Exam Number ______


School of Law

Mr. Fischer May 14, 2001



1. This is the second part of the examination and consists of three essay questions and 5 pages (pages 1 through 5).

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

[35 minutes]

You work for a law firm. A partner calls you into her office and tells you the following: I have been appointed to represent Doax in FEDERAL COURT in a case where he has been charged with armed robbery of $500. Two witnesses who were present at the robbery identify Doax as the culprit.

I need your help in formulating a strategy for defending the case. Doax's defense is alibi. He is willing to testify, and if called as a witness would state that he was attending an out-of-town baseball game with Watts when the robbery occurred. The game was played in a location 100 miles away from the scene of the robbery. If called as a witness, Watts will testify to this effect as well. I need to decide whether to call Doax or Watts or both in the case. Without their testimony I can prove that Doax purchased an expensive ticket to the ball game, and that on the day of the game he purchased gasoline in the town where the game was played.

The prosecution has evidence that Doax has a prior conviction for murder, and two prior arrests for other suspected homicides for which he was never prosecuted. Also, the prosecution has a witness, Bart, who will testify that he heard Watts say, "I know for sure that Doax did not commit that robbery because he is too smart and too mean to leave any witnesses. If he did it, he would have killed them all."

How may this prosecution evidence be used, if at all? Should this evidence have any bearing on my decision to call either Doax or Watts? How do you think that I should proceed with the defense?

Essay II

[50 Minutes]

Another partner calls you into his office and tells you the following: I represent the estate of Seller, a deceased lumber dealer. I am contemplating bringing an action against the estate of Builder (a deceased building contractor) for breach of a requirements contract between Seller and Builder. In order to prevail I will have to prove the existence and the terms of the contract, and that Builder breached the contact. In order to recover damages, I will have to either show actual damages or establish that the liquidated damages provision of the contract accurately reflects actual damages. I am not sure that I have enough evidence to make the suit worthwhile, and I would like your advice concerning the admissibility of the evidence and whether a lawsuit is advisable.

There is, in the possession of Builder's estate, what purports to be an agreement signed by both Seller and Builder providing that Seller will supply Builder with all her lumber needs for a twelve-month period at a specified price. The contract also provides that Builder will pay Seller liquidated damages of $10,000 per month for every month that Builder breaches the contract. I know of no other copy of the alleged contract. This document was found among business papers kept by Builder in a bank safe deposit box. I have seen this document, and will subpoena it in the event that I file suit. I have witnesses that will testify that they recognize Seller's signature as being genuine. Builder's signature, however, is somewhat peculiar. It appears to have been traced over many times as if written by a person using a ballpoint pen that was working very erratically because it was low on ink. I have been unable to find a witness willing to testify that she recognizes the signature as being Builder's. I have samples of Builder's signature on other documents. These samples are similar in some respects to the signature on the alleged contract, but there are also troubling dissimilarities.

I have evidence showing that Seller provided Builder with lumber for the first month of the contract period. Thereafter, Builder purchased all her lumber from other suppliers even though Seller had ample supplies to satisfy Builder's needs. I believe that this evidence is sufficient to establish breach of the contract, and you need not address the issue of breach.

Because of lumber price fluctuations during the period of the contract, I cannot establish that Seller lost money as a result of Builder's breach. There is, however, a rebuttable presumption that if a binding contract contains a liquidated damage provision, the amount set forth as liquidated damages constitutes the actual loss or damage caused by breach of the contract.

I am concerned about the following evidence. I understand that Builder's brother, the primary beneficiary of Builder's estate, will testify that shortly before her death Builder said, "Boy, Seller is a good negotiator. In every deal that I have made with him, he has insisted on a liquidated damage provision that would pay him much more in the case of breach than he would have made by performing the contract."

Do you think that I have enough evidence to justify a lawsuit? Please analyze the admissibility and the use of the evidence described above.

Essay III

[35 Minutes]

A partner tells you that he is representing Diane, who has been charged with murdering her eleven-year-old daughter Emily. The prosecution claims that Diane killed Emily in the family home by pushing her down the stairs leading to the basement. The partner would like your help in analyzing the evidence in the case.

Diane denies pushing Emily; she claims that on the day of the death she found Emily lying on the floor at the bottom of the stairs. Emily was still alive, and prior to losing consciousness said, "Mom, I tripped on the rug, and that made me fall."

The prosecution has a witness, Wilma, who will testify that about six months before Emily's death, she was babysitting for Emily in the family home. Emily dropped a dish on the kitchen floor and become extremely upset. She cried out, "Mommy said that if I ever broke a dish, I will get what Joe got." Wilma did not know what Emily meant by this, but could only calm Emily down by assuring her that she, Wilma, would take the blame for breaking the dish. When Wilma told Diane that she broke the dish, Diane became visibly upset and never again hired Wilma to babysit.

The prosecution has evidence that, on the day of Emily's death, the police found a broken dish from Diane's home in the trash can located in Diane's garage. The prosecution also has a witness who will testify that three years prior to Emily's death, Diane pushed her older child, Joe, down the same steps after Joe accidentally broke a living room lamp. Diane denies that this occurred. Diane admits yelling at Joe for breaking the lamp, but denies pushing him. She claims that Joe fell down the steps because he tripped.

Please advise me about the admissibility of this evidence and the likely outcome if this case goes to trial.