Civil Procedure 12b6

Dismissal
Personal Jurisdiction Summary Judgment
Traditional Bases for Asserting Jurisdiction Jury
Constitutional Bases 7th Amd
In rem Nonsuit
Quasi in rem JMOL
Notice/Service of Process Renewed JMOL
Subject Matter Jurisdiction Appeal
Federal Question FJR
Diversity Subsequent Proceedings
Supplemental Jurisdiction Res Judicata
Pendent Collateral Estoppel
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
Community Property Rule
Divorce
Basic Presumptions Death
Issues Which Affect All or Most of Property Management and Control During Marriage
Antenuptial Agreement Equal Management Rule
Transmutation Exceptions
Divorce Preemption
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
Constitutional Law If and individual right is at issue, is there state action?
What individual right is at issue?
Approach Speech (1st Amendment)
Prior Restraint
Is there a justiciable case or controversy? Vagueness or Overbreadth
What type of Constitutional issue? Content Regulation or Content Neutral
If an individual right is at issue, is there state action? Content Regulations
What individual rights are at issue? Inciting Imminent Lawless Action
Defamation
Justiciable Case or Controversy (Federal Courts)? Obscenity
Ripeness Fighting Words
Abstention Commercial Speech
Mootness False
Political Question True
Standing Content Neutral
What type of Constitutional issue? Public Forums: Time, Place & Manner
Separation of Powers Restrictions
Judicial Nonpublic Forums
Legislative Symbolic Expression
Executive Freedom of Association
Domestic Taking (5th Amendment)
Appointment and Removal Religion
Veto Establishment
Pardons Free Exercise
Chief Executive Equal Protection
Foreign Classification or Fundamental Interest
War Suspect
Foreign Relations Quasi-suspect
Treaty Other
Executive Agreements Government Intent to Discriminate
Impeachment Substantive Due Process
Scope of Congressional Authority Procedural Due Process
Source of Power Life, Liberty, or Property?
Commerce Clause What process is due?
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
Contracts Checklist and Practice Rescission
Novation
UCC Accord and Satisfaction
Merchants Breach
Common Law Materiality
Tests for Materiality
Is there a valid contract? Remedies
Offer Duty to Mitigate
Termination of Offer Damages
Lapse Compensatory
Revocation Expectation
Rejection Consequential
Operation of Law Liquidated
Acceptance Punitive
Consideration UCC
Defenses to Formation Buyer Breaches
Statute of Frauds Seller Breaches
Mistake Specific Performance
Illegality C: Valid Contract
Incapacity C: Plaintiff’s conditions are satisfied
Unconscionability I: Inadequacy of Legal Remedies
Duress and Coercion M: Mutuality of Remedy
Fraud E: Feasibility of Enforcement
Third Party Rights or Obligations D: Defenses
Third Party Beneficiaries Unclean Hands
Intended or Incidental Laches
Creditory or Donee Mistake
Vesting of Rights Misrepresentation
Who can sue whom? Unconscionability
Assignment of Rights Statute of Frauds/Part Performance
Assignments are Valid Quasi-Contractual Relief
Revocable Rescission
Who can sue whom? G: Grounds for Rescission
Multiple Assignments Mistake
Delegation of Duties Mutual
Terms of Contract Unilateral
Interpretation of Ambiguous Terms Misrepresentation
Parol Evidence Rule Innocent
Modification Fraudulent
UCC: Delivery Obligations D: Defenses
Risk of Loss Unclean Hands
Warranties of Quality Laches
Contract Limitations on Warranties Reformation
Performance V: Valid Contract
Conditions G: Grounds for Reformation
Types Mistake
Satisfaction of Conditions Mutual
Excuse of Conditions Unilateral
Wrongful Prevention Misrepresentation
Inability or Unwillingness to Perform D: Defenses
Anticipatory Repudiation Laches
Waiver Sale to BFP
Estoppel
Discharge of Duties
Performance
Impossibility
Impracticability
Frustration of Purpose
Corporations Shareholders

Organization of the Corporation Theories for Holding Shareholders Liable to Creditors of Corporation
General Rule
Formation Requirements Piercing Corporate Veil
People Undercapitalization
Paper Alter Ego
Act Torts
Legal Significance of Formation of Corporation Shareholder Management of Corporation
De Facto Corporation & Corporation by Estoppel Shareholder Derivative Suits
Bylaws Voting
Promoters General Rule
Foreign Corporations Exceptions
Voting Trusts & Voting Agreements
Issuance of Stock Where to Shareholder Vote?
Act in Two Ways
Definition Unanimous Written Consent
Subscriptions Meeting
Consideration Annual Meeting
Form Special Meeting
Amount Notice
Preemptive Rights How do Shareholders Vote?
