Attractive nuisance is a "crossover" tort that combines the torts of negligence and tresspass to land, to protect young children. An attractive nuisance action is associated with premises liability of property owners, and involves an artificial dangerous condition.
The rationale for the creation of the tort was that the presence of the dangerous condition amounted to an express invitation onto the land for young children to enter.
Elements
1) the property owner knows or has reason to know of a dangerous condition on their property which a child is likely to trespass upon (foreseeable)
2) the dangerous condition carries an unreasonable risk of bodily harm
3) the child, because of their age, does not discover/ does not appreciate the danger posed
4) the burden or cost of removing the dangerous condition is slight balanced against the risk posed by the dangerous condition
5) the property owner does not take reasonable care to eliminate the dangerous condition; AND
6) a child suffers bodily harm as a result
There are many elements that you have to meet to support an attractive nuisance claim.
It is therefore UNLIKELY that a fact pattern on the multistate meets an attractive nuisance claim.
Analysis
Look for man-made structures on a private person's property that invite children to enter, like a swimming pool, trampoline, swing set, or tree house. Then, look for lack of a fence (too easy), or a poorly-maintained fence or unlocked gate such that access to the property is reasonably unrestricted.
Ponds and lakes are not artificial conditions, so attractive nuisance does not hold. However, drainage pits and wells are increasingly forming the basis of attractive nuisance actions.
Even a well-maintained and otherwise secure fence that is very short may create an
attractive nuisance action.
Landowners that live nearby schools and other places with a frequent number of small children have a greater burden.
Posting of warning signs, by itself, is not enough for property owners to eliminate the risk. However, this may bear on the issue of whether the child appreciated the risk.
The older the child, the more unlikely an attractive nuisance doctrine holds (and vice-versa). For example, a poorly-maintained fence around a private club swimming pool with large and prominent signs stating "Keep out: swimming pool" and "Shallow water: do not dive" would be analyzed differently for a 6-year old child versus a 12-year old child, for example.
Courts have frequently held that children who scale fences or gain access to otherwise secured areas appreciate the risk posed by the dangerous condition, and an attractive nuisance claim does not hold.
Monday, June 17, 2013
Friday, June 7, 2013
The Best Evidence Rule, and illustrative examples
More discussions on MBE and bar exam essay subjects like these, with illustrative examples, are available in our low-cost Multistate outlines and examples. See https://www.facebook.com/PassingTheMultistateBarExam and http://alfredzappala.com/multi.html for more information.
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The Best Evidence Rule ("BER") is always tested on the MBE. Usually, only one question on the MBE is focused on this issue. Though it is not a high value subject area like negligence, which typically has 4 or more questions, there is no good reason to miss a question on the Best Evidence Rule if you know the basics and can apply them.
In evidence law, a witness' testimony through personal knowledge is typically highest on the totem pole of admissibility. However, when information within a document is disputed by the parties, such as the quantity term for goods in a contract, the rule requires production of the the original writing as the "best evidence" to resolve the dispute. When a matter is disputed by the parties, courts also refer to the matter as being "at issue."
For these reason, the BER is also referred to as the "original document rule." While this sounds straight-forward, it is only through examples that illustrate when the rule applies and when it does not apply that truly solidify the concept.
The BER has a fairly narrow application. The rule almost exclusively applies to writings, such as court judgments, contracts, and deeds, but sometimes also applies to photographs and recordings. When there is independent proof of an event that can also be proved by a writing, the BER does not apply. Additionally, the power of the BER is somewhat undermined by the fact that courts in many cases allow a duplicate of the original document when the original is destroyed or not available.
Example 1: BER does not apply
In a murder case, you are on the witness stand and are asked to identify a photograph entered into evidence as a correct representation of a street corner in your neighborhood.
The BER does not apply. The contents of the photograph are not disputed, or "at issue."
Example 2: BER does apply
The same fact pattern, with additional information. The photograph is not available. The defense asks you if you recall seeing the photograph, and if you recall seeing a man other than the defendant in the photograph holding a jeweled dagger. The jeweled dagger is separately entered into evidence and is identified as the murder weapon.
