CODE I MUST KNOW

-Marriage: absence of legal impediment (same-sex, bigamy, relatives), valid ceremony performed by qualified celebrant where
both parties are present and witnessed by 2 competent Ws ages 18 or older, and verbal consent of both parties. Relative nullity if no
consent, absolute nullity for everything else.
-Marriage Conflict of Laws: marriage is valid in LA if valid 1) Where contracted or 2) where the parties were first domiciled as
husband and wife, unless it violates public policy.
-Divorces:
1. Art. 102 (separation after service)  file petition (allege jurisdiction and venue, be verified by affidavit), request service
w/in 90 days of filing, file RTSC after requisite time period (180/365 days of living continuously apart) to have the divorce
granted, have hearing on divorce petition. Abandoned if no RTSC w/in 2 years of service.
2. Art. 103(1) (separation prior to filing)  Live separate and apart for 180/365 days before filing petition, then have
petition served, file RTSC, have hearing.
3. Art 103(2) (immediate adultery)  must prove adultery at trial; evidence presented must lead fairly and necessarily to
the conclusion that adultery has been committed; admission of adulterous spouse is not enough. When you get the trial
depends on the court’s docket.
4. Art 103(3) (immediate felony conviction)
-Spousal Support: Court may award it to a party who is in need after the marriage if the other party has the means to pay; to
maintain the standard of living the parties had during the marriage. Interim SS will terminate at judgment of divorce, but may
continue past it if the parties have not had HG for final SS yet. In that case it will terminate when the final support judgment is
rendered or after 180 days, whichever happens first. For final SS, claimant spouse must also be free from fault. Terminates upon 1)
death of either party; 2) remarriage of obligee spouse; 3) judicial determination that obligee spouse has cohabitated w/ another
person of either sex in the manner of married persons.
-Contribution to earning capacity: spouse or former spouse makes contributions to other spouse’s education or training during the
marriage that increased the other spouse’s earning power, and didn’t benefit from the increase during the marriage. 3-year PP.
-Bergeron: to change a considered custody order, the proponent must prove either that a change in circumstances has occurred such
that the current arrangement is so deleterious to the child as to justify a modification, or that any negative impacts of a change in
environment would be substantially outweighed by the benefits of a modification. For a consent decree, the proponent must only
prove that there has been a material change in circumstances and that a modification would be in the best interests of the child.
-Child Custody Factors: Prior relationship with the child, Ability to nurture, Health of parent, Emotional ties to child,
Location/distance between parents’ homes, Preference of child, Stability, Cooperation with other parent, History (home, school,
and community) of the child, Ability to provide, Moral fitness of parent as it relates to child, Past caregiver.
-Mental examination: a party can petition the court to compel the other parent to undergo a mental examination by filing a motion
and showing good cause (testimony of people who say her mental health is suffering).
-Ex Parte Custody Order: may be obtained if a parent shows that irreparable, immediate injury to the child will result before the
other parent can be heard; must allege specific facts in a verified petition or supporting affidavit. Expires in 30 days but may be
modified for one 15-day period upon the showing of good cause.
-Visitation: parent or grandparent not granted custody will get visitation unless court finds that it’s not in the best interests of the
child. All others must show extraordinary circumstances.
-Child Support: court considers child’s needs + parent’s ability to support. Continues to majority or emancipation, whichever
comes first. For mentally/physically incapacitated major child or major child in necessitous circumstances, alimony will be paid. 10
year PP to recover on past due child support.
-Filiation
1. During marriage or 300 days after: Husband presumed to be father. If he successfully disavows, the second husband will
be presumed to be the father.
2. Man who subsequently marries mother is presumed to be father if he acknowledges by auth act or signs BC. He may
then disavow w/in 180 days of the later of marriage or acknowledgement. This is only if the child is not filiated to another.
3. Disavowal: C&C evidence, within one year of birth unless you have lived separate and apart from the mother for 300
days preceding the child’s birth. You will then have 1 year from the time you were notified in writing that someone was
asserting you are the father.
4. Avowal: within one year from child’s birth if filiated to another, otherwise one year after death. If bad faith deception by
mother, one year from date of discovery and 10 years from child’s birth. Preponderance.
5. Contestation and establishment: brought by mother, within 180 days from marriage and 2 years from child’s birth, C&C.
6. Paternity: brought by child, within one year of dad’s death, proof by preponderance if alive and C&C if dead.
-Adoption: an adopted child is legally filiated to his/her adopted parents for all purposes. Can still inherit from bio-parents, but they
cannot inherit from the child.
-Tutorship: natural (parents are natural tutors of children), by will (spouse dying last or spouse with sole custody may appoint a
tutor in a will), by effect of law (court will select a tutor from the following, using the BIOC standard: qualified direct ascendants,
qualified collaterals by blood within the 3rd degree, stepparents), dative (if none of the above are available, court will appoint
someone).
-Grounds for removing a curator: 1) has or will misapply, embezzle, or remove the interdict’s property; 2) failure to render any
account required by law; 3) failure to obey a court order; 4) gross misconduct or mismanagement of duties; 5) incapacity; 6) abuse
of or failing to care, educate, or give independence to the interdict.
-Matrimonial agreements: either by authentic act or by act under private signature duly acknowledged (attestation clause for each
spouse). Need court approval if you make it during marriage unless you’ve moved to LA less than a year ago or you wish to subject
yourself to the legal regime. Legal regime only applies if both spouses are domiciled in LA.
-Community vs Separate Property
1. Community: acquired during the legal regime by industry, skill, or effort of either spouse; acquired using community
property; donated to spouses jointly; natural and civil fruits of CP and of SP (unless reserved as SP by auth. act or act under
private signature  designation of paraphernality); damages for loss/injury of CP; other property that is not SP.
2. Separate: acquired before the legal regime; acquired with separate property; inherited or donated to one spouse; damages
awarded to a spouse in a breach of contract action against the other spouse or as a result of fraud/mismanagement by other
spouse, damages/indemnity awarded to a spouse in conjunction with his SP; things acquired as a result of voluntary
partition during the CP regime; asset purchased with a down payment of entirely separate funds (even if CP is used to pay
off the loan).
3. Must prove classification by a preponderance.
4. Can reserve property as either SP or CP, but if the spouse does not concur, it will not be binding on him/her (declaration
of paraphernality).
-Need concurrence of both spouses to: LAE community immovables, standing/cut/fallen timber, furniture or furnishings inside
family home, all or substantially all of the assets in a community enterprise, movables issues or registered to both spouses jointly;
harvest community timber; donate CP to a third party (unless it’s a usual or customary gift)
-Community vs. Separate obligations
1. Community obligation: incurred by a spouse during the CP regime for the common interest of the spouses or the interest
of the other spouse; alimentary obligations; obligations incurred during divorce.
2. Separate obligation: incurred by a spouse prior to the establishment of the regime; or during the regime for the interest of
that spouse, for separate property, or for an intentional tort.
3. For spouses, owner of the ground will own all improvements placed upon it.
-Reimbursement: grounds for reimbursement = when there is a mismatch between the classification of the funds and the purpose
for which they were used.
1. One spouse’s separate asset used for other spouse’s separate property or obligation  reimbursement of the value of the
property at the time it was used.
2. Separate property used to satisfy community obligation  reimbursement of ½ of the value of the property at the time it
was used. If the obligation was to acquire a registered corporeal movable, reimbursement can be reduced in proportion to
the claimant’s use of the movable after the termination of the CP regime.
3. Separate property used to benefit community property  spouse whose property it was will be entitled to
reimbursement of half the value the property had at the time it was used.
4. Community property used to satisfy separate obligation  other spouse will be entitled to reimbursement of ½ of the
value of the property at the time it was used.
5. Community property used to benefit separate property  other spouse is entitled to reimbursement of ½ of the value of
the property at the time it was used.
6. Common uncompensated labor of both spouses used to improve one spouse’s separate property  other spouse will be
entitled to reimbursement of ½ of the increase attributed to the common labor.
7. Community funds used to repay purchase loan of separate property family home  reimbursement of reduction of
principal.
8. One spouse’s SP used for family expenses (family, child care)  full reimbursement (community obligation)
-Hybrid quasi-community property:
1. For movables (general rule = law of acquiring spouse’s domicile at time of acquisition) acquired by spouse while
domiciled elsewhere and now spouses live here  treat it as CP if it is CP under LA law, and SP if it is SP under LA law.
However, if it is SP, the other spouse will be entitled, in value only, to any rights he/she would have had in the state of
acquisition.
2. For immovables (general rule = law of state of situs) in LA acquired by spouse while domiciled elsewhere and now
spouses live here  treat it as CP if it is CP under LA law, and SP if it is SP under LA law. However, if it is SP, the other
spouse will be entitled, in value only, to any rights he/she would have had in the state of acquisition.
-Classifications of movables/immovables
1. Common (owned by no one, can be used by anyone)  air, high seas
Public (owned by the public, use can be limited to its purpose)  natural navigable waters, territorial sea (Gulf of Mexico,
Lake Pontchartrain, arms of the sea), streets/highways, seashore (highest point to which the sea spreads during the winter
season), beds of navigable waters and streams to the ordinary low water mark, bottoms of navigable water bodies
Private (owned by private citizens)  bottoms of nonnavigable water bodies, banks of navigable rivers and streams
(subject to limited public use)
2. Corporeal (have a body, capable of being felt by the senses)
Incorporeal (intangible, only comprehended by the understanding)  property rights and actions
3. Movable: can be moved from place to place; residual category  anything that isn’t immovable.
Immovable: 1) land; 2) buildings, 3) standing timber, 4) component parts of buildings or other constructions. If there is
unity of ownership with the owner of the land, also includes 5) other construction permanently attached to the ground
(which would be a component part of the land, 6) unharvested crops and ungathered fruits.
-Making a road public: 1) statutory dedication (recordation of map or plat that describes the road and dedicates it to public use); 2)
implicit dedication (offer by donor and acceptance by the public); 3) tacit dedication (govt. maintains the road for more than 3
years); 4) formal dedication (valid donation).
-Component parts:
1. Of a building: things that are attached to the building and according to prevailing uses, serve to complete a building of
the same general type OR a thing attached to such a degree that it cannot be removed w/out causing substantial damage to
the building or person removing it.
2. Of an other construction: a thing that is attached to an other construction and serves its principal use or a thing that is so
attached that it cannot be removed w/out causing substantial damage to the construction or person removing it.
3. Deimmobilization: 1) CP is so damaged and deteriorated that it no longer serves the use of the immovable; 2) owner of
the immovable executes an act translative of ownership, delivers the CP to an acquirer, the acquirer is in good faith; 3) in
the absence of rights of third parties, the owner of the immovable detaches and removes the CP.
-What is a building?: factors to consider: 1) inhabited by people; 2) cost; 3) temporal permanence; 4) prevailing notions of what
constitutes a building. La. S. Ct. has held that a three-story high living quarters unit attached to an offshore drilling platform is a
building.
-Movables by anticipation: unharvested crops or ungathered fruits owned by someone other than the landowner or encumbered by
a security interest in favor of a third person.
-Accession: Generally, ownership of the land includes ownership of everything above or below it. The Code allows separate
ownership of immovables and improvements. Person claiming to own improvements must prove that owner consented (if claiming
against owner) or that owner consented and that he timely filed for registry (if claiming against 3 rd party). Separate owner of
improvements may remove them when he no longer has any right to keep them there, and has an obligation to restore the land to its
former condition.
-Construction on the land of another: 1) If landowner uses another person’s materials, he must reimburse the owner for their
current value and any injury he may have caused. 2) If good faith possessor constructs, the owner is bound to keep the thing and
must reimburse. 3) If bad faith possessor constructs, the owner may demand demolition OR reimburse.
-Bona fide purchaser doctrine: if a thing is lost or stolen, the person who has possession cannot transfer its ownership to third
parties.
-Co-owners: may not LAE or substantially alter/improve the whole thing without consent of other co-owners. Have right to
reimbursement for necessary expenses and ordinary maintenance and repairs. May improve the thing without consent, but if the
improvement is not consistent with the use of the property or there is express opposition from the other co-owners, they may
demand the demolition of the improvement.
-Co-owners may not compel another co-owner to sell or give up his ownership interest.
-Partition: may be excluded by agreement for up to 15 years. If the co-owned thing can be divided into lots of nearly equal value
and the value of the individual lots is not significantly lower than the value of the thing as a whole, the court is bound to order
partition in kind. Otherwise, the court may order partition by licitation (sale at public auction) or a private sale.
-Predial servitudes: charge on a servient estate to benefit a dominant estate (benefit conferred to estate or to “X, his heirs and
assigns”). Three types: 1) natural (running water, drainage); 2) legal (keep buildings in repair, refrain from building projections
beyond the boundary of the estate, right of passage for enclosed estate); 3) conventional (right of passage, building restriction). A
PS is a corporeal immovable.
-Conventional predial servitude: is either affirmative or negative and either apparent or non-apparent. Is established by 1) title
(auth. act or AUPS); destination of owner (if apparent, no need to reserve it in advance, but if non-apparent, owner must have
previously filed a formal declaration establishing it); or 3) acquisitive prescription (10 years if good faith and just title, otherwise 30
years; and cannot establish non-apparent conventional servitudes in this manner).
-Legal servitude of right of passage: 1) Owner of estate that has no access to public road may claim right of passage over
neighboring property to nearest public road. Must be the shortest route and the DE owner must indemnify the SE owner for
damages. Not available if the enclosure is a result of voluntary alienation by the DE owner and he did not reserve a right of passage.
Imprescriptible.
-Predial servitudes are extinguished by: 1) Confusion; 2) total and permanent destruction of either DE or SE; 3) abandonment by
SE owner (must be in writing, DE owner is bound to accept); 4) expiration of term; 5) prescription of non use for 10 years; 6)
renunciation by DE owner (must be express and written).
-Personal servitudes: a charge on an estate for the benefit of a particular person, either natural or juridical. Can be either 1) legal
(usufruct  parents/siblings or SS/children) or 2) conventional (usufruct, habitation, right of use).
-Usufruct: A legal right to exclusively use and enjoy the fruits of a piece of property. Can be granted jointly to two or more people
and can be successive as long as the usufructuary exists or is conceived at time of creation. If a joint UF is in divided shares, the
termination of the interest will inure to the benefit of the naked owner.
-Usufruct involving trees: 1) Trees may be cut down for personal use or to cultivate and improve the property. 2) If the property
includes timberlands, the usufructuary may retain the proceeds of timber operations if he/she manages the property as a prudent
administrator. Timberlands = any land capable of producing trees in paying quantities, not just a tree farm. What constitutes acting
as a prudent administrator depends on the specific facts  size, condition, location, age, species, density of the timber. Conflicting
expert opinions are a question for the trier of fact. (Kennedy = case with conflicting expert opinions about trees)
-Usufructuary’s duties: act as prudent administrator and return the thing at the end of the UF (nonconsumables), may advance
funds to prevent the sale of the property, may make improvements with NO’s consent or with court approval after sending notice to
NO, must make ordinary repairs, liable for damage caused by his fault/neglect. Must restore property to former condition at the end
of the usufruct.
-Usufructuary’s right to LAE: usufructuary may lease, alienate, or encumber their interest, but any such contract will cease of
right when the usufructua ends, unless the usufructuary has been expressly granted the right to dispose of nonconsumables. In this
case, the usufructuary will have the right to LAE the thing beyond the term of the usufruct, but after the usufruct ends, the naked
owner will be entitled to any diminution in value caused by the LAE. However, LAE of the actual property is not permitted w/out
NO’s consent.
-Donation of nonconsumable usufruct property: is not included in the right to LAE. Must be expressly granted to the
usufructuary. Usufructuary who donates a nonconsumable thing will owe NO the value of the thing at the time of the donation.
-Sale of usufruct property: usufruct is terminated (but will attach to the proceeds) if the property is sold to satisfy a debt that
predates the usufruct. Usufructuary may advance funds to prevent sale and NO must reimburse him, minus interest.
-Termination of Usufruct: 1) 30 years or upon dissolution/liquidation if usufructuary is a juridical person; 2) upon death if
usufructuary is a natural person; 3) permanent and total destruction of the property caused by accident, force majeure, or age (but
usufruct attaches to suit for damages or insurance proceeds); 4) 10-year prescription of non-use; 5) confusion; 6) express written
renunciation by usufructuary.
-Destruction of usufruct property through neglect, force majeure, or age: will terminate the usufruct. The party at fault will owe
the other party the value, but if neither party was at fault, the parties won’t owe each other anything.
-Right of Habitation: nontransferable real right of a person (and family, guests) to dwell in the house of another. Terminates at
death of holder unless a shorter period is specified. Right holder must act as prudent admin. and deliver the property to the owner in
the same condition as when the right began, excepting ordinary wear and tear.
-Right of Use: a personal servitude that confers to the grantee a specified use that is less than full ownership  may confer any
advantage that a predial servitude could give to a dominant estate if established over the servient estate. May be transferred and does
not terminate upon death/dissolution (unless contract says otherwise). Governed by the title that establishes it.
-Partial use of a servitude: constitutes use of the whole, based on the principle that servitudes are indivisible.
-Building Restrictions:
1. Charges imposed by the owner of an immovable, governing use, improvements, and standards; pursuant to a general
plan which is feasible and capable of being preserved.
2. Either the owner of all the immovables (developer) or the owner of any affected immovable may bring suit to enforce.
3. Can be made less restrictive or terminated by agreement of 1) ½ of owners if BR in place for 15 years; 2) 2/3 of owners
if BR in place for 10 years. Can be made more restrictive by agreement of all owners.
4. Can be terminated by abandonment of the whole plan or termination of a particular restriction. Two-year liberative
prescription period commencing at the start of a noticeable violation.
5. BRs are incorporeal immovables and real rights, likened to reciprocal predial servitudes where each estate is both
servient and dominant.
6. May be enforced by both mandatory and prohibitory injunctions and the owner in violation may be sued for damages.
-Possession: control or detention of a thing done for own behalf by yourself or through an agent (agent has constructive possession)
Two elements: animus + corpus. Corporeal detention trumps civil and constructive possession.
-Tacking: adding the possession of your predecessors in title onto your time of possession. A particular successor needs good faith
in order to have tacking.
-Occupancy: taking possession of a corporeal thing that belongs to no one.
-Acquisitive Prescription: immovable = possession for 10 years if good faith and just title, otherwise 30. Movable = possession for
3 years if good faith and just title, otherwise 10. For both, need a thing susceptible of possession. Just title = a juridical act
sufficient to transfer ownership or another real right (must be written, valid in form, and filed for registry). Special AP for
corporeal movables that have been lost and found: if founder makes diligent effort to locate the owner and the owner is not
found w/in 3 years, the finder will acquire possession.
-AP of Co-Owner: possession is not enough, because it is not adverse to the other co-owner’s interests. Co-owner will need to
commit an “overt and unambiguous act” that demonstrates the he intends to possess the property for himself, such as acquiring title
from the co-owner.
-Conflict of laws: 1) Immovables = law of situs; 2) Movables = law of state in which the movable was situated at the time of
acquisition. If the movable is later moved to LA, use LA law if a) the right is incompatible with LA law; b) the right holder knew or
should have known that the thing was moved to LA; or c) justice and equity demand it. 3) Incorporeal movables = serious
impairment test. 4) Classification of a thing = law of situs.
CODE II MUST KNOW
-Intestate succession order
1. SP: 1) Children and their reps, 2) Parents and/or siblings (for siblings: divide equally between maternal and paternal
lines and count full-blood siblings twice) 3) Surviving spouse 4) Other ascendants (divide equally between maternal and
paternal lines) 5) Other collaterals 6) The state
2. CP: Kids in naked ownership and surviving spouse in usufruct
-Putative Marriage: if both spouses in good faith, D’s children get NO and two spouses will split the usufruct. If D in bad faith, the
property will be divided equally between the two spouses.
-Representation: a child of a predeceased sibling or child can represent that child or sibling in the decedent’s succession.
-Illegitimate child: must be acknowledged to inherit  file avowal action w/in year of dad’s death
-Unworthiness: action may be brought by one who would inherit in place of or along with the unworthy heir. Grounds: conviction
or judicial declaration of killing or attempted killing of D. Reconciliation or forgiveness can cure this.
-Renouncing a succession: must be express and in writing, but authentic act not required. Can’t be done before decedent’s death,
before the heir knows of the decedent’s death, or before the heir knows of his rights as a successor.
-Capacity to donate: donor must be able to comprehend generally the nature and consequences of the disposition. Must prove
incapacity by C&C evidence.
-Will form requirements
1. Olographic: entirely written, signed, and dated in T’s own hand. Additions and deletions valid if in T’s handwriting.
2. Notarial: declared and signed in the presence of notary and 2 Ws. Signed on bottom of each page and at the end. Ws and
notary sign attestation clause in presence of one another and T.
3. Cannot be signed by mandatary.
-Payable to designated beneficiary: IRA, US savings bond, life insurance
-Prohibited substitution: two subsequent dispositions in full ownership, charge on first donee to preserve and deliver. Neither
donee gets it and it devolves through accretion (universal legatee) or intestacy.
-Universal legacy: whole or residue of the property. General legacy: fraction or certain proportion of the estate or the residue.
