Sample Exams

3 Sample Law Essay Exams From the LEEWS Primer (with Model Responses)

[And an example of LEEWS’ effectiveness in practice.]

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

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Introduction

The entire grade (!!) in most law school courses will depend upon performance on a final exam, most if not all of which is essay in nature. (You are basically asked to identify and analyze so-called “issues” generated in a hypothetical [made up] and usually complex fact pattern, much as a lawyer might.) Most exams are 3-4 hours in length, and either “closed” or “open book.” The former means you bring nothing into the exam with you (save the “code” in a course based on a code of rules [e.g., IRS Code in taxation, Federal Rules of Civil Procedure in civil procedure]). Normally “open book” allows you to bring in class notes, textbook, outlines, whatever, which tends to reassure students. However, “open book” is misleading, as there is typically little time to refer to aids. Open or closed book, the law you need to know should be in your head.

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.

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SAMPLE EXERCISE 1

Civil Procedure Hypothetical (60 min.)

Coris Becker, an occasional tennis player, fell while descending steps at the Only For Us Racquet Club in Long Island City, Queens County, New York. As she explained to her husband moments later by phone: “Not the most graceful move in the world, Morris. I got so mad, I smashed Mommy’s new titanium Stroker. Be a dear and bring home din-din. I’m going to be in the hot tub for hours.” As she limped out to her Lexus, Coris ran into the club owner, Jett Setter. He grinned and remarked, “I saw that spill, Coris. Not the most graceful move in the world.” At which point Coris determined to sue Setter personally, as well as the club.

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.

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RELEVANT LEGAL PRINCIPLES FOR CIVIL PROCEDURE HYPO
(Such legal knowledge should be in your head as well as your course outline.
Note: The law provided herein may or may not be currently accurate.)

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 — 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.

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MODEL RESPONSE TO CIVIL PROCEDURE HYPOTHETICAL

PLANNING PHASE
(1/4 – 1/3 of allotted time divided into 10-15 minute intervals)

Preliminary Overview — Six distinct events/motions. Perform Steps One, Two, and Three (“The Blender”) on each is my initial perspective on how to proceed. [Always the Steps, always the Steps — a constant way of thinking.]

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.

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WRITING PHASE

1

[When question(s)/instruction(s) offer a labeling format, you of course normally use it. The professor/bar grader will likely be looking for it (Here — 1,2,3, etc. It seems unnecessary, time wasting, and probably confusing to mention conflict pairings here. However, I am thinking of and guided by them.]

[Discussion]

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.] 

2

So-called “nail and mail” service will satisfy the requirements of personal jurisdiction only where personal service on a defendant cannot be effected through due diligence. [Law.] It has been 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. Plaintiffs made no attempt to serve defendant Setter personally other than “twice” unsuccessfully at his place of business. [Analysis.]

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

3

Where a defendant who has not been properly served nevertheless appears in an action, answers the complaint, and interposes affirmative defenses, but never moves to dismiss for lack of personal jurisdiction, nor at any time claims lack of personal jurisdiction, the defense of lack of personal jurisdiction will be deemed waived upon the taking of an appeal. [Law.] Setter, as concluded above, was never properly served. Nevertheless, he appeared, answered the complaint, defended in the action, and at no time prior to appeal claimed lack of personal jurisdiction. Arguably, raising the claim on appeal is “after trial.” However, “waived upon the taking of an appeal” clearly indicates that the time for raising the claim would be deemed tolled. [Analysis.]

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

4

Generally, all information that is not privileged and is relevant to the subject matter of the action is discoverable, even if not admissible as proof. Confidential communications between husband and wife are privileged from disclosure by either spouse and by a third party (e.g., an eavesdropper). [Law.] Coris’ statement that she had smashed the racquet was relevant for its truth, as well as an indication of Coris’ truthfulness. “Confidential” normally implies private or secret. [Add clarification, or law, where needed, and appropriate.] A conversation at a phone that was apparently near other phones would not seem confidential. Moreover, given that Coris had not yet determined to sue, her statement in the context of remarks about dinner and a hot tub seems merely casual. [Analysis.]

