Studicata Essay Templates July 2020

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Essay
Templates
Uniform Bar Exam / Multistate Essay Exam
July 2020
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Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426
Studicata UBE/MEE Essay Templates
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CIVIL PROCEDURE
NOTE: Unless otherwise noted, templates are written under the assumption that all comprised rules are at issue.
Paragraph indentions are included to help differentiate issues and sub-issues and are unnecessary for actual essays.
SUBJECT MATTER JURISDICTION

The main issue is whether the federal court has subject matter jurisdiction.
A court must have subject matter jurisdiction to hear and decide a case before it. While state courts have unlimited
jurisdiction, a federal court can generally only obtain subject matter jurisdiction under federal question jurisdiction,
diversity jurisdiction, supplemental jurisdiction, or removal.
FEDERAL QUESTION JURISDICTION
The issue is whether the federal court has subject matter jurisdiction under federal question jurisdiction.
A federal court has subject matter jurisdiction under federal question jurisdiction if the complaint alleges a claim
that arises under federal law. The well-pleaded complaint rule stipulates that the federal question must be
presented on the face of the plaintiff's complaint.
Here, the plaintiff’s complaint alleges _____. [Discuss whether the claim arises under federal law.]. _____’s [the
defendant’s] assertion that _____ is irrelevant. Under the well-pleaded complaint rule, the plaintiff must allege
a claim that arises under federal law to trigger federal question jurisdiction – not the defendant.
In conclusion, the federal court [has/does not have] subject matter jurisdiction under federal question
jurisdiction, because the plaintiff’s complaint alleges a claim that [arises/does not arise] under federal law.
DIVERSITY JURISDICTION
The issue is whether the federal court has subject matter jurisdiction under diversity jurisdiction.
A federal court has subject matter jurisdiction under diversity jurisdiction if: (1) complete diversity is present
such that every citizenship represented on the plaintiff’s side of the case is different from every citizenship
represented on the defendant’s side of the case; AND (2) the amount in controversy exceeds $75,000.
Complete Diversity
To determine whether complete diversity is present, we must first determine the citizenship of each
party to the action.
Citizenship for Diversity Purposes
For individuals, citizenship is determined by the individual’s state or country of domicile.

Domicile is the place of residence where an individual intends to remain indefinitely. An
individual can only have one domicile at a time.
Corporations hold dual citizenship for diversity purposes. A corporation is considered a citizen of
BOTH: (1) the state or country of its incorporation; AND (2) The state or country of its principal
© 2020 Studicata | www.studicata.com Civil Procedure 1

place of business. Generally, the corporation’s principal place of business is found where the
corporation’s headquarters are located (i.e., “the nerve center”).
Here, _____ [Identify the citizenship of EACH plaintiff and defendant to the action.].
Ultimately, complete diversity is _____ [present/not present], because _____ [Identify whether every
citizenship represented on the plaintiff’s side of the case is different from every citizenship represented
on the defendant’s side of the case. If any plaintiff shares citizenship with any defendant, complete
diversity is not present.].
Amount in Controversy Requirement
Next, to determine whether diversity jurisdiction is present, we must determine whether the amount in
controversy requirement is met.
The amount in controversy is the monetary value at stake in a lawsuit. Generally, this is the value of
damages claimed or relief sought in the action. To meet this requirement, the amount in controversy
must exceed $75,000.
[*If there are not multiple claims involved]
Here, the amount in controversy [exceeds/does not exceed] $75,000, because _____ [Discuss whether
the damages claimed or relief sought exceeds $75,000].
[*If there are multiple claims involved]
Aggregation of Claims
[*If there is 1 plaintiff and 1 defendant]
One plaintiff can aggregate all her claims against one defendant to exceed the $75,000 amount
controversy requirement.
Here, the plaintiff can aggregate [his/her] _____ [List all claims and monetary amounts] against
the defendant, because all [his/her] claims are against one defendant.
Upon aggregation, the amount in controversy equals _____ [Calculate the total value of the
aggregated claims], which _____ [exceeds/does not exceed] $75,000.
[*If there is 1 plaintiff and multiple defendants]
One plaintiff can aggregate all her claims against multiple defendants if the defendants are
jointly liable.
Here, the plaintiff [can/cannot] aggregate [his/her] claims against the defendants, because the
defendants [are/are not] jointly liable.
[*If the defendants are jointly liable]
Upon aggregation, the amount in controversy equals _____ [Calculate the total value of
the aggregated claims], which _____ [exceeds/does not exceed] $75,000.

[*If the defendants are not jointly liable]
Without aggregation, _____ [Identify whether each individual claim exceeds $75,000.
Claims that independently exceed $75,000 may proceed.].
[NOTE: If there are multiple plaintiffs, each plaintiff’s claim must meet the amount in
controversy requirement separately unless supplemental jurisdiction applies.]
In conclusion, the federal court [has/does not have] subject matter jurisdiction under diversity jurisdiction,
because _____ [Identify whether complete diversity is present and whether the amount in controversy exceeds
$75,000. Both elements must be met for the court to have subject matter jurisdiction under diversity
jurisdiction.].
SUPPLEMENTAL JURISDICTION
The issue is whether the federal court has subject matter jurisdiction under supplemental jurisdiction.
Supplemental jurisdiction allows a federal court with valid subject matter jurisdiction over a claim to hear
additional claims over which the court would not independently have jurisdiction if all the claims constitute the
same case or controversy. Claims constitute the “same case or controversy” if they arise out of a common
nucleus of operative fact, such that all the claims arise out of the same transaction or occurrence.
[*If the court is sitting in federal question jurisdiction]
Here, the court has valid subject matter jurisdiction over [claim 1], because the claim satisfies federal question
jurisdiction. [Claim 2] does not independently satisfy subject matter jurisdiction, because the claim does not
trigger federal question or diversity. However, if [claim 2] arises out of the same transaction or occurrence as
[claim 1], the court will have subject matter jurisdiction over the claim under supplemental jurisdiction. [Discuss
facts that suggest whether claim 2 arises out of the same transaction or occurrence as claim 1].
[*If the court is sitting in diversity jurisdiction and a counterclaim is involved]
Here, the court has valid subject matter jurisdiction over [claim 1], because the claim satisfies diversity
jurisdiction. [Counterclaim 1] does not independently satisfy subject matter jurisdiction, because the
counterclaim does not trigger federal question or diversity. However, if [counterclaim 1] is compulsory, the
court will have subject matter jurisdiction over the claim under supplemental jurisdiction. A counterclaim is
compulsory if it arises out of the same transaction or occurrence as the original claim filed. If [counterclaim 1] is
permissive, the court will not have subject matter jurisdiction over the claim under supplemental jurisdiction. A
counterclaim is permissive if it does not arise out of the same transaction or occurrence as the original claim
filed. [Discuss facts that suggest whether the counterclaim is compulsory or permissive].
[*If the court is sitting in diversity jurisdiction and a cross-claim is involved]
Here, the court has valid subject matter jurisdiction over [claim 1], because the claim satisfies diversity
jurisdiction. [Cross-Claim 1] does not independently satisfy subject matter jurisdiction, because the claim does
not trigger federal question or diversity. However, if [cross-claim 1] arises out of the same transaction or
occurrence as [claim 1], the court will have subject matter jurisdiction over the claim under supplemental
jurisdiction. [Discuss facts that suggest whether cross-claim 1 arises out of the same transaction or occurrence
as claim 1].

In conclusion, the federal court [has/does not have] subject matter jurisdiction under supplemental jurisdiction,
because [claim A] [constitutes/does not constitute] the same case or controversy as [claim B], as the claims
[arise/do not arise] out of the same transaction or occurrence.
REMOVAL
The issue is whether the defendant can remove the case from state court to federal court.
Removal allows the defendant to move a case from state court to federal court if the case could have been
brought originally in federal court. Thus, the defendant may remove a case to federal court if: (1) federal
question jurisdiction is present; or (2) diversity jurisdiction is present and the action is brought in a state of
which no defendant is a citizen. Federal question jurisdiction is present if the plaintiff’s complaint alleges a claim
that arises under federal law. Diversity jurisdiction is present if: (1) complete diversity is present; and (2) the
amount in controversy exceeds $75,000.
[*If the claim being removed involves federal question jurisdiction]
Here, the plaintiff’s complaint alleges _____. [Discuss whether the claim arises under federal law.]. The
defendant’s assertion that _____ is irrelevant. Under the well-pleaded complaint rule, the plaintiff must allege a
claim that arises under federal law to trigger federal question jurisdiction – not the defendant.
[*If the claim being removed involves diversity jurisdiction]
Here, _____ [Insert a standard diversity jurisdiction analysis – see above. Remember, in addition to your
standard diversity jurisdiction analysis, you must discuss whether the action is brought in a state of which no
defendant is a citizen. Even if diversity jurisdiction is present, the defendant cannot remove the action if the
action is brought in a state that any defendant is a citizen of.]
[*If the defendant can remove the case]
In conclusion, the defendant can remove the case from state court to federal court, because _____ [either:
federal question jurisdiction is present OR diversity jurisdiction is present and the action is brought in a state of
which of which no defendant is a citizen].
[*If the defendant cannot remove the case]
In conclusion, the defendant cannot remove the case from state court to federal court, because _____ [either:
federal question jurisdiction is not present OR diversity jurisdiction is not present OR diversity jurisdiction is
present, but the action is brought in a state of which the defendant is a citizen].
PERSONAL JURISDICTION
The main issue is whether the court has personal jurisdiction over the defendant.
A court must have personal jurisdiction to adjudicate the rights and liabilities of a defendant. A court can obtain
personal jurisdiction over a defendant under a traditional base or state long-arm statute.
TRADITIONAL BASES
The issue is whether the court has personal jurisdiction over the defendant under a traditional base.

