Sunday, April 2, 2017

Preliminary Exam--Sample Answers

These are rough, very brief sketches. Exams can be picked up outside my office beginning Monday afternoon.

A few general comments.

First, this is a unique analytical format, given the word limits. But in such a situation, your focus should be on application rather than a lengthier statement and explanation of the rule and its underlying policies and theories. That is appropriate for a longer essay. For something like this, give a quick statement of the important part of the rule, then apply it, with explanation. Too many answers were conclusory--"there was no undue delay," without applying the facts to explain the conclusion. This was especially problematic, and ironic, on Q # 1. The point is, no when a brief, quick answer is required and that should focus on application, not recitation of the rule (unless the question asks you for that).

Second, don't fight the facts. I've given you all the facts you need. If the facts aren't there, don't write about something. If you find yourself writing "If X" or "Assuming X," stop--you're going in the wrong direction. If X is part of your analysis, the question will make that clear.

Section A: Mean: 11.3; Median 11
Section C: Mean 12.1; Median 12

1) Piro's complaint is insufficient. In determining whether a complaint states a claim for relief, a court will 1) identify conclusory allegations, mere threadbare recitations of the elements of a claim or a legal standard, and not accord them a presumption of true, and 2) examine the remaining facts to determine whether, taken as true, they plausibly show that the defendant is liable and the plaintiff is entitled to relief

Paragraphs 1 and 2 are conclusory, merely repeating the existence of and standard for actual malice. Paragraph 3 is non-conclusory, but it alleges that defendants relied on known, as well as anonymous, sources. Paragraph 5 does not show the defendants had doubts about their sources at the time, since the charges came three years later, so the failure to further investigate (¶ 4) was not reckless. Paragraph 6 shows the story being one-sided, but that does not reflect actual malice.

-->Leave to amend is granted. Donde can amend only with leave of court, which should be freely granted when justice so requires. FRCP 15(a)(2), where no Foman consideration is present. There was no undue delay in amending. Donde did not include this defense in the original Answer because the facts showing the defense were not included in any of the Complaints, and only were revealed at the Rule 16 Conference. Any delay in adding the defense has not been undue--the parties just met, discovery has not begun beyond FRCP 26(a) disclosures, and this possibly meritorious defense will not delay or extend proceedings. Piro is not unfairly prejudiced by the amendment, because the burden on Piro in having to respond is no greater than if the defense had been pled in the original Answer, filed four weeks prior.
3) Amended Answer to Second Amended Complaint.

4) During a deposition, a party may object to questions, but the deponent must answer. FRCP 30(c)(2). The attorney may instruct the deponent not to answer only where necessary to preserve a privilege. Although art authenticator-client privilege is not recognized by law, Piro's attorney is attempting to assert and protect it for judicial resolution and recognition, even if the privilege ultimately will not be recognized by the court.

To obtain a response to these questions, Donde must file a Motion to Compel a response to a deposition question, FRCP 37(a)(3)(B)(i). In that motion, Donde will argue that Piro must respond to the questions, because the privilege does not exist; the question seeks nonprivileged information, relevant to a claim or defense, and proportional to the needs of the case, which are discoverable through a deposition. This motion will get the court to decide the existence and application of the privilege.

5) Under FRCP 30(d)(2), the "court may impose an appropriate sanction—including the reasonable expenses and attorney's fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent." Andrew frustrated the attorney with his sexist comments, which not only delayed and impeded Alicia in conducted the deposition, but also made it uniquely difficult for her, as a female attorney, to litigate the case. The court has discretion to award a range of fees, including attorney's fees incurred in dealing with the improper behavior and attorney's fees in making the motion. The additional sanction of the mandatory $ 250 donation to the WLA is appropriate, given the special problems that Andrew's comments and behavior create for Alicia and other female lawyers and the legal profession in general.