Checklists

Civil Procedure Personal Jurisdiction Traditional Bases for Asserting Jurisdiction Constitutional Bases In rem Quasi in rem Notice/Service of Process Subject Matter Jurisdiction Federal Question Diversity Supplemental Jurisdiction Pendent Ancillary Removal Venue Rule Transfer Forum non conveniens Choice of Law Pleadings Notice Service of Process Complaint Answer Counter Claims Cross-Claims Amendment and Supplemental Pleadings Rule 11 Joinder of Parties and Claims Parties Requirements Compulsory Permissive Claims Class Actions Intervention Impleader Interpleader Rule 22 Statutory Discovery Types Scope Sanctions Resolution Prior to Trial

12b6 Dismissal Summary Judgment Jury 7th Amd Nonsuit JMOL Renewed JMOL Appeal FJR Subsequent Proceedings Res Judicata Collateral Estoppel

Community Property Basic Presumptions Issues Which Affect All or Most of Property Antenuptial Agreement Transmutation Divorce Death Separate Each Item of Property Characterization Basic Presumptions Personal Injury Awards Retirement Benefits Disability Pay and Worker’s Compensation Severance Pay Stock Options Business and Professional Goodwill Education and Training Whole Life Insurance Term Life Insurance Source of Funds Acquisition of Property: Marriage of Moore Improvement of Property Actions by Spouses Altering Character of Property Antenuptial Agreements Transmutations: in writing after 1985 Marriage Woman’s Special Presumption (1975) Taking Assets in Joint Title Death: Lucas Divorce Before 1984: Lucas After 1984: joint tenancy = cp After 1987: any joint form = cp Reimbursement to sp Community Labor Enhancing Value of sp Pereira: cp enhanced value of business Van Camp: unique sp business Reverse Pereira & Van Camp: sp labor to cp Distribution Divorce Rule Reasons to Deviate Death Will Intestate Quasi-Community Property

Rule Divorce Death Management and Control During Marriage Equal Management Rule Exceptions Preemption

Constitutional Law Approach Is there a justiciable case or controversy? What type of Constitutional issue? If an individual right is at issue, is there state action? What individual rights are at issue? Justiciable Case or Controversy (Federal Courts)? Ripeness Abstention Mootness Political Question Standing What type of Constitutional issue? Separation of Powers Judicial Legislative Executive Domestic Appointment and Removal Veto Pardons Chief Executive Foreign War Foreign Relations Treaty Executive Agreements Impeachment Scope of Congressional Authority Source of Power Commerce Clause Spending Taxing Taking Citizenship Civil Rights Foreign Affairs Elections Limitations on power of 10th Amendment State Interference with Federal System Preemption Dormant Commerce Clause Privileges and Immunities Clause

If and individual right is at issue, is there state action? What individual right is at issue? Speech (1st Amendment) Prior Restraint Vagueness or Overbreadth Content Regulation or Content Neutral Content Regulations Inciting Imminent Lawless Action Defamation Obscenity Fighting Words Commercial Speech False True Content Neutral Public Forums: Time, Place & Manner Restrictions Nonpublic Forums Symbolic Expression Freedom of Association Taking (5th Amendment) Religion Establishment Free Exercise Equal Protection Classification or Fundamental Interest Suspect Quasi-suspect Other Government Intent to Discriminate Substantive Due Process Procedural Due Process Life, Liberty, or Property? What process is due?

