MBE Question Thread Forum

[TheWalrus]

If a defendant kills someone while voluntarily intoxicated are they guilty of second degree depraved heart murder or involuntary manslaughter caused by criminal negligence?


I'm having trouble distinguishing between the to

Second. Voluntary intoxication doesn't provide an excuse.

[happyhour1122]

If a defendant kills someone while voluntarily intoxicated are they guilty of second degree depraved heart murder or involuntary manslaughter caused by criminal negligence?


I'm having trouble distinguishing between the to

if one was voluntarily intoxicated to commit a murder-> no excuse
if one was voluntarily intoxicated but didn't have intent to murder-> it depends on the facts because it could avoid specific intent crimes.

[bballbb02]

Question 21 on barbri mixed set 1--answer is A bc it is hearsay not within exception but explanations say B is wrong. But the explanation for B would make it seem like it is admissible because it is proper lay opinion evidence..seems like barbri meased up the question and did not put the right answer in,, or they worded answer B wrong.....the answer should be yes, because it is proper lay pinion evidence or am I missing something

[Bobby_Axelrod]

Question 21 on barbri mixed set 1--answer is A bc it is hearsay not within exception but explanations say B is wrong. But the explanation for B would make it seem like it is admissible because it is proper lay opinion evidence..seems like barbri meased up the question and did not put the right answer in,, or they worded answer B wrong.....the answer should be yes, because it is proper lay pinion evidence or am I missing something

You're right in that it is proper lay opinion evidence, but that doesn't make it admissible. It is still hearsay.

[bballbb02]

But it's admissible because it is proper lay opinion testimony...

[CardozoLaw09]

You gotta spoiler that, bro. Some of us haven't done the mixed subject set yet

eta: I meant your earlier post where you indicated the correct answer

[bballbb02]

Sry...

[+] Spoiler

so if she sad just testified and said yes I thought he was drunk and smelled like beer it would be admissible lay opinion testimony but because her statement from that incident is being offered it makes it hearsay thus inadmissible....so the upshot is that lay opinion testimony cannot be based on hearsay.

[Puffman1234]

But it's admissible because it is proper lay opinion testimony...

I imagine that they're just being somewhat sloppy with their wording. The word "admissible" will mean different things in different contexts. In the absolute broadest sense saying that X is admissible should mean that it will overcome any possible objection, but that's not how the word is generally used. X may be admissible for reason A, but inadmissible for reason B. It may be admissible as lay opinion testimony, but inadmissible as hearsay. If the opposing party fails to make a hearsay objection, X may be admitted despite the fact that an objection would have been sustained and X would have been excluded--and inadmissible--as hearsay.

[Bobby_Axelrod]

Sry...

[+] Spoiler

so if she sad just testified and said yes I thought he was drunk and smelled like beer it would be admissible lay opinion testimony but because her statement from that incident is being offered it makes it hearsay thus inadmissible....so the upshot is that lay opinion testimony cannot be based on hearsay.

Barbri's use of the word "proper" here does not mean admissible. "Proper" just means that the witness's testimony is not excludable by reason of improper opinion of a lay witness. This is contrast to a doctor opining on whether a victim suffers from a certain mental disease. In that case, the doctor must be an expert because determining whether someone suffers from a mental disease requires "specialized knowledge." Thus, if the doctor were an expert and he gave testimony in this regard it would be "proper." However, if the victim's coworker were to opine on whether the victim suffered from such a mental disease, it would not be "proper" because he is only a lay witness and does not have specialized knowledge.

Regarding problem #21, the lay witness here is free to opine on whether the defendant appeared drunk because determining whether someone is drunk does not require specialized knowledge. Hence, his opinion is "proper." Nevertheless, it is still inadmissible because his statements are hearsay.

[wwwcol]

A sues B in federal court, and B pleads affirmative defenses. The lawsuit results in a judgment that reads only, "Judgment is entered for B." Which of the following is true?

A. Judgment must have been entered by the court following a non-jury trial.
B. Judgment may have been entered by the court following a non-jury trial.
C. Judgment may have been entered by the court when it ruled on B's motion for summary judgment.
D. Judgment must have been entered following a jury trial.

C is correct. The federal rules of civil procedure require a judge to find facts and state its conclusions of law when rendering a judgment following a non-jury trial. However, the rules also free the court of this duty when it rules on a motion to dismiss or a motion for summary judgment. Therefore, the court does not have to provide reasoning.

A and B are incorrect. Pursuant to the federal rules of civil procedure, a judge is required to find facts and state its conclusions of law when rendering a judgment following a non-jury trial.

