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Evidence I (Santa Barbara)Fall 2016Prof. Helen ZajicQUESTION ONEYou work for a lawyer who is representing Delia Defendant in a breach of contract matter. Delia Defendant entered into a contract with Peter Plaintiff on October 15, 2015. The contract provided that Peter Plaintiff would pay Delia Defendant $100,000 in exchange for Delia Defendant handling the marketing for Peter Plaintiff’s new vegan restaurant. Delia Defendant was to have Peter Plaintiff’s restaurant named one of the five best new Santa Barbara restaurants in the local paper’s annual contest before the December 31, 2015 opening date; was to have Peter Plaintiff compete in a local “by invitation only” best chef contest in February 2016 and was to design a website for Peter Plaintiff that would have 2,000 hits by March 1, 2016. None of these conditions were fulfilled, although a website for the restaurant was created by Delia Defendant and has 776 hits as of October 1, 2016. Your boss has given you one hour to answer the following:Your boss wants to put a witness she interviewed on the stand. That witness, Mark Money, would testify that he heard that Peter Plaintiff flunked out of six culinary schools and could never win a Best Chef award. Will the trial judge likely allow this testimony? Why or why not?Peter Plaintiff’s lawyer plans to submit evidence that Delia Defendant has twenty-five pending lawsuits for breach of contract. The lawyer plans to offer certified copies of the Complaints in each of those suits. Will those complaints be admitted into evidence? Why or why not?Evidence I (Santa Barbara)Fall 2016Prof. Helen ZajicQUESTION TWO Dreamy Delights sells luxury chocolates through its store in Santa Barbara, California and on a website. Penny Plaintiff is suing Dreamy Delights in negligence and products liability as a result of a purchase of fifty pounds of “nighty night chocolates”. Those chocolates are marketed as containing special “relaxation” properties that will help you sleep. Penny Plaintiff claims that instead of helping her sleep, the chocolates caused her to suffer from sever insomnia which eventually caused her to hallucinate causing her to lose her job as an air traffic controller. Dreamy Delights claimed they were not able to remove the caffeine from the “nighty night chocolate” formula without destroying the taste of those chocolates. Opposing counsel has let you know they will be seeking to introduce evidence that the caffeine was removed six months after Penny Plaintiff filed suit. Will they be able to have this evidence admitted at trial? Why or why not?During discovery Plaintiff’s counsel got the chef who made the chocolates that Penny bought to testify that he was addicted to meth which causes his hand to shake. As a result, he poured triple the amount of caffeine as the recipe requires into the chocolates that Penny bought. Will this deposition testimony be admitted into evidence? Why or why not?At a cocktail party, the Plaintiff’s attorney’s paralegal overheard the CEO of Dreamy Delights say that he was surprised that no one had sued before as the “nighty night chocolates” contained no sleep inducing or relaxing ingredients. Will the paralegal be allowed to testify about what she overheard? Why or why not?EVIDENCE I (Fall 2016) Prof. Helen ZajicMIDTERM EXAMINATIONQUESTION ONEISSUE SHEETFlunking out of six culinary schools overheard comment-Start with relevance-Define relevance- likely to prove or disprove a properly provable proposition-Relevant evidence generally admissible irrelevant evidence never admissible-Argument would be relevant to damages, could not have won “Best Chef” award-Hearsay-Out of court statement offered to prove the truth of the matter contained within the statement-Not generally admissible because: trier of fact cannot evaluate credibility, not subject to cross-examination, not made under oath-Exceptions to the hearsay rule exists when something about the statement makes it more likely to be truthful then the “average” out of court statement-Cannot think of an exception that would apply here—bonus to you if you can think of any that might apply-Can’t use character evidence to show someone acted in conformity with that character trait at any given time; besides character is not at issue here.-Good luck, I can’t wait to read how creative you are to try to get this inEVIDENCE IMIDTERM EXAMINATIONQUESTION ONEISSUE SHEET Complaints in pending breach of contract actions-Again, relevance is probably the central issue here and should be your starting point-What properly provable proposition is this evidence supposed to prove or disprove? Does it? It is more likely that Delia Defendant breached this contract just because she is being sued for other breaches of contract?-Even if you decide they are relevant, remember to argue Plaintiff’s lawyer would have to show they were awfully like have any chance at all.-FRE 403: Probative value v Prejudice: Remember, relevant evidence will not be admitted if it’s probative value is outweighed by its potentially prejudicial effect.