Quorum
Directors and Officers Majority
Cumulative Voting
Statutory Requirements – Directors Stock Transfer Restrictions
Board Action Right to Inspect (and Copy) Books and Records of Corporation
Role of Directors Distributions
Duty of Care
Nonfeasance Fundamental Corporate Changes
Misfeasance: Business Judgment Rule
Duty of Loyalty Characteristics of Fundamental Corporate Changes
Interested Director Transactions Amendment of Articles
Competing Ventures Mergers or Consolidations
Corporate Opportunity Sale of Assets or Share Exchange
Which Directors are Liable? Dissolution
Officers Owe Same Duties as Directors Voluntary
Indemnification of Directors and Officers 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 Hastening Inevitable
Simultaneous Acts
Exclusionary Rule Voluntary Manslaughter
Illegal search and seizures excluded unless Defenses
Grand jury, civil, immigration, parole Lack of Causation
Good faith reliance on statute or warrant Hastening Inevitable
Impeachment only Simultaneous Acts
Fruit of Poisonous Tree Involuntary Manslaughter
Defenses Defenses
Free will Lack of Causation
Inevitable discovery Hastening Inevitable
Independent source Simultaneous Acts
Search and Seizure Rape (g)
Government Action Assault (si)
Reasonable Expectation of Privacy Battery (g)
Valid Search Warrant Defenses
Exceptions to Warrant Consent
Evanescent Not voluntary intoxication
Plain View Kidnapping (g)
Consent False Imprisonment (g)
Stop and Frisk Mayhem
Border Searches Offenses Against Property
Hot Pursuit Larceny (si)
Search Incident to Lawful Arrest Embezzlement (si)
Automobile Exception False Pretenses (si)
Confessions Receipt of Stolen Property
Must be Voluntary Arson (m)
Miranda Warnings and Defenses Burglary (si)
Pretrial Identification Offenses Against Person/Personal Property
6th Right to Counsel Robbery (si)
14th Denial of Due Process Extortion (si)
Defense: Independent In-court Identification Offenses Against Public
Right to Trial by Jury Forgery
Double Jeopardy Bigamy (sl)
14th Due Process Misprison
Right to Counsel at Trial Defenses
Guilty Pleas Self Defense
Defense of Others
Criminal Law Defense of Property
Intoxication
Principle of Criminal Law Voluntary
Accomplice Liability Involuntary
Elements Insanity
Withdrawal M’Naughten
Accessory After the Fact Irresistible Impulse
Inchoate Offenses ALI Substantial Capacity
Solicitation Durham Product
Conspiracy Mistake
Attempt Necessity
Offenses Against the Person Duress
Homicide Crime Prevention
First Degree Murder (si) Infancy
Murder/2nd Degree Murder (m) Consent
Defenses Entrapment
Justification
Provocation (mitigation)
Felony Murder Defenses
Lack of Causation
Evidence Judicial Notice
Hearsay
Form of the Question Rule
Leading Exceptions
Compound Nonhearsay
Misleading/Confusing Verbal Acts or Legally Operative Facts
Argumentative Effect on Hearer
Conclusionary Declarant’s State of Mind
Cumulative Admissions
Non-responsive Vicarious
Unduly Harassing or Embarrassing Party Opponent
Assumes Facts Not in Evidence Co-conspirator
Purpose Adoptive
Logical Relevance Unavailability Exceptions
Legal Relevance Dying Declarations
Discretionary Exclusion Statement Against Interest
Public Policy Exclusion Former Testimony
Liability Insurance Documentary Exceptions
Subsequent Remedial Conduct Requirements
Settlement Offers, etc. Authentication
Payment/Offer to Pay Medical Expenses Best Evidence Rule
Presentation Business Records
Competency Recorded Recollection
Required Attributes Official Records
Classes Ancient Documents
Impeachment Reliability Exceptions
Bias or Intent State of Mind
Truth, Veracity, Dishonesty Excited Utterance
Defects in Memory, Perception, Knowledge Present Sense Impression
Conviction of a Crime Declarations of Physical Condition
Inconsistent Statements Other Exceptions
Character Evidence Learned Treatises
Civil Documents Affecting Property Interests
Generally Not Admissible Reputation
Exceptions Family Records
Habit Market Records
Character in Issue in Case Federal Catch-All Exception
Criminal Privileges
Inadmissible if… Physician-Patient Privilege
Exceptions Attorney-Client Privilege
Issue other than bad character: MIMIC Marital
Open Door Rule by D Spousal Testimonial Privilege
Evidence of Victim’s bad character Confidential Marital Communications
Opinion Testimony Waiver
Lay
Expert
Professional Responsibility Duty to Separate
Duty to Keep Good Records…
