ACG6688 Name______
Exam #2 Fall 2014
Part I. Multiple Choice. Please read carefully each question and select the best answer
From the choices given. Each question is worth 2 ½ points.
1. Breach of contract action by P against D. P claims D failed to deliver the goods called for in the contract. D asserts the doctrine of impossibility, based on the claim that severe storms caused flooding which destroyed all the goods in D’s warehouse. To prove impossibility, D offers in evidence what appears to be a newspaper published in the town in which D’s business is located, and which is dated a few days before D was supposed to ship P’s order. An article in the paper reports the loss of all the goods in D’s warehouse due to storm-related flooding. P objects on grounds of lack of authentication.
How should the court rule?
A. The court should overrule the objection
B. The court should sustain the objection because the newspaper is not the best evidence of whether flooding caused the destruction of the goods in D’s warehouse.
C. The court should sustain the objection if it finds that there is insufficient evidence to support a finding that this is the newspaper D claims it to be.
D. The court should sustain the objection if it finds that D has failed to show by a preponderance of the evidence that this is the newspaper D claims it to be.
E. None of the above
2. Fritz, a house painter, was charged with stealing three valuable figurines from the home of Valens while painting the interior of that home. At Fritz’s trial, Valens testified that he first noticed that the figurines were missing about an hour after Fritz left his home. He stated that he looked Fritz’s number up in the telephone book and properly dialed the number listed therein. Over objection by Fritz’s attorney, Valens stated that a man answered the phone by saying, “Fritz speaking.” Valens stated that he then said, “Fritz, where are the figurines?” and that the person at the other end of the line said, “ I’m sorry. I took them.” The objection by Fritz’s attorney should be:
A. Overruled
B. Sustained, since Valens did not actually see the person to whom he was speaking.
C. Sustained since the statement is hearsay.
D. Sustained, unless independent evidence establishes that Fritz was the person to whom Valens was speaking.
E. None of the above
3. Negligence action by P against D’s Heating and Cooling for injuries suffered when D allegedly failed to fix P’s heater during a sub-zero cold snap. P, who is elderly and housebound, alleges that she phoned D as soon as the heater failed, that D promised to respond “within two hours,” that P waited in vain for an entire night, and that D never appeared. While waiting for D, P alleges that she suffered cold-related injuries to her fingers and toes. P testifies that she placed her call to the number for D listed in the phone book, and that a voice answered, “heating service.” D denies ever receiving the call, and moves to strike P’s testimony for the record.
How should the court rule?
A. The court should deny D’s motion because there is sufficient evidence to support a finding that the call was actually placed to D.
B. The court should grant the motion because the party answering the phone did not identify itself as D’s Heating and Cooling
C. The court should deny the motion if it finds that the call was not placed to D
D. The court should deny the motion because P has already testified, and it is too late to keep the evidence from the jury.
E. None of the above
4. Which of the following is not required to be filed by the defendant in a civil action?
A. An answer to the plaintiff’s complaint
B. An admission or denial of every element of the plaintiff’s complaint
C. Any affirmative defenses
D. All of the above are required
E. None of the above are required
5. Breach of contract action by P against D. P claims the contract, which was reduced to writing, called for D to deliver 200 crates of apples by a certain date. At trial, D wishes to testify that the contract only called for delivery of 100 crates. P makes a best evidence rule objection
How should the court rule?
A. None of the answers below
B. The court should overrule the objection because a contract is an agreement brought about by the meeting of two minds, not a writing. The writing is only a memorandum of the agreement, not the contract itself.
C. The court should overrule the objection because D is not testifying about the contents of the writing, but about her understanding of the agreement. Thus the best evidence rule does not apply.
D. The court should overrule the objection because the central issue in the case concerns the terms of the agreement, and the jury is entitled to hear D’s interpretation of the terms.
E. The court should sustain the objection
6. At the trial of an automobile accident case, for the purpose of showing the relationship and directions of the streets involved, the plaintiff offered into evidence a photograph of the intersection where the accident occurred. The plaintiff testified that on the day of the accident the intersection looked exactly as depicted in the photograph, except that on the day of accident some of the trees on the street had small Christmas ornaments on them. Upon objection, should the photograph be admitted in evidence?
A. None of the answers below
B. Yes, but only if the photograph was taken within a reasonable time following the accident.
C. No, unless the photographer who made the photograph testifies to its authenticity.
D. Yes, if the absence of the Christmas tree ornaments did not prevent the photograph from being a fair representation of the intersection at the time of the accident
E. No, not under any circumstances
7. Petersen was sitting in his car at a dead stop waiting for a traffic light to change color, when his vehicle was struck in the rear by a car operated by Dodge, rendering Peterson unconscious. Police were called to the accident scene and as a result of their investigation Dodge was charged with “operating an unregistered vehicle,” a misdemeanor. The following day, Dodge pleaded guilty to the charge and was sentenced to five days in jail.