Contracts Checklist and Practice

Rescission Novation Accord and Satisfaction

UCC Merchants Common Law Is there a valid contract? Offer Termination of Offer Lapse Revocation Rejection Operation of Law Acceptance Consideration Defenses to Formation Statute of Frauds Mistake Illegality Incapacity Unconscionability Duress and Coercion Fraud Third Party Rights or Obligations Third Party Beneficiaries Intended or Incidental Creditory or Donee Vesting of Rights Who can sue whom? Assignment of Rights Assignments are Valid Revocable Who can sue whom? Multiple Assignments Delegation of Duties Terms of Contract Interpretation of Ambiguous Terms Parol Evidence Rule Modification UCC: Delivery Obligations Risk of Loss Warranties of Quality Contract Limitations on Warranties Performance Conditions Types Satisfaction of Conditions Excuse of Conditions Wrongful Prevention Inability or Unwillingness to Perform Anticipatory Repudiation Waiver Estoppel Discharge of Duties Performance Impossibility Impracticability Frustration of Purpose

Breach Materiality Tests for Materiality Remedies Duty to Mitigate Damages Compensatory Expectation Consequential Liquidated Punitive UCC Buyer Breaches Seller Breaches Specific Performance C: Valid Contract C: Plaintiff’s conditions are satisfied I: Inadequacy of Legal Remedies M: Mutuality of Remedy E: Feasibility of Enforcement D: Defenses Unclean Hands Laches Mistake Misrepresentation Unconscionability Statute of Frauds/Part Performance Quasi-Contractual Relief Rescission G: Grounds for Rescission Mistake Mutual Unilateral Misrepresentation Innocent Fraudulent D: Defenses Unclean Hands Laches Reformation V: Valid Contract G: Grounds for Reformation Mistake Mutual Unilateral Misrepresentation D: Defenses Laches Sale to BFP

Corporations

Shareholders

Organization of the Corporation

Theories for Holding Shareholders Liable to Creditors of Corporation General Rule Piercing Corporate Veil Undercapitalization Alter Ego Torts Shareholder Management of Corporation Shareholder Derivative Suits Voting General Rule Exceptions Voting Trusts & Voting Agreements Where to Shareholder Vote? Act in Two Ways Unanimous Written Consent Meeting Annual Meeting Special Meeting Notice How do Shareholders Vote? Quorum Majority Cumulative Voting Stock Transfer Restrictions Right to Inspect (and Copy) Books and Records of Corporation Distributions

Formation Requirements People Paper Act Legal Significance of Formation of Corporation De Facto Corporation & Corporation by Estoppel Bylaws Promoters Foreign Corporations Issuance of Stock Definition Subscriptions Consideration Form Amount Preemptive Rights Directors and Officers Statutory Requirements – Directors Board Action Role of Directors Duty of Care Nonfeasance Misfeasance: Business Judgment Rule Duty of Loyalty Interested Director Transactions Competing Ventures Corporate Opportunity Which Directors are Liable? Officers Owe Same Duties as Directors Indemnification of Directors and Officers

Fundamental Corporate Changes Characteristics of Fundamental Corporate Changes Amendment of Articles Mergers or Consolidations Sale of Assets or Share Exchange Dissolution Voluntary Involuntary Winding Up Securities Law Considerations Securities are Investments State Law Liabilities Federal Anti-Fraud Rule: Rule 10b-5 Federal Anti-Speculation Rule 16b

Criminal Procedure Exclusionary Rule Illegal search and seizures excluded unless Grand jury, civil, immigration, parole Good faith reliance on statute or warrant Impeachment only Fruit of Poisonous Tree Defenses Free will Inevitable discovery Independent source Search and Seizure Government Action Reasonable Expectation of Privacy Valid Search Warrant Exceptions to Warrant Evanescent Plain View Consent Stop and Frisk Border Searches Hot Pursuit Search Incident to Lawful Arrest Automobile Exception Confessions Must be Voluntary Miranda Warnings and Defenses Pretrial Identification 6th Right to Counsel 14th Denial of Due Process Defense: Independent In-court Identification Right to Trial by Jury Double Jeopardy 14th Due Process Right to Counsel at Trial Guilty Pleas Criminal Law Principle of Criminal Law Accomplice Liability Elements Withdrawal Accessory After the Fact Inchoate Offenses Solicitation Conspiracy Attempt Offenses Against the Person Homicide First Degree Murder (si) Murder/2nd Degree Murder (m) Defenses Justification Provocation (mitigation) Felony Murder Defenses Lack of Causation