Approach Duty of Competence
What is the duty? Rule
Conflicting duties? Malpractice Distinguished
Breach? Accepting Representation
What should attorney have done? Should Accept
What remedy or sanction should be imposed (if in call)? Must Reject
Scope of Representation
Duty of Confidentiality Client
Rule Attorney
Distinguish A/C Privilege Duty to Communicate
Exceptions Duty of Diligence
Consent Duty to Withdraw
Crime Mandatory
Defense by Attorney Permissive
Compelled by Law Procedure for Withdrawal
Duty of Loyalty Duty of Candor to Public and Dignity to Profession (separate)
Rule Rule
Imputed Disqualification Advertising
Conflicts Between Attorney and Client Not False or Misleading
Interested in Subject Matter of Litigation Not Harass or Solicit
Business Transactions or Adverse Interests Ad Must…
Publication Rights Contracts Solicitation: individualized contact
Loans and Advances to Client Duty of Candor to Court and Fairness to Adversary
Limiting Malpractice Liability Rule: candor and honesty
Gifts Duty to State Law Truthfully
Close Relationships Duty to Present Facts and Evidence Truthfully
Trial Counsel as a Witness Duty to Produce Evidence
Conflicts Among Clients Duty to Uphold Law
Opposite Sides of Same Matter Duty of Fairness
Opposing Present Client in Simultaneously Pending Matter With others
Two Clients with Inconsistent Positions Communications with Adversary and Third Parties
Multiple Clients in Same Matter Communications with Persons Represented by Counsel
Former Government Lawyer Dealing with Press
Conflicts Due to Third Party Interference Special Duties of Prosecutors
Fiduciary Duty Duty to Preserve Dignity of Court
Attorneys Fees Duty to Expedite Cases
Non-Contingent Duty to Preserve Impartiality and Decorum of Tribunal
Contingent Additional Duties to Profession and Public
Written No Unauthorized Practice of Law
Types of Actions Allowing Contingent Fees No Dishonest Conduct
Amount of Fees Duty to Report Misconduct
Fee Splitting Duties of Subordinate Lawyers
Client Trust Accounts
Duty to Safeguard
Real Property Duty Not to Use Premises for Illegal Purposes
Duty to Pay Rent
Estates in Land Landlord Remedies
Landlord Duties and Tenant Remedies
Present Possessory Estates Generally, No Duty to Repair
Fee Simple Absolute Duty to Deliver Actual Possession
Defeasible Fees Quiet Enjoyment
Fee Simple Determinable Breach
Fee Simple Subject to Condition Subsequent Actual Eviction
Fee Simple Subject to an Executory Interest Partial Eviction
Life Estate Constructive Eviction
Elements Implied Warranty of Habitability
Pur Autre Vie Assignments and Subleases
Waste Assignment
Elements Sublease
Affirmative (Voluntary) Waste Consequences of Assignment
Permissive Waste Privity of Estate
Ameliorative Waste Consequences of Sublease
Future Interests Covenants Against Assignment or Sublease
Elements Assignments by Landlord
Reversions
Remainders Fixtures
Elements
Indefeasibly Vested Remainder Elements
Vested Remainder Subject to Open Common Ownership Cases
Contingent Remainder Divided Ownership Cases
Class Gifts Third-Party Seller v. Mortgagee
Rule Against Perpetuities
Rule Against Restraints on Alienation Rights to Others Land: Easements, Profits, Covenants, and Servitudes
Concurrent Estates
Joint Tenancy Easements
Tenancy in Common Introduction
Tenancy by the Entirety Elements
Rights and Duties of Cotenants Types
Affirmative
Landlord and Tenant Negative
Easement Appurtenant
Nature of Leasehold Easement in Gross
Tenancy for Years Creation of Easements
Periodic Tenancy Express
Tenancy at Will Implied by Law
Tenancy at Sufferance Easement Implied from Existing Use
Holdover Doctrine Easement Implied without Any Existing Use
Lease Easement by Necessity
Tenant Duties and Landlord Responsibilities Prescription
Waste Scope
 Termination of Easements Wills: Form and Content
Failed Easement = License
Covenants Running with the Land at Law (Real Covenants) Security Interests in Land
A successor in interest is bound if
covenant runs with land Rights Incidental to Ownership of Land (Natural Rights)
intent
notice Exclusive Right to Use and Possess
horizontal privity Right to Lateral and Subjacent Support of Land
vertical privity Adjacent Land Owners
touch and concern Subjacent Occupants
A successor in interest may enforce a covenant if Water Rights
benefit runs with the land Watercourses
intent Riparian Doctrine