The prosecution should immediately raise an objection based on the BER. This is because the "contents of the writing," which is the identity of the person holding the murder weapon in the photograph, are at issue. The contents of the photograph have independent probative value beyond the photograph itself. The judge should sustain the objection and demand that the defense produce the photograph.
Example 3: BER does not apply
The same fact pattern as Example 2, but the witness claims to have seen a man other than the defendant walking around town holding the jeweled dagger, and testifies to that effect.
Here, the witness would be testifying from personal knowledge.
Example 4: BER does not apply
You are on the witness stand, and are asked if Smith was married to Jones on a certain date. You attended their formal wedding ceremony, as did two other witnesses. Even though proof of the marriage is recorded in a written document, a marriage license, testimony provided under oath by witnesses through personal knowledge provides independent proof of the same event. As a result, the BER does not apply.
Example 5: BER does apply
The prosecution calls as a witness a technician that viewed a videotape of a convenience store robbery, and asks the technician to describe how the robbery was carried out.
The BER applies. The prosecution is trying to prove facts of an event by offering testimony that describes video of the event, instead of offering the video itself. The technician lacks personal knowledge of the event, as the technician witnessed a representation of the event, the video, and not the event itself as it occurred.
Example 5: BER does apply
The prosecution calls as a witness an expert on automated tollbooth equipment. The witness testifies
that the defendant crossed the US border into Mexico based on the witness' analysis of data logs from the automated tollbooth equipment installed at the border crossing. The defendant has already been charged with possession of narcotics. At issue is whether the defendant crossed the US border into Mexico.
The BER applies. Note that the witness never actually saw the defendant cross the US border into Mexico, the witness inferred this based on data in a log file. The witness lacks personal knowledge
of the event. The prosecution must produce the data logs themselves.
The prosecution can then ask the witness to comment on the content of the data logs to support the argument that the defendant crossed the US border into Mexico. The defense can then rebut these statements with analyses of the data logs of their own expert witnesses, provide evidence showing that the automated tollbooth equipment was not functioning reliably at the time of the alleged border crossing, etc.
An approach to addressing BER questions
1) Determine if a document, photograph, or other writing is mentioned in the fact pattern
2) Ask the question "are the *contents* of the writing at issue?
If both (1) and (2) are true, the BER holds.
===
The Best Evidence Rule ("BER") is always tested on the MBE. Usually, only one question on the MBE is focused on this issue. Though it is not a high value subject area like negligence, which typically has 4 or more questions, there is no good reason to miss a question on the Best Evidence Rule if you know the basics and can apply them.
In evidence law, a witness' testimony through personal knowledge is typically highest on the totem pole of admissibility. However, when information within a document is disputed by the parties, such as the quantity term for goods in a contract, the rule requires production of the the original writing as the "best evidence" to resolve the dispute. When a matter is disputed by the parties, courts also refer to the matter as being "at issue."
For these reason, the BER is also referred to as the "original document rule." While this sounds straight-forward, it is only through examples that illustrate when the rule applies and when it does not apply that truly solidify the concept.
The BER has a fairly narrow application. The rule almost exclusively applies to writings, such as court judgments, contracts, and deeds, but sometimes also applies to photographs and recordings. When there is independent proof of an event that can also be proved by a writing, the BER does not apply. Additionally, the power of the BER is somewhat undermined by the fact that courts in many cases allow a duplicate of the original document when the original is destroyed or not available.
Example 1: BER does not apply
In a murder case, you are on the witness stand and are asked to identify a photograph entered into evidence as a correct representation of a street corner in your neighborhood.
The BER does not apply. The contents of the photograph are not disputed, or "at issue."
Example 2: BER does apply
The same fact pattern, with additional information. The photograph is not available. The defense asks you if you recall seeing the photograph, and if you recall seeing a man other than the defendant in the photograph holding a jeweled dagger. The jeweled dagger is separately entered into evidence and is identified as the murder weapon.
The prosecution should immediately raise an objection based on the BER. This is because the "contents of the writing," which is the identity of the person holding the murder weapon in the photograph, are at issue. The contents of the photograph have independent probative value beyond the photograph itself. The judge should sustain the objection and demand that the defense produce the photograph.