Hastening Inevitable Simultaneous Acts Voluntary Manslaughter Defenses Lack of Causation Hastening Inevitable Simultaneous Acts Involuntary Manslaughter Defenses Lack of Causation Hastening Inevitable Simultaneous Acts Rape (g) Assault (si) Battery (g) Defenses Consent Not voluntary intoxication Kidnapping (g) False Imprisonment (g) Mayhem Offenses Against Property Larceny (si) Embezzlement (si) False Pretenses (si) Receipt of Stolen Property Arson (m) Burglary (si) Offenses Against Person/Personal Property Robbery (si) Extortion (si) Offenses Against Public Forgery Bigamy (sl) Misprison Defenses Self Defense Defense of Others Defense of Property Intoxication Voluntary Involuntary Insanity M’Naughten Irresistible Impulse ALI Substantial Capacity Durham Product Mistake Necessity Duress Crime Prevention Infancy Consent Entrapment

Evidence Form of the Question Leading Compound Misleading/Confusing Argumentative Conclusionary Cumulative Non-responsive Unduly Harassing or Embarrassing Assumes Facts Not in Evidence Purpose Logical Relevance Legal Relevance Discretionary Exclusion Public Policy Exclusion Liability Insurance Subsequent Remedial Conduct Settlement Offers, etc. Payment/Offer to Pay Medical Expenses Presentation Competency Required Attributes Classes Impeachment Bias or Intent Truth, Veracity, Dishonesty Defects in Memory, Perception, Knowledge Conviction of a Crime Inconsistent Statements Character Evidence Civil Generally Not Admissible Exceptions Habit Character in Issue in Case Criminal Inadmissible if… Exceptions Issue other than bad character: MIMIC Open Door Rule by D Evidence of Victim’s bad character Opinion Testimony Lay Expert

Judicial Notice Hearsay Rule Exceptions Nonhearsay Verbal Acts or Legally Operative Facts Effect on Hearer Declarant’s State of Mind Admissions Vicarious Party Opponent Co-conspirator Adoptive Unavailability Exceptions Dying Declarations Statement Against Interest Former Testimony Documentary Exceptions Requirements Authentication Best Evidence Rule Business Records Recorded Recollection Official Records Ancient Documents Reliability Exceptions State of Mind Excited Utterance Present Sense Impression Declarations of Physical Condition Other Exceptions Learned Treatises Documents Affecting Property Interests Reputation Family Records Market Records Federal Catch-All Exception Privileges Physician-Patient Privilege Attorney-Client Privilege Marital Spousal Testimonial Privilege Confidential Marital Communications Waiver

Professional Responsibility Approach What is the duty? Conflicting duties? Breach? What should attorney have done? What remedy or sanction should be imposed (if in call)? Duty of Confidentiality Rule Distinguish A/C Privilege Exceptions Consent Crime Defense by Attorney Compelled by Law Duty of Loyalty Rule Imputed Disqualification Conflicts Between Attorney and Client Interested in Subject Matter of Litigation Business Transactions or Adverse Interests Publication Rights Contracts Loans and Advances to Client Limiting Malpractice Liability Gifts Close Relationships Trial Counsel as a Witness Conflicts Among Clients Opposite Sides of Same Matter Opposing Present Client in Simultaneously Pending Matter Two Clients with Inconsistent Positions Multiple Clients in Same Matter Former Government Lawyer Conflicts Due to Third Party Interference Fiduciary Duty Attorneys Fees Non-Contingent Contingent Written Types of Actions Allowing Contingent Fees Amount of Fees Fee Splitting Client Trust Accounts Duty to Safeguard