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

5

A request for an 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. However, inter alia, 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). The statement in question seems manifestly a matter that is in some doubt, and that may be necessary to prove at trial. Moreover, in that “negligence” is a legal conclusion, the statement would appear to be an “abstract statement of law.”

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

6

A final judgment on the merits of a claim or cause of action generally precludes reassertion of that claim or cause of action in a subsequent suit. Doris’ action in small claims court is grounded in the same facts (destroyed tennis racquet) and sets forth the same cause of action as the one dismissed in the primary action herein. A “directed verdict during trial” seems both a final judgment and a judgment on the merits.

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

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SAMPLE EXERCISE 2

Corporations Hypothetical (50 min.)

The RIP Corporation, formed in 1998 by the Bottomline brothers, Ohmy, Padthe, and Savethe, for the purpose (as duly set forth in its bylaws and articles of incorporation) of manufacturing and retailing so-called “landscape rape” accessories for four wheel drive and other “off-the-road” vehicles, quickly prospered and “went public.” Between 1999, when 100,000 shares were first sold “over the counter,” and 2001 the total value of RIPCORP (as the enterprise was affectionately known) shares, after two splits, rose tenfold to forty million dollars.  Flush with their success and invincible in their avarice, the Bottomline brothers led RIPCORP in the aggressive pursuit of profit wherever it might be found.  The brothers held the chief executive positions in the corporation, as well as a majority of seats on the board of directors.  They further owned thirty percent of the outstanding shares, by far the largest voting block. Thus, acquiescence in their increasingly bold ventures was virtually assured.

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.

How should the court decide the motions under 1, 2, and 3 above?

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RELEVANT LEGAL PRINCIPLES FOR CORPORATIONS HYPO

Ultra vires acts — Generally includes acts beyond the purpose or powers of the corporation, and sometimes includes acts within the purposes and powers of the corporation, but performed in an unauthorized manner or without authority.  Many jurisdictions now restrict ultra vires challenges to the following: 1) the right of a shareholder to enjoin unauthorized corporate acts; 2) the right of the attorney general of the state to enjoin such activities; 3) the right of the corporation to recover damages from the officers and/or directors (present or former) responsible for the ultra vires act(s). 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.

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MODEL RESPONSE TO CORPORATIONS HYPOTHETICAL

PLANNING PHASE

Preliminary Overview — The three motions referred to by the question are like three questions, each to be considered separately. [Note the enormous benefit here of skipping over the facts.]

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.

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WRITING PHASE

Motion No. 1

Lack of standing/failure to state a cause of action

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.

Failure to first make a demand on the board

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.

Motion No. 2

Corporations, in order to minimize the possibility of derivative actions without merit being brought merely for “nuisance value” settlements or counsel fee awards, may require a shareholder plaintiff to post security for costs, unless the plaintiff or plaintiffs hold at least five percent of any class of outstanding shares, or the value of their shares exceeds $50,000.  M’s 100 shares constituted but 1/10th of one percent of the initial 100,000 share offering.  Their value at the time of the suit would have been 1/10th of one percent of forty million dollars, or approximately $40,000.  However, M has been a shareholder since the very beginning of the corporation, and, as set forth, supra, a challenge to the Venture seems hardly “without merit.”  [Yes, basic math may be necessary!]

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.]

Motion No. 3

Generally, a corporate director (or officer) may not be indemnified against a judgment obtained against him in a direct action by the corporation or a derivative action, 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.

[Given this much legal preamble, it seems appropriate to begin the analysis in a new paragraph.]

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.

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SAMPLE EXERCISE (3)

Wills Hypothetical (50 min.)

T properly executed a will in 1994, by the terms of which he distributed his entire estate in the following manner: 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.

— / —

Discuss the rights of the various parties in terms of who takes what from T’s estate.