Example 3: BER does not apply
The same fact pattern as Example 2, but the witness claims to have seen a man other than the defendant walking around town holding the jeweled dagger, and testifies to that effect.
Here, the witness would be testifying from personal knowledge.
Example 4: BER does not apply
You are on the witness stand, and are asked if Smith was married to Jones on a certain date. You attended their formal wedding ceremony, as did two other witnesses. Even though proof of the marriage is recorded in a written document, a marriage license, testimony provided under oath by witnesses through personal knowledge provides independent proof of the same event. As a result, the BER does not apply.
Example 5: BER does apply
The prosecution calls as a witness a technician that viewed a videotape of a convenience store robbery, and asks the technician to describe how the robbery was carried out.
The BER applies. The prosecution is trying to prove facts of an event by offering testimony that describes video of the event, instead of offering the video itself. The technician lacks personal knowledge of the event, as the technician witnessed a representation of the event, the video, and not the event itself as it occurred.
Example 5: BER does apply
The prosecution calls as a witness an expert on automated tollbooth equipment. The witness testifies
that the defendant crossed the US border into Mexico based on the witness' analysis of data logs from the automated tollbooth equipment installed at the border crossing. The defendant has already been charged with possession of narcotics. At issue is whether the defendant crossed the US border into Mexico.
The BER applies. Note that the witness never actually saw the defendant cross the US border into Mexico, the witness inferred this based on data in a log file. The witness lacks personal knowledge
of the event. The prosecution must produce the data logs themselves.
The prosecution can then ask the witness to comment on the content of the data logs to support the argument that the defendant crossed the US border into Mexico. The defense can then rebut these statements with analyses of the data logs of their own expert witnesses, provide evidence showing that the automated tollbooth equipment was not functioning reliably at the time of the alleged border crossing, etc.
An approach to addressing BER questions
1) Determine if a document, photograph, or other writing is mentioned in the fact pattern
2) Ask the question "are the *contents* of the writing at issue?
If both (1) and (2) are true, the BER holds.
Tuesday, June 4, 2013
A meander through Miranda
Overview
The Miranda warning is a procedural safeguard to ensure that criminal suspects are appraised of their 5th Amendment right against self-incrimination in criminal matters, and that they are reminded of their 6th Amendment right to counsel in criminal matters.
The reading of your Miranda rights is not required by the U.S Constitution. However, in Miranda v Arizona, the U.S. Supreme Court created a presumption that custodial interrogation by police is inherently coercive, enough to intefere with your 5th Amendment right against self-compelled incrimination in criminal matters.
As a result, the Court created the Miranda warning, and the requirement that police recite it, in order to provide a necessary procedural safeguard against this presumption.
Definition
Police must recite the Miranda warning to suspects of an alleged criminal act, when those suspects are subject to a 1) custodial 2) interrogation by the police.
Whether on the Multistate or in an essay, you *must* analyze these two prongs, for *each* criminal charge.
Custody
Typically, you are in custody if you believe you are not free to leave, or your freedom of movement is reasonably restricted. Clear examples are when you are handcuffed or told you are under arrest.
The interesting examples, upon which you will most likely be tested, though, are the ones where you are not restrained or placed under arrest. Instead, you are simply asked to wait in your car while the police officer questions another driver, or calls in a drug-sniffing dog, to name a few examples.
Interrogation
Usually associated with "express questioning" or functional equivalent, where a police officer asks you questions "reasonably likely to elicit an incriminating response."
The opportunity to argue if the questioning constituted an "interrogation" is frequently essay territory.
When your "right to remain silent" is implied under Miranda
You do not need to expressly invoke your 5th Amendment right against compelled
self-incrimination where some form of official compulsion denies you a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S, 424 U.S at 656-657.
When you must expressly invoke you "right to remain silent"
Once you have waived your Miranda rights, you are no longer covered
by its protections until you expressly invoke them.