vertical privity Natural Flow
touch and concern Reasonable Use
Remedy: damages only Natural v. Artificial Use
Termination Prior Appropriation Doctrine
Equitable Servitudes Groundwater
A successor in interest is bound if Absolute Ownership
intent Reasonable Use
notice Correlative Rights
touch and concern Appropriative Rights
A successor in interest may enforce a covenant if Surface Waters
intent Natural Flow
touch and concern Common Enemy
Defenses to Enforcement Reasonable Use
Remedy Airspace Rights
Termination Right to Exclude

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
Torts Checklist and Practice Defenses
Contributory Negligence
Intentional Torts Comparative Negligence
Prima Facie Case Pure
Assault Partial/Modified
Battery Assumption of Risk
Intentional Infliction of Emotional Distress General Considerations
False Imprisonment Strict Liability
Trespass to Land Prima Facie Case
Trespass to Chattels Wild Animals
Conversion Ultrahazardous Conditions/Abnormally Dangerous Activities
Defenses Defenses
Consent General Considerations
Self Defense Products Liability
Defense of Others Prima Facie Case
Defense of Property Theories
Necessity Negligence
Public Strict Liability
Private Implied Warranty
General Considerations Express Warranty
Defamation Misrepresentation
Prima Facie Case Intentional
Common Law Negligent
Constitutional Wrongful Institution of Legal Proceedings
Defenses Malicious Prosecution
Truth Abuse of Process
Consent Interference with Business Relations
Absolute Privilege Nuisance
Qualified Privilege General Considerations
General Considerations Vicarious Liability
Invasion of Privacy Joint and Severally Liable Tortfeasors
Prima Facie Case Survival Acts/Wrongful Death
Intrusion Upon Seclusion Tort Immunities
False Light Remedies
Disclosure of Private Facts Damages
Appropriation Actual Damages
Defenses Nominal Damages
Consent Punitive Damages
Absolute Privilege (false light and disclosure) Restitution
Qualified Privilege (false light and disclosure) Legal Remedies
General Considerations Money
Negligence Replevin
Duty Ejectment
Foreseeable plaintiff Equitable Remedies
Standards of Care Constructive Trust
RPPUTC Equitable Lien
Professional Injunction (“I put five bucks down”)
Statutory I: Are the legal remedies inadequate?
Children P: Is a property right involved?
Common Carriers and Innkeepers F: Is an injunctive relief decree feasible?
Land Owner to Undiscovered Trespasser B: Should the hardships be balanced?
Land Owner to Discovered Trespasser D: Defenses
Land Owner to Licensee Laches
Land Owner to Invitee
Affirmative Duty to Act
Breach
Facts
Res ipsa loquitur
Causation
Actual, but for
Proximate, foreseeability
Damages
Wills Trusts

Execution of Wills Elements of a Valid Trust

Attested Wills Trustor/Settlor
Must have Delivers
Interested Witnesses and Extra Benefit Test Trust Property (trust res)
Attestation Clause To Trustee
Holographic Wills For Benefit of Beneficiaries
Testamentary Capacity With Intent to Create
Undue Influence A Valid Trust for a Valid Purpose
Insane Delusion Types of Trusts
Fraud Discretionary Trust
Revocation of Wills Support Trust
Three Methods of Revocation Mandatory Trust
Subsequent Valid Will Honorary Trust
Physical Act Spendthrift Trust
Operation of Law Secret Trust
Dependent Relative Revocation Semi-Secret Trust
Components of Wills Charitable Trust
Integration Totten Trust
Republication by Codicil Revocable Trust
Incorporation by Reference Resulting Trust
Acts of Independent Significance Modification and Termination of Trusts
Interpretation of Wills General Rule
Extrinsic Evidence Admissible Claflin Doctrine
Lapse Changed Circumstances
Ademption Fiduciary Duties of Trustee
Abatement Standard of Care
Intestate Succession Duty of Loyalty
Share of Surviving Spouse Self-Dealing
Share Not Passing to Surviving Spouse Care for Trust Property
Special Problems Prudent Investor Rule
Adoption Liabilities of Trustee
Stepchildren Only Beneficiaries Have Standing
Advancements Types of Actions
Simultaneous Death Removal
Rights of Surviving Spouse and Children Damages
Remember Date for Pretermittance Equitable Remedy: Constructive Trust
Pretermitted Spouse Defenses
Pretermitted Children Laches
Bars to Succession Consent
Homicide: Slayers Exculpatory Clause
Elder Abuse Trustee’s Liability for Acts of Others
No Contest Clause Agents
Co-Trustees
Predecessor Trustees