Appendix II PROBLEM ON THE FEDERAL RULES OF EVIDENCE In 1976 one of the authors prepared a problem on the Federal Rules of Evidence for use by the Federal Judicial Center in training judges and magistrates faced with the new evidence code. With the permis. sion of the Center, we reproduce the problem below. It’ affords users of the book an oppormnity to review almost all aspects of evidence law discussed in thd ook ‘A CRIMINAL ANTITRUST CASE In 1976, George and Martha Washingto contracted to buy a home in Mount Ver ‘non, Virginia. The financing agency re. quired tem wo secure ttle insurance. This required a title examination, and only a member of the Virginia Scae Bar could le- sally perform that service. George and Martha dherefore comacted a lawyer (Dol: Jey Madison) who quoted them a fee of one percent of the value of the property in volved. The Washingtons then tried to find a lawyer who would examine the title for less. All the law firms and sole pract tioners they contacted quoted the same foe A lawyer friend in another area of the state advised the Washingtons that the ab: sence of competition suggested price-fixing for pricesetting, conduct that would vio: late Section 1 of the Sherman Act, 15 USC. Sec. 1, which was applied to bar associa tions and lawyers’ organizations inthe landmark decision of the United States Su preme Court in Goldfarb v. Virginia State Bar, 421 US. 773, 95 S.Ct 2004, 44 LEd.2d 572 (1975). The Washingtons contacted the United Sutes Department of Justice, Which sent an investigative team into the area, Subsequently, the Department ob: tained 2 criminal indictment against the Mount Vernon Bar Association and all of fhe lawyers and firms contacted by the IWashingtons who quoted the one percent fee Set forth below are certain events that happen at trial. Our problem is to de cide what the proper ruling is in each of ‘THE GOVERNMENT'S CASE The United States seeks to otter a minimum fee schedule report published by the State Bar, which report clearly cecom- mended the adoption of a fee schedule by local bar associations but did not require adoption The report was published in 1962, The government also wishes to offer 2 second report published in 1969 con: twining @ similar schedule with higher fees. This report also stated that no local Vat association was bound by its recom ‘mendation for adoption of a minimum fee schedule, The defendants object on four grounds: that the evidence is irrelevant, that the reports are hearsay, that they are not properly authenticated, and that the originals are required, not copies ob- tained by grand jury subpoenas to several defendants The government calls Martha Wash- Ington co testify about the contact drat she and her husband had with the lawyer Dol ley Madison, one of the named defendants. Mrs, Washington is asked: "What hap- pened witen you spoke 10 Ms. Madison?” Her answer is: “She told me, ‘One per- cent is the standard fee" All of the de fendants object to the introduction of this evidence, 3. On crossexamination, the defense lawyer asks: “Didn't you tell your fus- band that you were shocked at his inviting Ms. Madison out to dinner, and didn't youMEMORANDUM professor Taslitz’ Evidence Class FROM: Professor Andrew E. Taslitz DATE: November 29, 1990 Model" Practice Exam Answer Attached is a "Model Evidence Practice Exam Answer." In order to make the best use of this answer, you must keep in mind the following comments. READ THESE COMMENTS CLOSELY BEFORE YOU READ THE MODEL ANSWER. 1. Parts Il, III, and IV: "True" Model Answers Parts II, III, and IV (respectively addressing hearsay, authentication, and’the best evidence rule) represent realistic goals for the Kind of answer that you should write on a timed, sit- down exam. I use the word "goals" because, under the time pressure of an exam and in the heat of the moment, it is likely that few people will write precisely this kind of answer, but some students will indeed succeed in doing so in the time alloted. The goal is thus a realistic one. RE: Note that these answers state all relevant legal rules, define all terms of art, and address arguments in the alternative, yet the answers average four single-spaced paragraphs each. compare these answers to my earlier memorandum on writing good law school exams. The point to keep in mind is that spotting issues and stating the correct legal rules is your starting point, the minimum requirement for good lawyering. But truly good lawyers can reason logically, by use of analogy, legislative history, and ordinary deductive and inductive reasoning, to explain why the application of the rule to the facts before the court requires a certain result. Good legal reasoning and good legal writing are thus as important to good lawyering and good exam-taking as are issue-spotting and the memorization of legal rules. 2. Part I: Instructional Goals Part I of the answer addresses a particularly d@ifficult relevancy question. The question is ideal as a teaching tool because, if you can answer this question well, you can answer any relevancy question. For this same reason, the question is excellent for a take-home exam. But the question would be a poor one for a timed, sit-down exam because it would be impossible to do a thorough answer in the time alloted, unless, of Course, I gave you at least two hours to handle this one question. Nevertheless, the structure of the exam answer is important because that structure should serve as a guide to writing all exam answers. Thus all plausible arguments in support of the position taken are noted,and, importantly, all plausible counterarguments are also addressed. Moreover, all steps in reasoning are spelled out, the answer being written to be read by a lawyer who knows nothing whatsoever about the law of evidence. 