Petersen subsequently asserted a claim for damages resulting from Dodge’s negligence. Because of admissions which were made in the pleadings, a hearing was held on the sole questions of whether Dodge was negligent. At the hearing, a transcript of Dodge’s conviction for operating an unregistered vehicle should be
A. Admitted
B. Excluded, because it is not relevant to the question of negligence.
C. Excluded, because it was not the result of a trial.
D. Excluded, because it is hearsay, not within any exception.
E. None of the above
8. Which of the following statements is true regarding witness lists?
A. Their production does not require a discovery request
B. Their production requires a subpoena
C. Their production requires court approval
D. Their production requires the consent of each witness on the list
E. None of the above
9. Which of the following may not be commanded by a subpoena?
A. Testimony
B. The production of documents
C. Seizing of documents
D. All of the above
E. None of the above
10. High Quality Products Inc. files suit against National Software Corporation. Mike is a witness for High Quality. Jim is a witness for National Software. High Quality may direct interrogatories to:
A. National Software only
B. Jim only
C. National Software or Jim only
D. National Software, Jim, or Mike
E. None of the above
11. In Ron’s suit against Second National Bank, the discovery phase would include all of the following except
A. Ron’s complaint
B. Ron’s deposition
C. Ron’s request for Second National’s deposition
D. Second National’s replies to Ron’s interrogatories
E. None of the above
12. Darth Vader was on trial for attempting to extort money from Obewon Ben Knobe. Obewon owned a large hardware store in Alderan. The prosecution introduced into evidence Vader’s telephone registry, which showed a call to a particular phone number on the day a demand for $50,000 was telephonically made to Obewon. The prosecution sought to introduce into evidence a properly authenticated copy of the Alderan telephone book. This book contained a listing for Obewon’s store at that number. The evidence is
A. Inadmissible because it is hearsay
B. Inadmissible because it is entirely possible that Vader called Obewon’s store for a business purpose
C. Inadmissible because of the Best Evidence Rule
D. Admissible because it relevant to show that Vader might have been the extortionist
E. None of the above
13.Abusive tactics are fostered by the court system because
A. Attorneys know that lawyers are given only one opportunity to comply with discovery requests
B. Lawyers have an incentive to increase discovery costs as they can bill their clients for more hours worked
C. No penalties exist whatsoever for using abusive tactics
D. None of the above
14. Mary is a 72-year old retired junior high school teacher. She commenced an action against Matthew, a licensed stockbroker, claiming that he had deceived her into investing her life savings by fraudulently claiming that he would greatly enrich her via a series of stock transactions. Mathew has no history of disciplinary actions or lawsuits against him with respect to stock transactions initiated by him. Mathew is generally known as an honest person by his friends, colleagues, and clients.
At trial, Mathew’s counsel attempts to introduce evidence, via the testimony of another stockbroker who works with Mathew, that Mathew “has an excellent reputation for honesty in the business community.”
If Mary’s attorney objects to the introduction of this evidence, it is most likely that
A. The objection will be overruled because character evidence is admissible in civil cases
B. The objection will be overruled because Mathew’s character is directly in issue in this case
C. The objection will be sustained because the testimony is hearsay
D. The objection will be sustained because evidence of Mathew’s character is not admissible
E. None of the above
15. If a party refuses to answer an interrogatory, the opposing party may file a motion to compel an answer. A motion to compel an answer
A. Will be granted if the moving party shows the answer is necessary to prepare for trial
B. May be denied if the question asked is subject to a timely and valid objection
C. May be denied if the question asked is an invasion of privacy of the other party
D. Will be granted if the opposing party does not file a motion to refuse to respond
E. None of the above
16. Prosecution of Dr. Iaconis for arson. To prove the fire was set intentionally, the prosecution calls Jay Leiner, a police arson investigator who has served in that capacity for ten years after spending several years as a beat officer. Jay Leiner never attended college and had no special schooling in arson investigation, but learned investigative techniques from a senior investigator with whom he worked for two years. From techniques learned through this experience, Leiner spoke with eyewitnesses who saw the fire at various stages, and concluded from that information as well as his own investigation of the fire scene that the fire was set intentionally.
Which of the following objections to Leiner’s testimony is the court likely to sustain, if either?
A. Leiner is not a qualified expert
B. Leiner’s testimony about the cause of the fire should be excluded as inadmissible hearsay.
C. The court is likely to sustain both of these objections.
D. The court is likely to rule that it does not matter anyway because Dr. Iaconis is a known arsonist.
E. None of the above
17. Tom worked for a messenger service owned by Dalton. While Tom was driving a Dalton-owned vehicle on business in Miami, he hit and injured Pedro, a pedestrian who resides in Alabama. Pedro brought a diversity action against Dalton in federal court in Florida on a theory of respondeat superior. Personal service was properly made under FRCP 4€(2) on Dalton, a Florida resident. Dalton now wishes to implead Tom as a third-party defendant (if Dalton is held liable to Pedro, Dalton will be entitled to indemnity from Tom). Tom is a resident of Puerto Rico and lives in San Juan, a two-hour flight from Miami. Dalton caused a licensed process server to serve Tom personally at Tom’s house in San Juan. Assume that Florida has no long-arm statute allowing state court jurisdiction over any defendant who cannot be physically found within Florida. Does the Florida federal court have personal jurisdiction over Dalton’s third-party claim against Tom?
A. Yes, because Tom was a third-party defendant who was served within 100 miles of the federal courthouse
B. No, because there is no Florida long-arm statute that would authorize state court jurisdiction over Tom
C. Yes, because service was properly made on Dalton within Florida, the state or district where the federal suit is pending