Duty to Separate Duty to Keep Good Records… Duty of Competence Rule Malpractice Distinguished Accepting Representation Should Accept Must Reject Scope of Representation Client Attorney Duty to Communicate Duty of Diligence Duty to Withdraw Mandatory Permissive Procedure for Withdrawal Duty of Candor to Public and Dignity to Profession (separate) Rule Advertising Not False or Misleading Not Harass or Solicit Ad Must… Solicitation: individualized contact Duty of Candor to Court and Fairness to Adversary Rule: candor and honesty Duty to State Law Truthfully Duty to Present Facts and Evidence Truthfully Duty to Produce Evidence Duty to Uphold Law Duty of Fairness With others Communications with Adversary and Third Parties Communications with Persons Represented by Counsel Dealing with Press Special Duties of Prosecutors Duty to Preserve Dignity of Court Duty to Expedite Cases Duty to Preserve Impartiality and Decorum of Tribunal Additional Duties to Profession and Public No Unauthorized Practice of Law No Dishonest Conduct Duty to Report Misconduct Duties of Subordinate Lawyers

Real Property Estates in Land Present Possessory Estates Fee Simple Absolute Defeasible Fees Fee Simple Determinable Fee Simple Subject to Condition Subsequent Fee Simple Subject to an Executory Interest Life Estate Elements Pur Autre Vie Waste Elements Affirmative (Voluntary) Waste Permissive Waste Ameliorative Waste Future Interests Elements Reversions Remainders Elements Indefeasibly Vested Remainder Vested Remainder Subject to Open Contingent Remainder Class Gifts Rule Against Perpetuities Rule Against Restraints on Alienation Concurrent Estates Joint Tenancy Tenancy in Common Tenancy by the Entirety Rights and Duties of Cotenants Landlord and Tenant Nature of Leasehold Tenancy for Years Periodic Tenancy Tenancy at Will Tenancy at Sufferance Holdover Doctrine Lease Tenant Duties and Landlord Responsibilities Waste

Duty Not to Use Premises for Illegal Purposes Duty to Pay Rent Landlord Remedies Landlord Duties and Tenant Remedies Generally, No Duty to Repair Duty to Deliver Actual Possession Quiet Enjoyment Breach Actual Eviction Partial Eviction Constructive Eviction Implied Warranty of Habitability Assignments and Subleases Assignment Sublease Consequences of Assignment Privity of Estate Consequences of Sublease Covenants Against Assignment or Sublease Assignments by Landlord Fixtures Elements Common Ownership Cases Divided Ownership Cases Third-Party Seller v. Mortgagee Rights to Others Land: Easements, Profits, Covenants, and Servitudes Easements Introduction Elements Types Affirmative Negative Easement Appurtenant Easement in Gross Creation of Easements Express Implied by Law Easement Implied from Existing Use Easement Implied without Any Existing Use Easement by Necessity Prescription Scope

Termination of Easements Failed Easement = License Covenants Running with the Land at Law (Real Covenants) A successor in interest is bound if covenant runs with land intent notice horizontal privity vertical privity touch and concern A successor in interest may enforce a covenant if benefit runs with the land intent vertical privity touch and concern Remedy: damages only Termination Equitable Servitudes A successor in interest is bound if intent notice touch and concern A successor in interest may enforce a covenant if intent touch and concern Defenses to Enforcement Remedy Termination Adverse Possession Conveyancing Land Sale Contracts Statute of Frauds Doctrine of Equitable Conversion Marketable Title Deeds: Form and Content Delivery and Acceptance Covenants for Title and Estoppel by Deed Recording Common Law Modern Recording Acts Notice Race-Notice Race

Wills: Form and Content Security Interests in Land Rights Incidental to Ownership of Land (Natural Rights) Exclusive Right to Use and Possess Right to Lateral and Subjacent Support of Land Adjacent Land Owners Subjacent Occupants Water Rights Watercourses Riparian Doctrine Natural Flow Reasonable Use Natural v. Artificial Use Prior Appropriation Doctrine Groundwater Absolute Ownership Reasonable Use Correlative Rights Appropriative Rights Surface Waters Natural Flow Common Enemy Reasonable Use Airspace Rights Right to Exclude