If any of the following four “traditional bases” are satisfied, the court will have personal jurisdiction over the
defendant. Under the traditional bases, the court will have personal jurisdiction if the defendant: (1) is domiciled
in the forum state; (2) receives service of process while physically present in the forum state (unless the
defendant was in the state only to answer a summons or was brought there by force or fraud); (3) consents to
personal jurisdiction in the forum state expressly or implicitly by conduct; OR (4) waives their objection for lack
of personal jurisdiction expressly or by substantial participation on the merits.
Here, _____ [Discuss facts pertaining to any of the four of the traditional bases. If any are satisfied, the court will
have personal jurisdiction over the defendant. If none are satisfied, continue to your discussion of the state
long-arm statue. However, even if a traditional base is satisfied, you should still discuss the state long-arm
analysis to accumulate maximum points on a civil procedure essay.].
[*If a traditional base is satisfied]
In conclusion, the court has personal jurisdiction over the defendant, because _____ [identify which traditional
base is satisfied]. However, even if no traditional bases were satisfied, the court could still obtain personal
jurisdiction over the defendant under a state long-arm statute.
[*If a traditional base is not satisfied]
While the court does not have personal jurisdiction over the defendant under a traditional base, the court may
still obtain personal jurisdiction over the defendant under a state long-arm statute.
STATE LONG-ARM STATUTE
If none of the traditional bases are satisfied above, personal jurisdiction may still be obtained by using a state
long-arm statute. Generally, this requires that minimum contacts exist between the defendant and the forum
state, such that: (1) general or specific jurisdiction is present; and (2) the exercise of such jurisdiction does not
offend traditional notions of fair play and substantial justice.
General Jurisdiction
General Jurisdiction is present when the defendant’s contact with the forum state is so systematic and
continuous that he is essentially “at home” in the forum state. For corporations, this includes the
locations where the corporation is incorporated and has its principal place of business. When general
jurisdiction is present, the defendant can be sued on any claim even if the claim is unrelated to the
defendant’s contact with the forum state.
Here, the defendant _____ [Describe what contact the defendant has with the forum state and discuss
whether the defendant’s contact with the forum state is systematic and continuous.].
Specific Jurisdiction
Specific jurisdiction is present if: (1) the defendant purposefully availed himself of the benefits of the
forum state; and (2) the defendant knew or reasonably should have anticipated that his activities in the
forum state made it foreseeable that he may be “hailed into court” there. Unlike general jurisdiction,
the defendant can only be sued on claims that arise out of the defendant’s specific contact with the
forum state.
Here, the defendant _____ [Describe the specific contact that the defendant made with the forum state,
and discuss whether both elements are satisfied.].

[*If specific jurisdiction is present]
Finally, the defendant [can/cannot] be sued on this claim, because _____ [discuss whether the claim
arises out of the defendant’s specific contact with the forum state.].
Traditional Notions of Fair Play and Substantial Justice
The exercise of general or specific jurisdiction cannot offend traditional notions of fair play and
substantial justice. There are five factors courts consider when making this determination: (1)
convenience of the forum state for the defendant; (2) whether the forum state has a legitimate interest
in providing redress; (3) whether the plaintiff’s interest in obtaining relief is proper; (4) the interstate
judicial system’s interest in efficiency; and (5) the shared interest of the several states in furthering
social policies.
Here, _____ [Briefly discuss all five factors.].
In conclusion, the court [has/does not have] personal jurisdiction over the defendant under a state long-arm
statute, because _____ [Identify whether general or specific jurisdiction is present and whether traditional
notions of fair play and substantial justice are offended. Remember, if specific jurisdiction is present, the claim
must arise out of the defendant’s specific contact with the forum state.].
VENUE
The main issue is whether the court has proper venue.
Venue determines the judicial district in which a lawsuit may be filed or commenced. Venue is proper in a judicial district
where any defendant resides if all the defendants reside in the same state. If this is not satisfied, venue is proper in a
judicial district where a substantial part of the events or omissions giving rise to the claim occurred, or where a
substantial part of property that is the subject of the action is located. If neither of these are satisfied, venue is proper in
a judicial district where any defendant is subject to personal jurisdiction.
Residence for Venue Purposes
To determine whether venue is proper, we must first determine the residence of each party to the action.
An individual is deemed to reside in the judicial district where he is domiciled. A business entity is deemed to
reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in
question. A defendant who is not a resident of the United States, whether a U.S. citizen or an alien, may be sued
in any judicial district.
Here, _____ [Identify the residence of each party to the action.].
[*If no defendant resides in the United States]
In conclusion, venue is proper, because no defendant resides in the United States, and any defendant who is not a
resident of the United States may be sued in any judicial district.
[*If all the defendants reside in the same state]
In conclusion, venue [is/is not] proper, because _____ [Identify whether all the defendants reside in the same state, and

whether any defendant resides in the judicial district. If both are satisfied, the court has proper venue.].
[*If all the defendants do not reside in the same state]
In conclusion, venue [is/is not] proper, because all the defendants do not reside in the same state and _____ [Identify
whether a substantial part of the (events or omissions/property) giving rise to the claim (occurred/is located) there. If
either are satisfied, the court has proper venue.].
[*If all the defendants do not reside in the same state and a substantial part of the events/property giving rise to the
action (did not occur/are not located) there]
In conclusion, venue [is/is not] proper, because all the defendants do not reside in the same state, a substantial part of
the events or omissions giving rise to the claim did not occur there, a substantial part of property that is the subject of
the action is not located there, and _____ [Identify whether any defendant is subject to personal jurisdiction in the state
where the judicial district is located. If so, the court has proper venue.].

CONSTITUTIONAL LAW
[*If an individual is alleging an infringement on a constitutional right – consider state action]
STATE ACTION
The issue is whether there is state action that triggers _____ [the individual’s] constitutional protections.
Generally, the Constitution protects against wrongful conduct by the government, not private parties. Thus, state action
is required to trigger an individual’s constitutional protections. However, state action may exist in cases of private
parties when: (1) a private person carries on activities that are traditionally performed exclusively by the state; or (2)
there are sufficient mutual contacts between the conduct of a private party and the government.
Here, _____ [Discuss whether the government or a private party is infringing on the plaintiff’s constitutional rights.
Absent either exception, if the wrongdoer is a private party – the plaintiff’s constitutional protections are not triggered.].
Therefore, state action [is/is not present], and _____ [the individual’s] constitutional rights are triggered.
[*If the government passes a law that treats a group of people differently from others – consider equal protection]
EQUAL PROTECTION
The issue is whether the _____ [government’s law] is constitutional.
The Equal Protection Clause of the 14th Amendment prohibits the government from denying citizens equal protection of
the laws. When the government makes laws that classify people into groups, the constitutionality of the law will be
evaluated according to the type of classification made.
[*If the classification is suspect]
SUSPECT CLASSIFICATION
A classification is suspect if it is based on race, ethnicity, national origin, or alienage (alienage is only suspect if
the classification is made by state law). If a suspect classification is involved, the strict scrutiny standard applies
so long as there is intent on the part of the government to discriminate. A discriminatory effect or disparate
impact toward a group of people alone is insufficient to show governmental intent. Generally, governmental
intent to discriminate can be shown by: (1) a law that is discriminatory on its face; (2) a discriminatory
application of a facially neutral law; or (3) a discriminatory motive behind a facially neutral law.
Here, _____ [Identify that the government’s law classifies people into a group based on race, ethnicity, national
origin, or alienage.]. In addition, _____ [Discuss whether there was intent on the part of the government to
discriminate.].
[*If there was governmental intent to discriminate]
Since a suspect classification is involved and there was governmental intent to discriminate, the strict
scrutiny standard applies. Under the strict scrutiny standard, the government must prove that the
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regulation is the least restrictive means to achieve a compelling government interest. Here, _____
[Discuss whether the government has met their burden to prove that the regulation is the least
restrictive means to achieve a compelling government interest. Note that this is an extremely difficult
burden for the government to prove – the challenger will likely win.].
[*If there was NOT governmental intent to discriminate]
While a suspect classification is involved, there was no governmental intent to discriminate. Therefore,
the rational basis standard applies. Under the rational basis standard, the challenger must prove that
the regulation is not rationally related to any legitimate government interest. Here, _____ [Discuss
whether the challenger has met their burden to prove that the regulation is not rationally related to any
legitimate government interest. Note that this is an extremely difficult burden for the challenger to
prove – the government will likely win.].
[*If the classification is quasi-suspect]
QUASI-SUSPECT CLASSIFICATION
A classification is quasi-suspect if it is based on gender or legitimacy (non-marital children). If a quasi-suspect

classification is involved, the intermediate scrutiny standard applies so long as there is intent on the part of the
government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is
insufficient to show governmental intent. Generally, governmental intent to discriminate can be shown by: (1) a
law that is discriminatory on its face; (2) a discriminatory application of a facially neutral law; or (3) a
discriminatory motive behind a facially neutral law.
Here, _____ [Identify that the government’s law classifies people into a group based on gender or legitimacy.].
In addition, _____ [Discuss whether there was intent on the part of the government to discriminate.].
[*If there was governmental intent to discriminate]
Since a quasi-suspect classification is involved and there was governmental intent to discriminate, the
intermediate scrutiny standard applies. Under intermediate scrutiny, the government must show that
the classification is substantially related to an important government interest. Here, _____ [Discuss
whether the government has met their burden to prove that the classification is substantially related to
an important government interest.].
[*If there was NOT governmental intent to discriminate]
While a quasi-suspect classification is involved, there was no governmental intent to discriminate.

