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Legal Fees and Costs: Who Pays and Beliefs in Law - Prof. J. Bible, Exams of Business and Labour Law

A legal dispute between lucy and schroeder, outlining the fees and costs incurred by each party. It also explores various beliefs in law, including natural law, sociological jurisprudence, legal realism, positive law, and precedent. Additionally, it covers statute of limitations, seizing assets to pay judgments, discovery limitations, and service of process in texas.

Typology: Exams

2012/2013

Uploaded on 02/18/2013

jac11-garcia
jac11-garcia 🇺🇸

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Download Legal Fees and Costs: Who Pays and Beliefs in Law - Prof. J. Bible and more Exams Business and Labour Law in PDF only on Docsity! BLAW 2361 – Exam 1 (Spring 2013). Name:_______________________________________ Basic facts for questions 1-14: Lucy sued Schroeder in state court alleging two causes of action. The jury ruled for her on one and him on the other. Lucy incurred $5,000 in lawyer fees and court costs for the claim she won and $6,000 for the claim she lost. Schroeder incurred $7,000 in fees and costs for the claim he won and $8,000 for the claim he lost. 1. Who must pay the fees and costs: a. Lucy must pay all of hers and Schroeder must pay all of his. b. Lucy must pay the $6,000 for the claim she lost and owes Schroeder $7,000 for the claim he won; he must pay the $8,000 for the claim he lost and owes her $5,000 for the claim she won. c. The parties will combine their fees and costs and split them equally. d. Lucy owes Schroeder $15,000 and he owes her $11,000. A – the general rule is that, win or lose, each party pays his/her own legal fees and court costs. There are exceptions, e.g. frivolous lawsuits, fee-shifting agreements between the parties, discrimination cases, but none of these applies here. 2. The conduct that led to Lucy’s claims also violated state criminal law. Given the outcome in the trial above Schroeder may be prosecuted for: (a) only the conduct involved in the claim he lost, (b) only the conduct involved in the claim he won, (c) both crimes, (d) neither crime. C – the Double Jeopardy Clause of the Constitution prevents someone from being tried twice for the same crime, or for a different crime arising out of the same facts, but it does not prohibit a criminal prosecution after a civil lawsuit or vice versa, regardless of the outcome in either proceeding. It also does not prohibit a federal prosecution after a state prosecution for the conduct in question. 3. Schroeder claims that, while his conduct may have been unprofessional, it is ethically defensible because it helped many people. This ethical theory is: (a) utilitarianism, (b) deontology, (c) stakeholder, (d) shareholder. A – this is essentially an ends-justifies-the-means argument. 4. Assume that both parties appeal the claims they lost. What is NOT true at the appellate level: a. There will be no jury. b. No new witnesses or exhibits will be introduced and no new conclusions about the facts of the case will be reached – the parties will be bound by the fact conclusions reached by the jury or judge (bench trial) at trial. c. The first appeal is to one of the geographically-based intermediate courts of appeal, which will sit in a three-judge panel, and the last is to the Texas Supreme Court (9 justices), which does not hear criminal appeals. d. All of these statements are true. D 5. The judge believes (1) the written law is the only valid law; (2) in making her rulings she may consider what disciplines such as economics and philosophy say about the issues in the case; and (3) a judge’s background, ideology, etc. necessarily affect her decision-making process. In 1-2-3 order, describe these beliefs: (a) natural law, sociological jurisprudence, legal realism; (b) positive law, sociological jurisprudence, legal realism; (v) positive law, legal realism, stare decisis; (d) common law, sociological jurisprudence, precedent. B 6. Assume that a Texas statute sets a four-year statute of limitations in one of Lucy’s claims. A common law case prescribes a three-year period and a State Bar of Texas rule sets a two-year period. The state Constitution says nothing about this issue. The applicable limitation period is: (a) unlimited, because the Constitution says nothing about this subject, (b) four years, (c) three years, (d) two years. B – when there is a conflict among different sources of law, the Constitution outranks statutes, statutes outrank administrative rules, and those rules outrank common law court decisions. Here, because the Constitution is silent on this issue, the conflict is among a statute, an administrative (State Bar) rule, and a common law court case. The statute outranks the other two sources. 