Particular legacy: specific property.
-Joint legacy: left without assignment of parts or shares. Separate legacy: legacy to two or more people where T assigns shares
(includes “in equal shares”).
-Testamentary usufruct to surviving spouse: for life, unless designated for a shorter period.
-Revoking a will: authentic act (can’t use AA to add or modify), signed writing (does not need to be dated), statement in new will,
physically destroy the will or order someone else to do it
-Revoking a legacy: form of a testament, subsequent incompatible testamentary donation, IV donation or disposition of the thing
and not reacquiring it (this includes a donation and a sale), signed writing on the testament itself (includes the word “revoked”),
strike-outs (if notarial, must be signed by T), addition and revision (if notarial, must be signed and dated).
-Lapse: L predeceases T, L incapable of receiving at the time of T’s death, legacy subject to suspensive condition that can no longer
be fulfilled or L dies before it can be fulfilled, L declared unworthy, legacy is renounced, legacy declared invalid (to witness, spouse
of witness, or notary), legacy declared null (vices of capacity).
-Accretion: unless the testament provides otherwise, the legacy will go to the person who would have gotten it if the legacy had not
been made. A joint legacy will accrete to other joint legatees, but a separate legacy will devolve by intestacy.
-Most favored class rule: if lapsed legatee is T’s child or sibling (or a descendant of one), accretion takes place in favor of
descendants of the legatee.
-Legacy to witness: invalid, unless witness is an intestate heir, in which case he can receive the lesser of his share of the legacy or
intestacy.
-IV donation: a present and irrevocable divestment of property by donor, which donee accepts. For corporeal movable, donation
will be completed upon manual delivery or authentic act. Donation of immovable is done via authentic act and must be recorded to
affect third parties. Acceptance must be w/in lifetime of donor and donee. Donation of an incorporeal movable evidenced by a
certificate and transferable by endorsement or delivery can be made by complying with the requirements for transfer of that kind of
incorporeal movable (i.e. stock).
-Dissolution on basis of ingratitude: for cruel treatment/grievous injury (any act “naturally offensive” to donor) or
killing/attempted killing of donor. 1-year PP from date of action, successors may bring the action if donor dies before that.
-Forced Heirs: child under age 24 at time of T’s death, child of any age who is physically or mentally disabled to the point that they
cannot take care of themselves or administer their estate or may later become so due to an inherited, incurable disease.
-Disinherision of FH (cannot be done in advance): striking parent or raising hand to strike (threat not enough), cruelty or grievous
injury, attempted murder of parent, accusing parent of capital offense w/out any reasonable basis, using violence to prevent the will
from being executed, marrying w/out parent’s consent, conviction of felony for which punishment could be life or death, failing to
communicate with the parent for 2 years after attaining the age of majority w/out just cause. To rebut: falsity (preponderance),
defense (by preponderance  FH incapable of understanding impropriety, justified, unintentional), reconciliation (C&C).
-Forced portion: 1 FH=1/4 of estate, 2 or more FHs=1/2 of estate, Greenlaw rule.
-Rights of FH: reduce excessive donations (made 3 or less years before D’s death); demand collation of gifts made 3 or fewer years
before T’s death by T to his children or grandchildren (after parent died) who are coming into the succession. Excludes
board/tuition/support, marriage gifts that don’t deplete the estate, gifts made for benefit of donor during his lifetime, and manual
gifts hand-delivered by donor to donee. Only first-degree forced heir can demand collation.
-Vices of capacity: fraud, duress, undue influence (substitute volition)
-Trust form requirements: Inter vivos trust  executed in front of notary and 2 Ws or by act in front of 2 Ws and then duly
acknowledged by settlor or one of the Ws. Testamentary  in the form of a will.
-Duties of trustee: Has a fiduciary duty of loyalty and must act as a reasonably prudent person. Can buy/sell/lease/mortgage trust
property, borrow funds or obligate the trust. Trustee may incur necessary expenses to carry out the purposes of the trust and is
entitled to reasonable compensation unless the trust says otherwise. Limit: cannot lend, buy, or sell trust property to or from himself,
a relative, an employee, an employer, or a partner unless the trust document or court authorizes him to do so. Cannot serve as the
officer of a corporation (other than corporate trustee) of an organization in which trust funds have been invested. Must keep trust
property separate from individual property.
-Resignation or death of trustee: will have no effect on the validity or term of the trust. Court should instead appoint a provisional
trustee pending the naming of a new trustee.
-Spendthrift trust: trustee cannot alienate his interest either voluntarily or involuntarily, meaning that it cannot be seized by
creditors or put up as collateral. Exceptions: alimony/support creditors, necessary services or supplies furnished to a person the
beneficiary is obligated to support, or damages due to felony criminal offense.
CODE III MUST KNOW
-Suretyship: accessorial obligation where the surety promises to pay the principal obligee’s debts if the obligee fails to do so. Must
be express and in writing. Three kinds: legal, commercial, and ordinary.
-Commercial suretyship: either surety is paid, debtor or surety is business entity, or the obligation or suretyship arises from
business transaction.
-Surety’s defenses: material modification of the obligation, impairment of collateral, remission of principal obligor, any debts the
principal obligor has (except lack of capacity and discharge in bankruptcy).
-Extinction of suretyship: extinction of principal obligation will extinguish the suretyship.
-Mortgage: legal, judicial (party who has obtained a judgment for the payment of money files a certified copy of the judgment in
the mortgage records of any parish where the debtor’s immovable property is located), conventional (in writing, signed by
mortgagor or someone w/ authority to bind him, describes the secured obligation, specifically describes the immovable property).
-Mortgage priority: first to file wins. Lapses in 10 years unless maturity date is 9 years or more, in which case it lapses 6 years
after the MD. Must file notice of reinscription 6 or fewer months before it is to lapse.
-MIM: allows a mortgage to secure fluctuating future advances when a maximum amount of credit is stated  will not be
terminated by the extinction of the principal obligation.
-Assumption of mortgage (or other obligation) by third party: will not free the original debtor from the obligation (i.e. a person
buys a house encumbered by a mortgage and then defaults on payment  creditor can still go after the original obligor).
-Extinction of mortgage: extinction of principal obligation (i.e. by prescription) will extinguish the mortgage, which is an
accessory obligation.
-Vendor’s Privilege: provides the seller with automatic security rights in any movable or immovable sold on credit, as long as the
good are in the buyer’s possession. For immovables, privilege must be recorded.
-Lessor’s Privilege: movables found in the leased property or ones that have been removed that are still identifiable as the lessee’s
(removed within 15 days).
-Repairperson’s privilege: arises under Public Works Act. Exists while repairperson is in possession of the goods or 120 days after
the last time they were worked on or materials were supplied.
-Ranking: repairperson beats SI and lessor, lessor beats vendor, vendor beats repairperson, and SI beats lessor and vendor.
-3-year LP: merchants open accounts, past due rent, money lent, compensation for services rendered (includes wages/salaries).
-5-year LP: promissory notes, negotiable instruments, rescind partition.
-Suspend prescription (pause): special relationships between parties, contra non valentum.
-Interrupt prescription (stop and start over): file a suit, acknowledge the right.
-Collateral:
1. Inventory (tangible movables held for sale by debtor’s business, raw or consumable materials)
2. Equipment (stuff at business that is not for sale)
3. Farm products
4. Consumer goods (primarily for personal, family, household use)
5. Fixtures (movable thing that is so incorporated into an immovable that it becomes a component part)
6. As-extracted collateral (rights in oil/gas/minerals that is reserved before extraction),
7. Deposit account (bank account),
8. Account (right to payment for goods or services bought on credit)
9. Documents of title (bill of lading, etc)
10. Instrument (promissory note)
11. Chattel paper (paper representing both a promise to pay and a property right – i.e. lease)
12. Investment property (stocks, bonds, mutual funds, brokerage account)
13. General intangibles (IP, business goodwill).
-Attachment: making SI good against the debtor  value has been given, debtor has rights in the collateral, debtor has
authenticated a security agreement that adequately describes the collateral. Security interest will attach automatically to proceeds
(whatever the debtor receives for or on account of the collateral as long as they’re identifiable as linked to the original collateral).
-Perfection: making SI good against 3rd parties.
1. Titled cars that are not part of debtor’s inventory: file UCC-1 at OMV, include VIN, make, and model.
2. Money, collateral mortgage note: must be perfected through POSSESSION
3. Instrument, tangible chattel paper: SUPERIOR if perfected through POSSESSION
4. Deposit account: must be perfected through CONTROL (bank is creditor, control agreement, add creditor’s name to
account)
5. Investment property: SUPERIOR if perfected through CONTROL.
6. Proceeds: automatic perfection for 20 days if original interest is perfected; perfection will continue as a matter of law if
they are identifiable cash proceeds or the original financing statement describes the proceeds.
7. Fixtures and as extracted collateral: must perfect via a FIXTURE FILING before incorporation/extraction. UCC-1,
but describe immovable w/ sufficient detail to support mortgage, check box for fixtures, and identify owner if there’s no
unity of ownership.
8. PMSI: created by authentic agreement, either when credit extended by vendor or by bank to buy something. For
consumer goods, there is auto-perfection (must file financing statement if possession is transferred). For inventory, must
file financing statement and send notice to other creditors. Will have PRIORITY OVER EVERYTHING if perfected
w/in 20 days of delvery.
 9. Everything else: file a UCC-1 financing statement in the UCC records of any parish clerk of court’s office: full legal
name of debtor (name change: 4 month grace period), secured creditor’s name, and describe collateral.
10. Possession: taking physical possession of the collateral.
11. Control: a term of art that is established in different ways for different collateral.
-Where to File: always in the jurisdiction where the debtor is. Natural person = principal place of residence. Corp, LCC = state of
registry. Unregistered organization (partnership) = where chief executive office is.
-Mandate: need express authority to acquire, alienate, encumber, or lease property; accept/renounce a succession; make an IV
donation; become a surety; make health care decisions; enter into a compromise or agree to arbitration; contract a loan;
acknowledge or remit a debt; make or indorse a promissory note or negotiable instrument.
-Equal dignity doctrine: if a transaction requires a writing, the mandate also requires a writing.
-Lease: Agreement about a thing and a rental price. Lease of an immovable must be recorded to be enforceable against third parties.
-Agricultural lease: default year-to-year. Can terminate w/ 30 days notice.
-Residential lease of movable and non-agricultural lease of an immovable: default month-to-month. Can terminate w/ 10 days
written notice.
-Non-residential lease of movables: default day-to-day. Can terminate w/ one day notice.
-Tacit reconduction: when a lease for a term ends and no steps are taken to renew or end it for 30/7/1 day(s), it will be converted to
a lease with an indeterminate term.
-Lessor’s obligations: keep the thing in a condition fit for its ordinary use, protect the lessee’s peaceful possession.
-Lessor’s warranty of fitness: may be waived by clear and unambiguous language brought to the lessee’s attention, but will not
apply to defects that the lessee did not know about that the lessor knew or should have known about, or intentional failures or gross
negligence that causes physical injury. Rules can also be modified so that lessee is liable for damage caused by lessee or people on
the property w/ his permission.
-Lessee’s obligations: pay rent, act as a prudent administrator. May remove all improvements – if he does not after demand, lessor
may appropriate possession by sending notice via certified mail.
-Potestative Condition: a condition whose fulfillment is within a party’s power. Suspensive ones are null if they depend solely on
the obligor’s whim, and resolutory ones are null if not exercised in good faith.
-Resolutory condition: immediately enforceable, ends if the event occurs. Suspensive condition: not enforceable until the event
occurs.
-Joint obligation: no obligor is bound for the whole. Several obligation: each obligor owes a separate and complete performance;
same legal effect as obligations owed through different juridical acts. Solidary obligation: each obligor owes the whole
performance, and the obligee may demand the whole performance from any of the obligors.
-Conjunctive obligation: obligor is bound to render multiple performances, each is treated like a separate obligation (i.e. rent).
-Subrogation: substitution of one person to the rights of another. 1) Legal: a) obligee pays another obligee w/ superior rights; b)
purchaser of property uses the purchase money to pay a creditor w/ a real right to that property; c) obligor pays a debt he owes with
others which then gives him recourse against the co-obligors; d) successor pays an estate debt w/ his own funds; e) law provides for
it. 2) Conventional: arises by agreement with obligor or obligee. Is effective w/out the consent of the other party. Must be in writing.
If agreement is w/ obligor, must expressly state that the purpose of the loan is to repay the debt.
-Assumption: transfer of obligation to new obligor. If the assumption is between the obligee and a third party, it must be in writing
to be enforceable.
-Novation: extinction of an existing obligation and the simultaneous substitution of a new one. Intent to substitute must be clear and
unequivocal.
-Compensation: extinction of two obligations simultaneously because both obligor and obligee owe each other something.
-Revocatory action: allows an obligee to set aside the transaction of his obligor that causes or increases the insolvency. Obligee’s
right must have pre-dated the transaction that he seeks to set aside.
-Oblique action: obligee may assert a heritable right that the obligor failed to execise which caused or increased his insolvency,
unless that right is strictly personal to the obligor.
-Bilateral promise of sale: agreement where one party promises to sell and the other party promises to buy a thing at a later time.
Must meet the requirements of a sale.
-Commutative contract: performance of the obligation of each party is correlative to the performance of the other.
-Aleatory contract: either the performance or the extent of performance depends on an uncertain event (i.e. insurance, elderly care).
-Requirements of contract: Capacity, consent, lawful cause, lawful object. Sale to someone w/out capacity is a relative nullity, but
court must declare the sale null, and only the person without capacity may seek to nullify it. Contract with unemancipated minor
cannot be nullified if the person reasonably relied on the minor’s assertion of majority.
-Consent: offer and acceptance. Offer is irrevocable if the offeree is given a period of time to think it over, and will expire if not
accepted within that period. Acceptance for a revocable offer is effective upon transmission, and acceptance of an irrevocable offer
is effective when the offeree receives the acceptance. Can also be accepted by performance and by silence, but only if the silence
leads the offeror to reasonably believe that the offer has been accepted.
-Fraud: other party misrepresented, omitted, or suppressed the truth; the party’s intent in doing so was to obtain an unjust
advantage; and the fraud substantially influenced the deceived party’s consent to the contract (5 year PP, prove by preponderance).
-Duress: will vitiate a contract if the conduct was of such a nature as to cause a reasonable fear of unjust and considerable injury to
person, property, or reputation. Threat can concern a family member or third party. If the third party then performs, they must know
of the threat against them in order for duress to be valid.
-Error: unilateral error will vitiate a contract if 1) The party erred with regards to a cause without which the party would not have
obligated himself; and 2) The other party knew or should have known of the error.
-Damages for failure to perform a contract: damages for loss and EITHER dissolution or SP.
-Sale: agreement about a thing and a price. Sale is perfected when all the elements are met.
-Failure to pay price: if buyer fails to perform, seller may demand either SP or dissolution.
-Option: contract where one party gives the other party the right to accept an offer within a stipulated time. Must set forth the thing
and the price, and meet the form requirements of the sale it contemplates.
-Right of First Refusal: contract where S allows a particular potential B the first opportunity to accept/refuse an offer of sale. 10
days to accept for movables and 30 for immovables. If refused, ROFR will continue unless the property is sold w/in 6 months.
-Choice of law (contracts): parties may choose any law they want, except for matters of form and capacity.
-Contract to Sell: a promise by parties to enter into a sale at a later date. Earnest money is used in a contract to sell, which will
make both SP and recovery of damages for breach unavailable.
-Warranties implied in every LA sale: 1) Redhibition; 2) Fitness; 3) Eviction.
-Warranty against Redhibition: A hidden defect that was present at the time of sale that makes the thing absolutely worthless or
so inconvenient that B would not have purchased it if he’d known of the problem, or would have bought it, but for a lesser price.
May be waived but only in clear and unambiguous terms brought to B’s attention. Waiver is also ineffective against a seller who
states that the property has a quality it does not actually have. For good faith seller (did not know of defect), the PP is one year from
delivery. For bad faith seller, the PP is one year from discovery. Seller’s attempt to repair the problem will interrupt prescription.
-Warranty of fitness for ordinary use: PP of 10 years.
-Warranty against eviction: includes physical eviction and nonapparent conventional servitudes. Warranty can be excluded by the
act of sale or waived, but the waiver/exclusion will not apply if the buyer was unaware of the danger of eviction (this is called a sale
without warranty). A sale at the buyer’s peril is a sale without warranty with one of the following: 1) buyer was aware of the risk
of eviction at the time of the sale; 2) buyer declared that he was buying the property at his peril and risk, regardless of his
knowledge of danger of eviction; 3) seller’s obligation of restoring the price was expressly excluded. In this case, buyer will get
nothing.
-Lesion: sale where seller is paid less than half of FMV can be rescinded, but only applies to sale of immovables. One-year PP.
-Quitclaim deed: seller will owe nothing if buyer is evicted.
-Contract to build: special contract where no special sales remedies (warranties) apply. Rather, it is judged by the breach of
workmanlike performance. Elements: 1) B retains control over the specifications of the object; 2) Negotiations take place before the
object is constructed; 3) contract contemplates that one party will supply the materials and also furnish skill and labor to build the
thing.
-Deposit: contract where the depositor delivers a movable to the depositary and leaves it with him for a time. Depositary is bound to
return the precise thing back at the end of the term. Can be gratuitous or onerous.
-Loan for use: gratuitous contract where lender delivers a nonconsumable thing to the borrower, who must return it when he’s done
using it.
-Loan for consumption: contract where the lender delivers fungible and consumable things to the borrower, who is permitted to
return them and replace them w/ things of the same kind and quality.
LA CIV PRO MUST KNOW
-Article 42 Venue:
1) Individual domiciled in LA  parish of domicile.
2) Domestic corporation  parish of registered office.
3) Foreign corporation licensed to do business in LA  parish of primary business office or primary place of business
4) Foreign corporation not licensed to do business in LA  parish of plaintiff’s domicile or where service is made
5) Partnership or unincorporated association  parish of principal business establishment.
-Venue for tort suits:
1) Parish where damages sustained
2) Parish where wrongful conduct occurred
3) Parish where D is domiciled
4) Parish where wrongful conduct occurred or may occur (suit for injunction)
-Venue for action on a contract
1) Parish where contract executed
2) Parish where contract was signed by any party
3) Parish where the work was performed or was to be performed
-Objections to venue: are waived if not raised prior to making a general appearance or confirmation of a default.
-Forum non conveniens: motion to transfer the suit from a parish of proper venue to a different parish of proper venue for the
convenience of the parties/witnesses and in the interests of justice. Exception: if suit was properly filed in the parish of pl’s
domicile.
-Change of venue because impartial trial cannot be held: transferred to a parish where no party is domiciled.
-Petition form requirements:
1) Caption
2) Set forth concise allegations in numbered paragraphs
3) Be signed by attorney of record (or by the pl. himself if he’s unrepresented)
4) State name and domicile of all parties
5) Designate an address for receipt of service
6) Set forth cause of action and facts
7) End with a prayer for relief
-Attorney’s signature:
1) Signifies that he has read it
2) That it is true
3) That to the best of his knowledge, it is not being used for any improper purpose
4) It is warranted by existing law or a reasonable argument for the reversal/modification/extension of existing law
5) It is likely to have evidentiary support
6) Each denial is warranted by the evidence or reasonably based on lack of information or belief.
-Must request service for all Ds: within 90 days of filing the petition.
-How to serve D:
1) Individual: personal (by sheriff or court-appointed person if sheriff fails after 10 days of trying) or domiciliary (leave
with a person of suitable age/discretion who resides in D’s dwelling or usual place of abode.
2) Long-arm: mail petition and citation by certified mail or actual delivery to D via common carrier.
3) Corporation: on registered agent. If none, to any officer, director, or employee of suitable age and discretion where the
corporation regularly conducts business. Failing that, on the Secretary of State, after certifying that diligent effort was
made to serve D.
4) Non-party physician: personal service on any clerical employee of the doctor.
-Entering a default judgment: 15 (regular service) or 30 (long-arm) days after filing if D fails to respond.
-Exceptions:
1) Declinatory: decline court’s jurisdiction (insufficiency of citation, lis pendens, insufficiency of service of process,
improper venue, lack of SMJ or PJ).
2) Dilatory: delay the progress of the action (prematurity, unauthorized use of summary proceeding, vagueness or
ambiguity in petition, improper cumulation, discussion).
3) Peremptory: dismiss or defeat the proceeding (prescription, res judicata, preemption, non-joinder of party, no cause of
action, no right of action, no interest by pl. to institute suit, discharge in bankruptcy). Dilatory and declinatory are waived if
not pleaded in answer. If exception sustained, pl. will have 15 days to cure.
-Affirmative defenses: are waived if not asserted in the answer, but the court may sometimes allow them if they are brought in a
reconventional demand and allowing them will not prejudice pl.
-Lis Pendens: if suits are pending in more than one court based on STO with same parties in same capacities  all buy first one
filed must be dismissed
-Res Judicata: a party shall assert all claims arising out of the same transaction or occurrence that is the subject matter of the
litigation or they will be waived. Exception: spousal and child support.
-Incidental demands: must have proper venue. Dismissing primary demand will not result in dismissal of the incidental demand.
1) Reconventional demand: brought by D against pl. who is suing him. Does not need to be related to main claim.
2) Cross-claim: brought against co-party, must arise from same transaction or occurrence.
 3) Intervention: by third party D or pl. Must arise out of same transaction or occurrence.
4) Third-party demand: for indemnity or contribution
-Abandonment: 3 years w/out either party taking any steps. Pl. will not have to take any affirmative steps to get the case dismissed,
but may file an ex parte motion.