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RELEVANT LEGAL PRINCIPLES FOR WILLS HYPOTHETICAL

Ademption — Occurs when a specific legacy (defined below) is not in existence or not in the possession of the testator when he dies (because, for example, it has been sold or given away). When an ademption occurs, the legatee takes nothing.

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.

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MODEL RESPONSE TO WILLS HYPOTHETICAL

PLANNING PHASE

Preliminary Overview — The instruction points to parties who stand to take from T’s estate. Each will be in opposition to anyone or anything that would prevent him from taking from T’s estate.

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.

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WRITING PHASE

B and Z’s rights  [This label conforms to the instruction.  B v. Z might confuse.  But I’m thinking B v. Z!]

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.

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Actual Civil Procedure I Exam, Fall 2006, U. Memphis School of Law (with Model A+ Response and Professor Comments)

[The example that follows is an actual exam and model response sent to us by one Richard Townley, Sr., U. Memphis class of 2009E (evening division).  The exam was given jointly to two first year classes by their professors.  Richard ordered the audio CD version of LEEWS.  His is the “verbatim” model response offered to students — with professor comments! — as what was wanted.  His response received the highest grade, one of only two A+ grades.  His accompanying remarks are reprinted in the “Results” section.  Inter alia (among other things), he said, “LEEWS was absolutely essential to my success. …. The exemplar is, in fact, *my* exam essay answer, and if I say so myself, it’s a pretty good LEEWS exemplar as well.”

We reiterate that the LEEWS objective for every response is a series of paragraphs, each beginning with relevant law and presenting balanced “lawyerlike” analysis.

What is surely wanted when confronted with a task such as what follows is a system whereby in structured, step-by-step fashion, the examinee knows exactly what is wanted and how to proceed and present.  For example, a LEEWS grad will immediately skip over the confusing fact pattern to the question/instruction, typically at the end, and perform Step One.  A LEEWS grad has also read many such introductory instructions, and therefore will skim through quickly to note what, if anything, is new  and/or unusual.  Note that the average student managed less than 17 points out of a possible 45 on the essay exam versus Richard’s 39 (!!).

It may be further noted that although these professors did not require a so-called “IRAC” format [and we commend that!), Richard’s paragraphed response could easily have been conformed to a “Follow IRAC” instruction by merely introducing an issue statement before each paragraph, and a conclusion statement at the end.  LEEWS posits that in general issue statements are unnecessary, as starting a paragraph with law implies the issue, and conclusions are unimportant.]

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Sample Essay Response

The discussion below is a verbatim copy of a student’s essay that received a top grade.  Commentary by Professors Banks and Entman appears in brackets.
[LEEWS note:  We reprint this commentary in blue.]

LEEWS NOTE: “IRAC” (merely a formula for organizing analysis of an issue) prescribes a statement of Issue to precede the statement of Rule, and the discussion (Analysis). (And Conclusion at the end.) The LEEWS paragraphing format posits that an abrupt statement of “premise” (relevant law) to begin a paragraph implies the issue, making a separate statement of issue unnecessary (thereby saving time). Richard’s model response in LEEWS format does this. Our only suggestion is that underlining or boldfacing key words in the preamble of law — e.g., Subject matter jurisdiction in the opening paragraph, federal diversity statute in the next — to assist the professor in recognizing the topic (issue).

Part I.A.

Subject-matter jurisdiction.  The federal courts are courts of limited jurisdiction; they can only hear certain types of claims as outlined in Article III of the US Constitution and as authorized by Congressional Statute.  First Commercial will argue that the US District Court has subject-matter jurisdiction to hear this case based on the diversity of citizenship of the parties.  First Commercial is a citizen of Prussia.  Isolde has been living in Swabia for one month.[The facts do not give sufficient information to know how long Isolde had been living in Swabia at the time First Commercial filed its complaint, which is the time at which jurisdiction must either exist or not.  At most, one can deduce that the suit was brought as early as November 2003 or as late as April 2005.  Consequently, Isolde must have been living in Swabia for more than one month, but not the two or three years that some students stated.]  She can argue that she is still domiciled in Prussia, where she lived her whole life up to June of 2003, because she only moved to Swabia temporarily, to see “if she would enjoy” life on her own.  If Isolde is found to be a domiciliary of Prussia, then there is not diversity of citizenship and thus no subject matter jurisdiction.  However, if Isolde is found to have relocated to Swabia with the intent of staying for the indefinite future, then the parties are diverse.