D is incorrect. Pursuant to the federal rules, juries may be asked to render special verdicts or a general verdict with answers to written questions.

Is the provided answer right? Doesn't Rule 56(a) require the court to explain its reasoning?

[cnk1220]

A sues B in federal court, and B pleads affirmative defenses. The lawsuit results in a judgment that reads only, "Judgment is entered for B." Which of the following is true?

A. Judgment must have been entered by the court following a non-jury trial.
B. Judgment may have been entered by the court following a non-jury trial.
C. Judgment may have been entered by the court when it ruled on B's motion for summary judgment.
D. Judgment must have been entered following a jury trial.

C is correct. The federal rules of civil procedure require a judge to find facts and state its conclusions of law when rendering a judgment following a non-jury trial. However, the rules also free the court of this duty when it rules on a motion to dismiss or a motion for summary judgment. Therefore, the court does not have to provide reasoning.

A and B are incorrect. Pursuant to the federal rules of civil procedure, a judge is required to find facts and state its conclusions of law when rendering a judgment following a non-jury trial.

D is incorrect. Pursuant to the federal rules, juries may be asked to render special verdicts or a general verdict with answers to written questions.

Is the provided answer right? Doesn't Rule 56(a) require the court to explain its reasoning?

Yes, C is the "best" answer.- 56(a) states a court "should" state on the record the reasoning for granting or denying SJ, but it doesn't state they have to provide reasoning.

[ConfusedL1]

"Fed. R. Civ. P. 26 requires parties to supplement disclosures and discovery responses"

So does this mean if you don't update and some one moves for summary judgment that you can defeat with information you later learned not in discovery, you're totally screwed if you didn't update your IDs?

[ConfusedL1]

Do you always need consideration between parties to create a third-party beneficiary? (i.e. not incidental)

[happyhour1122]

Do you always need consideration between parties to create a third-party beneficiary? (i.e. not incidental)

Yes if you are saying consideration between the original parties; no if you are asking consideration between the parties and the third party beneficiary.
as long as the original parties have a valid contract (so yes consideration), the third party beneficiary is merely someone receiving the benefit on behalf of the original party.

[happyhour1122]

"Fed. R. Civ. P. 26 requires parties to supplement disclosures and discovery responses"

So does this mean if you don't update and some one moves for summary judgment that you can defeat with information you later learned not in discovery, you're totally screwed if you didn't update your IDs?

summary judgment is granted when there is no material facts in dispute and the movant party is entitled judgment as matter of law. If simply "not updating your ID" is party of the material fact of the issue of the case, the court has the discretion to either rule for the moving party or order the non movant party to update the ID (or whatever is required). Usually "not updating ID" doesn't fall into the "material facts of the issue".

[ConfusedL1]

Do you always need consideration between parties to create a third-party beneficiary? (i.e. not incidental)

Yes if you are saying consideration between the original parties; no if you are asking consideration between the parties and the third party beneficiary.
as long as the original parties have a valid contract (so yes consideration), the third party beneficiary is merely someone receiving the benefit on behalf of the original party.

Thanks. I think I mean consideration specifically to create the third-party beneficiary. E.g. I contract with Joe and I say let me give you $20 more to pay Paul vs. we have a valid contract and I just say "btw don't pay me pay Paul"

[BulletTooth]

Do you always need consideration between parties to create a third-party beneficiary? (i.e. not incidental)

Yes if you are saying consideration between the original parties; no if you are asking consideration between the parties and the third party beneficiary.
as long as the original parties have a valid contract (so yes consideration), the third party beneficiary is merely someone receiving the benefit on behalf of the original party.

Thanks. I think I mean consideration specifically to create the third-party beneficiary. E.g. I contract with Joe and I say let me give you $20 more to pay Paul vs. we have a valid contract and I just say "btw don't pay me pay Paul"

No, you don't need consideration between the 3d party beneficiary and the promisee. In the case where there is no consideration between the 3d party and the promisee, the 3d party beneficiary may be referred to as a donee beneficiary because they are receiving the bargained for performance as a gift.

For instance, A contracts with B to paint a mural at a University. There is no consideration between A and the University, but the University is considered a donee beneficiary (also referred to as an intended beneficiary).

[RavenAgain]

Two quick questions about judgment liens and recording statutes.

(i) if a judgment is properly filed (and the relevant jurisdiction has the standard wording, such that it is treated as a judgment lien), prior to a subsequent transfer of the land, then the transferee cannot be treated as a BFP without notice for recording statute purposes, because the proper filing of the judgment lien means that the transferee will always have constructive notice of the lien.