-Personal Jurisdiction: for court to have jurisdiction over a party, requires:
1) Presence within state (service of process on D/his agent or express waiver of service)
2) Domicile within state
3) Consent to jurisdiction (by commencing an action or by not timely objecting to jurisdiction)
4) Appointment (if court has jurisdiction and D is a non-resident or absentee not served with process or a minor or
incompetent w/ no representative, the court may appoint an attorney to represent D)
5) Long Arm statute
-Long arm statute jurisdiction:
1) Specific: non-resident’s acts as to the cause of action give the state jurisdiction
a) Arising from, transacting business within LA, providing services or supplying goods to LA
b) Injury/damage caused by act or omission in LA
c) Injury/damage caused by act/omission elsewhere when D regularly does business or derives substantial revenue
from LA
d) D owns immovable property in LA
e) Manufacturing a device that could foreseeably make its way to LA through commerce
2) General: D has such minimum contacts w/ LA that maintaining an action against him will not offend traditional notions
of fair play and substantial justice.
-Priority of trials: parties over 70 or those w/ medical documentation saying they won’t survive past 6 months.
-Motion to test the qualifications or reliability of the methodology of an expert witness:
1) Any party may file this up to 60 days before trial.
2) Court has until 30 days before trial to rule, and ruling must set forth findings of fact, conclusions of law, and reasons for
the ruling.
3) If the parties want the hearing to be closer to the trial, they may agree and get court approval to have it heard later.
-Scope of discovery: any matter that is not privileged which is relevant to the subject matter of the pending action, either admissible
at trial or reasonably calculated to lead to the discovery of admissible evidence  excluded: 1) documents prepared by attorneys or
2) documents prepared in anticipation of litigation.
-Objections to a deposition: must be stated concisely, non-argumentatively, and non-suggestively. Otherwise the court can
terminate the depo or limit its use.
-Letters Rogatory: must apply for and send these to take a deposition in another state. Must give all parties reasonable notice in
writing stating the time/place and the names and addresses of deponents.
-Interrogatories: Written questions directed to a party. Limit of 35. May either answer it directly or may specify where in a
document the answer can be found and produce the document instead.
-Subpoena of witness: a witness who lives or works in LA may be summoned by subpoena to attend a trial or hearing anywhere in
the state. If the courthouse is outside the parish and more than 25 miles from the witness’s residence/workplace, the party must pay
transportation costs (20 cents/mile, $25/day, $5/day for hotel and meals).
-Request for admission: may be served on party. If no answer made w/in 15 days, the fact is considered conclusively proven or the
document is considered genuine. If answer is insufficient, move to determine sufficiency.
-Request for production of documents: documents may either be organized to correspond to the requests or organized as they are
kept in the usual course of business.
-Consolidation and separation of actions:
1) Cases may be consolidated if there are common issues of law and fact, after a contradictory hearing. File motion to
consolidate in the court where the first lawsuit was filed. If trial is already set for one case, must need written consent of all
divisions where cases are pending.
2) Cases will not be consolidated if it would confuse the jury, prejudice a party, give one party an undue advantage, or
prevent a fair trial.
3) Separate trials on damages and liability are permitted.
-Formal exception: how to preserve the matter for appeal. Must object and proffer the evidence.
-Motion for SJ: claim that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. Pl.
may file after D files answer, D may file at any time. Burden of proof on mover (if mover would not have burden at trial, he just
needs to negate one essential element). Supported by affidavits, which require 1) Personal knowledge; 2) of a competent affiant and
3) facts that would be admissible at trial.
-Motion for Judgment on the Pleadings: Court will look only at the pleadings and consider all of the opposition’s allegations and
all of the mover’s undenied allegations to be true.
-Motion for Judgment Notwithstanding the Verdict: must be made within 7 days of mailing of notice of signing of judgment or
within 7 days of jury discharge. After considering all the evidence in the light most favorable to the non-moving party, if the facts
and inferences are so strongly in favor of the moving party that reasonable persons court not reach a contrary result, the court will
grant the motion.
-Motion for new trial: must be made within 7 days of mailing of notice of signing of judgment or within 7 days of jury discharge..
Trial judge is free to evaluate the evidence as he sees fit and not give any special consideration/inferences to either party. Grounds
are:
1) Verdict clearly contrary to law and evidence
2) Discovery of new evidence that could not have been discovered prior to or during trial with due diligence
3) Juror was bribed or compromised
-Motion for Remitur/Additur: with the consent of the other party, the judge can reform the jury’s verdict to change the award if
the issue of quantum is separate from other issues in the case  alternative to granting a new trial.
-Motion for DV: made by motion at the close of the other side’s case. Judge will grant it if the facts and inferences are so
overwhelmingly in favor of the moving party that no reasonable jury could reach a contrary verdict.
-Motion for Judgment on Offer of Judgment: written offer to settle the case w/out admitting liability; must be made 30 days
before trial. If the party refuses it and receives 25% less that what was offered, he must pay D’s costs from the time of the offer
(excludes attorney’s fees).
-Interlocutory judgment: one that does not determine the merits. Appeal may only be taken if irreparable injury could result in
granting the judgment. Otherwise, seek supervisory writs.
-Declaratory judgment: used to determine rights before a contract has already been breached or whatever other action a person is
thinking of taking. Will have the same force and effect as a final judgment. Court may order any relief it deems appropriate.
-Suspensive appeal: will suspend the judgment while pending; must be taken w/in 30 days of the time for filing a motion for new
trial or JNOV has elapsed or of the denial of a timely motion for new trial or JNOV. Court may require the appellant to post security
and may test its solvency while the appeal is pending (if inadequate, 4 days to cure).
-Devolutive appeal will not suspend the judgment; must be taken w/in 60 days of the time for filing a motion for new trial or JNOV
has elapsed or of the denial of a timely motion for new trial or JNOV.
-Trial court’s powers while appeal is pending:
1) Test solvency of appeal bond
2) Taxations of fees and costs
3) Correct misstatements in the record
4) Give effect to its judgment (devolutive appeal only)
-Execution of Money Judgment:
1) Wait until tolling of time to take suspensive appeal.
2) File for and receive a writ of fieri facias, which directs sheriff to seize and sell D’s property.
3) Sheriff may seize property w/in one year.
4) Serve written notice to debtor and occupants by personal or domiciliary service.
5) File notice of seizure w/ recorder of mortgages, send Mennonite to anyone who has requested one, and file affidavit w/
clerk saying who got notice.
6) Property sold at public auction.
-Garnishment:
1) File for and obtain writ of fifa.
2) File petition and interrogatories of garnishment.
3) Serve everything on garnishee  15 days to answer, if they do not answer it is a prima facie admission that they have
the property.
4) When garnishee admits or doesn’t answer, the court will order them to pay the sheriff the money or give the sheriff the
property (if it’s wages = first 75% are exempt).
-Reviving a money judgment: must be revived before 10 year PP elapses. File a notice of revival in the court where it was
rendered and attach an affidavit that the original money judgment was never satisfied.
-Judgment Debtor Rule:
1) Unpaid creditor may file a motion to examine the debtor (including his books and records) in the court that rendered the
judgment or the court of his domicile (if different).
2) Court will order judgment debtor to appear with his records no less than 5 days from the date of service, and he will be
questioned under oath.
3) Unless the court finds the exam unnecessary, the debtor will pay the costs.
-Writ of Distringas: if sheriff cannot seize the thing because D concealed/removed it or refuses to comply, a writ of distringas is
used to either detain the property, hold D in contempt, or award damages.
-Sequestration: obtained if Pl. has an interest in property and its within D’s power to remove, waste, conceal, or dispose of it  pl.
who then prevails will acquire a security interest in the property.
-Injunctions:
1) TRO: may be granted ex parte, will last 10 days, pl. must show that there is imminent danger of irreparable injury, harm,
or damage that cannot be compensated w/ money, D may file notice to dissolve after giving pl. 2 days notice and court will
hear the motion as expeditiously as justice may require, court may require pl. to furnish security.
2) Preliminary: requires 2-10 days notice, and a hearing. D may appeal w/in 15 days.
3) Final injunction: granted after trial on the merits, normal appeal rules apply.
-Real Actions:
1) Petitory: pl is not in possession and D is in possession or is asserting possession, pl. seeks judgment that he is the owner
of the property.
 2) Possessory: pl. is in possession, pl. and ancestors in title had quiet, uninterrupted possession for more than a year
immediate prior to the disturbance (unless evicted by force or fraud), the disturbance is in fact or in law, and the action was
instituted with in a year of disturbance. Cannot cumulate these two actions, 30 days to appeal.
-Motion for Involuntary dismissal: After pl. has presented evidence in a non-jury trial, D may move for this on the grounds that
based on the facts and law, pl. has shown no grounds for relief. Judge must evaluate the evidence in a neutral manner without
applying any special inferences in favor of pl. and determine if D proved his case by a preponderance.
-Detailed descriptive list of succession assets:
1) Sworn & subscribed by the person that files it
2) Location of each piece of property
3) FMV of each piece of property at time of D’s death.
-Testate succession and probate procedure:
1) Anyone with interest in will can file a petition for probate  attach affidavit of death/domicile/heirship
2) If will cannot be found, file petition to look for it.
3) Prove will (olographic: 2 credible Ws ID handwriting, notarial: self-proving if in valid form)
4) If will is challenged: contradictory HG; burden is on opponent by clear and convincing evidence.
-Possession without administration
1) Prove will
2) File petition and affidavit of DDH
3) Prepare inventory or descriptive list of assets
4) Judgment of possession may be granted ex parte
5) Surviving spouse, if there is one, must join in the proceedings
6) Creditors will have 3 months from date of judgment to object
-Interim allowance while succession is pending: will be allowed if the succession is sufficiently solvent and if the court
determines that the advance is within the limits of the inheritance eventually due to the heir. Heir may compel the payment by filing
a contradictory motion against the succession representative.
-Challenge for cause of a juror: have formed an opinion about the case or otherwise cannot be impartial.
-Article 102 Divorce:
1) File a petition alleging jurisdiction and venue
2) Request service within 90 days of filing
3) File Rule to Show Cause, which alleges that the requisite time period has passed, that the parties have continued to live
separate and apart, and that the petition was served on D. Serve RTSC on D or his attorney unless he has waived service.
4) File another affidavit alleging that the parties have continued to live separate and apart and wish to be divorced.
-Article 103(1) Divorce
1) Parties live separate and apart for 180/365 days
2) D is served. He can acknowledge receipt, waive citation, have trial by notarized affidavit, and have judgment taken
against him the very same day.
-Divorce appeal: 30 day suspensive appeal
-Interdiction proceedings
1) File petition: name of interdict; name and address of parents/spouse/siblings/children of interdict; grounds for and extent
of interdiction; name of proposed curator and why he should be appointed.
2) Serve petition by personal service to D and by certified mail to everyone else.
3) If no appearance by D, appoint attorney
4) Appoint examiner  must submit report 7 days prior to HG
5) Hearing (summary process)  may only be out of D’s presence if good cause is shown
6) Burden of proof on petitioner by clear and convicing evidence
7) Judgment of interdiction will appoint curator and undercurator
-Interdict’s attorney: must represent the interdict until discharged by the court, must visit the interdict and discuss the case with
him. Discussion must include a discussion of the facts, law, rights and opinions of interdict.
-Petition for judicial emancipation: may be filed by either party (service required) or jointly (service not required).
1) Minor’s name, age, current address
2) Why good cause exists for the emancipation
3) Whether they are asking for a full or limited emancipation (if limited, what effects of majority are sought)
4) Detailed descriptive list of the minor’s property.
-Hearing for judicial emancipation: summary proceeding, minor must be present unless good cause is shown. If the petition is
joint, may be granted w/out hearing, with the consent of the parent, the minor, and the court.
-Ways to get the judgment of a foreign court recognized in LA: proper venue is the parish of D’s domicile.
1) Institute an ordinary proceeding to have the judgment recognized and made the judgment of an LA court
2) Enforcement of foreign judgment act: Annex the foreign judgment to an ex parte petition and file an affidavit with the
last known address of the defendant. Clerk of court sends notice to the defendant. Judgment may be executed 30 days after
the mailing of the notice.
-Eviction
1) Give written notice to vacate within 5 days of delivery of the notice  if lessee’s whereabouts unknown, attach notice to
the front door of the premises.
 2) Lessor can take possession immediately upon reasonable belief that the premises are abandoned.
3) If lessee fails to vacate, serve RTSC on premises.
4) RTSC heard no earlier than 3 days after service
5) If lessee fails to vacate w/in 24 hours of judgment, court will issue a warrant directing sheriff to take possession.
6) No suspensive appeal unless lessee posts bond w/in 24 hours of judgment.
-In Forma Pauperis: for party who cannot pay court costs because of poverty.
1) Request by ex parte motion at first hearing
2) File affidavit of litigant and third party attesting to poverty
3) Opposing party may traverse
TORTS MUST KNOW
-Prescription: One year from the date of the injury or the end of the continuous conduct.
-Conflict of laws: general rule = serious impairment test. Which state’s policies would be more seriously impaired if their laws
were not applied? Consider the relationships of the states to the parties and the injury.
-Intent: purpose (desire) or substantial certainty that the conduct will occur.
-Assault:
1) Intentionally
2) Creating
3) Reasonable apprehension of an immediate battery.
-Battery:
1) Intentional contact
2) To pl. or something closely connected to pl’s person
3) That is harmful or offensive to a person of ordinary sensibilities.
-IIED:
1) Specific intent
2) Extreme and outrageous behavior (beyond the toleration of reasonable members of society)
3) Causation
4) Severe emotional distress to pl.
-Defamation: Truth is an absolute defense. For a public official or figure, they will have to prove actual malice on D’s part. For a
private figure, must prove negligence and damage by a preponderance (private matter) or C&C evidence (public concern).
1) False and defamatory statement concerning another
2) Unprivileged publication to a third party
3) Fault (negligence or greater on the part of the publisher),
4) Resulting injury to pl.
-Defenses to intentional torts: consent, self-defense and defense of others (must be reasonable under the circumstances), defense of
property and recapture of chattel (must be reasonable under the circumstances).
-Negligence:
1) Causation (but-for or substantial factor)
2) Duty/risk (traditional duty, scope of the duty and scope of the risk)
3) Breach of the duty (D created an unreasonable risk of harm b/c his conduct fell below the objective standard of
reasonable conduct as defined by the duty)
4) Injury (compensable injury to pl).
-Traditional Duty: the standard of care applicable to D. D must act as a reasonable person would act under like circumstances.
Other tests:
1) Hand formula = B vs PL (risk/utility balancing  burden of precaution vs expected loss)
2) Negligence per se (violation of statute)
3) Custom (strong if pl. brings it up, weak if D uses it as a defense)
4) Res ipsa loquitur.
-Scope of Duty/Scope of Risk: whether the injury is a reasonable foreseeable result of the negligent conduct. Foreseeable
risk/foreseeable plaintiff, ease of association, superceding/intervening causes, Pitre policy considerations: need for compensation of
losses, deterrence, moral aspect of D’s conduct, precedent, capacity to bear and distribute losses, efficient administration of laws.
-Premises Liability: Applies to merchants, i.e. anyone who sells goods at a fixed place of business.
1) Condition created an unreasonable risk of harm (balance expected loss with the benefit that comes from the condition);
2) harm was reasonably foreseeable;
3) the merchant created or had actual/constructive knowledge of the condition;
4) merchant failed to exercise reasonable care in taking care of the condition.
-NIED:
1) Pl. views accident or comes upon it shortly thereafter;
2) direct V suffers such harm that pl’s distress is reasonably foreseeable;
3) pl. suffers severe and debilitating emotional distress;
4) the severe and debilitating emotional distress is caused by viewing the scene;
5) pl. is a permissible claimant = spouse, child, grandparent, grandchild, parent, sibling.
-Parents’ responsibility for children: parents are responsible for the torts of minor child who resides with them or has been placed
under their care. Exception: emancipation. Parents with joint custody will both be responsible, because child “resides” with both of
them. Doesn’t matter if the child has run away from home.
-Negligent supervision: same as regular negligence test.
-Med mal: two scenarios:
1. Medical negligence: causation, duty (standard of care = judged by custom  health care professional must exercise the
same degree of skill and care as other licensed health care professionals in good standing in the same locality; or same type
of specialist); scope of the duty; breach; injury.
2. Failure to obtain informed consent: health care professional has a duty to disclose all material risks.
-Coleman med mal factors:
1) Was the wrong treatment related or caused by a dereliction of processional skill?
 2) Did the wrong require expert medical evidence to determine breach
3) Did the wrong require an assessment of the patient’s condition
4) Was there a doctor-patient relationship
5) Would the injury have occurred if pl. had not been receiving treatment
6) Was it an intentional tort?
-QHCP: over $100,000 of med mal insurance. Need to submit claim to a medical review panel before you can sue. Recovery
capped at $500,000 and unlimited future medical expenses (this is true regardless of the number of defendants). The doctor or
hospital’s insurance will cover the first $100,000 and the remainder is paid by the Patient Compensation Fund.
-Strict liability for buildings: owner is answerable for damage caused by its ruin, vice, or defect if it created an unreasonable risk
of harm, he knew or should have known of the ruin/vice/defect, the damage could have been prevented by the exercise of reasonable
care, and he failed to exercise such reasonable care.
-Garde: We are also responsible for damages caused by the conduct of people for whom we are responsible or by the things in our
custody.
-Products liability: exclusive remedy against manufacturers for PI actions.
1) D must be a manufacturer
2) The damage must be proximately caused by a characteristic (construction/composition, design, failure to warn, breach of
express warranty) of the product that made it unreasonably dangerous
3) The damage arose from a reasonable anticipated use of the product. This can include a misuse, as long as its reasonably
anticipated
-Characteristics of a product that make it unreasonably dangerous
1. Construction/composition: defect exists at the time the product left M’s control, product contained material deviation
from identical products that cause the harm. No knowledge of defect required.
2. Design defect: defect exists at the time the product left M’s control or results from reasonably anticipated modification,
alternative design existed that would have prevented pl’s injuries, balancing test favors pl. State-of-the-art defense.
3. Failure to warn: defect exists at the time the product left M’s control or results from reasonably anticipated
modification, balancing test (likelihood and gravity of danger vs. feasibility and effectiveness of warning) favors pl.
Continuing duty to warn if defect is later discovered. No duty to warn of obvious dangers or dangers pl. already knew
about. Defenses: M had no actual/constructive knowledge of the risk, seller did not pass on the warning, very minimal risk.
4. Breach of express warranty: defect exists at the time the product left M’s control or results from reasonably anticipated
modification, manufacturer made an express warranty (can be oral) to which the product did not conform, pl. was induced
to use the product b/c of the warranty, the warranty was untrue, and the falsity of the warranty was the proximate cause of
pl’s injuries.
-Vicarious liability of employer:
1) Employment relationship
2) Act was within course and scope of employment (wages, control over work and work method, employee’s duty to
perform the act, employer’s reasonable expectation that employee will perform the act, time/place/purpose, benefits
received by employer, relationship between the act and the business  exception = frolic and detour)
3) Underlying fault of employee. Also talk about at negligent hiring.
-Dual Employment doctrine: for vicarious liability purposes, an employee can have two employers (this is common in
subcontractor arrangements). The inquiry is whether the employer has enough control over the employee’s day-to-day activities to
be considered an employer.
-Public Duty Doctrine:
1) Custody/ownership of the thing by the public entity
2) Defect created an unreasonable risk of harm
3) Public entity had actual/constructive knowledge of the defect
4) Public entity failed to take action with a reasonable time
5) The defect caused pl’s injury.
-Worker’s Compensation Act: Exclusive remedy for an employee against his employer or co-employee. Employee will get to
recover under the statute and employer/coworker will be immune from civil tort lawsuits, except for intentional acts, horseplay, and
personal disputes unrelated to employment. Elements:
1) Employment relationship
2) The injury arises out of and is in the course of employment  character/origin, time/place
3) Compensable injury or occupational disease to pl.
-Maximizing recovery (by employee) against employer: try to get out of worker’s compensation and recover under an intentional
tort. If an employee commits an intentional tort  can recover both against them and against the employer through vicarious
liability.
-Types of Damages:
1) Compensatory (special = calculated, general = speculative, hedonic)
2) Punitive (DWI, child porn, sex abuse of minor)
3) Property damage
4) Loss of consortium (highest class can recover  spouse and children, parents, siblings, grandparents) – companionship,
services, financial support, sex
5) Nominal damages (for intentional torts).
-Wrongful death and survival: Analyze both using the underlying tort.
1. Wrongful death: action brought by beneficiaries in their own right, to recover for damages they have suffered because
of the victim’s death. Damages include damages for loss of love, support, companionship, services, financial support,
sexual relations, etc.
2. Survival: action brought on behalf of the deceased plaintiff, for any damages he/she would be entitled to if he was alive.
Includes damages for any injuries the plaintiff sustained before his death (this might only be a few minutes).
3. Beneficiaries will split survival damages equally, while wrongful death damages will be divided in property to the harm
each beneficiary suffered (highest class can recover  spouse and children, parents, siblings, grandparents). Loss of
consortium damages are wrongful death damages
-Comparative fault: Louisiana utilizes a pure comparative fault system where each party is responsible only for their allotted share.
Fault will be allotted to all actors, which includes absent and immune parties, such as the dead victim.
-Watson comparative fault factors:
1) whether the conduct was inadvertent or involved an awareness of the risk;
2) the utility of the conduct;
3) how great was the risk the conduct created;
4) capacities of the actors;
5) extenuating circumstances that might have required the actor to proceed without proper due care;
6) relationship between the fault/negligence and the harm to pl.
BE&NI MUST KNOW