3. Use of Footnotes The footnotes used are generally not meant to be part of a model answer. Rather, the footnotes point out pitfalls and common errors in an effort to clarify concepts that have troubled many people in the class. 4. Use of Policy and Legislative History Note that all arguments begin with the rules. However, policy and legislative history are addressed whenever the meaning of a rule or a term in a rule is unclear or when the application of the rule to the particular set of facts is unclear. Otherwise, neither legislative history nor policy need be addressed unless you are specifically asked to do so. Remember, therefore, that you must be familiar witn the legislative history. I do not expect you to memorize that history. But where you face an unclear situation, you should be able to remember that the legislative history tor a particular rule helps you to resolve the problem and, during the exam, should know quickly where to look to find the critical language. This is therefore a reminder that the final will be an open book exam, and you MUST BRING BOTH THE FRE AND WE1SSENBERGER WITH YOU TO THE FINAL EXAM. 5. More Than One Way to Skin a Cat The old expression, "Theres more than one way to skin a cat," nolds true for law school exams. Kephrasea, there are 100 wrong ways to write an exam but also 100 right ways. You need not necessarily agree with the conclusions in the model answer, and you may raise arguments not raised in the model. All that matters is that you state the law correctly and craft persuasive, well- reasoned, well-written arguments. Keep in mind as well that for most evidence questions there is no "right" answer but only arguments on both sides of the question. On the other hand, sometimes there is only one right answer, as in the hearsay question on this exam, that is, sometimes counterarguments can be crafted but those arguments are not plausible ones. Do NOT RAISE ARGUMENTS THAT ARE NOT PLAUSIBLE. DO, HOWEVER, MAKE A POINT OF FIRST SEARCHING FOR ARGUMENTS ON BOTH SIDES SO THAT YOU CAN MAKE THE REASONED JUDGMENT WHETHER COUNTERARGUMENTS ARE PLAUSIBLE OR JUST PLAIN SILLY. 6. FOLLOW INSTRUCTIONS AND REMEMBER I USUALLY ASK NARROW QUESTIONSAnswer all that you are asked but only what you are asked. Thus I will give you mostly very narrow exam questions. "Is this hearsay?" "Assuming it is hearsay, does any exception apply?” Sometimes I will narrow a question by an express instruction, e.g "Do not address any Rule 104 issues that you may see." Read thi instructions for each question carefully and write the answer consistently with the instructions. Because the questions will be so narrow and because the exam is open book, there will be some, but not much, issue-spotting involved. For example, if I ask, "Is this hearsay?," I have obviously told you what is the main issue. There may be sub-issues lurking in the question, but those will be relatively few in number. Your grade will, of course, depend partly on your ability fo spot these sub-issues. but since you will have relatively few questions dealing with relatively few issues, your grade will also depend heavily on your ability to “think like a lawyer" and express that thinking on paper. That skill is, of course, tested by every law school exam, but the nature of this exam places even greater emphasis on that skill because of the relatively reduced emphasis on issue-spotting. Therefore, take the time to outline your answers before you write and to organize a clear, effective answer (again, of course, things that you should do on every law school exam). on the other hand, do not go overboard; write with your time limits in mind. 7. Address Only wnat is Fairly Kaised by the Facts Sometimes you are given insufficient facts to answer a question. Where that is so, you must suggest what facts are needed and why and must argue in the alternative, i.e., if x is true, then the argument is..., whereas if Y is true, then the argument is. There are limits, however. You must address only matters fairly raised by the facts. For example, the “official publications” rule is suggested as a possible argument for self-authentication because state bar associations can easily be analogized to public entitites. However, nowhere were you told that the fee schedules were issued in response to a communication from other lawyers. Consequently, to argue that under the reply doctrine, the unique content of the schedules could serve as a means of authenticating the schedules is pot appropriate, for you were given no facts whatsoever that would suggest that’ that doctrine might apply. 8. Ask Questions You now have a model answer, individual comments on your practice exam answer, and a memorandum on what professors look for in determining the quality of an individual exam. That should give you a fairly clear picture of what a good law school exam. The rules for writing good exams are the same in almost every Class and for the bar exam. The only way that my exam differs is that because of the limited number of issues, you should have more time to 3address each individual issue in the way that professors are always telling you that you should. If you are still unclear about what constitutes a good exam, come talk to me before December 19!