Therefore, the rational basis standard applies. Under the rational basis standard, the challenger must
prove that the regulation is not rationally related to any legitimate government interest. Here, _____
[Discuss whether the challenger has met their burden to prove that the regulation is not rationally
related to any legitimate government interest. Note that this is an extremely difficult burden for the
challenger to prove – the government will likely win.].
[*If the classification is NOT suspect or quasi-suspect]
NON-SUSPECT CLASSIFICATION
A classification is suspect if it is based on race, ethnicity, national origin, or alienage (alienage is only suspect if
the classification is made by state law). A classification is quasi-suspect if it is based on gender or legitimacy

(non-marital children). For all other classifications, the rational basis standard applies. Under rational basis, the
challenger must prove that the regulation is not rationally related to any legitimate government interest.
Here, _____ [Identify that the government’s law classifies people into a group that is not based on race,
ethnicity, national origin, alienage, gender or legitimacy.]. Since the government’s classification is neither
suspect or quasi-suspect, the rational basis standard applies. Under the rational basis standard, _____ [Discuss
whether the challenger has met their burden to prove that the regulation is not rationally related to any
legitimate government interest. Note that this is an extremely difficult burden for the challenger to prove – the
government will likely win.].
1st Amendment Free Speech

The issue is whether the _____ [government’s regulation of speech] is constitutional.
[*If the regulation of speech is targeting what is being said]
CONTENT-BASED REGULATIONS
It is presumptively unconstitutional to place burdens on speech because of its content, except for certain
categories of unprotected speech. Content-based regulations on protected speech are subject to strict scrutiny.
Under the strict scrutiny standard, the government must prove that the regulation is the least restrictive means
to achieve a compelling government interest.
Here, _____ [Discuss whether the government’s regulation of speech is content-based. If it is, and the speech
does not fall under a category of unprotected (see below), it is presumptively unconstitutional and subject to
strict scrutiny.].
[*If the regulation of speech is content-based, but targeting a category of unprotected speech]
Unprotected Speech
To be constitutional, restrictions on the content of speech must be necessary to achieve a compelling

government interest. The government has a compelling interest in the following categories of speech,
which are deemed “unprotected speech” under the 1st Amendment: (1) inciting imminent lawless
action; (2) true threats and fighting words; (3) obscenity; (4) defamatory speech; and (5) some
commercial speech.
Inciting Imminent Lawless Action
Speech can be restricted if it creates a clear and present danger of imminent lawless action. It
must be shown that that: (1) imminent illegal conduct is likely; and (2) the speaker intended to
cause it.
Here, _____ [Discuss whether the regulation is targeting speech that incites imminent lawless
action. If so, the regulation is likely constitutional.].
True Threats and Fighting Words
Speech can be restricted it constitutes a true threat or fighting words so long as the regulation is
not designed to punish only certain viewpoints. Fighting words are personally abusive words
that are likely to incite immediate physical retaliation in an average person (words that are

merely insulting or annoying are not enough).
Here, _____ [Discuss whether the regulation is targeting true threats or fighting words and
whether the regulation is viewpoint neutral. If both are satisfied, the regulation is likely
constitutional.].
Obscenity: Miller Test
Speech can be restricted if it constitutes obscenity. Speech constitutes obscenity if it describes

or depicts sexual conduct that, taken as a whole, by the average person: (1) appeals to the
prurient interest in sex, using a community standard; (2) is patently offensive; and (3) lacks
serious literary, artistic, political, or scientific value, using a national reasonable person
standard.
Here, _____ [Discuss whether the regulation is targeting speech that constitutes obscenity. If so,
the regulation is likely constitutional.].
Commercial Speech
Generally, commercial speech is afforded 1st Amendment protection if it is truthful. However,

commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent
may be restricted as unprotected speech. Any other regulation of commercial speech will be
upheld only if it: (1) serves a substantial government interest; (2) directly advances that interest;
and (3) is narrowly tailored to serve that interest.
[*If the regulation of commercial speech is targeting wrongful speech]
Here, _____ [Identify that the regulation is targeting commercial speech that proposes
unlawful activity or that is false, misleading, or fraudulent. In this case, the regulation is
likely constitutional.].
[*If the regulation of commercial speech is NOT targeting wrongful speech]
Here, _____ [Identify that the regulation is not targeting commercial speech that
proposes unlawful activity or that is false, misleading, or fraudulent.]. Therefore, _____
[Discuss whether all three elements are satisfied. If so, the regulation is constitutional.].
[*If the regulation of speech is targeting how, when, or where it is being said]
CONTENT-NUETRAL REGULATIONS
Content-neutral regulations are viewpoint and subject matter neutral regulations that usually regulate the
conduct associated with the speech rather than the content of the speech itself. Generally, content-neutral
speech regulations are subject to intermediate scrutiny, meaning that they must: (1) advance an important
government interests unrelated to the suppression of speech; and (2) not burden substantially more speech
than necessary to further those interests.
Time, Place, and Manner Restrictions
The government can regulate conduct related to speech with content-neutral time, place, and manner
restrictions. However, the breadth of this power depends on whether the forum involved is a public
forum, a designated public forum, a limited public forum, or a nonpublic forum.

[*If the forum involved is a public forum or a designated public forum]
Public Forums and Designated Public Forums
Public property that has historically been open to speech-related activity is called a public forum
(e.g., streets, sidewalks, and public parks). Public property that has not historically been open to
speech-related activities, but which the government has made open for such activities on a
permanent or limited basis, by practice or policy is called a designated public forum.
Here, _____ [Explain why the forum is a public forum or a designated public forum.]. Since the
forum involved is a [public forum/designated public forum], the government may regulate
speech with reasonable time, place, and manner regulations that: (1) are content-neutral; (2)
are narrowly tailored to serve an important government interest; and (3) leave open alternative
channels of communication.
Here, _____ [Discuss whether all three elements are satisfied. If so, the regulation of speech is
constitutional.].
[*If the forum involved is a limited public forum or a nonpublic forum]
Limited Public Forums and Nonpublic Forums
Government property that has not historically been linked with speech and assembly but has
been opened for specific speech activity is called a limited public forum. Government property
that has not historically been linked with speech and assembly and has not been opened for
specific speech activity is called a nonpublic forum.
Here, _____ [Explain why the forum is a limited public forum or a nonpublic forum.]. Since the
forum involved is a [limited public forum/nonpublic forum], the government may regulate
speech if the regulations are (1) viewpoint neutral; and (2) reasonably related to a legitimate
government purpose.
Here, _____ [Discuss whether both elements are satisfied. If so, the regulation of speech is
constitutional.].

CONTRACTS
LAW APPLICABILITY
The gateway issue is whether Article 2 of the Uniform Commercial Code (UCC) or common law applies.
For contracts dealing with goods, the UCC applies. For contracts dealing with services or real estate, the common law
applies. If there is a mixed contract that deals with both goods and services, the predominate purpose of the contract
determines whether the UCC or common law applies.
Here, the _____ [UCC/common law] applies, because _____ [Identify whether the predominate purpose of the contract
deals with goods or services.].
CONTRACT FORMATION
The main issue is whether a traditional, enforceable contract was formed.
A traditional, enforceable contract is formed when there is: (1) mutual assent between the parties; (2) consideration;
and (3) no defenses to formation that would invalidate an otherwise valid contract.
MUTUAL ASSENT
The first issue we must determine is whether mutual assent between the parties is present.
Mutual assent between the parties is present when there is a valid offer and acceptance.
OFFER
To form a valid offer, the offeror must: (1) manifest an objective willingness to enter into the
agreement; (2) create a power of acceptance in the offeree; and (3) specify all necessary terms of the
agreement. Under the common law, all essential terms must be specified in the offer, which includes:
parties, subject, quantity, and price. However, under the UCC, the price term is not required in the offer.
The only required terms under the UCC are: parties, subject, and quantity.
Here, ____ [Discuss all three elements to determine whether a valid offer was formed.].
Termination of the Offer
The next issue is whether the offer was terminated before acceptance.
If a valid offer is terminated at any time before acceptance, the offer is invalidated. It cannot be
accepted or revived unless a new offer is made. An offer is terminated if any of the following
occur before acceptance: (1) the offeror revokes the offer by express communication to the
offeree; (2) the offeree learns that the offeror has taken an action that is absolutely inconsistent
with a continuing ability to contract; (3) the offeree expressly rejects the offer; (4) the offeree
expressly communicates a counteroffer to the offeror; (5) The offeror dies or otherwise
© 2020 Studicata | www.studicata.com Contracts 1

becomes incapacitated; (6) a reasonable amount of time passes; or (7) the subject matter of the
offer becomes illegal or is destroyed.
Here, _____ [Discuss whether the offer was terminated before acceptance. If the offer is
terminated before acceptance, mutual assent is destroyed unless another valid offer is at play.].
Irrevocable Offers
Generally, the offeror is free to revoke an offer at any time prior to acceptance.
However, there are four main types of offers that are irrevocable: (1) option contracts;
(2) UCC firm offers; (3) offeree started performance; and (4) detrimental reliance.
Option Contract
An offer is irrevocable if consideration is given in exchange for a promise to

keep the offer open.
Here, _____ [Discuss whether consideration was given in exchange for a

promise to keep the offer open to determine whether the offer was irrevocable
(e.g., “I promise not revoke this offer for one week if you pay me an additional
$100 to keep the offer open.”).].
UCC Firm Offer
Under the UCC, an offer is irrevocable if a merchant makes a firm offer to buy or
sell goods, provided that the offer: (1) is in writing; (2) contains an explicit
promise to not revoke the offer; and (3) is signed by the merchant. A firm offer
will last either as long as stated in the offer or for a reasonable amount of time
not to exceed 90 days.
Here, _____ [Discuss all three elements to determine whether the offer was
irrevocable.].
Offeree Started Performance
A unilateral offer to contract is irrevocable once the offeree starts performance.