PARTNERSHIP
-Formation of partnership: Can be oral. Partners are jointly liable for debts.
1) Consent and intent,
2) Contribution of something of economic value (no restriction on what it is, includes promises)
3) Sharing of risk by all Ps.
-Written agreement required: If written, agreement must state name/address of partnership and name/address of each P.
1) If it’s an LP
2) If the partnership owns immovable property
3) To affect the rights of third parties.
-Partnership management: unless otherwise agreed, need unanimity to:
1) Amend the agreement
2) Admit new partners
3) Terminate the partnership.
-Fiduciary duty: Partners have fiduciary duty of loyalty but not one of care.
-Partner as mandatary: extends to all matters in the ordinary course of business, but not to LAE of immovables.
-Expulsion of partner: may be done by a majority vote of the partners (partner who is up for expulsion may vote) for just cause.
-Withdrawal from partnership:
1) If for term, P may only withdraw with consent of all Ps or for just cause (another partner fails to perform a material
obligation).
2) If no term, P may with draw at any time not unfavorable to the partnership after giving notice.
-Assignment of partnership interest: is permitted, but it will not make the third party a partner. For this, the consent of all the
partners is needed.
-Limited (Commandem) Partnership: limited partners are only liable to the extent of their contribution. LPs will not have
authority to bind the partnership, but may be liable as a GP if they permit their name to be used in the partnership’s business
dealings, if they participate in management/administration, or if they conduct business w/ 3rd parties on behalf of the partnership.
-LP Partnership Agreement: must be in writing and state
1) the name of the partnership
2) that the partnership is an LP
3) which Ps are LPs
4) their contribution.
-RLLP: Ps will not personally be liable for negligence, fault, malfeasance of other Ps. Converted from previous partnership. Must
file application with SoS: name of partnership, address of principal office, number of partners, and brief statement of business. Must
be signed by a majority of interest of Ps and a $100 registration fee must be paid  effective for one year. Professional RLLPs
allowed.