Invoking your Miranda rights
You must state this 1)clearly and 2) unequivocally (more important buzz words). A nod of the head or a "thumbs up" sign by a suspect is usually not enough.
Once you invoke your Miranda rights, police interrogation must immediately cease.
Waiving your Miranda rights
Your statement expressing your desire to waive your Miranda rights must be 1) voluntary 2) knowing and 3) intelligent. These are important keywords to mention and briefly discuss with any fact pattern involving a waiver of Miranda rights.
Terminating interrogation, and resuming/ re-engagement of interrogation
When a suspect invokes their 5th Amendment rights, they are also free to waive them thereafter, and re-invoke them, (lather/rinse/repeat, etc.)
Be on the lookout for fact patterns where the suspect starts volunteering information a few minutes after invoking their Miranda rights, and then states "I've said enough already, I need a lawyer!" At this point, the police must again cease interrogating the suspect.
Exceptions
The public safety exception relaxes the requirement that police recite the Miranda warning prior to custodial interrogation. Based on public policy, police have fairly wide latitude when exigent circumstances (emergencies) exist.
This is frequently a matter of intense debate. The questioning of one of the suspects in the aftermath of the recent Boston Marathon bombings brought this exception front and center in the media over the last 3-4 months.
Miranda and the Fruit of the Poisonous Tree doctrine
An ill-applied or non-existent Miranda warning will often result in a suspect's criminal testimony being "thrown out," or inadmissible during the prosecutor's case-in-chief against the suspect.
However, your otherwise inadmissible statements can still be used against you for impeachment purposes, such as during cross-examination. (Sidebar: this is one of many good reasons as a defense attorney to discourage your defendant from testifying under oath, or "taking the stand.")
The Miranda warning is a procedural safeguard to ensure that criminal suspects are appraised of their 5th Amendment right against self-incrimination in criminal matters, and that they are reminded of their 6th Amendment right to counsel in criminal matters.
The reading of your Miranda rights is not required by the U.S Constitution. However, in Miranda v Arizona, the U.S. Supreme Court created a presumption that custodial interrogation by police is inherently coercive, enough to intefere with your 5th Amendment right against self-compelled incrimination in criminal matters.
As a result, the Court created the Miranda warning, and the requirement that police recite it, in order to provide a necessary procedural safeguard against this presumption.
Definition
Police must recite the Miranda warning to suspects of an alleged criminal act, when those suspects are subject to a 1) custodial 2) interrogation by the police.
Whether on the Multistate or in an essay, you *must* analyze these two prongs, for *each* criminal charge.
Custody
Typically, you are in custody if you believe you are not free to leave, or your freedom of movement is reasonably restricted. Clear examples are when you are handcuffed or told you are under arrest.
The interesting examples, upon which you will most likely be tested, though, are the ones where you are not restrained or placed under arrest. Instead, you are simply asked to wait in your car while the police officer questions another driver, or calls in a drug-sniffing dog, to name a few examples.
Interrogation
Usually associated with "express questioning" or functional equivalent, where a police officer asks you questions "reasonably likely to elicit an incriminating response."
The opportunity to argue if the questioning constituted an "interrogation" is frequently essay territory.
When your "right to remain silent" is implied under Miranda
You do not need to expressly invoke your 5th Amendment right against compelled
self-incrimination where some form of official compulsion denies you a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S, 424 U.S at 656-657.
When you must expressly invoke you "right to remain silent"
Once you have waived your Miranda rights, you are no longer covered
by its protections until you expressly invoke them.
Invoking your Miranda rights
You must state this 1)clearly and 2) unequivocally (more important buzz words). A nod of the head or a "thumbs up" sign by a suspect is usually not enough.
Once you invoke your Miranda rights, police interrogation must immediately cease.
Waiving your Miranda rights
Your statement expressing your desire to waive your Miranda rights must be 1) voluntary 2) knowing and 3) intelligent. These are important keywords to mention and briefly discuss with any fact pattern involving a waiver of Miranda rights.
Terminating interrogation, and resuming/ re-engagement of interrogation
When a suspect invokes their 5th Amendment rights, they are also free to waive them thereafter, and re-invoke them, (lather/rinse/repeat, etc.)