A unilateral offer arises from a promise that requests acceptance by
performance, as opposed to a bilateral offer, which arises from a promise that
requests acceptance by a return promise.
Here, the offer was _____ [unilateral/bilateral], because _____ [Identify

whether the promisor requested acceptance by performance or a return
promise].
[*If the offer was unilateral]
Thus, once _____ [offeree] started performance, the offer became irrevocable.
[*If the offer was bilateral]
Thus, the offer was freely revocable.

Detrimental Reliance
An offer is irrevocable if the offeree reasonably and detrimentally relies on the

offer in a foreseeable manner.
Here, _____ [Discuss whether the offeree reasonably and detrimentally relied
on the offer in a foreseeable manner to determine whether the offer was
irrevocable.].
ACCEPTANCE
The next issue we must determine to determine whether mutual assent is present is whether the offer
was accepted.
To accept an offer, the offeree must: (1) manifest an objective willingness to enter into the agreement;
and (2) accept the offer according to the rules established by the offeror who is master of the offer. For
bilateral contracts (which arise from a promise that requests acceptance by a return promise), the offer
is accepted once performance is started. For unilateral contracts (which arise from a promise that
requests acceptance by performance), the offer is only accepted once performance is complete.
Here, _____ [Discuss both elements to determine whether the offer was accepted. If there is acceptance
of a valid offer, mutual assent is present between the parties.].
Mailbox Rule
Under the mailbox rule, an acceptance that is sent by mail is generally valid when the letter is
sent – not when the letter is received. However, the mailbox does not apply to option contracts
or in situations where the offeree sends another communication that terminates or alters the
offer first.
Here, _____ [Discuss whether the mailbox rule applies. The mailbox rule is all about timing – if
the offeree mails a rejection/counteroffer before mailing the acceptance, the letter that the
offeror opens first controls. If the offeree mails the acceptance letter first, it is valid when sent.].
Acceptance Contains Different or Additional Terms
The next issue is whether the purported acceptance that contains terms that are not included in
the offer is a valid acceptance or a counteroffer. A counteroffer operates as both a rejection that
terminates the original offer and as a new offer.
[*If the common law applies]
Mirror Image Rule
Under the common law, the terms in the acceptance must match the terms of the offer
exactly – otherwise it is not an acceptance, it is a counteroffer.
Here, _____ [Discuss whether the offer and purported acceptance mirror each other. If
the purported acceptance contains any additional or different terms from those in the
offer - it is not an acceptance, it is a counteroffer.].

[*If the UCC applies]
UCC 2-207 (“Battle of the Forms”)
Under the UCC, the acceptance does not have to mirror the offer and can include
different or additional terms from those in the offer. UCC 2-207(1) determines whether
the purported acceptance (containing new terms) will operate as an acceptance or as a
counteroffer. It states: (1) A definite and seasonable expression of acceptance or written
confirmation; (2) which is sent within a reasonable amount of time; (3) operates as an
acceptance even though it states terms additional to or different from those offered or
agreed upon; (4) unless acceptance is expressly made conditional upon assent to the
additional or different terms.
Here, _____ [Discuss all four elements to determine whether the purported acceptance
is a valid acceptance or counteroffer.].
[*If the purported acceptance is a valid acceptance]
The next issue is whether the new terms in the acceptance will govern the contract or
whether UCC gap fillers will be implemented.
[*If the purported acceptance contains “additional” terms]
Under UCC 2-207(2), the additional terms will govern the contract if both parties are
merchants, unless: (1) the initial offer expressly limited acceptance to its terms; (2) the
additional terms materially alter the deal; OR (3) the offeror objects to the additional
terms within a reasonable amount of time.
Here, _____ [Discuss whether both parties are merchants, and if so, if any exceptions
apply. If either party is not a merchant or an exception applies, UCC gap fillers will be
implemented.].
[*If the purported acceptance contains “different” terms]
Most courts apply the knockout rule with UCC 2-207(2) to determine whether the new
terms control or whether UCC gap fillers must be implemented. Under the knockout
rule, a distinction is made between "different" and "additional" terms. A different term
is a term that was not included in the original offer that conflicts with the terms of the
original offer. An additional term is a term that was not included in the original offer
that does NOT conflict with the terms of the original offer. Under the knockout
rule, different terms in the original offer and acceptance knock each other out creating a
gap in the contract. UCC gap fillers are then used to plug this gap.
Here, _____ [Discuss whether the new term conflicts with the original offer. If it
conflicts, apply the knockout rule and conclude that UCC gap fillers must be
implemented to plug the gap.].
In conclusion, mutual assent between the parties [is/is not] present, because _____ [Identify whether there was
both a valid offer and acceptance.].

CONSIDERATION
The next issue we must determine to determine whether a traditional, enforceable contract was formed is
whether the agreement is supported by consideration. Consideration involves a transfer of legal value in a
bargained-for exchange. Consideration is present if: (1) the promisee incurs a legal detriment or the promisor
receives a legal benefit; AND (2) the promise induces the detriment and the detriment induces the promise.
Here, _____ [Discuss both elements to determine whether the agreement is supported by consideration. Watch
out for gift promises, conditional gifts, pretenses of consideration, illusory promises, and past consideration.]
In conclusion, the agreement [was/was not] supported by consideration, because _____ [Identify whether both
elements were met.].
CONTRACT MODIFICATION
The issue is whether the contract modification was valid.
[*If the common law applies]
Preexisting Duty Rule
Under the common law, a contract modification must be supported by consideration. The
preexisting duty rule stipulates that a promise to do something of which the party is already
legally obligated to do, by contract or otherwise, is not consideration.
Here, the contract modification [was/was not] supported by consideration, because _____
[Identify whether the contract modification was supported by consideration. Remember, a
promise to do something of which the party is already legally obligated to do is not
consideration.].
In conclusion, the contract modification [was/was not] valid, because _____ [Identify whether
the contract modification was supported by consideration.].
[*If the UCC applies]
Good Faith Requirement
Under the UCC, a contract modification is valid if it is made in good faith.
Here, the contract modification [was/was not] made in good faith, because _____ [Discuss facts
that suggest whether the contract modification was made in good faith.].
In conclusion, the contract modification [was/was not] valid, because _____ [Identify whether
the contract modification was made in good faith.].

CRIMINAL PROCEDURE
4th AMENDMENT SEARCHES

The main issue is whether _____ [the evidence] obtained by the government may be excluded on 4th Amendment
unreasonable search grounds.
Under the 4th Amendment, a person is granted protection from unreasonable government searches. Absent an
exception to the warrant requirement, a search performed by the government without a warrant is considered
unreasonable and unlawful. Thus, evidence obtained from a warrantless search performed by the government is usually
excluded unless an exception applies.
GOVERNMENT SEARCHES
To determine whether the evidence obtained is admissible, the first issue is whether there was a search
performed by the government.
Reasonable Expectation of Privacy
For 4th Amendment purposes, a search occurs when government conduct violates a person’s reasonable
expectation of privacy. Courts have held that all the following places have a reasonable expectation of
privacy: homes; hotel rooms; offices; backyard of the home (curtilage); and luggage. By contrast, courts
have held that all the following places do not have a reasonable expectation of privacy: public streets;
public/private open fields; garbage left on the street; abandoned property; anything visible from public
airspace; and anything that can be seen inside one’s home from public space.
Here, _____ [Discuss whether the government’s conduct violated the defendant’s reasonable
expectation of privacy.].
[*If the government’s conduct did NOT violate the defendant’s reasonable expectation of
privacy]
Ultimately, there was not a search performed by the government, because the government’s
conduct did not violate the defendant’s reasonable expectation of privacy. Without a search
performed by the government, there cannot be a 4th Amendment search violation. Therefore,
_____ [the evidence] may not be excluded on 4th Amendment unreasonable search grounds.
[*If the government’s conduct violated the defendant’s reasonable expectation of privacy]
Ultimately, there was a search performed by the government, because the government’s
conduct violated the defendant’s reasonable expectation of privacy,
Warrant Requirement
Therefore, the next issue is whether the government had a valid search warrant to
conduct the search.
© 2020 Studicata | www.studicata.com Criminal Procedure 1

[*If the government did NOT have a warrant to perform the search]
Here, the government did not have a warrant to perform the search. Therefore,
the search is unlawful, and the evidence obtained from it will likely be excluded
unless an exception applies.
NOTE: Consider possible exceptions (E.S.C.A.P.E.S. from the warrant

requirement): Studicata Attack Outline, Criminal Procedure: Pages 2-3
[*If the government had a warrant to perform the search]
To be valid, a search warrant must: (1) be issued by a neutral magistrate; (2) be

based on probable cause to believe that the items sought are fruits,
instrumentalities, or evidence of crime; and (3) describe the place and property
to be searched with particularity. If a warrant fails to meet these three
requirements, the warrant is invalid, and the recovered items will be excluded
from the prosecutor’s case-in-chief.
Here, _____ [Discuss all three elements to determine whether the government
had a valid warrant to perform the search.].
[*If the government’s search warrant was invalid]
Absent an exception to the warrant requirement, _____ [the evidence

obtained from the search] will be excluded from the prosecutor’s case-
in-chief, because the search warrant _____ [identify which element was
not satisfied.].
[*If the government’s search warrant was valid]
In conclusion, _____ [the evidence obtained from the search] may not
be excluded under 4th Amendment search grounds, because the
government’s search was performed with a valid search warrant.
Therefore, the search was reasonable under the 4th Amendment.
GOVERNMENT INTERROGATIONS & MIRANDA

The main issue is whether _____ [the evidence] obtained by the government may be excluded on Miranda grounds.
Under Miranda, if a suspect under custodial interrogation is not advised of his Miranda rights or if he invokes his rights,
but the police continue to interrogate him, then the court may exclude any subsequent self-incriminating statements
from being used in the prosecution’s case-in-chief at trial. A custodial interrogation occurs when: (1) a person
reasonably believes that he is not free to leave; and (2) the police know or should know that their words or actions are
likely to elicit an incriminating response.
Here, _____ [Discuss both elements to determine whether a custodial interrogation occurred.].
[*if there was NOT a custodial interrogation]
In conclusion, _____ [the self-incriminating statements] may not be excluded on Miranda grounds, because the
evidence was not obtained as a result of a custodial interrogation.