CORPORATION
-Formation of corporation:
1. Articles of incorporation must be in English and signed by each incorporator or their agent. Must file articles w/ SoS
within 30 days of incorporation. Must include:
1) name of corporation
2) corporate purpose
3) aggregate number of shares that the corporation is authorized to issue and their par value (or a statement that
they are no par)  if there are multiple classes of shares, must include number in each class, whether they are par
or no par, and preferences, rights, and limitations of each class
4) duration of corporation (if other than perpetual)
5) full name and address of each incorporator.
2. Initial report:
1) signed by each incorporator or agent
2) location and muni street address of corporation’s registered office
3) full name and muni address of each registered agent
4) name and muni address of each director, if they have been selected.
-Permitted consideration for a corp: cash, services already rendered, property.
-Veil piercing: if allowing the SHs to not be liable would cause injustice or reward fraud.
-Dividends: dividends are paid out by the Board. Cannot pay dividends if the corp. is or would be made insolvent. D who votes for
the payment of illegal dividends will be liable, and he can then seek indemnification from any SH who received the dividend,
regardless of knowledge.
-Right of Redemption: corp. exercises unilateral right stated on stock certificate to buy back shares from SH  cannot refuse if
proper value offered.
-Employees and officers: can bind the corporation. Must have a president, secretary, and treasurer, and two of the three positions
may be held by the same person
-No requirement that shareholders be officers or directors, but it’s possible for them to be.
-BOD: manage the business affairs of the corporation (at directors’ meetings, each director has one vote). Subject to Business
Judgment Rule. Cannot amend the articles, liquidate, dissolve the corp, or merge with anther entity (unless its more than 90%
owned by the first corp)  SHs do all of these things.
-Fiduciary duty of directors: 1) Duty of reasonable care (one year PP); 2) Duty of loyalty (two year PP). Must also act in the best
interests of the corporation. Action where there is a conflict of duty of loyalty is presumed to be tainted, unless full disclosure was
made and interested D’s vote did not count toward its passage, full disclosure was made to SHs who later ratified the action, or a
court determines it’s fair.
-Dismissal of a director: D can only be dismissed at a special meeting of BOD or SHs called for that purpose. Board action can
only take place at meetings that have quorum at the beginning of the meeting.
-Business Judgment rule: whether or not the decisions made by a director(s) on behalf of the corporation was in their business
judgment. Directors will only be held liable for decisions that constitute gross negligence.
-Shareholders: Need majority of votes to act. Exceptions  amend articles (2/3 vote), sell corporate assets (2/3 vote), merge (2/3
vote).
-Voting trust: ownership of shares is placed into a trust and the trustee holds all rights to the shares (voting them, etc). Legal and
beneficial ownership of the shares is thus separated. Valid for up to 15 years.
-Shareholder derivative action: Any shareholder who owned at least one share of stock at the time a liability to the corporation
arose (or acquired the share since by will, inheritance, or operation of law) and still owns the share (or has a beneficial interest in the
share) at the time the lawsuit is filed, may be the plaintiff in filing a shareholder derivative action against any person against whom
the corporation has a legitimate cause of action, provided the corporation is unwilling to bring the suit itself. Before the suit may be
filed, the shareholder must make a demand of the corporation to bring the suit itself.
-Dissolution of corporation: need majority of the shareholder voting power and must be initially proposed at annual or special SH
meeting called for that purpose (any SH with 20% of the voting power may call for a meeting). Two types of dissolution: 1)
voluntary; and 2) judicial.
-To elect directors: either straight voting (vote seat by seat) or cumulative voting (vote for all seats on one ballot, each shareholder
has as many votes as he has shares and may vote them all for one candidate or distribute them as he wishes). Straight voting is the
default and cumulative voting must be expressly stated in the articles of incorporation.
-Inspection of records by SH: With at least 5 days written notice, for a proper reason, own at least 5/25% of outstanding shares for
at least 6 months. Can inspect books and accounts showing the amount of assets & liabilities, receipts & disbursements, and gains &
losses; records of proceedings of SHs, directors, and committees of the board.
-Peremptive rights of SH: right to purchase the same percentage of newly issued stock as the SH currently holds of the total
outstanding shares  this right must be expressly stated in the articles.
-Three SH rights that must be expressly stated in articles:
1) Preemptive
2) Cumulative voting;
3) Right of corp. to retain dividends unclaimed by SH (otherwise, the state gets them).
-Other rights (like right of first refusal or rules governing the approval of new shareholders, may either be in the articles or in the
by-laws).
-Stock: all stock must be represented by a certificate, unless the corporation is a participant in either the Direct Registration System
or its successor, the Depositary Trust & Clearing Corporation. This allows the stock to be registered online and certificates to be
issued electronically. . If the certificate is kept online, the corporation must issue a statement with the information below and any
restrictions of transferability of the stock. Stock certificate must state
1) Name of the issuing corporation
2) That the corporation is organized in Louisiana
3) Name of the person to whom the stock is issued
4) Number and class an series of shares;
5) Rights, preferences, and limitations of the class and series of shares, if the corporation has multiple classes of shares

LLC
-Formation of LLC: File articles of organization (in English, signed by at least one person, must state name, purpose, and whether
or not its an L3C) and initial report (signed by each person or agent who signed articles, must state name, location, muni address of
the LLC, each registered agent, and persons vested w/ power to manage the LLC).
-Attributes of LLC: no liability for debts by managers or owners. No restrictions on contributions (includes promises to perform
services). Can have any lawful purpose except insurance underwriting. All profits are shared equally unless a written operating
agreement provides otherwise  oral agreement is not enforceable
-Member-managed vs manager managed LLC: Member-managed LLC is directly managed by all members (unless the articles
or operating agreement limit the powers of some), meaning that anytime a new member is added, they will have management
powers. A member-managed LLC means that all members are mandataries of the LLC for all matters in the ordinary course of
business (excludes LAE of immovables) and each member receives one vote. A manager-managed LLC (this must be expressly
stated in the articles) is managed by an elected group of managers, meaning that admitting a member does not necessarily mean they
will have management authority. Managers do not need to be members, and if a majority of the members want to elect a non-
member to manage the LLC, they can do so without amending the articles. A manager-managed LLC is thus more flexible.
-Fiduciary duty of those with management authority: care and loyalty. Have the duty to act with good faith, diligence, care,
judgment, and skill that an ordinarily prudent person in a like position would exercise. Regular members of an LLC, when acting as
members, have no legal duty to other members or the LLC itself.
-LLC unanimity of members required for:
1) Admission of new members
2) Compromise of a member’s contribution obligation.
-LLC majority vote of members required for (even if the LLC is manager-managed):
1) Amendment to articles or operating agreement
2) Merger
3) Dissolution
4) Disposal or encumbrance of all or substantially all assets
5) Consolidation
6) LAE of immovables
7) Incurrence of debt other than in the ordinary course of business.
-Collecting on a promise to contribute: creditors of the LLC may seek to enforce a member’s promise to contribute (if they cannot
recover the funds from the LLC itself) provided that the promise is in writing.
-Conflict of interest transactions: not void or voidable solely because an interested manager/member voted, as long as the interest
was disclosed to the other voters and a disinterested majority approved the transaction, or the transaction was fair to the LLC at the
time it was approved (determined by court).
-Assignment of membership interest: only entitles the assignee to receive the distribution the assignor would have received. Does
not make them a member or a manager without unanimous consent of other members. Heir of a deceased member is treated as an
assignee of that member’s interest, but does not automatically become a member; needs unanimous consent of all other members. If
they do not consent w/in a reasonable time, the heir will be entitled to be paid the fair market value of the decedent’s interest at the
time of their death.
-Withdrawal from LLC:
1) If for term, member may only withdraw with consent of other members or for just cause (another member fails to
perform a material obligation).
2) If no term, member may withdraw at any time upon giving 30 days written notice.
3) Member who withdraws is entitled to continue receiving his share of the profits until the LLC pays their fair market
value of their membership interest (determined at the time of withdrawal), which must be done w/in a reasonable time.
-Reimbursement for litigation costs: there is no provision in the statutes governing LLCs that requires this, but mandate law might
 if the suit that the LLC member is defending arose out of their actions as a mandatary on behalf of the LLC.