7. Lucy claims fraud based on a business venture that Schroeder described to her on Jan. 1. They signed a contract and she gave him the money for the venture on Feb. 1. On August 1, after the venture fell apart, she learned that he lied on Jan. 1. The facts have always been a matter of public record. The statute of limitations on her fraud claim starts on: (a) Jan. 1, (b) Feb. 1, (c) August 1, (d) the day she files her complaint in court. B – taken from Case Problem 1. Although the deceit occurred on January 1, it did not have any consequences until February 1, when money changed hands and the contract was signed; thus, the four- year statute of limitations applicable in fraud cases begins running on that date. Under the discovery rule, a court will not start the limitations clock on the date of the harm if the victim did not know, and could not reasonably have known, on that date that he had a cause of action against the other party. But the rule does not apply where, as here, due diligence would have uncovered the deceit on or before February 1. The true facts have always been a matter of public record, so due diligence by Lucy should have uncovered them. 8. If fraud has four elements, Lucy can win only if she convinces the judge or jury ________________ that Schroder violated all four elements (fill in the blank): a. Beyond a reasonable doubt. b. By clear and convincing evidence. c. By a preponderance of evidence, meaning her case must be at least slightly more convincing than his. d. None of the above – Schroeder must disprove at least one of the elements of Lucy’s claim of fraud. C – the burden of proof standard applicable in civil fraud cases. Choice a is the criminal burden of proof, and choice c is not an applicable burden of proof standard at all. 9. Lucy wins a $500,000 judgment against Schroeder, a single man who owns homes in Austin (main home) and New Mexico and has assets of $50,000 and a job that pays him $8,000 per month. What is Lucy entitled to seize and liquidate to pay the judgment: a. Both houses and the $50,000 in assets. b. The New Mexico home and $20,000 in assets, and she can get a garnishment order covering his paycheck. c. The New Mexico home and $20,000, but she is not entitled to a garnishment order. B – cases can proceed in federal court if they involve a federal question or there is diversity of citizenship between plaintiff and defendant and at least $75,000 in dispute. Here there is no federal question; the facts say the lawsuit is based on state law. There is, however, at least $75,000 in dispute; the plaintiff is an Oklahoma citizen; the defendant is a citizen of Delaware and Texas; thus, there is complete diversity between plaintiff and defendant, so the suit can proceed in federal court. 18. Same facts. In which state(s) will in personam jurisdiction of XYZ exist: (a) only Texas or Oklahoma; (b) Texas, Oklahoma, or Delaware; (c) only Texas or Delaware; (d) only Oklahoma. C – in personam jurisdiction over a defendant exists in state(s) in which defendant has done something – become a citizen, make contracts, commit torts, etc. – to establish minimum contacts with that state so that it is fair to make him stand trial in that state. Here, minimum contacts exist in Delaware, the state of incorporation, and Texas, where the corporate headquarters are, but XYZ has not sold widgets in Oklahoma, advertised there, or done anything else to establish minimum contacts with that state. That it sold a widget to someone in Texas who took the widget to Oklahoma and sold it to Joe there is not intentional activity by XYZ that established minimum contacts with Oklahoma. 19. Assume that in #17, XYZ includes in contracts with buyers a clause stating that if a buyer sues XYZ it must do so in Delaware and the suit will be governed by Delaware law. Joe sues in Texas, arguing that it is unconstitutional for a business to prevent a consumer from suing it in any state with in personam jurisdiction of the suit and to require the suit to be governed by the law of a different state. The court will likely: a. Void the forum selection and choice of law provisions and allow Joe to sue in Texas, under Texas law. b. Enforce both provisions, so if Joe wants to sue he must do so in Delaware, under Delaware law. c. Enforce the forum selection provision but void the choice of law provision. d. Enforce the choice of law provision but void the forum selection provision. B – as noted in class, business contracts more frequently contain forum selection and choice of law provisions, and courts readily enforce them on the theory that they reflect the intent of the contracting parties (even though, as a practical matter, one or both parties may have never read the contract), so XYZ will succeed if it files a plea to the jurisdiction of the Texas court arguing that the court lacks jurisdiction of the lawsuit because of the clauses in question. 20. Abel sued Baker, Charlie, and Daniel for $1,000,000. Baker and Charlie answered by general denial but Daniel, believing the suit was frivolous, did not answer within the allotted 20 days. What result? a. Abel can immediately get a default judgment against Daniel for $1,000,000. b. If the court rules that $1,000,000 was Abel’s starting price for negotiation purposes and that Abel would have accepted a settlement for $500,000, Abel can collect that amount from Daniel by default judgment. c. Daniel will be dismissed as a defendant and the case will proceed against Baker and Charlie. d. The case against Daniel will immediately go to trial without going through discovery. A – that is the effect of the failure of a defendant who has been properly served with a summons and copy of the complaint from filing an answer within the time allotted for that purpose. 21. A basic premise of our system of dual federalism is: a. Congress can enact laws only if the Constitution explicitly grants it the power to do so. b. The states can enact laws only if the Constitution explicitly grants them the power to do so. c. Congress and the states have equal legislative authority. d. The U. S. Supreme Court is the primary legislative body at the federal level. A – basic Constitutional law – dual federalism. 