exam review

GENERAL ADVICE ON THE FINAL EXAM.

1. The final exam will be around 12 questions for which you will have 2.5 hours. All questions will require you to make an objection or respond to an objection. You will be making an argument. That requires you to TAKE A POSITION.

2. You will have a limited amount of space in which to write your answer, and your entire answer must fit in the spaces provided. You will turn in the exam with your answers written on it -- no bluebooks.

3. Throughout the exam, assume the case is being tried to a jury. Base your answers on the Federal Rules of Evidence and all generally recognized interpretations of the rules of evidence. Ignore any tactical considerations.

4. The exam is to be taken closed book & no notes. I will provide the relevant Fed. R. Evid.

5. Don't panic if you don't know the answer to one question. I will ask a couple of questions that are essentially unanswerable. Getting around 50% of the available points puts you in the B range; 75% will put you in the running for the A-star. Perfection is not expected.

6. Before you plunge in and start writing, make sure you understand the basic facts of the case:

a. Who are the parties?
b. What is the cause of action?
c. What is the central event?
d What are plaintiff's basic allegations?
e. What is defendant's response.
f. Are there any affirmative defenses?

You need to know this for Relevancy, Helpfulness of opinions, and for a number of hearsay responses, especially "not for its truth," state of mind, and admissions

6. Remember that the best objection or response will not necessarily be the one that first pops into your mind. To combat the natural tendency to jump to conclusions, you may want to adopt the following strategy:

a. Decide what is the most likely evidence rule that will control the outcome.
b. Try to think of another rule that might also control the outcome.
c. Analyze both approaches (in your head or on scratch paper).
d. If you have a stronger argument under one rule than the other, use only the stronger argument.
e. If you have strong arguments under both rules, use them both.
f. If you have weak arguments under both rules: -- 1) Go back to the beginning and look for a 3rd rule that might cover this situation; 2) If you can't find a 3rd possibility, put down your better answer, even if it is weak; and 3) If you have 2 equally plausible but weak answers, put them both down.

7. Remember our formula for objecting:

a. What do you object to?
b. What rule are you citing (just its name/number -- don't waste time copying the entire text of the Federal Rule -- entire text unlikely to be relevant)
c. What portion of the text controls this situation?
d. Brief explanation
e. Motion to strike if jury has already heard the evidence -- every year, half the class forgets this.

8. Basic formula for responding:

a. What portion of the objected-to evidence is admissible?
b. What rule are you relying on (just its name. number) - note that your response may be different from the objection, e.g., objection 404b character, response 609 impeachment by prior conviction.
c. What portion of the text controls this situation?
d. Brief explanation if necessary -- 1) Foundation has been laid [point to evidence in transcript]; 2) Why evidence is relevant [logic]; or 3) What material issue the evidence tends to prove -- Relevancy, not for truth, 404(b) -- must tie to disputed issue

9. The "offer to connect up" is the last ditch argument of a desperate lawyer. Try to find a better argument.

10. Should you put down more than one objection or response?

a. Maybe. An obj/.resp may be good or merely plausible.
b. Don't be inconsistent, e.g., not HS and is HS but fits an exception

ELVIS EXAM MODEL ANSWERS

Question 1.

Good answer:

1) WHAT The witness should be allowed to testify.

2) RULE Rule 601

3) TEXT says that everyone is a competent witness who takes the oath

4) EXPLANATION . She took the oath.

Part credt: Arguing that "everyone is competent" without mentioning the requirement of an oath.

Question 2.

Good answer:

1) WHAT: Object to testimony about awards

2) RULE: rule 404.

3) TEXT: Evidence of good character inadmissible

4) EXPLANATION: Heroism is a trait of character.

Part credit: (a) Arguing general irrelevancy or Rule 403. Always use the more specific rule.

(b) Arguing this is improper bolstering of a witness's credibility before she has been impeached.

No credit: "Objection to the question as leading". Leading is generally permitted on preliminary or background matters.

Question 3.

This is an authentication question, Fed. R. Evid. 901; which we did not cover.

Question 4

Good answers:

1) WHAT: contents of letter

2) RULE: does not fit the Rule 801 definition of hearsay

3) TEXT: because not offered to prove the truth

4) EXPLANATION: Merely to show that Elvis was capable of writing, so he must be alive;

1) WHAT: portion of letter stating I am alive

2) RULE: present physical condition exception Rule 803(3)..