[*if there was a custodial interrogation]
[*if the suspect purportedly waives Miranda rights]
WAIVER
A defendant may waive his Miranda rights so long as it is done knowingly and voluntarily. The burden is
on the government to demonstrate by a preponderance of the evidence that the waiver was made
knowingly and voluntarily.
Here, _____ [Discuss whether the government met their burden to prove that the defendant knowingly
and voluntarily waived his Miranda rights by a preponderance of the evidence.].
[*if the waiver was made knowingly and voluntarily and there is no subsequent invocation of
rights]
Therefore, _____ [the evidence] may not be excluded on Miranda grounds, because _____ [the
suspect/defendant] knowingly and voluntarily waived [his/her] Miranda rights without
subsequently invoking them.
[*if the suspect being interrogated invoked her right to remain silent or her right to counsel]
INVOCATION OF RIGHTS
Regardless of a prior waiver of Miranda rights, the police must cease their interrogation if the party
being questioned affirmatively invokes: (1) her right to remain silent; or (2) her right to counsel.
However, if the party being questioned affirmatively invokes her right to remain silent, the police can go
back to the suspect after a substantial period of time, give Miranda warning again, and seek to
interrogate further. In addition, if the party being questioned affirmatively invokes her right to counsel,
the interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or
14 days have passed since the suspect was released from custody.
Here, _____ [Discuss whether the suspect affirmatively invoked her right to remain silent or her right to
counsel. If the police fail to cease their interrogation after an invocation of rights, and neither exception
applies – discuss Miranda violations (see below).].
MIRANDA VIOLATIONS
Miranda is violated if: (1) the police fail to give Miranda warnings before a custodial interrogation; or (2) the
police fail to cease interrogation of a person after she has affirmatively invoked her right to remain silent or her
right to counsel.
[*if Miranda was violated]
Here, _____ [Identify how Miranda was violated (failure to warn or failure to cease interrogation).].
While a statement obtained in violation of Miranda is inadmissible in the prosecution’s case-in-chief, it can be
admitted to impeach the defendant. In addition, evidence obtained from a voluntary statement taken in
violation of Miranda is admissible.
[*if the evidence obtained from the Miranda violation is a self-incriminating statement]

Here, _____ [the self-incriminating] statement] taken in violation of Miranda [is/is not] admissible,
because _____ [identify whether the statement is being admitted in the prosecution’s case-in-chief or
for impeachment purposes.].
[*if the evidence obtained from the Miranda violation is a piece of evidence that is located from a
voluntary statement]
Here, _____ [the evidence] taken in violation of Miranda is admissible, because the evidence
was located from a voluntary statement.
NOTE: Statements are involuntary only if the police coerced the defendant into making the statements.
To determine whether a statement was coerced by the police, courts look at the totality of the
circumstances. Relevant factors include: (1) the length of the interrogation; (2) the time and location
where the interrogation took place; (3) Police tactics used (force/trickery); and (4) The character of the
person being interrogated (e.g., age, experience, state of health, education level, sophistication,
intoxication, mental condition, etc.).
[*if Miranda was NOT violated]
Here, _____ [Identify that the police gave Miranda warnings before their custodial interrogation, and if there
was an invocation of rights, that the police ceased their interrogation properly.].
Therefore, _____ [the evidence] may not be excluded on Miranda grounds, because there was not a Miranda
violation.

EVIDENCE
RELEVANCE
The issue is whether the evidence is relevant.
LOGICAL RELEVANCE
Evidence must be relevant to be admissible. Evidence is relevant if it is both probative and material. Evidence is
probative if it has any tendency to make a fact more or less probable than it would be without the evidence.
Evidence is material if it is a fact of consequence in determining the outcome of the action.
Here, _____ [Discuss whether the evidence is both probative and material.].
In conclusion, the evidence [is/is not relevant], because _____ [Identify whether both elements are satisfied.].
LEGAL RELEVANCE
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice; confusing the issues; misleading the jury; undue delay; wasting time; or
needlessly presenting cumulative evidence.
Here, _____ [Discuss whether the evidence’s probative value is substantially outweighed.].
In conclusion, the court [may/may not] exclude the evidence, because _____ [Identify whether the evidence’s
probative value is substantially outweighed.].
CHARACTER EVIDENCE
The issue is whether the character evidence is admissible.
Character evidence is evidence of a person’s character or a person’s specific character trait. There are three forms of
character evidence that can be presented: (1) reputation in the community; (2) opinion testimony; and (3) specific
instances of conduct.
[*If the case is civil]
PROPENSITY EVIDENCE IN CIVIL CASES
In civil cases, character evidence is not admissible for propensity purposes (to show that the party has the
propensity to act in accordance with the alleged character trait), unless: (1) character is an essential element of
a claim or defense; or (2) the case is based on the defendant’s sexual misconduct. If character is an essential
element of a claim or defense, it may be shown by reputation, opinion testimony, or specific instances of
conduct. If the case is based on the defendant’s sexual misconduct, evidence of a past sexual assault by the
defendant is admissible.
© 2020 Studicata | www.studicata.com Evidence 1

[*If propensity evidence is introduced and character is NOT an essential element of the claim or defense and
the case is NOT based on the defendant’s sexual misconduct]
Here, _____ [Identify that the evidence is being introduced to show that the party has the propensity to act in
accordance with the alleged character trait.]. In addition, _____ [Identify that character is not an essential
element of the claim or defense and that the case is not based on the defendant’s sexual misconduct.].
Therefore, _____ [the evidence] is inadmissible, because it is being introduced for propensity purposes and
neither exception is satisfied.
[*If propensity evidence is introduced and character is an essential element of the claim or defense (e.g.,
defamation, negligent hiring, child custody, etc.) and/or the case is based on the defendant’s sexual
misconduct]
Here, _____ [Identify that the evidence is being introduced to show that the party has the propensity to act in
accordance with the alleged character trait.]. While character evidence is usually not admissible for propensity
purposes in civil cases, _____ [Identify the exception that applies.].
Therefore, _____ [the evidence] is admissible, because _____ [Identify the exception that applies.].
[*If evidence of a victim’s character is introduced in a sexual misconduct civil case]
EVIDENCE OF THE VICTIM’S CHARACTER IN SEXUAL MISCONDUCT CIVIL CASES
In civil cases involving sexual misconduct, evidence may be offered to prove a victim’s sexual behavior or
misconduct so long as the evidence’s probative value substantially outweighs the danger of harm to the victim
and unfair prejudice to any party.
Here, _____ [Balance the evidence’s probative value against the danger of harm to the victim and unfair
prejudice to any party to determine admissibility.].
[*If the case is criminal]
PROPENSITY EVIDENCE IN CRIMINAL CASES
In criminal cases, the prosecution cannot introduce evidence of a defendant's bad character to prove that the
defendant has the propensity to have committed the crime in question. However, the defendant may “open the
door” and present positive character evidence so long as it is: (1) pertinent to the crime charged; and (2)
through reputation or opinion testimony (not specific instances of conduct).
If the defendant opens the door by presenting evidence of positive character, the prosecution may then
introduce negative character evidence, so long as it relates to the same character trait in question, to rebut the
defendant in two different ways: (1) the prosecution can call its own character witness; or (2) the prosecution
can cross-examine the defendant’s character witness. If the prosecution calls its own character witness, the
witness is limited to reputation or opinion testimony (not specific instances of conduct). On cross-examination,
the prosecution can elicit evidence of specific instances of conduct so long as it relates to the same character
trait in question.
[*If the prosecution introduces propensity evidence before the defendant opens the door]
Here, _____ [Identify that the evidence is being introduced for propensity purposes.].

Therefore, _____ [the evidence] is inadmissible, because the prosecution cannot introduce character evidence
against a defendant for propensity purposes before the defendant introduces her own character evidence.
[*If the defendant introduces evidence of positive character]
Here, _____ [Discuss whether the defendant’s character evidence is: (1) pertinent to the crime charged; and (2)
through reputation or opinion testimony (not specific instances of conduct). If either of these elements are not
satisfied, the evidence is inadmissible.].
[*If the prosecution rebuts the defendant’s evidence of positive character]
Here, _____ [Identify whether the prosecution is rebutting with their own character witness or by cross-
examining the defendant’s character witness.].
[*If the prosecution rebuts with their own character witness]
Here, _____ [Discuss whether the prosecution limits their character witness’s testimony to: (1) the same
character trait raised by the defendant; and (2) reputation or opinion testimony (not specific instances
of conduct). If either of these elements are not satisfied, the evidence is inadmissible.].
[*If the prosecution rebuts by cross-examining the defendant’s character witness]
Here, _____ [Discuss whether the prosecution limits their cross-examination to the same character trait
raised by the defendant. Remember, on cross-examination, the prosecution can elicit evidence of
specific instances of conduct so long as it relates to the same character trait in question.].
[*If evidence of a victim’s character is introduced in a criminal case]
EVIDENCE OF THE VICTIM’S CHARACTER IN CRIMINAL CASES
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to
one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that:
(1) the defendant possesses the same character trait; or (2) The victim possesses a relevant positive character
trait. If this is done on cross-examination, the prosecution may introduce specific instances of conduct to rebut.
[*If the defendant introduces evidence of the victim’s character]
Here, _____ [Discuss whether the evidence is reputation or opinion testimony (not specific instances of conduct)
and whether the evidence is relevant to one of the defenses asserted. If either is not satisfied, the evidence is
inadmissible.].
[*If the prosecution rebuts the defendant’s evidence of the victim’s character]
Here, _____ [Discuss whether the prosecution’s rebuttal presents evidence that the defendant possesses the
same character trait, or the victim possesses a relevant positive character trait. If neither apply, the evidence is
inadmissible. Remember, on cross-examination, the prosecution may elicit specific instances of conduct.].
[*If evidence of a rape victim’s character is introduced in a criminal case]
Rape Shield Laws
In cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is not admissible.