-a good argument can be made here that knowing your client was being sued for the same thing in so many other lawsuits will so inflame the jury so as to ruin their ability to be logical in this action; that is undue prejudice!-Don’t forget that these records are hearsay! What exception or exclusion would the other lawyer be using to get them into evidence? Will it likely work to overcome the hearsay issue?-Bonus points if you talk about how the other lawyer would technically admit these pleadings. If they are deemed admissible they will be admitted as business or public records and you may or may not remember that because they are certified they will not need to call the custodian of records to verify the accuracy of the copies of the complaints- certified records are self-authenticating.EVIDENCE IMIDTERM EXAMINATIONQUESTION TWOISSUE SHEETEvidence that the caffeine was removed from the chocolates-Relevance: is this relevant evidence? What properly provable proposition would it tend to prove or disprove?-It would prove that the chocolates could be changed, contrary to what Dreamy Delights had said-almost certainly relevant evidence-What about more probative than prejudicial?-Even relevant evidence can be excluded if the prejudicial nature of the evidence outweighs its probative value-Probably will not be excluded on this basis especially as Dreamy Delights said the chocolate could not be fixed-Some relevant evidence is excluded on public policy basis—like evidence of subsequent remedial repairs.-This evidence is excluded because we want people to fix whatever was wrong without having to worry that it will hurt them in litigation to make that fix-There are three exceptions to the public policy exclusion for subsequent remedial measures:(1)control of the property(2)claimed impossibility of the “fix”(3)to refute a claim the situation or product was “safe”Here: Dreamy Delights claimed the caffeine could not be removed; squarely within exception 2. -The subsequent remedial measure is admissible here for that reason-Don’t forget to tell me about the limiting instruction; only admissible to show Dreamy Delights did have the ability to remove the caffeine even though they claimed otherwise.EVIDENCE IMIDTERM EXAMINATIONQUESTION TWOISSUE SHEETAddiction to meth amphetamine-Clearly relevant, the chef admitted he wrongly measured the caffeine in the chocolate that Penny Plaintiff bought-May be very prejudicial as people tend to hate meth heads, but, I still think the relevance is going to outweigh the prejudice. I do NOT care what way you come out on this issue as long as you properly defend your positionDon’t forget to tell me that character evidence is not generally admissible to show that someone acted in conformity with that character trait at a given time. Here, however, the chef admitted that he incorrectly measured the caffeine at the appropriate point in time so the exclusion against character evidence does not apply.This is hearsay (an out of court statement). But it would be admissible under the prior testimony exception if opposing counsel cannot get the chef to restate this testimony on the stand. He was under oath when the statement was made, and subject to cross examination by your boss whether or not she took advantage of the ability to cross examine the chef.EVIDENCE IMIDTERM EXAMINATIONISSUE SHEETQUESTION TWOCEO stating that “nighty night” chocolates contained no sleep-inducing ingredients-Relevance: this statement is clearly relevant-Probative value v prejudice: does not seem to be an issue here. Remember prejudice does not mean harmful to your case; it means likely to inflame the trier of fact so that they cannot rely on rationality in making their decision-Hearsay: this is the big issue in this case-Defined: an out of court statement offered to prove the truth of the matter asserted in the statement-Opposing counsel will need to find an exclusion from or exception to the hearsay rule in order to get this admitted. Two possibilities are:Admissions:-admissions by a party opponent are exclusions under the federal rule and an exception to the hearsay rule under state law-Theory: it is highly unlikely that anyone would lie in such a way so as to hurt themselves.-this is a vicarious admission---extra points if you talk about whether or not the CEO can “tag” Dreamy Delights by what he says; I think he can but your callDeclarations Against Interest-not limited to parties but has to be something that, when said, could be harmful to the declarant; I believe this is-the problem is, the declarant must be “unavailable” to use this exception to the hearsay rule—nothing in the fact pattern indicates that is the case hereI think this statement will be admitted as a vicarious admission however, as long as you properly defend your statement, I will accept whatever conclusion you reach as to admissibility. ................
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