3) TEXT: describes then-existing physical condition contemporaneously with the sensation

4) EXPLANATION: Being alive isd a physcial condition

Part credit: Putting down "not for truth" without saying what it was offered for.

Part credit: Putting down "present sense impression" without explaining how foundation was satisfied.

Bad answers: (a) State of mind exception, 803(3). Elvis' state of mind is not in issue.

(b) Statement of past physical condition, 803(4). The statement was not made for diagnosis or treatment.

Question 5. -- why would "admission of opposing party" be a bad answer?

Elvis is not a party according to first line of facts.

Question 6.-- why would decl ag interest be a bad answer?

There is no proof of Elvis' unavailability as required by Rule 804(a), and no proof that the letter is against Elvis' pecuniary interest.

Question 7.

Good answers:.

1) WHAT: I object to that this opinion

2) RULE:because it would violate Rule 702 governing expert testimony

3) TEXT: This is not a field of specialized knowledge

4) EXPLANATION: Elvisology is common knowledge within jurors' experience. Expert opinions will therefore not assist jury.

3) TEXT: No foundation that witness is using scientifically reliable theories as required byDaubert v. Merrel Dow.

4) EXPLANATION: Does not describe his methodology at all.

Bad answers: (a) Witness is biased. No rule prohibits calling biased witnesses.

(b) Witness is not qualified as expert. He has unique experience.

(d) Anything having to do with lay opinion rule; this person is an expert.

Question 8.

1) WHAT: Opinion should be allowed

2) RULE: Expert witnesses

3) TEXT: do not need personal knowledge

4) EXPLANATION: they just need a factual basis for their opinion. Rule 703.

Question 9.

Good answer: .

1) WHAT:Objection to testimony about other forgeries

2) RULE: as irrelevant evidence of other events

3) TEXT: with no foundation of similarity of conditions

4) EXPLANATION: It also raises a Rule 403 problem likely to confuse the issues.

No credit: Character evidence objection. Although this asks about a pattern, it is not a particular person's pattern.

Question 10.

Good answer:

1) WHAT: Evidence of financial interest

2) RULE: to Impeach

3) TEXT: self-interest

4) EXPLANATION: High probative value because bias always material for impeachment purposes; Low prejudicial effect because one question is hardly a big waste of time and the issue is neither sensational nor distracting.

Part credit if you discussed either probative value or prejudicial effect but not both.

Question 11.

Good answers:

1) WHAT:I object to the statement

2) RULE: as improper impeachment

3) TEXT: not inconsistent

4) EXPLANATION: The witness gave no actual courtroom testimony for the statement to be inconsistent with.

3) TEXT: extrinsic evidence

4) EXPLANATION: Statement itself extrinsic, admissible only if witness denies it aftwer confrontation.

No credit: Hearsay objection -- Whether it is hearsay depends on whether it is a valid prior inconsistent statement; if so, it is not coming in for its truth, but to impeach.

Bad answer: Impeaching own witness. Rule 607 says anyone can impeach any witness

Question 12.

1) WHAT: Evid of Settlement

2) RULE: --

3) TEXT: Not offered to show fault but to show witness's bias

4) EXPLANATION: The settlement suggests that there is a quid pro quo giving the witness the motive to fabricate.

Question 13.

Good answers:

1) WHAT: I object to the answer

2) RULE: no foundation of personal knowledge as required by Rule 602.

3) TEXT:

4) EXPLANATION: No foundation that witness knows when Elvis died.

1) WHAT: I object to the question

2) RULE: as leading - Rule 611

3) TEXT:

4) EXPLANATION: which is not generally permitted on direct examination,

Question 14.

Good answer:

1) WHAT: Report of Elvis' death

2) RULE: Does not fit the definition of hearsay. Rule 801

3) TEXT: No content

4) EXPLANATION: It asks for the witness's conduct using reports of Elvis's death merely for a time frame; the question does not ask the witness to describe the content of any communication.

Question 15.

Good answer:

1) WHAT: Records

2) RULE: Admission of party-opponent, Rule 801d

3) TEXT:

4) EXPLANATION: . Memphis Bank is a party; its records are statements made by employees authorized to make such statements.

