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Messages - Jumboshrimps

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Current Law Students / Re: Learinng disability's in law school
« on: December 13, 2007, 10:14:25 AM »
Two things. One, I think people who think the Supreme Court is full of *&^% about matters of criminal procedure should get extra time on crim pro exams because it's a MAJOR disability. And two, most "learning disabilities" are a sham." We do not all learn in a similar manner. One man's ADD is another's creative thinking.

Current Law Students / Re: Civ pro question that is driving me crazy!!
« on: December 09, 2007, 10:50:15 AM »
This is my last resort, I absolutely cannot figure this one out.

If P's suit gets dismissed and also gets sanctioned in Federal court, but P also filed a state court claim prior, can the defendant's use a summary judgement to get rid of the state court case, based on the federal court rule 11 sanction?  I'd say no, but I am really not sure.  First of all, I was under the impression that summary judgement had to take into account the current case facts, and a dismissal of a clone case in another level of court wouldn't be enough to back a summary judgement. Also, I thought Rule 11 sanctions that prevent re-litigation are for the worst of the worst, and I do not think normally Rule 11's prevent relitigation or clone litigation

The proper vehicle for the Defendant here would be a motion to dismiss the state court action, not a motion for summary judgment. But, maybe the most important aspect of your question is that the STATE's law will apply to whether summary judgment can be granted based on a federal court's finding of a frivolous filing. As someone mentioned above, this is purely a matter of claims preclusion (which would be argued in a motion to dismiss, not a motion for SJ). Since your question doesn't ask about that, here is how you could answer it:

In order to be granted summary judgment in the state court, the defendant would need to show that there are no disputed genuine issues of material fact and that defendant is therefore entitled to judgment as a matter of law. The Rule 11 sanction has nothing to do with the substantive law or facts of the case, and is therefore irrelevant to summary judgment. Because no motion to dismiss was filed in state court, the defendant has waived any objection to the pleading itself, and because Rule 11 applies only to the adequacy of pleadings, and not their substance, it has no bearing on summary judgment proceedings.

Current Law Students / Re: Any Hope for Hopeless Situation?
« on: December 08, 2007, 12:12:53 PM »

maybe it is mental health or maybe it is a bio-chem issue that can be resolved w/meds. 

Yeah, great idea. Alter the chemistry of your brain with powerful drugs so that you can overcome understandable exam anxiety.

But really, exams get MUCH less stressful after 1L. MUCH less.

Current Law Students / Re: Evidence Question
« on: December 07, 2007, 11:04:00 AM »
he can ask about specific instances on bad acts in cross examination but not through his own witnesses on direct (see FRE 405)

Yes, but the specific instances that can be inquired into on cross are limited by 404's prohibition of "propensity" evidence (action in conformity therewith). The relevant part of 405(a) is : "On cross-examination, inquiry is allowable into relevant specific instances of conduct." This rule does not negate the rule against pure propensity evidence.

Current Law Students / Re: Evidence Question
« on: December 07, 2007, 10:20:40 AM »
If D were to have a witness testify about his reputation, on cross, p could introduce specific acts as more of an impeachment sort of thing though.

True, but only if the cross examiner had gotten D to say something like, "I have never committed a crime in my life." If properly prepared to testify, D would know not to say that.

Current Law Students / Re: Evidence Question
« on: December 07, 2007, 09:46:22 AM »
FRE 404(b) applies here:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."

Specific acts, then, are NEVER admissible merely to show action in conformity therewith. The trick is to convince the judge that the specific act goes to motive, intent, or something else. The great thing about the introduction of evidence is that the evidence you are trying to introduce is for exactly what you say it is for, if you are convincing enough.

Current Law Students / Re: Help Part 4.........
« on: December 02, 2007, 02:53:33 PM »
Whew... I can't believe you just posted all of that. First of all, lawyers rarely visit this board, and us nonlawyers can not give you any legal advice. However, we can give you nonlegal advice, and advice on how to testify in court falls under that category. So, here is some sound nonlegal advice on how to be a good witness:

Tell the truth and answer the questions you are asked.

Current Law Students / Re: Community Property or Separate?
« on: December 02, 2007, 12:23:10 PM »
You can only have community property first of all if you're in a community property jurisdiction.

Once she sells the property to a third party, she is no longer the owner at all. Since she begins adversely possessing the property BEFORE she gets married, her new title in the property after the statutory period runs is dated from the moment she began possessing the property. Therefore, she received titled in the property before marriage, not during, and the property remains hers (since community property only includes property acquired during the marriage).

Granted I'm rusty on my property knowledge...

She gained title to the property after she was married, not before. An adverse possessor does not attain "retroactive" title once the statutory period runs. Title only vests when all the elements of AP are met, including the running of the applicable statute. Therefore, the property is community property, or marital property, as the case may be.

Current Law Students / Re: Check out "Ask Dr. Salary" for lawyers salaries
« on: November 27, 2007, 01:38:06 PM »
Pay me $60,000 a year and I'll be happy as a pig in *&^%. Only conditions: let me actually practice law and treat me with respect.

Current Law Students / Re: Torts Question-HELP!!
« on: November 27, 2007, 01:31:33 PM »
The substantial factor rule is a substitute for the plaintiff's burden of proving causation. As you said, it allows the plaintiff to hold multiple defendants jointly and severally liable where no single cause for the injury can be shown. I don't know how popular that rule is, though. I doubt most jurisdictions subscribe to it.

Contrast this with "concerted action" theory, where multiple defendant act in concert to cause the plaintiff's injury, and there is no way to prove which defendant actually caused the injury. Example: 3 guys shoot bird shot simultaneously toward the plaintiff, who is hit in the eye by a pellet. P can't prove which one shot the pellet. Some jurisdictions will then allow the burden to prove the absence of causation to shift to each of the defendants. Any defendant who cannot meet this burden is held liable for the entire injury.

The obvious difference between the two theories of liability is that, with concerted action theory, the defendants are all engaged in the same activity, hence "acting in concert."

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