Be on the lookout for fact patterns where the suspect starts volunteering information a few minutes after invoking their Miranda rights, and then states "I've said enough already, I need a lawyer!" At this point, the police must again cease interrogating the suspect.
Exceptions
The public safety exception relaxes the requirement that police recite the Miranda warning prior to custodial interrogation. Based on public policy, police have fairly wide latitude when exigent circumstances (emergencies) exist.
This is frequently a matter of intense debate. The questioning of one of the suspects in the aftermath of the recent Boston Marathon bombings brought this exception front and center in the media over the last 3-4 months.
Miranda and the Fruit of the Poisonous Tree doctrine
An ill-applied or non-existent Miranda warning will often result in a suspect's criminal testimony being "thrown out," or inadmissible during the prosecutor's case-in-chief against the suspect.
However, your otherwise inadmissible statements can still be used against you for impeachment purposes, such as during cross-examination. (Sidebar: this is one of many good reasons as a defense attorney to discourage your defendant from testifying under oath, or "taking the stand.")
Friday, May 31, 2013
The July bar exam is upon us.
Many of you have signed up or already started your full-feature bar preparation course. It is large, and the information is overwhelming. It is all too easy to succumb to "information overload," and "analysis paralysis," if you will.
This is where the Multistate Digest truly shines. Its concise, low-cost outlines provide you with the black-letter law you need to pass the Multistate portion of the bar exam, a requirement in most jurisdictions. It also provides many concrete examples.
The full Multistate Digest that covers all multistate subjects comes in printed and kindle/kindle reader versions, and includes an invaluable section on "How to study for the bar exam." Alfred Zappala's 20+ years of experience as a bar preparation author, lecturer, professor, and private tutor have helped thousands of folks pass the bar exam.
The full Multistate Digest printed version runs about 210 pages and costs $99. 00, and the full Kindle/kindle reader version costs $69.99. The kindle/kindle reader format also allows you to order a la carte for only $9.99 per Multistate subject.
Please visit Alfred's web site at http://alfredzappala.com/multi.html for more information.
This is where the Multistate Digest truly shines. Its concise, low-cost outlines provide you with the black-letter law you need to pass the Multistate portion of the bar exam, a requirement in most jurisdictions. It also provides many concrete examples.
The full Multistate Digest that covers all multistate subjects comes in printed and kindle/kindle reader versions, and includes an invaluable section on "How to study for the bar exam." Alfred Zappala's 20+ years of experience as a bar preparation author, lecturer, professor, and private tutor have helped thousands of folks pass the bar exam.
The full Multistate Digest printed version runs about 210 pages and costs $99. 00, and the full Kindle/kindle reader version costs $69.99. The kindle/kindle reader format also allows you to order a la carte for only $9.99 per Multistate subject.
Please visit Alfred's web site at http://alfredzappala.com/multi.html for more information.
Friday, February 22, 2013
Routine for last week before exam
Sleep and diet will help you more than anything now.
Get 8 hours of sleep each night. If you haven't already
started to, get up each day at the same time you need
to get up for the testing days.
If you are staying in a hotel near the test facility, arrange
a wakeup call now.
Fruit, protein, lots of water, no alcohol.
See a movie this weekend.
Keep Sunday to 6 hours of study.
During study, take 15 min breaks every hour, or hour and 1/2.
Exercise, even just a 20 minute walk per day, helps
relieve stress and clear your mind.
They day before the test, preferably, don't study at all.
If you must study, stop at 2pm. You need to rest your brain
for the next two days of testing.
You can do this!
Get 8 hours of sleep each night. If you haven't already
started to, get up each day at the same time you need
to get up for the testing days.
If you are staying in a hotel near the test facility, arrange
a wakeup call now.
Fruit, protein, lots of water, no alcohol.
See a movie this weekend.
Keep Sunday to 6 hours of study.
During study, take 15 min breaks every hour, or hour and 1/2.
Exercise, even just a 20 minute walk per day, helps
relieve stress and clear your mind.
They day before the test, preferably, don't study at all.
