take the legacy in equal proportions per stirpes.

Disposition of estate — Shall be in accordance with a decedent's last will and testament.

Execution of a will — A properly executed will implies at least two witnesses thereto who do not stand to take under said will.

Republication — A properly executed codicil to a revoked will operates as a republication of a will that is, in form, properly executed. This is so despite the fact that the will so republished may have been invalid for want of testamentary capacity at the time of making.

Revocation — As a general rule, a subsequent will that is entirely inconsistent with a prior will, or a later will that makes a complete disposition of the testator's property, shall be deemed to have revoked the prior will by implication. A will may further be revoked by means of its physical destruction. Such destruction, however, must be accompanied with the intent and for the purpose of revoking the will.

Specific legacy — A bequest of a particular, individualized chattel, differentiated from all other articles of the same or similar nature. It must be taken by the legatee as and where he finds it.

Testamentary capacity — Absent evidence to the contrary, testamentary capacity will be presumed where the testator, in executing a will or other document, accurately recites the nature and extent of his property, and recognizes the natural objects of his bounty.

Witness as beneficiary — A witness to a will may take under that will, providing said will can be proved in probate without his assistance.

Step One — X, Y, Z, B, and A vs. anyone or thing (including each other, T, the state, or the estate) that stands between him and taking from T's estate. B v. Z seems a key conflict.

Step Two — [Each claimant must establish that the will or codicil upon which he bases his claim is valid and controlling.  Each will likewise seek to defeat a competitor claim.  Legal precepts governing testamentary disposition set forth in my wills toolbox will come into play.  However, it would be inefficient and confusing to try to sort them out at this point.  Better to focus on one conflict at a time in the writing phase.  Possibly there will be overlap of premises/discussion.]

Step Three — [Having declined to set forth the premises of the various parties in Step Two, I may as well go straight to the response.  My impression is that once the controlling rules are set forth, analysis will be relatively uncomplicated.] Ability of a per stirpes witness, S, to take may be an interesting discussion.

Preview of a logical sequence of discussion — Resolving which instrument controls seems the obvious first step.  Therefore, beginning with B v. Z would seem to make sense.

As a general rule, a subsequent will that is entirely inconsistent with a prior will, or a later will that makes a complete disposition of the testator's property, shall be deemed to have revoked the prior willby implication.  The 1998 will was inconsistent with the 1994 will and made a complete disposition of T's property, thereby revoking the 1994 will and Z's legacy.

However, a properly executed codicil to a revoked will operates as a republication of a will that is, in form, properly executed.  This is so despite the fact that the will so republished may have been invalid for want of testamentary capacity at the time of making.  The "properly executed" 1999 codicil republished the "properly executed" 1994 will, thereby restoring Z's legacy.  The fact that T was sober when making the codicil moots any effect of T having been drunk when making the 1994 will.  There being no evidence to the contrary, the fact that T in executing the codicil accurately recited the nature and extent of his property and recognized the natural objects of his bounty will establish his testamentary capacity in making the codicil.

Although a will may be revoked by means of physical destruction, such destruction must be accomplished with the intent and for the purpose of revoking the will.  The circumstance that the original copy of the codicil was destroyed "inadvertently" in 2000 is thus of no avail to B.

Conclusion:  The 1998 will is revoked, and B takes nothing.  Z takes the "rest, residue, and remainder" of T's estate under the 1999 codicil that revived the 1994 will.

X's rights

An ademption occurs when a specific legacy (i.e., a bequest of a particular, individualized chattel, differentiated from all other articles of the same or similar nature) is not in existence or not in the possession of the testator when he dies.  When an ademption occurs, the legatee takes nothing.  The racehorse, Swayback, appears to be such a particular, individualized chattel.  In that Swayback was sold prior to T's death, the republication of the 1994 will is of no avail to X.

Conclusion:  X takes nothing from T's estate, as his legacy has adeemed.

Y and S's rights

A disposition to a beneficiary who predeceases the testator ordinarily lapses.  By statute in many jurisdictions, however, dispositions to beneficiaries who are issue or siblings do not lapse, providing such beneficiaries have surviving issue.  Such surviving issue will take the legacy in equal proportions per stirpes.  Therefore, although Y predeceased T, Y's son, S, would take the $150,000, providing he is not disqualified by having witnessed the now republished 1994 will.

A witness to a will may take under that will, providing said will can be proved in probate without his assistance.  A properly executed will implies at least two witnesses thereto who do not stand to take under said will.  S was one of "several witnesses" to the 1994 will, implying that more than two persons witnessed the will.  Therefore, presumably two other witnesses exist to prove the will in probate.

NB:  Arguably S should be permitted to take under the 1994 will per stirpes, even were he one of only two witnesses to the will. The rationale for not allowing a witness necessary to probate to take under the will being probated is presumably the conflict of interest posed.  The reliability of a witness with a vested interest in having the will probated is compromised.  Y, however, not S stood to take under the 1994 will.  Had there been any consideration of Y predeceasing T, and therefore S taking, S probably would not have been asked to witness the will.  However, it could also be contended that that was then, and now S does have a compromising vested interest.

[This latter paragraph is not necessary.  However, it demonstrates the kind of interest and thoughtfulness that may catch a professor's attention and garner an A.  Possibly it should be highlighted in some way, perhaps with a red star.  I might even decide to put it on the blank page left at the beginning.  (See p.75.)]

Conclusion: Y, having predeceased T, will take nothing.  However, Y's intended legacy will go to the son, S, per stirpes.  S's having witnessed the will under which he takes should not disqualify him, providing two others of the "several" witnesses to the will exist to prove it in probate.