Exam Number ______


School of Law

Mr. Fischer December 14, 2002



1. This is the second part of the examination and consists of two essay questions and 4 pages (pages 1 through 4).

2. You will have two hours to complete the essay portion of the examination.

3. You may have with you your copy of the rules supplement booklet and a single piece of standard sized paper on which you may have written anything you wish. Except for these two things, this is a closed book examination.

4. Times are suggested for each part of the essay question. The suggested times are intended as a guide to aid you in budgeting your time and are indicative of the relative value of the questions.

5. Unless otherwise specified in the question the litigation involved in the essay questions occurs (or will occur) in the courts of the State of Jefferson, one of the states of the United States. The courts of Jefferson tend to follow the generally accepted view with regard to the law of evidence. However, they will consider variations and modern approaches (such as those contained in the Federal Rules of Evidence) in appropriate cases. The State of Jefferson does NOT have a dead man's statute. The State of Jefferson does use the Thayer rule (the bursting bubble rule) concerning presumptions.

6. Read the questions carefully and be certain you understand the facts given and the question asked before you answer. Make sure that you answer the question that is asked. Organize your answer before you begin to write.

7. Each answer should be self-contained. Thus, you should not "incorporate by reference" anything from one answer to another.

8. Use a pen, write legibly, write on only one side of a bluebook page, and leave a margin.

Essay I

[65 minutes]

You work for a law firm. A partner calls you into her office and tells you the following: I represent Acme Medical Products, the defendant in a wrongful death action. Acme manufactures a variety of medical products, including hypodermic needles. Plaintiff was the mother of the decedent, Sam Smithers, who worked as a custodian in a hospital. Sam died of AIDS. Plaintiff's theory is that Sam contracted AIDS when he accidentally stuck his finger on an unprotected hypodermic needle while he was emptying a hospital wastebasket. Acme provided all the hypodermic needles used by the hospital. Plaintiff claims that Acme was negligent because it did not equip the hypodermic needle with a safety cap that would have protected against accidental sticks. My theory is that Sam was a drug user, and that he contracted AIDS by sharing needles with other drug users.

I would like your help with some evidence issues. Plaintiff has the records of the clinic that performed the blood test that first showed that Sam's blood was infected with the virus that causes AIDS. The admitting attendant wrote in the records that Sam "wants a blood test for AIDS because he 'pricked his finger on a hypodermic needle while emptying a waste basket at work'." Is this record admissible? If so, for what purpose?

I have some evidence that I would like to use. Alice Abrams was a friend of Sam's who visited him in the hospital a week or so before he died. She is willing to testify that Sam said to her, "I shared needles with my friends when we took illegal drugs." What use can I make of this? I've talked to some of the employees at the hospital where Sam worked and they say that Sam is not reliable, that he has often told lies. Roger Ross, his supervisor specifically said Sam could not be depended on to tell the truth and that he lied on his application for work there. Is there any use we can make of this?

I also interviewed Frank French, a neighbor who has known Sam for years. He told me that plaintiff indicated that she might call Frank to testify as to Sam's good reputation for

truthfulness. Will she be able to do that? What can we do if she does?

By the way, you may find it helpful to look at FRE 806 which states in part:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with thedeclarant's hearsay statement, is not subject to the requirement that the declarant may have been afforded an opportunity to deny or explain. . . .

Essay II

[55 minutes]

Another attorney calls you into his office. He tells you the following: I represent Palmer in a personal injury action against Danby and have filed suit in FEDERAL COURT. On September 21, 2001, Palmer was seriously injured when she fell into a hole on Danby's property that was adjacent to a public sidewalk. There are no streetlights in the area, and the accident occurred when Palmer fell in the hole while walking her dog at about 10 p.m. Danby admits digging the hole in an effort to locate a leak in the water pipe leading to his house. We allege that Danby was negligent in not having lights and barriers around the hole. Unfortunately, the fall caused Palmer to lose consciousness, and she is a little uncertain of the details. She will testify, however, that there were no lights and barriers and that she fell. Danby claims that he did put lights and barriers out before dark on the date of the accident but that someone, apparently vandals, removed the lights and barriers before the accident.

There are several items of evidence upon which I would like your advice.

Wilson has lived next door to Danby for seven years. In March, 2002, Wilson gave a deposition in which he stated that there were no lights or barriers around the hole on the date of the incident. However, last month, Wilson informed us that his statements in the deposition were not correct. If called as a witness, I am sure he will now testify that he saw the hole in the early evening of that date and that there were lights and barriers at that time.

We have evidence that in May, 2002, Danby paid a lawn care company $350 to cut Wilson's grass and care for his lawn for the summer and fall of 2002. Danby's explanation of this will be that he did not do this to influence Wilson's testimony but to repay a favor; that in summer of 2001, Danby had a broken leg and Wilson cut his grass for free that summer because Danby was not able to do so.

Wilson runs a computer repair business out of his home. I've learned that Danby has a witness, Sawyer, who, if allowed, will testify that on September 22, 2001, using a telephone number she copied off a notice on a bulletin board, she called and a person who said he was Wilson answered the telephone; that after discussing a computer problem, the person told her about someone falling into a hole the night before and the person said "there were lights and barriers around the hole earlier in the evening but vandals must have taken them."

I would like to use Wilson's deposition statement to support Palmer's account. Also I would like to know what uses and problems there are in using evidence of the lawn care payments.