If you must study, stop at 2pm. You need to rest your brain
for the next two days of testing.
You can do this!
Tuesday, February 19, 2013
Some thoughts a week before the exam
The February bar exam is approaching next week in most jurisdictions. Cram time is over, but you cannot take your foot off the gas quite yet. It is time to eat well, sleep well, and fill those gaps in
your knowledge base, especially in your essays. Push the protein, blueberries and fruit, and shy away from the junk food and soda (good advice for after the exam, too!)
For your MBE problem areas, it is much better at this point to narrow down to two answers, guess,
and quickly move on. Mark the question as one you want to go back to, if you have time.
For essays, focus on making sure you are reasonably competent in each testable subject. You will likely not excel on all questions, but you do not need to in order to achieve your goal: to pass!
On the subjects that give you the most trouble, focus on issue spotting rather than writing full formal essays now, to maximize your points.
Write terse sentences and do not neglect grammar and neatness. A well-organized answer that uses proper grammar often receives a higher score than a poorly-organized one with marginal grammar that raises more issues.
If you have not already done so, *please* make a dry run of the testing facility, NOW. Do not visit the testing facility for the first time on exam day.
your knowledge base, especially in your essays. Push the protein, blueberries and fruit, and shy away from the junk food and soda (good advice for after the exam, too!)
For your MBE problem areas, it is much better at this point to narrow down to two answers, guess,
and quickly move on. Mark the question as one you want to go back to, if you have time.
For essays, focus on making sure you are reasonably competent in each testable subject. You will likely not excel on all questions, but you do not need to in order to achieve your goal: to pass!
On the subjects that give you the most trouble, focus on issue spotting rather than writing full formal essays now, to maximize your points.
Write terse sentences and do not neglect grammar and neatness. A well-organized answer that uses proper grammar often receives a higher score than a poorly-organized one with marginal grammar that raises more issues.
If you have not already done so, *please* make a dry run of the testing facility, NOW. Do not visit the testing facility for the first time on exam day.
Friday, February 15, 2013
Best quality, lowest price MBE outlines anywhere!
Our MBE outlines and examples cannot be matched for organization, content, conciseness, quality of presentation, attention to detail, and price, whether book or kindle ebook! Whether you use them as review materials, as a complement to the big-bar study materials, or as base study material, we have your back, and for much less!
Your choice of book-bound for $99, or kindle/kindle reader app for $9.99 per-subject, or $69.99 for all subjects plus a detailed introduction on how to prepare your mind and body for the exam!
The kindle version is not just a Word document that was automatically run through some conversion tools to create what passes for many ebooks these days. We know the tools of the trade, and personally create our own kindle version from the original manuscript. This avoids many of the formatting and display pitfalls you typically see for ebooks:
Thank you, and good luck on the bar exam!
Alfred M. Zappala, Esq. and John J. Gillis, Esq.
Your choice of book-bound for $99, or kindle/kindle reader app for $9.99 per-subject, or $69.99 for all subjects plus a detailed introduction on how to prepare your mind and body for the exam!
The kindle version is not just a Word document that was automatically run through some conversion tools to create what passes for many ebooks these days. We know the tools of the trade, and personally create our own kindle version from the original manuscript. This avoids many of the formatting and display pitfalls you typically see for ebooks:
- Each larger table and graphic is carefully rendered as a bitmap for readability and starts at the top of a new page. No table or graphic spans more than a single page on a Kindle Fire/original Kindle.
- Every page is carefully and personally tested on actual Kindle Fire/Kindle readers, Macs/PCs/iPads and other tablets that run the free Kindle Reader App, and even iPhones (though the iPhones have a harder time displaying some of the tables).
- The Table Of Contents is built by hand with manual anchors and hyperlinks for improved color contrast and compactness of display: no sloppy Table of Contents that span more than the width of one screen or that have too many "....." in their listings!
- the text is carefully re-worked from the original manuscript to take the most advantage of the free-form display of the e-reader format while preserving important outlining heading numbers and indentation.
Thank you, and good luck on the bar exam!
Alfred M. Zappala, Esq. and John J. Gillis, Esq.
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