22. Joe works for the City of San Marcos. The city fired him after it learned of a letter he wrote to the District Attorney claiming the city awarded construction contracts to businesses that were not the lowest bidder. He sues arguing that his firing violated his First Amendment free speech rights. Who should win: a. Joe – the contents of his letter are protected speech. b. City – public employees have no First Amendment rights. c. City – public employees have some First Amendment rights, but this letter is not among them. d. City – some forms of expression are constitutionally protected, but not by the First Amendment. C – because Joe works for a governmental entity there is a First Amendment free speech issue here. As noted in class, however, the Supreme Court has held that speech is generally protected only if it involves a matter of public concern. Public employees, moreover, have no First Amendment protection for written or oral com-ments they make that relate to their job duties. How the city awards contracts is city business and Joe works for the city so the comments are not protected. 23. XYZ Co. requires Bob, a new hire, to agree that any dispute involving the employment relationship must be submitted to arbitration. Two years later Bob sues XYZ for discrimination under Title VII of the 1964 Civil Rights Act. XYZ seeks dismissal based on the agreement. The suit will: a. Proceed – mandatory arbitration agreements are illegal in Texas. b. Be dismissed and Bob will be bound by the outcome in the arbitration, with only a very limited right to appellate review of that outcome. c. Proceed – plaintiffs in Title VII cases are entitled to a jury trial. d. Be dismissed but Bob will have the right to full appellate review of the outcome in the arbitration. B – mandatory arbitration agreements are legal in Texas and, in fact, are favored by courts as a means of eliminating cases that would otherwise be litigated. There is no exception for Title VII cases. The parties will be bound by the arbitrator’s decision and the only grounds for appealing it are that the arbitrator ignored the applicable law or was biased. 24. Many civil defendants settle cases even if they think they did not do anything legally wrong. What is a valid reason(s) why they do so: a. Defendants know they will have to pay the plaintiff’s lawyer fees and court costs if the plaintiff wins. b. Defendants fear they cannot carry their burden of production and proof. c. Defendants are aware of statistics showing that judges and juries are inherently biased against defendants. d. None of these are valid reasons. D – defendants do not have the burden of proof, the general American rule is that each party pays its own lawyer fees and court costs, and there are no such statistics. 25. Stare decisis focuses on: (a) predictability, (b) flexibility, (c) legislative intent, (d) evidence. A – the rule that courts will generally follow the law as established by previous courts, even where the later court disagrees with the earlier court, is clearly designed to promote stability and predictability in the law. If courts were regularly free to overrule or overlook previous court decisions on the same issue, no one could conduct business with any degree of assurance that the law will remain relatively stable over time. 26. McKenna University, a private institution, dismissed a professor who claimed in the newspaper that the university president mismanaged university funds. The professor sued claiming his constitutional rights were violated. What is the likely result for McKenna? a. Liability under the First Amendment right of free speech, as applied by the incorporation doctrine. b. Liability under the Eighth Amendment. c. Liability under the Fifth Amendment. d. McKenna wins. D – because McKenna is a private institution it is not subject to the Bill of Rights. 27. The text discusses motions for (1) directed verdict, (2) summary judgment, and (3) judgment on the plead-ings. Put these in the order they will occur in a lawsuit: (a) 2, 1, 3; (b) 3, 2, 1; (c) 3, 1, 2 (d) 1, 2, 3. B – a judgment on the pleadings comes after the pleading stage, summary judgment comes after the discovery stage, and a directed verdict comes after the plaintiff and defendant have offered all of their evidence. 28. According to the text, Judge Judy and similar TV judges are most like: (a) arbitrators, (b) mediators, (c) negotiators, (d) facilitators. A – there is no jury and her rulings are binding on the parties and unappealable in court. The other three have no power to issue binding decisions. 29. What is true of the pleading stage of a lawsuit: a. There is a limit on the amount of time that it can consume. b. There is a limit on the number of amended complaints and answers that may be filed. c. Both statements are true. d. Neither statement is true. D – as noted in class, plaintiffs often rely on “kitchen sink” and “shotgun” pleading, asserting multiple causes of action against multiple defendants, and when the defendant answers, the plaintiff may amend his or her complaint in response to what the answer says. The defendant might then amend its answer, and this process can go on interminably, all the while causing the parties’ legal fees to escalate. 30. While walking her dog Bozo, Rachel witnessed an auto accident. She immediately realized that the drivers of both cars were seriously injured. She has the legal duty to: a. Try to render aid. b. Make a 911 call for help. c. Knock on her nearby neighbor’s door if she knows he is a doctor. d. She may have an ethical or moral duty to do one or more of these things, but she has no legal duty to
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