(ii) if the judgment lien is then recorded, then the holder of the judgment lien while not being a BFP but is treated as such for recording statute purposes.

I keep getting MBE questions on this subject wrong, so I would be glad to be corrected if I am missing something!

[dlrbfl]

Torts Question -apparently only 40% of the students got it right on Adaptibar. I got it wrong.

[+] Spoiler

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.

The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply.

What is likely to be the dispositive issue in this case?

I chose "Whether the friend could validly consent to the game." The correct answer was "Whether the friend was also negligent."

I don't understand why the plaintiff's negligence would be a "dispositive" issue here. Aside from contributory negligence jurisdiction, where the issue of P's negligence would completely bar recovery, in other jurisdictions negligence only goes to the damages issue. So why is P's negligence dispositive here?

Thank you.

[Bobby_Axelrod]

Torts Question -apparently only 40% of the students got it right on Adaptibar. I got it wrong.

[+] Spoiler

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.

The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply.

What is likely to be the dispositive issue in this case?

I chose "Whether the friend could validly consent to the game." The correct answer was "Whether the friend was also negligent."

I don't understand why the plaintiff's negligence would be a "dispositive" issue here. Aside from contributory negligence jurisdiction, where the issue of P's negligence would completely bar recovery, in other jurisdictions negligence only goes to the damages issue. So why is P's negligence dispositive here?

Thank you.

Well, based on those two choices, P's negligence would be a better answer than consent because the majority view is that one cannot consent to a criminal act.

[BulletTooth]

Torts Question -apparently only 40% of the students got it right on Adaptibar. I got it wrong.

[+] Spoiler

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.

The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply.

What is likely to be the dispositive issue in this case?

I chose "Whether the friend could validly consent to the game." The correct answer was "Whether the friend was also negligent."

I don't understand why the plaintiff's negligence would be a "dispositive" issue here. Aside from contributory negligence jurisdiction, where the issue of P's negligence would completely bar recovery, in other jurisdictions negligence only goes to the damages issue. So why is P's negligence dispositive here?

Thank you.

Well, based on those two choices, P's negligence would be a better answer than consent because the majority view is that one cannot consent to a criminal act.

The question says that "[t]raditional defenses based on plaintiff's conduct apply." This seems like an inartful way of saying that contributory negligence applies. Thus, D would only need to show that P was 1% negligent (he certainly was) to prevent any recovery by P in a negligence action. I'm also not sure that the majority rule is that one cannot consent to a criminal act--this is likely too broad. The fact that there is a majority and minority rule regarding consenting to criminal acts makes the other answer better.

[Bobby_Axelrod]

Torts Question -apparently only 40% of the students got it right on Adaptibar. I got it wrong.

[+] Spoiler

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.

The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply.

What is likely to be the dispositive issue in this case?

I chose "Whether the friend could validly consent to the game." The correct answer was "Whether the friend was also negligent."

I don't understand why the plaintiff's negligence would be a "dispositive" issue here. Aside from contributory negligence jurisdiction, where the issue of P's negligence would completely bar recovery, in other jurisdictions negligence only goes to the damages issue. So why is P's negligence dispositive here?

Thank you.

Well, based on those two choices, P's negligence would be a better answer than consent because the majority view is that one cannot consent to a criminal act.

The question says that "[t]raditional defenses based on plaintiff's conduct apply." This seems like an inartful way of saying that contributory negligence applies. Thus, D would only need to show that P was 1% negligent (he certainly was) to prevent any recovery by P in a negligence action. I'm also not sure that the majority rule is that one cannot consent to a criminal act--this is likely too broad. The fact that there is a majority and minority rule regarding consenting to criminal acts makes the other answer better.

Quote from Barbri Torts Outline: "Plaintiff's consent to defendant's conduct is a defense, but the majority view is that one cannot consent to a criminal act."

Nevertheless, I didn't realize dlrbfl was directly quoting the problem w/r/t/ the language regarding defenses. In that case, yes, I'd agree, whether P was negligent is, as you said, the dispositive issue because it's an autobar to recovery.

[ConfusedL1]

When can you use extrinsic evidence to impeach a witness? Never?

[bballbb02]

When can you use extrinsic evidence to impeach a witness? Never?

To impeach on a non-collateral matter you can use extrinsic evidence,, also a prior inconsistent statement i's considered extrinsic

[ConfusedL1]

Can we define reckless, because the degree of culpability seems to vary considerably based on...

- negligence (think intentional infliction)
- criminal (think a lesser standard than "knowingly")
- defamation (think reckless within the malice standard)