Exam Number ______


School of Law

Mr. Fischer May 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

[70 minutes]

You work for a law firm. A partner calls you into her office and tells you the following: I represent Patsy who was injured in an accident involving a car owned by Acme Insurance Company and driven by Doris, an Acme insurance sales person. We have filed a tort action against both Acme and Doris seeking compensation for Patsy's injuries. In order to prevail against Doris we will have to prove that she negligently caused Patsy's injuries. In order to prevail against Acme we will have to prove that Doris negligently caused Patsy's injures and that Doris was working for Acme at the time of the accident.

I believe that we have adequate evidence of Doris' negligence, but I am concerned about proving that Doris was working for Acme at the time of the accident. Acme claims that on the day of the accident it had loaned the car to Doris, and she was operating the car solely for the transaction of personal business.

I have the following evidence, but I am not sure what use I can make of it. I can prove that Acme owned the car Doris was driving. Also, I have a witness, Alice, who was present at the scene of the accident. She will testify that shortly after the accident she heard Doris say, "I have been to Springfield in the car on business for Acme." I also have a witness, Bob, who will testify that at Acme's sales meeting, held on the afternoon prior to the accident, Doris' supervisor gave Doris the keys to the car and asked that she take the car to Springfield on business the next day (the day of the accident). Doris agreed to do so. I also have a witness, Cal, who will testify that several hours prior to the accident Doris tried to sell him an insurance policy in Springfield.

I am concerned about Elmer, a witness that Acme may try to call. If called as a witness, Elmer would testify that on the morning before the Acme sales meeting (the same meeting that Bob would testify about), he overheard a conversation between Doris and her supervisor. Doris asked for permission to borrow the car the following day (the day of the accident) for her own personal use. The supervisor agreed to loan it to her, but said that she didn't want the other employees to know about the car loan because she was afraid that she would be flooded with similar requests. Therefore, she agreed to give Doris the car keys in the sales meeting and falsely say, in front of the other employees, that it was for business use in Springfield.

I do have evidence that Elmer is an Acme employee who received a big promotion one week before first telling his story about the conversation. Also, I have documentary evidence (that can be authenticated) that several years ago, when returning from an overseas trip, Elmer filed a customs declaration in which he falsely claimed that he did not have any goods that he purchased while out of the country.

By the way, there is a presumption that when a motor vehicle owned by a business is involved in an accident the vehicle was in the possession of the owner's agent and the agent was operating the vehicle on the owner's business.

Please advise me concerning the use that can be made of the evidence I described and of the presumption. What do you think my chances of prevailing against Acme are?

Essay II

[50 Minutes]

A partner tells you that he is representing General Merchandise (GM) in FEDERAL COURT. One of the issues in this litigation is whether GM acquired title to two acres of property deeded to Smith which adjoins property deeded to and occupied by GM. It is our contention that GM built a fence around its property in 1961. This fence encroached on Smith's property enclosing the two acres in question, and GM has adversely possessed the Smith property ever since. If this contention is correct, the statute of limitations would have run by now, and GM would have acquired ownership of the property by adverse possession. Our opponent disputes that the fence was built as early as 1961, and I am having trouble establishing the date the fence was built.

The following item of evidence has come to my attention. My investigator located a document in the files of Wilbur, a local amateur historian who died in 1971. At the time of his death, Wilbur was collecting information for a book about local history. The document begins with a handwritten note (purportedly written by Wilbur) stating that what follows is an exact handwritten copy (written by Wilbur) of a letter written in 1961 by Sarah (a local resident) to her Uncle. The document then sets out the purported letter which describes a major flood that took place in the spring of 1961. The letter also mentions that "General Merchandise just built a big ugly fence around its property. Smith told me that the fence includes some of Smith's land, but he is scared to do anything about it because General Merchandise's manager threatened to take reprisals if Smith made a fuss about it."

I wonder whether we can use the document and for what purpose? If the document comes into evidence, is there any way that I can keep the jury from learning about the alleged threat by GM's manager?