[*If a specific instance of conduct is introduced for any other reason than to show propensity]
NON-PROPENSITY EVIDENCE (M.I.M.I.C.)
Specific instances of conduct are generally not admissible to show propensity but are admissible to show
(M.I.M.I.C.): motive or opportunity; intent; absence of mistake; identity; or a common plan or preparation.
Specific instances of conduct are admissible for MIMIC purposes if: (1) there is sufficient evidence to support a
jury finding that the defendant committed the prior act; AND (2) the probative value of the specific instances of
conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.
Here, _____ [Identify that the specific instance of conduct is not being introduced for propensity purposes.].
Rather, _____ [the evidence] is being introduced to show _____ [Insert applicable M.I.M.I.C. purpose]. Further,
_____ [Discuss whether there is sufficient evidence to support a jury finding that the defendant committed the
prior act and whether the probative value of the specific instance of conduct is substantially outweighed by the
danger of unfair prejudice.].
Therefore, _____ [the evidence] _____ [is/is not] admissible, because _____ [Identify whether the evidence is
being introduced for propensity purposes and whether both elements are satisfied.].
HEARSAY
The issue is whether the out-of-court statement is admissible.
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay is not admissible
unless it falls under a valid exception. A “statement” includes a person’s oral assertions, written assertions, or nonverbal
conduct if the person intended it as an assertion.
NON-HEARSAY
If an out-of-court statement is not offered to prove the truth of the matter asserted, the statement is not
hearsay and is admissible.
Verbal Acts of Independent Legal Significance
Verbal acts of independent legal significance are statements offered to prove that the statement itself
was made, irrespective of its truth. Verbal acts of independent legal significance are not offered to prove
the truth of the matter asserted and are thus admissible.
Here, _____ [Discuss whether the out-of-court statement was offered to prove the truth of the matter
asserted. If not, the statement is non-hearsay and admissible.].
Effect on the Listener
Statements offered to show the effect on the listener are not offered to prove the truth of the matter
asserted, and are thus admissible.

Declarant’s Mental State
Statements offered to show the declarant’s mental state or state of mind are not offered to prove the
truth of the matter asserted, and are thus admissible.
Impeachment Purposes
Statements offered for impeachment purposes are not offered to prove the truth of the matter
asserted, and are thus admissible.
Prior Inconsistent Statements
Prior inconsistent statements are admissible for substantive purposes if: (1) the declarant is testifying at
trial and is subject to cross-examination; (2) the statements were previously made under penalty of
perjury (i.e., under oath); and (3) the prior statements are inconsistent with present testimony being
given at trial. If the statements were not previously made under penalty of perjury, they can be offered
only for impeachment purposes – not substantive purposes.
[*If a prior inconsistent statement is offered for substantive purposes]
Here, _____ [Discuss whether all three elements are satisfied. If so, the statement is
admissible.].
[*If a prior inconsistent statement is offered for impeachment purposes]
Here, _____ [Discuss whether elements (1) and (3) are satisfied. If so, the statement is
admissible.].
Prior Consistent Statements
Prior consistent statements are admissible to rebut a claim that the declarant is fabricating or has a
recent motive to fabricate the statement in court if: (1) the declarant is testifying at trial and is subject
to cross-examination; and (2) the prior consistent statement was made before the declarant had a
motive to fabricate the statement.
Here, _____ [Discuss whether both elements are satisfied. If so, the statement is admissible.
Prior Statements of Identification
Prior statements of identification (e.g., prior out-of-court identifications in lineups, photo arrays, etc.)
are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross-
examination.
Here, _____ [Discuss whether the declarant is testifying at trial and subject to cross-examination. If so,
the statement is admissible.].

Admissions by a Party Opponent
Prior out-of-court statements made by a party to the current litigation that are offered by the opposing
party are admissible as non-hearsay.
Here, _____ [Identify whether the prior out of court statement was made by a party to the current
litigation and whether it is being offered by the opposing party. If both are satisfied, the statement is
admissible.].
[*If a decision to remain silent is offered as an admission by a party opponent]
Adoptive Admissions
Silence is considered an adoptive admission if the party heard and understood the statement
and remained silent where a reasonable person would have denied the statement.
Here, _____ [Discuss whether a reasonable person would have denied the statement].
[*If a reasonable person would NOT have denied the statement]
Therefore, _____ [the party’s] silence does not constitute an adoptive admission
and is not admissible.
[*If a reasonable person would have denied the statement]
Therefore, _____ [the party’s] silence constitutes an adoptive admission.
In addition, _____ [Identify whether the person who remained silent was a
party to the current litigation and whether the decision to remain silent is being
offered by the opposing party.].
[*If the person who remained silent was a party to the current
litigation and its being offered by the opposing party]
Thus, _____ [the party’s] adoptive admission is admissible as non-

hearsay.
[*If the person who remained silent was NOT a party to the current
litigation and/or its NOT being offered by the opposing party]
Thus, _____ [the party’s] adoptive admission is not admissible as non-

hearsay.
[*If an authorized spokesperson, agent, or co-conspirator made a statement]
Vicarious Admissions
Statements made by an authorized spokesperson, an agent within the scope of and during the
agency relationship, or co-conspirators during and in furtherance of the conspiracy are
considered vicarious admissions and are imputed on the party opponent.
Here, _____ [Discuss whether either of these three apply. If so, the statement is imputed.].

HEARSAY EXCEPTIONS: DECLARANT UNAVAILABILITY REQUIRED
The issue is whether the hearsay statement can be admitted under a valid exception.
Hearsay is not admissible unless it falls under a valid exception. The following four exceptions apply only if the
declarant is deemed unavailable: former testimony; dying declarations; statements against interest; and
forfeiture by wrongdoing.
A declarant is deemed to be unavailable as a witness if the declarant: (1) is exempted from testifying because
the court rules that a privilege applies; (2) refuses to testify despite a court order to do so; (3) testifies to not
remembering the subject matter; (4) cannot be present or testify because of a death or then-existing infirmity,
physical illness, or mental illness; or (5) is absent and the statement’s proponent has not been able, by process
or other reasonable means to procure the declarant’s attendance.
Former Testimony
Former testimony is admissible if: (1) the declarant is unavailable; (2) the statement was prior testimony
given at a trial hearing or deposition; and (3) the opposing party had an opportunity and similar motive
to develop the testimony through cross or direct examination.
Here, _____ [Discuss whether all three elements are satisfied. If so, the hearsay statement is admissible
under the former testimony exception.].
Dying Declarations
A statement is admissible if: (1) the declarant is unavailable; (2) the declarant believed that her death
was imminent when she made the statement; (3) the statement pertains to the cause or circumstances
of her death; and (4) the statement is being introduced in a homicide or civil case.
Here, _____ [Discuss whether all four elements are satisfied. If so, the hearsay statement is admissible
under the dying declaration exception.].
Statements Against Interest
A statement is admissible if: (1) the declarant is unavailable; (2) the statement is against the declarant’s
self-interest; and (3) a reasonable person would not have made the statement unless he believed it to
be true.
Here, _____ [Discuss whether all four elements are satisfied. If so, the hearsay statement is admissible
under the statements against interest exception.].
Forfeiture by Wrongdoing
A party forfeits her hearsay objection if the party intentionally or wrongfully makes the declarant
unavailable to testify as proven by a preponderance of the evidence. This allows statements that would
normally be inadmissible hearsay to be introduced against the wrongdoer by forfeiture.
Here, _____ [Discuss whether a party intentionally or wrongfully made the declarant unavailable to
testify. If proven by a preponderance of the evidence, the party forfeits their hearsay objection.].

HEARSAY EXCEPTIONS: DECLARANT UNAVAILABILITY NOT REQUIRED
The issue is whether the hearsay statement can be admitted under a valid exception.
Hearsay is not admissible unless it falls under a valid exception. The following six exceptions apply regardless of
whether the declarant is deemed unavailable: present sense impression; excited utterance; state of mind;
medical diagnosis or treatment; recorded collection; and business records.
Present Sense Impression
A present sense impression is an admissible statement made by the declarant in which she describes an
event as it takes place or immediately thereafter.
Here, _____ [Discuss whether the declarant’s statement was made while she described an event as it
took place or immediately thereafter. If so, the hearsay statement is admissible under the present sense
impression exception.].
Excited Utterance
An excited utterance is an admissible statement that concerns a startling event that is made by the
declarant when the declarant is still under stress from the startling event.
Here, _____ [Discuss whether the declarant’s statement concerned a startling event, and whether the
statement was made while the declarant was still under stress from the startling event. If both are
satisfied, the hearsay statement is admissible under the excited utterance exception.].
State of Mind
A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is
admissible to prove the declarant’s state of mind or the declarant’s conduct. A statement regarding
memory, a past belief, or a past state of mind to prove the fact remembered or believed is not
admissible unless it relates to the validity or terms of the declarant’s will.
Here, _____ [Discuss whether the statement concerned the declarant’s then-existing state of mind or
emotional, sensory, or physical condition, and whether the statement was offered to prove the
declarant’s state of mind or conduct. If both are satisfied, the hearsay statement is admissible under the
state of mind exception.].
Medical Diagnosis or Treatment
A statement of a person’s past or present condition is admissible so long as it is made for the purpose of
medical diagnosis or treatment, regardless of whether the statement is made to a medical professional.
Here, _____ [Discuss whether the statement was made for the purpose of medical diagnosis or
treatment. If so, the hearsay statement is admissible under the medical diagnosis or treatment
exception, even if the statement is made to a non-medical person.].
Recorded Recollection
The record may be read into evidence if the witness cannot recall events or information, provided that:
(1) the record is about a matter the witness once had personal knowledge of; (2) the record was made
or adopted by the witness when the matter was fresh in the witness’s mind. (3) the record accurately

