Author: Daniel Edelson

Are there exceptions to the hearsay rule?

Yes, there are exceptions. If you read Federal Rules of Evidence 803 and 804  you will see a list of exceptions. Many states have identical exceptions. By way of example, consider the “excited utterance.”  This is an excited statement made in response to a startling event or condition. For example, let’s say immediately after being hit by a rock, Gary yells, “Mark threw a rock at me!” Gary’s statement that Mark threw a rock at him can likely be admitted into evidence to prove the truth of the matter asserted.  That is, the statement is probably admissible to prove that Mark threw the rock. The statement would be admissible as an exception to the hearsay rule because it is an excited...

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When can a party appeal a partial dismissal of the case?

Partial Dismissals In a civil case there can be more than one claim.  For example, a plaintiff might sue a defendant for breach of contract and a tort.  Perhaps the defendant has counterclaims against the plaintiff. When a judge dismisses some, but not all the claims in the case, we call this a partial dismissal.   Appealing Partial Dismissals As a general rule, parties cannot appeal until the trial level court enters final judgment on all the claims. There are two general circumstances in the federal court system where a party can appeal a partial dismissal before the entire case ends: (1) when a court enters final judgment on the claims it dismissed pursuant to Federal Rule of Procedure 54(b); and (2) when a court certifies an interlocutory appeal pursuant  to  28 U.S.C. § 1292.   54(b) In the federal courts, Rule 54(b)  provides that if a district court (a trial level federal court)  decides there is no “just reason for a delay,” a judge can enter a final judgment on some but not all of the claims and the losing parties can then appeal the court’s decision on these claims.   Courts may enter final  judgment on some but not all claims pursuant to 54(b) if those claims are not inextricably linked with the other claims in the case. Let’s say we have three claims in a case and the...

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What is the difference between minimum contacts and long arm statutes?

An LLM student asked a very good question after reading the International Shoe case.   The case concerns when a state can assert personal jurisdiction over a defendant who resides in another state – – an out-of-state defendant. Here is a short answer: Minimum contacts gives us the maximum range that a long arm statute can reach.  But that might be confusing so let’s start with a simple story: Short Story A teacher decides her class is so we’ll-behaved that each student can get a reward.  The teacher sends a note to each child’s parent saying, “Your student may have three candies as a reward for his good behavior.  I will bring in a variety of candies but no candies with peanuts.  Let me know if there is a problem.” Each parent sends a note back to the teacher.  Some parents say, “Sure!  Let my child have the maximum number of candies (i.e. 3).” Other parents write back saying, “My child should only have two candies.”  The parents also provide specific instructions regarding the candies.  “My child can have chocolate candies, however, no candies with toffee.”   In our story, no parent can allow a child to have four candies because our teacher told us that the maximum is three.  Also, no parent can demand candies with peanuts because our teacher told us those are not available.   Minimum Contacts...

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When do juries determine guilt in criminal cases? When do judges?

A student studying in the Netherlands asked about jury trials in criminal cases. If you watch US television shows and movies you’ll invariably see juries deciding criminal cases.   That makes sense both for entertainment and for purposes of understanding US law.  In criminal cases, Article III  and the Sixth Amendment to the United States Constitution guarantee the right to a jury trial. However, the right only applies to serious crimes. As a general rule, if a defendant can be sentenced to more than six months, the defendant can demand a jury trial. If you wish to dispute a parking ticket in the United States, the Constitution will not guarantee you a jury trial but certain states allow for jury trials for less serious cases.  In other words, the Constitution of the United States might not require a jury trial in all cases, but states can establish their own rules for less serious...

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What is insufficient consideration?

Studying US contract law you will probably learn that consideration must be “sufficient. ”  But this does not mean that there must be “enough”  consideration.  Consideration must be “legally” sufficient. The general rule in the US is that courts don’t worry about the amount of consideration.  For example, if David offers to clean Patty’s car for $75 a court probably won’t worry about whether the job is worth more or less money.  As long as no deception was involved it probably won’t matter if Patty should have paid $10 or $100.  Court don’t usually concern themselves with the amount of consideration. But courts will worry about legally sufficient consideration.  For example, past consideration is not legally sufficient consideration. If David gives Patty an apple on Monday as a present and Patty is so happy she says she’ll give David a pear the following day, there is no contract.  Patty does not have to give David a pear on Tuesday.   Patty and David did not agree to give a pear in exchange for an apple. Below is an older video on an example of legally insufficient consideration: Get a Civ Pro Quiz Ebook! 101 Civ Pro Questions and Explanations...

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