NEGOTIABLE INSTRUMENTS
-Commercial paper: piece of paper that directs the transfer of money from one person to another. Either an order (check/draft) or
promise (promissory note)
-Negotiable Instrument:
1) Written and signed promise or order to pay
2) A fixed amount
3) Of money
4) Unconditional (no other terms in a referenced document, but unstated terms between the parties may be valid)
5) Either “to bearer” (any possessor, blank payee line, pay “to cash”) or “to the order of [a specified person]“ (pay “to the
order of” an identified person)
6) No extraneous undertakings
7) Has a definite time for payment (if none, assumed to be payable upon demand).
-Issuance: when the drawer of a check or maker of a note turns it over for the first time.
-Negotiation: This will make the person who now has possession a Holder.
1) For bearer paper, transferring possession.
2) For order paper, transferring possession and indorsing it.
-Liability:
1) Maker is primarily liable, but can assert defenses such as failure to deliver services, failure of consideration, fraud,
payment to earlier holder.
2) Indorser is secondarily liable if the maker’s or drawee’s bank dishonors the note (refuses to pay a note or check when it
is presented and due) and timely notice of dishonor has been given to the indorser.
-Holder In Due Course:
1) Holder of the instrument (proper negotiation),
2) Acquired the instrument for value,
3) Taken the instrument in good faith
4) Acquired the instrument without notice of any of the following: instrument is overdue/dishonored/in principal payment
default, instrument contains an unauthorized signature or has been altered, someone has a claim to the instrument, any
drawer or maker of the instrument has a defense to payment or a claim in recoupment.
-Real Defenses: HIDC can enforce the instrument free of claims and all but the following real defenses:
1) Infancy of drawer or maker
 2) Illegality of the debt underlying the instrument (duress)
3) Fraud in the factum
4) Discharge in bankruptcy.
-Forged signature: only the person who signs an instrument is liable, and a forged signature counts as the signer’s signature, not
the person whose name he forged. Signature of a mandatary or person with a authority is equivalent to the principal’s signature,
does not count as a forgery.
-Arguing for a refund: assert that the check was not properly payable from your account, i.e. because of forgery, etc. Bank’s
defense to paying out forgeries (if the statement review rule does not apply) is that the holder of the account failed to exercise
ordinary care in the management of their account, which caused the forgeries.
-Statement review rule: must review your bank statements every month. If you do not, the bank will not be responsible for
payment to the same forger after two months (first month’s forgery will not be caught until the statement comes out the next month,
and by that time the bank will have already paid out more forgeries during the second month). One-year PP to challenge forgeries.
CON LAW MUST KNOW
-State action: must be the action of the state or federal government or a private entity engaged in what is traditionally an exclusive
government function. There must be significant government encouragement or sanctioning, or a lease of government property.
Government funding, without more, will not be enough. Courts have specifically found that private schools that get government
funding are not state actors.

FEDERAL GOVERNMENT
-Separation of Powers: action taken by a branch of govt. may be unconstitutional if:
1. There is no authorization for the action or if the action exceeds the authorization
2. If it is a usurpation of powers granted to another branch
3. If the action constitutes an improper delegation of power from one branch to another (one with insufficient
standards/guiding principles given to the delegate).
-Scope of executive power: No authority to preempt state law or create new laws.
1. Sign and veto legislation passed by Congress
2. Commander in chief
3. Make treaties and appoint ambassadors/judges (subject to Senate approval)
4. Enforce and execute all laws.
-Scope of Congressional power:
1. Regulate interstate commerce
2. Impose taxes and pay debts
3. Declare war
4. Establish naturalization and bankruptcy laws
5. Remove a congressman from office (2/3 vote)
6. Creating courts to exercise the US’s judicial power
7. Make all laws which are Necessary & Proper for carrying into execution (convenient or useful to the exercise of an
enumerated power  if end is permitted, reasonable means will be justified).
-Commerce Clause: Congress has the power to regulate interstate commerce and activities that “affect” IC, but it does not have the
authority to create new commerce where none previously exists (Sebelious) or regulate a purely local activity (Lopez/Morrison).
-Tax Power: Congress has the power to tax and spend “for the payment of debts and the general welfare.” As long as a tax produces
income, it will not be invalidated merely because it’s a regulatory measure.

STATE POWER
-State Powers: regulate and promote the health, safety, morals, and welfare of their citizens.
-State Powers are limited by:
1. Supremacy Clause (conflict and field preemption)
2. Dormant Commerce Clause
3. P&I Clause
4. Contract Clause: states are prohibited from imposing laws that directly impair the obligations of a contract. Cannot be
an indirect impairment.
-Dormant Commerce Clause: a state’s action cannot burden the flow of interstate commerce. State must show a non-economic
reason for the regulation and show that there are no reasonable alternatives to solving the problem.
1. Facially discriminatory = per se invalid.
2. Facially neutral with an incidental effect on IC = will be upheld unless the burden is excessive in relation to the local
benefits (Pike v. Bruce Church test).
-Pike v. Bruce Church test:
1. Identify local state interest
2. Balance the importance of that issue against the burden on interstate commerce
3. Determine if there is a less burdensome alternative.
-Market participant exception: when a state is a participant in the market, it will be permitted to discriminate against IC as long as
the discrimination does not constitute “downstream” regulation, which is impermissible. SCOTUS has said that when a state law
favors government action that involves the performance of a traditional government function, such as waste disposal, a State may
discriminate against interstate commerce since it is likely motivated by legitimate objectives rather than by economic protectionism
of its residents.
-P&I Clause: the citizens of each state shall be entitled to the privileges and immunities of the several states.
1. Requires: state action that burdens a fundamental privilege (travel, business/occupation, own property).
2. State may only discriminate against a non-citizen with respect to a protected fundamental right when the reasons for
doing so are substantial and the difference in treatment bears a close relationship to the reasons. Additionally, must show
that there are no less-restrictive means of accomplishing the objective.
3. Corporations cannot raise a claim under this clause. A citizen of the state itself will likely be unsuccessful in arguing this
claim.
4. State would have to show that non-residents are the source of the problem and there is no less-restrictive way to solve it.
-Limits on State Tax Power: commerce clause, Due Process (minimum contacts, tax must be fairly apportioned to avoid multiple
taxation), P&I clause, Import-Export Clause.
-Takings: 5th Amendment protection against the taking of private property for public use without just compensation. Requires: a
taking (physical occupation of property or denial of all rights or use of the land) for a public purpose (states are given wide latitude
in declaring a public purpose as long as it has some reasonable foundation). If so, the landowner will be entitled to just
compensation (money damages); if not, the landowner will be entitled to a return of the land.

DUE PROCESS
-Due Process: 14th Amendment  no state shall deprive any person of due process or equal protection of laws.
-Procedural DP: state action that has an adverse effect on a recognized liberty or property interest and is done without sufficient
notice and opportunity to be heard
-Mathews factors for procedural DP: private interest that will be affected, risk of an erroneous deprivation of that interest,
probable value of additional or substitute safeguards, and the government’s interest in additional or substitute safeguards).
-Substantive DP: 5th and 14th Amendments prohibit the federal govt. and states (respectively) from depriving a person of life,
liberty, and property without due process of law  protection of fundamental rights from govt. interference.
1. Economic/business regulation: law is valid if it is reasonably related to a valid police power purpose (i.e. protection of
public safety and welfare).
2. Personal/Privacy rights: i.e. marriage, raising kids, procreation, consensual sex between gay adults, right to vote, right to
travel (“punishes” people for traveling  waiting period, denial of benefits, etc), First Amendment rights, freedom of
association. Regulating the exercise of a fundamental right is only permitted if the regulation serves a compelling govt.
purpose and is narrowly drawn to accomplish that purpose with as little interference as possible with the fundamental right.
3. Denying people related by “blood or affinity” to an immoral Congressman the right to pursue elected office  no due
process, not narrowly tailored.
-Equal Protection Clause: regulations that facially discriminate against a suspect classification are per se unconstitutional. Facially
neutral discriminations (discriminatory impact and purpose) will be subject to strict scrutiny  only permitted if the regulation
serves a compelling govt. purpose and is narrowly tailored to accomplish that purpose with no less discriminatory alternatives
available.
1. Suspect classes: race, alienage (except for illegal aliens, who are only subject to the rational basis test).
2. Affirmative action: use of racial quotas is not permitted, use of race as a factor is permitted.
3. Quasi-suspect class: gender. Subject to intermediate scrutiny  govt. bears the burden of proving an exceedingly
persuasive justification to an important government interest.
4. Other classifications are subject to the rational basis test: will be upheld if the regulation is rationally related to a
legitimate state purpose.
-Equal Protection Clause: a law that burdens a fundamental right has to be justified by a compelling state interest and must be
narrowly drawn to accomplish that purpose with as little interference as possible with the fundamental right.

FREEDOM OF SPEECH
-First Amendment: restrictions based on the content of speech are not permitted, unless the government can show that the
regulation is necessary to serve a compelling state interest and is drawn as narrowly as possible to achieve that interest.
-Exceptions where content regulation will be permitted:
1. Political speech that is directed to imminent lawless action that is likely to produce or incite such action (Brandenburg
test)
2. Commercial speech that is false or deceptive
3. Speech by public employees that relates to a matter of public concern, where the govt’s interest in efficiently delivering
public services outweighs the employee’s free speech rights. Govt’s defense is that the employee would have gotten fired
anyway.
4. Obscenity: speech that appeals to the prurient interest, depicts or describes sexual conduct defined by state laws in a
patently offensive way, and when taken as a whole, has no artistic, scientific, literary, or political value (Miller v. CA test).
-Prior restraint: the govt. can generally only regulate speech that has already happened, unless they’re seeking to protect a state
interest of the highest order.
-Restrictions on time/place/manner: are okay if they are no greater than necessary to achieve the govt’s stated purpose, and are
not merely thinly-veiled content regulations.
-Overbreadth: regulation that restricts both protected and unprotected speech and is broader than necessary to achieve its stated
purpose.
-Vagueness: regulation fails to provide an ascertainable standard for what constitutes acceptable conduct.
-Freedom of Association: right to peaceably assemble and petition the govt. for a redress of grievances, and also the right to not
assemble.
-Schools: may limit the speech activities of students for “legitimate pedagogical concerns”  such as obscene/disruptive language,
etc.
-Right to not speak: included in freedom of speech

FREEDOM OF RELIGION
-Establishment Clause: prohibits laws respecting an establishment of religion. Does not matter if participation is voluntary. State
cannot:
1. Promote religion over non-religion
 2. Promote one religion over another
3. Require any form of religious observance.
-School religious exercise: in a public school, will be found to violate the establishment clause. However, if the school merely
allows groups to use empty classrooms and some of those groups lead faith-based activities, this is okay.
-Lemon test for benefits to religious institution:
1. Govt. program has a secular legislative purpose
2. The principal or primary effect of the program is neither to advance or inhibit religion, and
3. There is no excessive govt. entanglement with religion.
-Free Exercise Clause: Forbids the enactment of laws prohibiting the free exercise of religion (this includes forcing atheists to
pray). Govt. cannot punish anyone on the basis of their religious beliefs or find those beliefs to be false. Regulating conduct in
general that happens to inhibit religion is acceptable unless a free exercise exception is required.
-Free exercise exception: required if
1. A person has a sincerely held religious belief and the belief was burdened by the state regulation
2. The govt. must show that the requirement/regulation is necessary to fulfill an important state goal and an exception
would substantially hinder the fulfillment of that goal.
3. Example: not hiring someone because of religious holidays  will be subject to the exception, or a person saluting their
god after receiving their high school diploma.
-Ex Post Facto Clause: cannot increase penalities for criminal conduct that predates the law penalizing it (Congressman having an
affair hypo, president creates committee and new laws for punishing immoral Congressmen).

FULL FAITH & CREDIT CLAUSE

-FF&C: Provides that “full faith and credit will be given in each state to the public acts, records, and judicial proceedings of every
other state.”
-Based on current law, it is unclear whether or not this includes marriages, although it does include divorce.
CRIMINAL LAW, PROCEDURE, & EVIDENCE MUST KNOW
-Conspiracy: Need intent by all parties to agree and to achieve the criminal objective.
1. Agreement between two or more people
2. To accomplish a specific criminal objective
3. Overt act taken by at least one party in furtherance of the conspiracy.
-Principal:
1. Commits a crime
2. Aids and abets a person who did
3. Directly or indirectly counsels or procures another to commit a crime.
-Accessory after the fact harbors, conceals, or aids a person who has committed a crime with actual or constructive knowledge that
they have committed a crime.
-Intent: specific (intend the criminal consequences), general (knew that the criminal consequences were reasonably certain to
result), and negligence (gross deviation from the standard of care required of a reasonably careful person under the same
circumstances).
-Defenses:
1. Infancy (under 10 y/o)
2. Insanity (incapable of distinguishing right from wrong because of a mental disease or defect at the time of the act),
3. Intoxication (specific intent or involuntary only)
4. Mistake of fact (if not precluded by statute)
5. Mistake of law (only if you reasonably believe a law is repealed or unconstitutional)
6. Self-defense (reasonable force used to prevent a forcible offense against person or property)
7. Defense of another.
8. Justifiable homicide: to prevent imminent death/GBH to the actor or to another person, against a person likely to use
force against a person with a dwelling or place of business while committing or attempting to commit a burglary or
robbery, by a person lawfully inside a dwelling or motor vehicle against a person making or attempting to make unlawful
entry. Deadly force must be reasonable under the circumstances.
-Attempt:
1. Specific intent to commit a crime
2. Do or omit an act
3. For the purpose of or tending directly towards the accomplishment of the object.
-Inciting a felony: the endeavor by one person to incite or procure another person to commit a felony.