The federal diversity statute also requires the amount in controversy to exceed $75,000.  The $100,000 judgment against Isolde satisfies this requirement. N.B. [Please do not use abbreviations, including this one.]  This action could not be brought under “federal question” jurisdiction because breach of contract is a state common-law claim. Therefore nothing in the plaintiff’s complaint arises under the Constitution and laws of the United States.

Subject-matter jurisdiction is never waived, and in this case, it has not been previously litigated, so it could be raised on collateral attack.  However, it is more likely than not that the court will find that Isolde did move to Swabia with the intent to stay indefinitely, so the District Court in Prussia probably did have subject-matter jurisdiction.

Personal jurisdiction.  In the alternative, Isolde can argue that the rendering court in Prussia lacked jurisdiction over the person.  Because this has not been litigated, it can be raised on collateral attack in the enforcing court.  [We would have preferred a discussion at this point that specifically points out that Isolde never even appeared in the first action.  Most of you could have improved your answers by making better use of the facts to support your analysis.  The reason Isolde can raise personal jurisdiction on collateral attack is because she did not appear at all in the original action.  Since she did not appear, there is no reason to discuss Rule 12.]  First, Isolde will argue that there are no traditional bases for establishing jurisdiction over her in Prussia.  N.B. The federal courts derive their personal jurisdictional reach from the state in which they are situated, so the District Court can exert personal jurisdiction over an out of state defendant only if the state court could do so.  Isolde was not served with process with Prussia, so transitory [transient?] jurisdiction does not attach.  Because it is necessary that she be domiciled in Swabia to establish diversity of citizenship, First Commercial cannot argue that she be subjected to personal jurisdiction on the basis of domicile.  Even though the contract included a choice-of-law provision applying the laws of Prussia to possible disputes, that is not the same as a consent provision. [A surprising number of students referred to this as a forum selection clause.  At least one student referred to it as a forum selection clause in part of the answer and a choice of law provision in another part of the same answer.  Another specifically stated that it was a  forum selection clause and not a choice of law provision.  Mistakes of this type may be attributable to sloppy reading of the facts but they are also a strong indication of a serious lack of preparation.  Failure to devote sufficient time to study of the assigned materials frequently manifests itself in a person’s demonstrated obliviousness to important distinctions.  Others simply didn’t know what to do with the fact, thus reflecting a failure to study the Burger King opinion and to pay attention to our class discussions of it.]

Statutory basis.  First Commercial will argue that the long-arm statute conferred specific jurisdiction over Isolde on the basis of the first of the  enumerated acts: “a) transacting any business within the State.”  The claim for relief, the $100,000 breach of contract, arises from the defendant’s act of entering into the loan contract, which First Commercial will argue was executed on Tristan’s delivery of the loan documents to the Bank’s main office in Prussia.  Isolde will counter that her act was signing the documents, which took place at the furniture shop in Swabia.  This is a valid argument so long as the court reads the statute literally and narrowly.  However, if a court interpreted the statute broadly (See Gray v. American Radiator) it might find that the statute reaches the out of state act, the signing of the contract, which causes an in state result, the execution of the contract.  [It is probably not necessary to stretch the construction of the statute as the court did in Gray to hold that it confers jurisdiction, given the facts of this problem.  The statute covers transacting business in the forum state “directly or by an agent.”  Like McShara in Burger King, Tristan was acting on behalf of the partnership (thus as an agent) in delivering the papers to the bank.  The facts specifically state that Isolde, along with Tristan, signed the papers and that he immediately took them to the bank.  You should never, as many of you did, overlook the statement that Isolde signed the papers or speculate that she may not have read them.  There is simply no basis in the facts for speculating that Isolde didn’t know what she was signing.  Indulging in speculation that she might not have reveals desperation.]

