MBE PRACTICE QUESTIONS

MBE PRACTICE QUESTIONS A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital's emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician's observations, opinions, and treatment of the man. Is the woman entitled to discovery regarding that information? - Yes, because the physician observed and treated the man and developed opinions about the man's injuries for purposes other than litigation or trial. A plaintiff's attorney is taking the deposition of a witness. Although within the scope of the discovery plan submitted by the parties' attorneys to the court, the witness's attorney objected to some of the questions on the grounds that they are unduly invasive and improper. The plaintiff's attorney insisted that the witness must answer the questions. What should the witness's attorney do next? - Instruct the client not to answer the questions and move for a protective order in the court in the district where the deposition will be taken. A person from whom discovery is sought by means of a deposition may move for a protective order in the court in the district where the deposition is taken. If the motion for a protective order is granted, the court may require the party opposing the motion to pay the moving party's reasonable expenses, including attorney's fees. A federal grand jury was empaneled to investigate the illegal "straw" purchase of a gun by a friend of a minor who used the gun in a multiple homicide. The friend was subpoenaed to testify before the grand jury. The prosecutor questioned the friend about evidence obtained from the friend's phone in violation of the friend's constitutional rights, and the friend, who did not have counsel present, made incriminating statements in response to the questioning. If the grand jury returns an indictment against the friend, can the friend challenge the indictment? - The friend cannot challenge the indictment. A grand jury witness does not have a constitutional right to have counsel present when giving testimony before a grand jury. Nor may an indicted defendant have the indictment quashed on the grounds that it is based on illegally obtained evidence. A softball coach was charged with sexual assault of one of the players on the team. Three days before the start of trial, the prosecutor receives evidence that the coach sexually assaulted other players in the past. The coach was never criminally charged in connection with these incidents. The prosecutor immediately discloses the evidence to defense counsel. What may the prosecutor do with this evidence? - The prosecutor may offer these accusations as substantive evidence of the defendant's guilt. Federal Rule 413 provides that evidence of a defendant's prior acts of sexual assault are admissible in a criminal case in which the defendant is accused of sexual assault, and may be considered on any matter to which it is relevant. (B) is incorrect because this evidence is not limited to impeachment purposes; it may be admitted as substantive evidence. During a presidential campaign, a candidate's campaign manager secretly engaged in activities that may have violated both state and federal laws. After the candidate was elected President, the FBI investigated the manager's activities as well as whether the President was involved. After the campaign manager was indicted in federal court, but before trial, the President granted a blanket pardon to the campaign manager for "all federal crimes that may have been committed in the past 20 years." Is the pardon valid? - The pardon is valid. Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision). Blanket pardons are valid. Presidents may pardon offenses that occurred before the President took office. A mother received a telephone call asking her to meet with the vice principal of her son's school because he was caught cheating. As she was waiting in the hallway to meet with the vice principal, the school's janitor, a big man who was an amateur body builder, introduced himself as the vice principal and asked the mother to step into his office, closing the door behind him. For several minutes, the janitor asked the mother a series of flirtatious personal questions, causing the mother to grow very uncomfortable. However, she did not leave the office out of concern for her son's academic standing. The actual vice principal eventually returned to his office and ended the questioning. If the mother sues the janitor for false imprisonment, is she likely to prevail? - The mother likely will not prevail in a false imprisonment action against the janitor because the mother was in the room willingly and no facts show that she was there against her will. For false imprisonment, a plaintiff must prove that the defendant intentionally confined or restrained plaintiff to a bounded area, and here there is no evidence of that. A landlord brought suit against a tenant in federal court for overdue rent payments on a commercial lease. The landlord sought to recover on the six rent installments that were past due and unpaid at the time of the suit. The landlord won the case, and judgment was entered in her favor. The lease has an acceleration clause that states that all future rent payments become due if the tenant falls behind three months or more. The landlord now files suit against the tenant for the remaining rent payments. The tenant moves to dismiss, asserting that the landlord's claim is barred by claim preclusion (res judicata) principles. Should the tenant's motion to dismiss be granted? - Plaintiff is likely to be successful because the two suits arise out of the same transaction or occurrence. Claim preclusion (res judicata) requires that (i) a valid, final judgment on the merits was entered in the first case; (ii) the cases were brought by the same claimant against the same defendant; and (iii) the same cause of action is involved in the later lawsuit. Generally, a claimant is required to assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the claim. In the situation of installment payments, the claimant is required to sue on all installments due at the time of the suit. If there is an acceleration clause, the claimant must sue for all installments. Here, the plaintiff should have sued for all installments in the first lawsuit. Because she did not, her second suit is barred by claim preclusion. An environmental group, wishing to stop the issuance by a federal agency of a mining permit to a coal company, commences an action in federal court against the federal agency, seeking, among other things, a permanent injunction barring the issuance of the permit to the coal company. If the coal company seeks to join the litigation as a matter of right, must the federal court grant the motion? - Under Rule 24, a nonparty may intervene in an action as a matter of right in two situations. First, a nonparty may intervene when it has an unconditional right to do so by a federal statute. Second, a nonparty may intervene if (i) it has an interest in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty's ability to protect its interest; and (iii) the nonparty's interest is not adequately protected by an existing party in the action. Here, although no federal statute gives the coal company the right to intervene, it does have an interest at stake in the action-its interest in getting the mining permit issued to it-and its ability to obtain the permit will as a practical matter be impaired if the environmental group succeeds in getting an injunction against its issuance. Thus, the coal company should be allowed to intervene unless the court concludes that the federal agency adequately represents the coal company's interest. A plaintiff sued a defendant in a contract dispute. The plaintiff calls a witness to testify as to his personal knowledge of the agreement. The plaintiff now wants a second witness to testify as to her knowledge of the first witness's honesty. The defendant objects and the court sustains the objection. Why is the testimony of the second witness inadmissible? - The plaintiff may not call the second witness to testify about the first witness's honesty because his credibility has not been questioned. Generally, a party may not bolster or accredit the testimony of her witness until the witness has been impeached. Here, the defendant has not tried to cast any adverse reflection on the first witness's truthfulness (i.e., he has not been impeached). Thus, the second witness's testimony as to her knowledge of the first witness's honesty will not be allowed. A counterfeiter was convicted in federal court of possession of counterfeit bills with the intent to distribute them. She was sentenced to a prison term. Subsequently, the government learned that the counterfeiter was part of a group of persons that used and distributed the counterfeit bills. She was