HOMICIDE
-1 murder: causing the death of a human being when D has specific intent to kill or inflict GBH and:
1. Is engaged in the commission or attempt of: aggravated or forcible rape; aggravated or 2 kidnapping; aggravated arson;
aggravated escape; assault by drive-by shooting; cruelty to juvenile; terrorism; armed, 2, 1, or simple robbery; aggravated
burglary.
2. Has SI to kill 2 or more people, a person under 12 or over 65, a peace officer, a taxi driver, a witness or witness’s
immediate family member, a person he has offered/given/received something of value to kill
3. While engaged in a ritual ceremony, while engaged in a drug deal, while violating a protective order
4. Has previously acted with SI to kill or inflict GBH which has resulted in the death of one or more people.
-2 murder: Causing the death of a human being when
1. D has SI to kill or inflict GBH
2. Is engaged in the perpetration or attempt of aggravated or forcible rape; aggravated or 2 kidnapping; aggravated escape;
aggravated arson; armed, 1, 2, or simple robbery; aggravated burglary; cruelty to juvenile; or aggravated assault or
assault by drive-by
3. The death is caused by drugs given to V by D or given by D to another who then gives them to V.
-Attempted murder: must prove specific intent to kill.
-Manslaughter:
1. Causing the death of a person in circumstances that would be 1 or 2 murder, but the death was caused in a sudden
passion and heat of blood immediately caused by provocation that would deprive an average person of their self-control
and cool reflection (need SI to kill).
2. A death caused with no SI to kill where D is engaged in the perpetration or attempt to commit any felony not listed
above, an intentional misdemeanor directly affecting the person, or resisting lawful arrest by means or in a manner not
inherently dangerous.
-Negligent homicide: the killing of a human being by criminal negligence.
-Vehicular homicide: the killing of a human being proximately or directly caused by an offender operating or physically
controlling a car/boat/vehicle when D is under the influence of drugs or alcohol.

BATTERY
-Battery: an intentional use of force against the person of another, or administration of poison or other noxious substance.
1. Simple battery: battery w/out V’s consent.
2. Aggravated battery: battery committed w/ dangerous weapon.
 3. Aggravated 2 battery: battery where D intentionally inflicts serious bodily harm with a dangerous weapon.
4. 2 battery: battery where D intentionally inflicts serious bodily harm.
5. Battery of a police officer who D has reason to believe is acting in the performance of his duty.
-Negligent injuring: injuring another through criminal negligence.
-Vehicular negligent injuring: negligent injuring done with a vehicle while D is under the influence of drugs/alcohol.
-1 vehicular negligent injuring = D inflicts serious bodily injury.

ASSAULT
-Simple Assault: attempt to commit a battery or placing V in reasonable apprehension of receiving a battery.
1. Aggravated assault: assault w/ dangerous weapon
2. Aggravated assault: assault w/ firearm
3. Assault by drive-by shooting: assault w/ firearm where motor vehicle is used to facilitate the assault.
4. Aggravated assault on a peace officer w/ a firearm: P/O acting in course and scope of duty, no discharge required.
5. Aggravated assault with a motor vehicle upon a police officer: P/O acting in course and scope of duty.

STALKING
-Stalking intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarm or
emotional distress. Doing it online = cyberstalking.

KIDNAPPING
-Aggravated (ransom): forcible seizing/carrying, imprisonment/forcible secreting, or enticing or persuading V from one place to
another; with the intent to force V or a third party to give up something of value or an advantage to secure V’s release.
-Second-degree (hostage/injury): forcible seizing/carrying, imprisonment/forcible secreting, or enticing or persuading V from one
place to another; with the intent to use V as a hostage or shield, to facilitate the commission or flight after commission of a felony,
or where V is physically injured or sexually abused.
-Simple kidnapping: intentional and forcible seizing and carrying of any person from one place to another without his consent.
-False imprisonment: intentional confinement or detention of another without their consent.

THEFT
-Theft:
1. Misappropriation or taking
2. Of anything of value which belongs to another
3. Without their consent or by means of fraudulent conduct, practices or representation
4. With the intent to permanently deprive the owner of the property.
-Identity theft: use of personal identifying information with fraudulent intent to obtain anything of value w/out consent or
authorization.
-Unauthorized use of a movable:
1. Intentional use of a movable which belongs to another
2. Without their consent or by means of fraudulent conduct, practices or representation
3. With no intent to permanently deprive them of the property.
-Unauthorized use of a motor vehicle: intentional taking of a motor vehicle belonging to another without authority or by fraud.
-Illegal Possession of stolen things:
1. Intentional receiving, possessing, concealing, or procuring
2. Anything of value
3. Which has been the subject of a robbery or theft
4. Under the circumstances which indicate that D knows or has reason to believe that the thing was the subject of robbery
or theft.

ROBBERY
-Robbery: taking of anything of value that belongs to another from their person or immediate control by use of force or
intimidation.
-Armed robbery:
1. Taking of anything of value
2. That belongs to another from their person or immediate control
3. By use of force or intimidation
4. While armed w/ a dangerous weapon.
-1 robbery:
1. Taking of anything of value
2. That belongs to another from their person or immediate control
3. By use of force or intimidation
4. When D leads V to believe that he is armed w/ a dangerous weapon.
-2 robbery:
1. Taking of anything of value
 2. That belongs to another from their person or immediate control
3. By use of force or intimidation
4. Where D intentionally inflicts serious bodily harm.
-Simple robbery:
1. Taking of anything of value
2. That belongs to another from their person or immediate control
3. By use of force or intimidation
4. While D is not armed w/ a dangerous weapon.
-Carjacking:
1. Intentional taking of a motor vehicle
2. Belonging to another person
3. In the presence of the person/passenger/other lawful occupant
4. By force or intimidation.
-Extortion: communication of threats to another with the intent to obtain anything of value or any advantage.

BURGLARY
-Simple burglary:
1. Unauthorized entering
2. Of any dwelling or structure
3. With the intent to commit a felony or theft therein.
-Aggravated burglary:
1. Unauthorized entering
2. Of any inhabited dwelling or structure where a person is present
3. With the intent to commit a felony or theft therein
4. Where D is armed with a dangerous weapon, arms himself while entering/inside/leaving, or commits a battery while
entering/inside/leaving.
-Simple burglary of an inhabited dwelling:
1. Unauthorized entering
2. Of any inhabited dwelling or structure used as a home or abode by one or more persons
3. With the intent to commit a felony or theft therein.
-Criminal trespass:
1. Intentional entry without authority
2. Of any structure, watercraft, or movable
3. Or intentional entry onto immovable property owned by another.
-Home invasion:
1. Unauthorized entry of a home
2. When a person is inside
3. With the specific intent
4. To use violence against the person or cause harm to property.

ARSON
-Aggravated arson:
1. Intentional damaging
2. Of property belonging to another
3. By explosion or fire
4. That causes GBH or where a firefighter/law enforcement officer/first responder who is present at the scene and working
at the line of duty is injured.
-Simple arson:
1. Intentional damaging of the property of another by means of fire and explosion without their consent; or
2. Starting a fire or causing an explosion while engaged in the perpetration of another felony offense, even though D does
not have the intent to start a fire or cause an explosion.

GUNS
-Illegal Carrying of a Weapon: intentional concealment on one’s person of a firearm or other dangerous weapon.
-Illegal Possession of a Firearm by a Convicted Felon (elements in title; crime must be one of violence or drugs)

MISCELLANEOUS
-Simple criminal damage to property: intentional damage of property by means other than fire or explosion.
-Aggravated criminal damage to property: intentional damage to property by means other than fire or explosion in circumstances
where it is foreseeable that human life may be endangered.
-Simple escape: intentional departure of a person imprisoned, committed, or detained, from the place they are legally confined, a
designated area of that place, or the custody of a law enforcement official.
-Aggravated escape: if it’s under circumstances where human life is endangered.
-Obstruction of Justice: tampering with evidence, with knowledge that it may affect a past, present, or future criminal proceeding.
-Compounding a felony: accepting something of value or the promise thereof from a person who commits a crime upon agreement
to withhold information from the authorities.
-Flight from an officer: driver of vehicle refusing to stop the vehicle after an audible or visual signal has been given by law
enforcement who has reasonable grounds to believe that the driver has committed an offense.
-Aggravated flight from an officer: driver of vehicle refusing to stop the vehicle after an audible or visual signal has been given by
law enforcement who has reasonable grounds to believe that the driver has committed an offense under circumstances where human
life is endangered.
-Resisting an officer: intentional interference/opposition/resistance/obstruction, flight after notice of arrest, violence towards
arresting officer, refusal to identify self, or refusal to move on when ordered to do so.
-Drug crimes: possession, PWIT, distribution.

CON CRIM PRO

-Exclusionary rule: fruit of the poisonous tree  illegally obtained evidence and any evidence derived from it will be excluded
(must show independent source, attenuation, or inevitable discovery to get it in).
-4th Amendment protection against unreasonable searches and seizures:
1. The arrest or detention of a person or the stop of their vehicle must be based on probable cause (reasonably prudent
person would believe that D committed a crime).
2. An arrest inside of a person’s home must be accompanied by an arrest warrant.
3. The search of a person’s home or other place where there is REOP must be accompanied by a search warrant (issued by
neutral and detached magistrate, describes w/ particularity the thing to be seized and the places to be searched, and based
on probable cause that evidence will be found in the place to be searched). Warrant must be executed by the police without
unreasonable delay.
-Attacking a search warrant (Franks challenge): false statement in affidavit, made intentionally or recklessly by the affiant, that
was material to the finding of PC.
-Exceptions to warrant requirement:
1. Plain view: lawfully on premises, item is in plain view, its incriminating nature is immediately apparent
2. Consent of person who police reasonable believe is a lawful owner or occupant of the premises (does not apply to
landlords, apartment managers, etc, and is not valid if a co-owner or occupant is there denying consent  Randolph)
3. Stop & frisk: police are permitted to briefly detain D for investigative purposes if they have reasonable suspicion (less
than PC) supposed by articulable facts of criminal activity. If P/O also has reasonable suspicion to believe that D is armed
and dangerous, he may conduct a pat-down of D’s outer clothes for weapons.
4. Search incident to lawful arrest: must have PC for the arrest; limited to D’s person and grabbing area); protective sweep
(search of home to see if there are any confederates of D’s hiding)
5. Exigent circumstances/emergency aid exception: Police may enter a home without a warrant to render aid in an ongoing
emergency, while in hot pursuit of a fleeing suspect, or to prevent the imminent destruction of evidence)
6. Carroll automobile exception: if police have PC to believe that a vehicle contains contraband or fruits, instrumentalities,
or evidence of a crime, they may search it without a warrant, as well as all containers inside it that might contain the above
items. Towing the car and searching it later is okay; contemporaneous search is not required.
-Investigation techniques that violate Due Process: ones that offend the “sense of justice” inherent in due process and shocks the
conscience: invasive surgery, lying to D or beating D to get him to confess.
-Right to counsel: 6th Amendment gives D the right to counsel at all critical stages after adversarial proceedings have been
instituted (after arrest or indictment). 5 th Amendment gives D right to counsel at all custodial police interrogations.
-Miranda and waiver: Miranda warnings are required anytime D is subject to a custodial interrogation. The police may only
interrogate if D knowingly, voluntarily, and intelligently waives his right to remain silent and right to have an attorney present. If he
invokes either right, the police must scrupulously honor it and cease all questioning immediately, unless D later reinitiates
questioning. Invocation must be explicit, unambiguous, and unequivocal. Subject to limited public safety exception.
-Suggestive identification: violates Due Process if the procedure is unnecessarily suggestive and there is a significant risk of
misidentification; or when it is fundamentally unfair.
-Double Jeopardy: does not apply to trials by a separate sovereign (i.e. state and federal court, or two states).
-Motions: generally, must be filed within 15 days of arraignment.
-Amending an indictment: technical errors (spelling, date, etc) can be amended anytime. An error of substance (essential
allegation) may be corrected prior to trial, gives D grounds to ask for a continuance, and will cause a mistrial if discovered after trial
has commenced.
-Motion to quash: bill of particulars shows grounds for quashing, court has no jurisdiction, double jeopardy, failure of DA to
answer bill of particulars when ordered to do so by court, indictment is duplicitous, misjoinder, statute which creates the offense is
invalid; time for instituting prosecution has expired (capital/life = no time limit, felony necessarily punishable by HL = 6 years,
felony not necessarily punishable by HL = 4 years); time for commencing trial has expired (capital = 3 years, non-capital felony = 2
years, misdemeanor = 1 year).