Constitutional Standard.  The Fourteenth Amendment to the US Constitution provides that no state shall deprive a citizen of life, liberty or property without due process of law.  The U.S. Supreme Court defined the due process standard as it relates to imposing personal jurisdiction on an out of state defendant in International Shoe: jurisdiction is constitutional only if the cause of action arises from the defendant’s minimum contacts with the forum, such that the assertion of jurisdiction would not offend traditional notions of fair play and substantial justice.  Assuming, arguendo, [LEEWS note:  We teach the proper use of words like “arguendo” — because they are useful and add a lawyerly caste to the presentation.] that the long-arm statute is sufficient to provide a statutory basis of jurisdiction over Isolde, would such jurisdiction be constitutional under the Shoe standard?  [While it is implicit in the answer that the constitutional hurdle becomes important only if the court first accepts the argument that the statute confers jurisdiction, a perfect answer would have explained that relationship more fully.]   Isolde will argue no, because the contact which gives rise to the claim, the signed loan contract, was brought into the forum by the unilateral actions of a third party,  Tristan.  Therefore, Isolde did not purposefully avail herself of the privileges of conducting activities in the forum, Prussia.  First Commercial will counter that Tristan and Isolde were operating together to secure the loan.  They reached into the forum when they called First Commercial.  Isolde knew that Tristan was taking the documents to Prussia, [run-on sentence, a sin committed by many students in these essays] therefore it was imminently[eminently] foreseeable that the contract would be executed there, and she could reasonably anticipate being haled into court in Prussia over any disputes to the contract.  (See Denckla, Worldwide VW).

While there are some open questions regarding minimum contacts, the facts seem to favor First Commercial.  In the alternative, [In addition?] can Isolde raise any of the fairness factors, defining “fair play and substantial justice,” articulated in the US Supreme Court’s Burger King decision?  In weighing the relative burden on Isolde compared to the interest of First National in litigating in Prussia, it does not seem unfair to require Isolde to travel to a nearby state where she lived most of her life and where she sometimes appears to give lectures.  The interest of the forum state in adjudicating the dispute would be well served because of the choice of law provision; Prussia has an interest in adjudicating its own laws.  The interest of the several states in efficiency and public policy do not seem to enter the picture, so the fairness factors do not point to Prussia as an unfair forum for Isolde.

Conclusion.  Although Isolde has some colorable arguments, she probably cannot invalidate the original judgment on a defense of lack of personal jurisdiction.

[Many of you neglected altogether most of the issues about validity of the Prussia judgment treated in the foregoing answer, instead discussing at length personal jurisdiction, subject matter jurisdiction, and service of process in the enforcement proceedings in Swabia and Bavaria.  Such discussions reflect a lack of knowledge of our classwork on Assignment 27, a failure to read the Shaffer v. Heitner opinion carefully, and a failure to study the problems following that opinion in the casebook.]

Part IB

The Supreme Court upheld the traditional transitory [transient?] jurisdiction in the Burnham case.  A state is all powerful within its borders, and service of process within a state is usually certain to establish personal jurisdiction over the person served, regardless of whether or not that person has any other contacts with the forum.  However, in the case of a defendant who was served after having been brought into the forum against her will or without her knowledge, there seems to be something fundamentally unfair about asserting personal jurisdiction over that defendant.  There are certain times when people are immune from service of process, e.g. while in the forum under subpoena as a witness.  A plaintiff cannot fraudulently induce a defendant into the form for the purpose of a “gotcha” service of process.  By analogy, it would seem that policy should demand that a person brought into the form unconscious, as a result of a medical emergency, should not be subject to personal jurisdiction as a result of being served with process under those circumstances.