Part credit: The trust document itself is not hearsay because it has legal significance (operative legal facts)

Irrelevant answer (no points): Anything having to do with personal knowledge; subsumed under hearsay exception foundations.

Bad answer: Business records exception -- no foundation showing routineness; no evidence they were made at or near time of event, by employee with personal knowledge.

Question 16.

Good answers:

1) WHAT: Object to the characterization of Elvis' appearance

2) RULE: on opinion rule grounds (Rule 701)

3) TEXT: for failure to lay and adequate foundation of personal knowledge

4) EXPLANATION: This opinion would require a foundation that the witness were familiar with how a "normal" Elvis looked in order to compare a normal Elvis to a deceptive Elvis.

3) TEXT: as not a "rational" conclusion of a type lay persons competently make

4) EXPLANATION: these are not common situations.

3) TEXT: the opinion would not be helpful to the jury

4) EXPLANATION: better ways of communicating more precise information on issue that is important.

Part credit: Leading, compound, assuming facts not in evidence, or any other objection that goes merely to the form of the question. It is always preferable to object to the substance of the evidence if you have a substantive objection.

Question 17.

Good answer:

1) WHAT: Testimony of appearance

2) RULE:

3) TEXT: Minimal probative value all that is needed

4) EXPLANATION: This is probative of the theory that he had a drug problem, faked his death and entered drug rehab. While it may pose a Rule 403 danger, the defense did not object on Rule 403 grounds.

Bad answer: Anything having to do with opinion rule or personal knowledge; no such objection was made.

Question 18.

Good answer:

1) WHAT: Priscilla's statement to witness

2) RULE: Excited utterance, Rule 803(2).

3) TEXT: describes startling event immediately thereafter

4) EXPLANATION: Seeing someone who looks like dead husband is startling

Part credit: (a) Excited utterance without explanation

(b) Present sense impression, Rule 803(1), because she was describing event she was seeing. The problem is that the statement relates to past events as well as describing current ones.

Bad answers: (a) Declaration against interest. [Priscilla was divorced, not a beneficiary of trust, would not gain anything if Elvis dead or alive; had no interest].

(b) Admission. [Priscilla is not a party; no proof she was agent of Lisa-Marie]

Question 19

Good answer:

1) WHAT: Evidence that bank keeps money

2) RULE: Relevant to impeach witness

3) TEXT: for bias

4) EXPLANATION: Financial motive of bank to want to keep money might affect witness who is employee.

Question 20.

Good answer:

1) WHAT:I object to evidence of what Fisher usually did

2) RULE: as irrelevant character evidence, Rule 404a

3) TEXT:

4) EXPLANATION: What an attorney usually did is "pattern" evidence, not admissible to prove he acted in conformity therewith on the contested occasion.

Bad answers: (a) Habit [question asked "usually"; habit requires "always"]

(b) Lack of personal knowledge [she said she has had many dealings with attorney]

Question 21.

Good answer:

1) WHAT:

2) RULE: Does not fit the definition of hearsay;

3) TEXT: commands or requests are not "assertions"

4) EXPLANATION: Instruction to activate trust is command, not communicating perceived fact.

Bad answer: Admission by agent. [No proof that attorney is agent of plaintiff]

Question 22.

Good answer:

1) WHAT:I object to evidence of this crime

2) RULE: to impeach

3) TEXT: because no foundation this is either a felony or a crime of dishonesty. Rule 609. It also falls outside the 10-year rule.

4) EXPLANATION: shoplifing may or may not involve dishonesty and deception

Part credit: (a) You discussed one but not both foundation failures.

(b) You objected that this WAS not a crime of dishonesty rather than no foundation had been laid.

Question 23.

Good answer:

1) WHAT:I object to evidence of bank's current practice

2) RULE: as an irrelevant subsequent remedial measure, Rule 407.

3) TEXT:

4) EXPLANATION: If policy had been in place, improper activating Elvis trust might not have occurred

Part credit: Making a Rule 403 objection.

Question 24.

Good answer:

1) WHAT: Testimony should be allowed

2) RULE:

3) TEXT & EXPLANATION: (a) The privilege was not asserted by Elvis personally and there was no foundation that lawyer has authority to assert it.

(b) No foundation has been laid that the meeting was confidential.

Part credit -- giving fewer than all three reasons.