Torts Checklist and Practice Intentional Torts Prima Facie Case Assault Battery Intentional Infliction of Emotional Distress False Imprisonment Trespass to Land Trespass to Chattels Conversion Defenses Consent Self Defense Defense of Others Defense of Property Necessity Public Private General Considerations Defamation Prima Facie Case Common Law Constitutional Defenses Truth Consent Absolute Privilege Qualified Privilege General Considerations Invasion of Privacy Prima Facie Case Intrusion Upon Seclusion False Light Disclosure of Private Facts Appropriation Defenses Consent Absolute Privilege (false light and disclosure) Qualified Privilege (false light and disclosure) General Considerations Negligence Duty Foreseeable plaintiff Standards of Care RPPUTC Professional Statutory Children Common Carriers and Innkeepers Land Owner to Undiscovered Trespasser Land Owner to Discovered Trespasser Land Owner to Licensee Land Owner to Invitee Affirmative Duty to Act Breach Facts Res ipsa loquitur Causation Actual, but for Proximate, foreseeability Damages

Defenses Contributory Negligence Comparative Negligence Pure Partial/Modified Assumption of Risk General Considerations Strict Liability Prima Facie Case Wild Animals Ultrahazardous Conditions/Abnormally Dangerous Activities Defenses General Considerations Products Liability Prima Facie Case Theories Negligence Strict Liability Implied Warranty Express Warranty Misrepresentation Intentional Negligent Wrongful Institution of Legal Proceedings Malicious Prosecution Abuse of Process Interference with Business Relations Nuisance General Considerations Vicarious Liability Joint and Severally Liable Tortfeasors Survival Acts/Wrongful Death Tort Immunities Remedies Damages Actual Damages Nominal Damages Punitive Damages Restitution Legal Remedies Money Replevin Ejectment Equitable Remedies Constructive Trust Equitable Lien Injunction (“I put five bucks down”) I: Are the legal remedies inadequate? P: Is a property right involved? F: Is an injunctive relief decree feasible? B: Should the hardships be balanced? D: Defenses Laches

Wills

Trusts

Execution of Wills Attested Wills Must have Interested Witnesses and Extra Benefit Test Attestation Clause Holographic Wills Testamentary Capacity Undue Influence Insane Delusion Fraud Revocation of Wills Three Methods of Revocation Subsequent Valid Will Physical Act Operation of Law Dependent Relative Revocation Components of Wills Integration Republication by Codicil Incorporation by Reference Acts of Independent Significance Interpretation of Wills Extrinsic Evidence Admissible Lapse Ademption Abatement Intestate Succession Share of Surviving Spouse Share Not Passing to Surviving Spouse Special Problems Adoption Stepchildren Advancements Simultaneous Death Rights of Surviving Spouse and Children Remember Date for Pretermittance Pretermitted Spouse Pretermitted Children Bars to Succession Homicide: Slayers Elder Abuse No Contest Clause

Elements of a Valid Trust Trustor/Settlor Delivers Trust Property (trust res) To Trustee For Benefit of Beneficiaries With Intent to Create A Valid Trust for a Valid Purpose Types of Trusts Discretionary Trust Support Trust Mandatory Trust Honorary Trust Spendthrift Trust Secret Trust Semi-Secret Trust Charitable Trust Totten Trust Revocable Trust Resulting Trust Modification and Termination of Trusts General Rule Claflin Doctrine Changed Circumstances Fiduciary Duties of Trustee Standard of Care Duty of Loyalty Self-Dealing Care for Trust Property Prudent Investor Rule Liabilities of Trustee Only Beneficiaries Have Standing Types of Actions Removal Damages Equitable Remedy: Constructive Trust Defenses Laches Consent Exculpatory Clause Trustee’s Liability for Acts of Others Agents Co-Trustees Predecessor Trustees