EVIDENCE
-Witnesses: W may testify if he has personal knowledge, and W not testifying as expert generally may not testify about his opinion.
-Relevance: evidence having the tendency to make the existence of a fact of consequence to the determination of the action more
probable than it would be without the evidence. All relevant evidence is admissible, unless there is a danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, or waste of time.
-Impeaching a witness: prior criminal conviction (any crime, any time); bias, interest, or corruption against/towards a party, prior
contradictory statement, bad reputation for trust and veracity.
-Crawford: testimonial evidence (evidence obtained as the result of an ongoing police investigation) by a declarant who is now
unavailable will not be admissible even if it meets a hearsay exception, unless it was made in circumstances where D had an
opportunity to cross examine the declarant. Exception for statements that describe or respond to an ongoing emergency, or
statements made by a declarant whom D contrived to make unavailable so they would be unable to testify (forfeiture by wrongdoing
 Giles)
-Hearsay: is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible. Exceptions
include a party’s statement against interest, public documents (which are business records and self-authenticating evidence), a
present sense impression, a dying declaration, or an excited utterance.
-Character evidence: D may introduce evidence of his own pertinent character trait, and then state can rebut and show bad
character related to that trial. D may not introduce evidence of V’s dangerous character unless it relates to a hostile demonstration or
overt act by V at the time of the offense charged.
-Past arrests/convictions are admissible to prove an essential element of a crime, or knowledge, intent, plan, purpose, opportunity,
motive, identity, or absence of mistake; otherwise it just shows propensity and is prejudicial to D.
-Attorney-client privilege: does not apply if the attorney is being called as an independent witness and will not be asked about his
relationship with D.
-Authentication of evidence: achieved through the testimony of a witness with knowledge; such as a police officer who confiscated
the evidence, the person who wrote the document, or the chain of custody. Some evidence, like business records or official certified
records, will self-authenticate.
FEDERAL JURISDICTION & PROCEDURE MUST KNOW
-SMJ of federal courts: either federal question or diversity jurisdiction must exist. Or a specialized statute that confers jurisdiction.
-§1331 Federal Question Jurisdiction: federal courts have jurisdiction over cases arising under federal law.
-Mottley well-pleaded complaint rule: federal question must be stated, alleged, or apparent from pl’s complaint. D’s answer is
irrelevant.
-Merrell Dow: federal question must be substantial.
-§2201 Declaratory Judgment Act: must show that pl. would be entitled to bring a hypothetical coercive suit against D, either for
damages or an injunction, that would satisfy Mottley. Used to determine if there is a federal question, because simply suing under
§2201 for a declaratory judgment, will not confer jurisdiction.
-§1332 Diversity Jurisdiction: there must be complete diversity between the parties and a jurisdictional amount that exceeds
$75,000  Strawbridge. Diversity attaches at the time of filing.
-Determining citizenship:
1. A natural person’s citizenship is his state of domicile (presence + intent to remain indefinitely).
2. A corporation’s citizenship is in its state of incorporation and its principal place of business (Hertz rule: PPB = nerve
center, place where high level officers manage, direct, and coordinate its activities).
3. A non-corporate entity derives state citizenship from its members.
-Jurisdictional amount must be exclusive of interests and costs (unless state law provides for their recovery or they are part of the
underlying contract). Attaches at time of filing, and pl’s allegation must be in good faith. The facially apparent standard is used:
court will look at the face of the complaint and see if the amount is likely to exceed $75,000; if pl. alleges a specific and sufficient
amount by a preponderance, this will be sufficient.
-To rebut pl’s JA allegation: D must prove to a legal certainty during the pleading stage that pl. cannot recover the adequate JA.
-To achieve removal: D must assert a JA that exceeds $75,000 and prove it by a preponderance. Will have one year from the date
the suit is filed to file a notice for removal if he later notices that the JA is sufficient. Courts may ignore this time limit if pl.
deliberately failed to disclose the amount in controversy to avoid removal.
-Installment contracts: pl. must show that the direct legal effect on the judgment under governing contract law will cause the
amount in controversy to exceed $75,000  two cases where the entire debt is the amount in controversy are when pl. files suit to
cancel the contract b/c of fraud or there is an acceleration clause in the contract.
-Aggregation: one pl. may aggregate claims against one D to reach the JA. If there are multiple pls. and/or multiple Ds, each pl.
must have the requisite amount in controversy w/ each D.
-Erie: a federal court w/ diversity jurisdiction must apply substantive state law. The outcome determination test is used to figure out
if a given law is substantive or procedural. Under Klaxon, state choice-of-law rules are substantive under Erie, meaning that the
federal court must apply the same choice of law rule the state supreme court of the forum state would apply.
-Conflict of rules: a procedural rule in a federal statute or an FRCP rule on point will take precedent over a state procedural rule
that directly conflicts. If there is no conflict, the state law should be used if not doing so would lead to forum shopping or unequal
application, unless there is a major counterveiling federal policy (Byrd).
-§1738 Federal FF&C Clause: provides that the judgment of any state court shall receive the same FF&C in federal court that the
judgment would receive in the courts of the state in which it was rendered  to determine if the judgment has a preclusive effect,
look to the case law of the state in which it was rendered and follow the preclusive effect rules of that state’s case law.
-Joinder
1. FRCP 18 Claim Joinder: a party may join together unrelated claims against a single defendant.
2. FRCP 20 Permissive Party Joinder: plaintiffs may join together in one suit when they assert a claim to relief arising
out of the same transaction or occurrence and when a common question of law and fact will arise from the suit.
3. FRCP 19 Required Party Joinder: a party is required to be joined if their absence will provide incomplete relief for
existing parties, disposition of the suit w/out them will impair or impede their ability to protect their interest, or their
absence will present a risk of multiple or inconsistent obligations. If joinder is not feasible, the court should look at these
factors to see if the suit should be dismissed: existence of prejudice to absent or existing parties, extent to which prejudice
could be lessened or avoided, adequacy of judgment if the suit proceeds w/out the party, adequacy of remedy for pl. if suit
is dismissed.
4. FRCP 13 Compulsory counterclaim: claim brought by D against pl. who is suing him. Arises out of STO and has
§1367 supplemental jurisdiction. Waived unless asserted.
5. FRCP 13 Permissive counterclaim: no factual overlap with main claim, no §1367, will not be lost if not asserted.
6. FRCP 13 Joining a claim against a non-party to a counterclaim: may be done if the claim arises out of STO and
shares a common question of law and fact with the counterclaim.
7 FRCP 13 Cross-claim: claim by a party against a co-party. Must be brought in answer and arise out of STO, so §1367
supplemental jurisdiction will attach. A non-party may be joined as long as it arises from STO and shares a common
question of law and fact.
8. FRCP 14 Impleader: D files 3rd party complaint against 3rd party D who may be liable to him for all or part of pl’s
claim. Arises from STO, so §1367 supplemental jurisdiction attaches.
9. FRCP 24 Intervention: Person claiming interest relating to the property or transaction that is the subject of the main
suit. Intervention of right arises from federal statute. §1367 supplemental jurisdiction will attach for all D-intervenors
where pl’s claim is based on §1332 and all intervenors of right in FQ suits. Permissive intervention occurs when the
intervenor’s claim arises from STO and there is a common question of law and fact. Intervenor will need independent
jurisdictional basis.
-Interpleader: Stakeholder has property, claimants all claim to have a right to it.
1. FRCP 23 interpleader requires complete diversity and a JA of over $75,000.
2. §1335 statutory impleader requires minimal diversity and a JA of over $500, and requires the stakeholder to post a
bond or deposit the property with the court.
-§1367 supplemental jurisdiction and joinder of claims: allows for supplemental jurisdiction of a state-law claim that has a
common nucleus of operative fact with a claim based on §1331 federal question jurisdiction. CNOF = rough factual overlap, may
rely on different theories for relief, must be so related as to form one case or controversy. For original claims that are based on
§1332 diversity jurisdiction, there is no real need to use §1367, since a plaintiff is allowed to aggregate unrelated claims against a
single D.
-§1367 supplemental jurisdiction and joinder of parties: supplemental jurisdiction also allows for the joinder of additional
parties if there is a CNOF relationship and the claim is based on §1331 FQ. For claims based on §1332 Diversity, pl. will not be
allowed to bring a state-law claim against another D if independent diversity and JA requirements are satisfied.
-Prohibition on §1367 supplemental jurisdiction:
1. Plaintiff-intervenor’s claim based on §1332 Diversity (intervention of right)
2. Any kind of permissive intervention.
3. Plaintiff’s rule 14 claim against impleaded third-party D.
-Court’s discretion to dismiss §1367 claim:
1. Supplemental claim raises a novel or complex issue of state law.
2. Supplemental claim substantially predominates over the original SMJ claim.
3. Original SMJ claim has been dismissed.
4. Other exceptional circumstances.
-§1441 Removal:
1. Need §1331 or §1332 jurisdiction, right to remove will be waived if D does not seek it within the applicable time limit
(30 days from service).
2. Pl. will then have 30 days following removal to file a §1447 motion to remand based on a removal procedure defect. If
the suit was never removable to begin with (meaning that the remand is based on lack of SMJ), there is no time limit and
the court must remand the suit sua sponte once it notices the defect.
3. Unless it falls under the Caterpillar (non-diverse party was dismissed before trial started) or fraudulent joinder (D can
show that pl. had no reasonable possibility of recovery against the non-diverse D, which leads to the inference that the pl’s
purpose for joining the non-diverse D was to defeat removal) exceptions.
-Removal procedure defects:
1. All properly joined and served Ds do not join in or consent to removal
2. Untimely filing (must be filed w/in 30 days of formal service or the day pl. amends the petition or complaint to add a
federal question claim or dismiss a non-diverse D)
3. Removed suit includes claims that federal courts are prohibited from hearing
4. Suit is removed to wrong district (correct remedy is a transfer).
5. For §1332 SMJ only, additional defects are: forum state D present, removal more than one year after state court suit filed
(unless pl. acted in bad faith to avoid removal).
-Removal procedure:
1) Timely file a notice of removal to which all properly joined and served Ds either sign or provide consent in writing.
Must include a short and plain statement of the grounds for removal.
2) Attach copies of all process, pleadings, and orders served on Ds in state court to the notice.
3) File in the federal court district that encompasses the location where the state court suit is pending.
4) After filing the notice of removal and attachments in federal court, serve them on pl, along w/ a written memo
explaining the reasons why the case was removed.
5) Serve the written notice and explanation on the state court.
-Personal jurisdiction: court’s ability to exercise power over a particular D
1. D is present in the state and personally served
2. D consents to jurisdiction
3. D is domiciled in the forum state.
-Personal jurisdiction under the state’s long arm statute:
1. General personal jurisdiction: D has sufficient contacts with the forum state that are not related to the controversy. The
contacts must be continuous and systematic, not merely casual and isolated. Maintenance of a sales web site is likely not
enough.
2. Specific personal jurisdiction: D has sufficient contacts with the forum state that relate to the controversy in the federal
suit. D must have sufficient minimum contacts with the forum state that constitute a purposeful availment of the protection
and benefits of the forum state. A website that allows customers to purchase goods is seen as an “active” website, but more
evidence of purposeful targeting will be needed, such as advertising in the state, etc.
3. For both types, maintenance of a suit will not offend traditional notions of fair play and substantial justice. Consider the
due process factors.
-Due process factors:
1. Convenience to pl
2. Burden on D
 3. Interest of forum state
4. Interstate efficiency considering the location of Ws and evidence
5. Shared interest of the states of furthering substantive social policies.
-§1391 Venue:
1. Venue will be proper in the district where D resides, or if it’s multiple Ds residing in one state, any district where D
residents.
2. Also proper in the district where a substantial part of the events occurred.
3. If neither of those options yield a valid venue, venue is proper in any district where any D is subject to the federal court’s
personal jurisdiction. Residency for a natural person is their domicile. For an entity, it is any federal district in which the
court has personal jurisdiction over the entity as established by the entity’s minimum contacts with the federal district.
4. Objection to venue may be done in a pre-answer FRCP 12(b) motion to dismiss for improper venue or in answer within
20 days of service of complaint and summons. If venue is improper, it will be transferred under §1406.
-§1983: can be brought against any person acting under color of state or local law for the deprivation of rights, privileges, or
immunities secured by the constitution or US law.
1. Includes 1) state officials sued for damages in personal capacity, 2) state officials sued for injunctive or declaratory relief
in official capacity (official capacity = it is the custom or policy of the office to act that way) 3) local officials, government
entities, or subdivisions. If suing in personal capacity, pl. may get punitive damages upon a showing of deliberate
indifference.
2. Excludes 1) the state itself, 2) state agency that is an arm of the state, 3) state official sued in official capacity for
damages. Basis is 11th Amendment immunity.
3. Ex Parte Young: pl. may sue for an injunction or declaratory judgment against a state official in official capacity if 1)
there is no ongoing state judicial proceedings against pl. and 2) the state official is violating federal law or acting
unconstitutionally. Otherwise, this suit will be barred by the Younger abstention doctrine.
4. Acting under color of law includes both enforcing unconstitutional laws and acting contrary to law (as long as its in the
course of employment).
-Abstentions
1. Buford: abstention if pl. seeks an injunction or declaratory judgment in a suit that would require interpretation of state
administrative decision making or fact finding in fields that are traditionally subject to state regulation: oil drilling, eminent
domain, natural resource allegation, administration of decedents’ estate.
2. Pullman: abstention if it’s a suit to enjoin a state/local statute and 1) The claim is based on federal constitutional
grounds, and 2) there is a threshold issue of unclear state law whose resolution could render the federal court’s
interpretation of the constitutional question unnecessary.
3. Colorado River: abstention if federal suit is filed after a similar state court suit involving the same parties and
same/similar issues is filed and there are exceptional circumstances that merit abstention.
4. Younger: abstention if pl. seeks inj/DJ in ongoing state criminal proceedings, unless the state prosecution is in bad faith
or for the purposes of harassment.
-Service may be made by any non-party who is over 18. Must be made w/in 120 days of filing of complaint unless pl. shows good
cause. D will then have 21 days to serve an answer.
-Waiver of service: Serve by first-class mail with a notice and request for waiver, two copies of the waiver, and a prepaid means of
getting the waiver back to pl. D will have 30 days to execute the waiver. If he does, he will have 60 days from the date it was sent
by pl. to file an answer. If D lacks good cause for refusing to waive, he must reimburse pl. for the costs of service, the filing fee, and
an attorney’s fee for filing the motion for costs.
-Amending a pleading: party may amend once without leave of court before they have been served w/ a responsive pleading.
-12(b)(6) Motion to Dismiss: claim is not cognizable as a matter of law, or party has failed to allege sufficient facts to make the
claim plausible and show that he is entitled to relief. Judge will only consider the pleadings and will accept all the plaintiff’s pleaded
allegations as true. If matters outside the pleadings are considered, it should be treated as a motion for SJ.
-12(c) Motion for Judgment on the Pleadings: either party may assert that the complaint/answer is insufficient after pleadings
have been closed. If asked to consider outside matters, it should be treated as a motion for SJ.
-FRCP 11 Motion for Sanctions: attorney’s signature signifies that he has read the pleading, that it is true, and that to the best of
his knowledge, it is not being used for any improper purpose, it is warranted by existing law or a reasonable argument for the
reversal/modification/extension of existing law, and it is likely to have evidentiary support. Before atty files the FRCP 11 motion,
must serve it on opposing counsel and give him 21 days to withdraw the complaint.
-Initial disclosures:
1. Names and addresses of witnesses that are likely to have discoverable material, along with the subjects that the
disclosing party may use to support its claims or defenses.
2. Copy or description of all documents, ESI, and tangible things that the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses.
3. Insurance agreement under which a party may be liable to satisfy part or all of a judgment in the action or indemnify or
reimburse for payments made to satisfy the judgment.
4. Computation for each category of damages and the documents/evidence on which the calculation is based.
-Request for production of documents: party must produce all discoverable requested documents within their possession, custody,
or control, as well as make a reasonable search for such documents. If the documents have been requested, it is irrelevant if the party
does not want to use the documents at trial.
-Limits on discovery:
1. 25 interrogatories
2. 10 depos.
3. No limit for the number of requests for admission.
-FRCP 56 Motion for SJ: court shall grant if the movant shows that there is no genuine dispute as to any material fact and he is
entitled to judgment as a matter of law. Parties may cite material in the record and use affidavits, which require 1) personal
knowledge, 2) of a competent affiant, 3) of facts that are admissible at trial. Court must construe the facts in the light most favorable
to the non-movant and cannot weigh the conflicting evidence. Motion can be made until 30 days after the close of all discovery.
-FRCP 50 Motion for Judgment as a Matter of Law: Can be made during trial anytime after a party has been fully heard on an
issue and before the case is submitted to the jury. If the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis for finding for the non-moving party on that issue, then the court may resolve the issue or grant the moving party’s
motion. If denied, can be renewed within 28 days of judgment.
-FRCP 54 Entry of Final Judgment: A judicial order that does not determine all of the merits or dismiss all of the parties is not a
final judgment and thus is not appealable unless 1) Judge makes an express determination that there is no just reason for delay, and
2) Makes an express direction for the entry of judgment.
-Time to file a notice of appeal: must file a notice for appeal 30 days after the “entry” of the disputed judgment or order. Entry
requires the filing of the formal judgment by the judge and entry of the judgment onto the court’s docket.
-FRAP 8: motion for supercedious bond and stay of execution from the judgment  will prevent pl. from collecting or enforcing
the judgment during the appeal.
-Preliminary injunction: 4 factors:
1. Whether irreparable injury would occur if the PI is not issued.
2. Whether there is a probability of success on the merits of plaintiff’s claim.
3. Whether the balance of equities between pl. and D favors pl.
4. Whether pl’s claim has a probability of success on the merits.