reflects the witness’s personal knowledge; and (4) the witness can no longer recall the events or
information well enough to testify, even after reviewing the writing while on the stand. Under recorded
recollection, the record may be read into evidence, but only opposing counsel can decide to enter it as
an exhibit.
Here, ____ [Discuss all four elements to determine whether the record may be read into evidence.
Remember, only opposing counsel can decide to enter it as an exhibit.].
Business Records
A business record is admissible as a valid exception to the hearsay rule if the record is: (1) kept in the
course of regularly conducted business; and (2) made by a person with knowledge of the matter at or
near the time of the matter's occurrence. However, a business record is not admissible if the opponent
can show that the source or preparation of the record lacks trustworthiness.
Here, _____ [Discuss whether both elements are satisfied and whether the opponent can show that the
source or preparation of the record lacks trustworthiness. If both elements are satisfied and the
opponent cannot show the record lacks trustworthiness, the record is admissible.].

TORTS
NEGLIGENCE
The main issue is whether the plaintiff can hold the defendant liable for negligence.
To hold a defendant liable for negligence, the plaintiff must establish the following four elements by a preponderance of
the evidence: (1) the defendant owed a duty to the plaintiff to conform to a specific standard of care; (2) the defendant
breached that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injuries; AND (4) the plaintiff
sustained actual harm.
DUTY
The first issue is whether the defendant owed a duty to the plaintiff to conform to a specific standard of care.
Cardozo/Majority
The majority rule is that a duty of care is owed to all foreseeable plaintiffs. Under Justice Cardozo’s
majority opinion in Palsgraf, the defendant owes a duty to plaintiffs who are within the zone of
foreseeable danger.
Here, _____ [Discuss whether the plaintiff was in the zone of foreseeable danger.].
Andrews/Restatement
Under Justice Andrew’s dissent in Palsgraf and the Restatement, if the defendant can foresee harm to
anyone as a result of his negligence, then a duty is owed to every person harmed as a proximate cause
of his breach. Under the Andrews/Restatement approach, the issue of whether the plaintiff was
foreseeable is reserved for the analysis of proximate cause.
Here, _____ [Discuss whether the defendant could have foreseen harm to ANYONE as a result of his
negligence. If so, then a duty is owed to the plaintiff so long as the defendant’s breach was the
proximate cause of the plaintiff’s injury. Reserve your proximate cause analysis for your discussion of
the third element of negligence – causation.].
STANDARD OF CARE
Once we establish whether the defendant owed a duty of care to the plaintiff, the next issue is what standard of
care did the defendant owe to the plaintiff.
In most cases, the standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person
under like circumstances as measured by an objective standard (the reasonable person standard). However, the
standard of care owed may change when certain types of defendants are involved, or a statute defines a specific
standard of care as a matter of law (negligence per se). Traditionally, the standard of care owed by the
defendant to the plaintiff is subject to modification if the defendant is: a child, a professional, a physician, a
common carrier or innkeeper, an automobile driver, a bailor or bailee, or a possessor of land.
© 2020 Studicata | www.studicata.com Torts 1

[*If the defendant is not a member of a class that requires a different standard of care, and a statute does not
define a specific standard of care as a matter of law]
Reasonable Person Standard of Care
The reasonable person standard of care is the default standard of care that is applied in most cases. Under the
reasonable person standard of care, the defendant owes a duty to the plaintiff to exercise the care that a
reasonable person under like circumstances would recognize as necessary to avoid or prevent an unreasonable
risk of harm to another person.
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the reasonable person standard
of care, because _____ [the defendant] is not a member of a class that requires a different standard, and there
is not a statute that defines a specific standard of care as a matter of law.
[*If the defendant is a child]
Standard of Care: Children
A child owes a duty to exercise the care that a reasonable child of similar age, intelligence, and experience
would under like circumstances. However, a child will be held to the same standard of care as an adult if the
child is engaged in a high-risk activity that is usually undertaken by adults.
[*If the defendant-child is not engaged in high-risk adult activity]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care
imposed on children, because _____ [the defendant] is a child who was not engaged in a high-risk
activity that is usually undertaken by adults.
[*If the defendant-child is engaged in high-risk adult activity]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care
imposed on adults, because _____ [the defendant] was engaged in a high-risk activity that is usually
undertaken by adults.
[*If the defendant is a professional]
Standard of Care: Professionals
A professional owes a duty to exercise the same skill, knowledge, and care of a member of the profession in
good standing in similar communities.
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care imposed on
professionals, because _____ [the defendant] is a professional, and the harm occurred while _____ [the
defendant] was operating in the capacity of a professional.
[*If the defendant is a physician]
Standard of Care: Physicians
A physician owes a duty to: (1) conform their conduct to the customary practice of other physicians in like
circumstances, as measured by a national standard; and (2) explain the risks of a medical procedure to a patient
before the patient decides to consent to treatment. However, a physician is not required to explain the risks of a

medical procedure when: the risk is commonly known; the patient is unconscious or otherwise incapable of
giving consent; the patient waives or refuses the information; the patient is incompetent; or the explanation of
risks would be detrimental to the patient.
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the standard of care imposed on
physicians, because _____ [the defendant] is a physician, and the harm occurred while _____ [the defendant]
was operating in the capacity of a physician.
[*If the defendant is a common carrier or innkeeper]
Standard of Care: Common Carriers and Innkeepers
At common law, most jurisdictions held that common carriers and innkeepers owed the highest standard of care
to their customers and guests. Under this heightened standard of care, common carriers and innkeepers could
be held liable for “slight negligence” by their customers and guests. Today, most courts continue to hold
common carriers to this heightened standard of care. However, most courts do not impose a higher standard of
care on innkeepers, instead applying an “ordinary” negligence standard.
[*If the defendant is a common carrier]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the heightened standard
of care imposed on common carriers, because _____ [the defendant] is a common carrier, and the harm
occurred while _____ [the defendant] was operating in the capacity of a common carrier.
[*If the defendant is an innkeeper]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the reasonable person
standard of care, because most courts do not impose a higher standard of care on innkeepers.
[*If the defendant is an automobile driver]
Standard of Care: Automobile Drivers
In most jurisdictions, an automobile driver owes a duty to conform to a reasonable person standard of care to
their guests and passengers (passengers confer an economic benefit to the driver in exchange for the ride).
However, in a minority of jurisdictions, an automobile driver only owes a duty to refrain from gross or wanton
and willful misconduct to their guests, while still owing a duty to conform to the reasonable person standard of
care to their passengers.
[*If the plaintiff is a guest]
Here, under the majority approach, _____ [the defendant] owed a duty to _____ [the plaintiff] to
conform to the reasonable person standard of care, because the majority approach does not make a
distinction between guests and passengers.
However, under the minority approach _____ [the defendant] owed a duty to _____ [the plaintiff] to
conform to the lower standard of care imposed on automobile drivers, because _____ [the plaintiff] was
a guest, and the harm occurred while _____ [the defendant] was operating in the capacity of an
automobile driver.
[*If the plaintiff is a passenger]

Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to conform to the reasonable person
standard of care, because _____ [the plaintiff] was a passenger (not a guest), and both approaches
impose a duty on automobile drivers to conform to the reasonable person standard of care when
transporting a passenger.
[*If the defendant is a bailor or bailee]
Standard of Care: Bailors and Bailees
A bailment occurs when a person (the bailee) temporarily takes possession of another person’s (the bailor’s)
personal property.
[*If the defendant is a bailor]
A bailor owes a duty to inform an unpaid-bailee only of known dangerous defects in personal property,
but must inform a paid-bailee of defects that are known or should have been known by the bailor had
he used reasonable diligence.
[*if the plaintiff is an unpaid-bailee]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to inform the bailee of known
dangerous defects in the property, because _____ [the defendant] was not paying _____ [the
plaintiff] for [his/her] services.
[*if the plaintiff is a paid-bailee]
Here, _____ [the defendant] owed a duty to _____ [the plaintiff] to inform the bailee of defects
that were known or should have been known by _____ [the defendant] had [he/she] used
reasonable diligence, because _____ [the defendant] was paying _____ [the plaintiff] for
[his/her] services.
[*If the defendant is a bailee]
A bailee owes a lower duty of care to avoid gross negligence if the bailor receives the sole benefit from
the bailment. However, a bailee owes a very high duty of care to exercise extraordinary care for the
bailor’s property if the bailee receives the sole benefit from the bailment.
[*If the bailor receives the sole benefit from the bailment]
Here, _____ [the defendant] owed a lower duty of care to avoid gross negligence to _____ [the
plaintiff], because the bailor received the sole benefit from the bailment.
[*If the bailee receives the sole benefit from the bailment]
Here, _____ [the defendant] owed a very high duty of care to exercise extraordinary care to
_____ [the plaintiff], because the bailee received the sole benefit from the bailment.
[*If the defendant is a possessor of land]
Standard of Care: Possessors of Land
For standard of care purposes, a possessor of land includes: owners, tenants, adverse possessors, and others in

possession of land (not easement holders or those licensed to use land).
Traditional Approach
Under the traditional approach, the standard of care that possessors of land owe to entrants upon their land
varies depending on whether the entrant is a trespasser, licensee, or invitee.
A trespasser is a person who enters the land possessor’s property without valid consent or necessity.
Discovered trespassers enter the land without consent, but may be expected by the land possessor.
Undiscovered trespassers enter the land without consent, and are not expected by the land possessor. A
land possessor owes a duty to discovered trespassers to warn of, or make safe, hidden dangers on the
land that pose a risk of death or serious bodily harm so long as the hidden dangers are artificial, and the
land possessor is aware of them. By contrast, a land possessor owes no duty to undiscovered
trespassers.
A licensee is a person who lawfully enters the land possessor’s property for her own purpose or benefit,
rather than the land possessor’s benefit. A land possessor owes a duty to licensees to warn of, or make
safe, hidden dangers on the land that pose an unreasonable risk of harm, whether the dangers are
artificial or natural, so long as the land possessor is aware of them.
An invitee is a person who is invited on the property for the land possessor’s own benefit or mutual
benefit with the invitee. The land possessor owes a duty to invitees to reasonably inspect the land for
hidden dangers, both artificial and natural, that pose an unreasonable risk of harm, and if discovered, to
make them safe (usually by fixing the danger or posting a warning sign).
Here, under the traditional approach, _____ [the defendant] owed a duty to _____ [Identify the applicable
standard of care based on the entrant’s status as a trespasser, licensee, or invitee], because the entrant was a
_____ [discovered trespasser/undiscovered trespasser/licensee/invitee].
Modern Approach
Today, several states have rejected the traditional distinctions between licensees and invitees holding that a
land possessor owes a duty to all entrants, regardless of their status as an invitee or licensee, to conform to the
reasonable person standard of care. Although, status of the entrant may still be relevant to determine the
reasonableness of the land possessor’s actions under the circumstances.
Here, under the modern approach, _____ [the defendant] owed a duty to conform to the reasonable person
standard of care, because of the rejection of distinctions between entrant status.
[*If the defendant is a possessor of land and there is an injury to a child trespasser]
Standard of Care/Duty: Attractive Nuisance Doctrine
A possessor of land owes a duty to child trespassers to warn of, or make safe, artificial conditions on the land,
provided that: (1) the artificial condition exists in a place where the possessor of land knows or has reason to
know that children are likely to trespass; (2) the possessor or land knows or has reason to know that the artificial
condition poses an unreasonable risk of death or serious bodily harm; (3) the children, due to their age, do not
appreciate the danger involved; and (4) the risk of harm outweighs the expense of making the condition safe.
Here, _____ [the defendant] _____ [owed/did not owe] a duty to warn of, or make safe, artificial conditions on
the land, because _____ [Discuss all 4 elements to determine whether the defendant owed the child trespasser
a duty to warn of, or make safe, the artificial condition on the land.].

[*If the fact pattern gives you a statute that imposes a duty]
Negligence Per Se
In most jurisdictions, the violation of a statue that imposes a duty of care establishes negligence as a matter of
law, so long as: (1) the defendant violates the statute by failing to perform the imposed duty; (2) the plaintiff is
in the class of people meant to be protected by the statute; (3) the plaintiff suffers the type of harm the statute
was designed to protect against; and (4) the defendant’s violation of the statute was the proximate cause of the
plaintiff’s injury.
Here, _____ [Discuss all four elements. If all four elements are satisfied, there is a conclusive presumption of
duty, breach, and causation, and damages.].
BREACH
Once we establish the duty and standard of care that the defendant owed to the plaintiff, the next issue is
whether the defendant breached the duty owed to the plaintiff.
[*If you are applying the reasonable person standard of care]
Majority/Traditional Approach
Under the majority approach, a breach of duty occurs when a defendant fails to exercise the care that a
risk of harm to another person, as measured by an objective standard.
Here, under the majority approach, _____ [Discuss whether the defendant failed to exercise the care that
risk of harm to another person, as measured by an objective standard.].
Modern Trend and Restatement: Cost-Benefit Analysis
However, under the modern trend and Restatement approach, courts apply a cost-benefit analysis to determine
whether a breach of duty occurred by balancing: (1) the foreseeable likelihood that the defendant’s conduct
would cause harm; and (2) the foreseeable severity of any resulting harm; with (3) the defendant’s burden (costs
or other disadvantages) in avoiding the harm.
Here, under the modern trend and Restatement approach, _____ [Balance factors (1) and (2) with factor (3) to
determine whether a breach of duty occurred.].
[*If you are not applying the reasonable person standard of care]
A breach of duty occurs when the defendant departs from the required standard of care.
Here, it appears that _____ [the defendant] _____ [departed/did not depart] from [his/her] duty to _____
[Insert the applicable standard of care you determined above], because _____ [Discuss facts that suggest
whether the defendant departed from the applicable standard of care.].
CAUSATION
Once we establish whether the defendant breached a duty owed to the plaintiff, the next issue is whether the
breach was the actual and proximate cause of the plaintiff’s injuries.

To hold the defendant liable for negligence, the plaintiff must show that defendant’s breach was both the actual
and proximate cause of her injury.
Actual Cause
To prove actual cause, the plaintiff must show that her injury would not have occurred but for the
defendant’s breach.
Here, _____ [Discuss whether the plaintiff’s injury would have occurred but for the defendant’s breach
of the applicable standard of care.].
Proximate Cause
To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the
defendant’s breach. An intervening cause is an outside force or action that contributes to the plaintiff’s
harm after the defendant’s breach has occurred. If the intervening cause is unforeseeable, it is a
superseding cause and the defendant’s liability to the plaintiff is cut off from that point forward.
Here, _____ [Discuss whether the plaintiff’s injury was a foreseeable result of the defendant’s breach,
and whether there were any superseding causes that cut off the defendant’s liability.].
[If the plaintiff suffers from a preexisting mental/physical condition that aggravates the harm]
Eggshell Plaintiff Rule
Under the eggshell plaintiff rule, the defendant is liable for all harm suffered by the plaintiff,
even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition
that aggravates the harm.
Here, it is irrelevant as to whether the plaintiff’s _____ [preexisting mental/physical condition]

was unforeseeable. Under the eggshell plaintiff rule, the defendant remains liable for all harm
aggravated by a preexisting physical or mental condition.
DAMAGES
Once we establish whether the defendant’s breach of duty was the actual and proximate cause of the plaintiff’s
injuries, the next issue is whether the plaintiff sustained actual harm.
The plaintiff must prove actual harm (usually personal injury or property damage) to complete the requirements
needed to hold a defendant liable for negligence. While a plaintiff who suffers physical injury may also seek
emotional distress damages; in most jurisdictions, a plaintiff may not recover pure emotional distress damages
without accompanying physical injury through a negligence action. Similarly, a plaintiff who suffers only
economic loss without any related personal injury or property damage cannot recover such loss through a
negligence action.
Here, _____ [Discuss whether the plaintiff suffered actual harm (physical injury or property damage).].
In conclusion, the plaintiff [can/cannot] hold the defendant liable for negligence, because _____ [Identify whether the
plaintiff proved duty, breach, causation, and damages by a preponderance of the evidence.].

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Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

SUBJECT MATTER JURISDICTION

FEDERAL QUESTION JURISDICTION

Citizenship for Diversity Purposes

For individuals, citizenship is determined by the individual’s state or country of domicile.

© 2020 Studicata | www.studicata.com Civil Procedure 1

Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

Amount in Controversy Requirement

[*If there are not multiple claims involved]

[*If there are multiple claims involved]

[*If there is 1 plaintiff and 1 defendant]

[*If there is 1 plaintiff and multiple defendants]

[*If the defendants are jointly liable]

© 2020 Studicata | www.studicata.com Civil Procedure 2

Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

[*If the court is sitting in federal question jurisdiction]

[*If the court is sitting in diversity jurisdiction and a counterclaim is involved]

[*If the court is sitting in diversity jurisdiction and a cross-claim is involved]

© 2020 Studicata | www.studicata.com Civil Procedure 3

Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

[*If the claim being removed involves federal question jurisdiction]

[*If the claim being removed involves diversity jurisdiction]

[*If the defendant can remove the case]

[*If the defendant cannot remove the case]

© 2020 Studicata | www.studicata.com Civil Procedure 4

Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

[*If a traditional base is satisfied]

[*If a traditional base is not satisfied]

STATE LONG-ARM STATUTE

© 2020 Studicata | www.studicata.com Civil Procedure 5

Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

Traditional Notions of Fair Play and Substantial Justice

Here, _____ [Briefly discuss all five factors.].

Residence for Venue Purposes

Here, _____ [Identify the residence of each party to the action.].

[*If no defendant resides in the United States]

[*If all the defendants reside in the same state]

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[*If all the defendants do not reside in the same state]

© 2020 Studicata | www.studicata.com Civil Procedure 7

Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

[*If an individual is alleging an infringement on a constitutional right – consider state action]

[*If the classification is suspect]

[*If there was governmental intent to discriminate]

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[*If there was NOT governmental intent to discriminate]

[*If the classification is quasi-suspect]

A classification is quasi-suspect if it is based on gender or legitimacy (non-marital children). If a quasi-suspect

[*If there was governmental intent to discriminate]

[*If there was NOT governmental intent to discriminate]

While a quasi-suspect classification is involved, there was no governmental intent to discriminate.

[*If the classification is NOT suspect or quasi-suspect]

© 2020 Studicata | www.studicata.com Constitutional Law 2

Prepared exclusively for Joseph Masse, [email protected]. Tracking Code: 12426

1st Amendment Free Speech

[*If the regulation of speech is targeting what is being said]

To be constitutional, restrictions on the content of speech must be necessary to achieve a compelling

Here, the offer was _ [unilateral/bilateral], because _ [Identify