Comments on: MBE Question of the Day #43 http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Sat, 07 Apr 2012 13:23:54 +0000 hourly 1 http://wordpress.org/?v=3.2 By: Correction http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-11385 Correction Fri, 11 Feb 2011 14:33:23 +0000 http://barexambrief.com/?p=893#comment-11385 The answer is C, because you wrote "... that he demanded". Look at the wording. The answer is C, because you wrote “… that he demanded”. Look at the wording.

]]> By: Maryann Herman http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-873 Maryann Herman Thu, 11 Feb 2010 16:02:17 +0000 http://barexambrief.com/?p=893#comment-873 Answer B is correct. Under the Hillmon doctrine, evidence of a statement of present mental state, which is excluded from the hearsay rule by Federal Rule 803(3), may be used circumstantially to show both that the mental state continued into the future and that the declarant acted in conformity with it. Here, the plaintiff's statement that he would never buy a used boat without a warranty can be used as circumstantial evidence that he did in fact request a warranty. The statement is not hearsay and is admissible to prove that a warranty was demanded. Answer A is incorrect. When character is not an issue in a lawsuit, the Federal Rules do not permit evidence of a person's character to show that the person acted in conformity therewith in a civil case. Answer C is incorrect. While the statement is hearsay because it must be believed to be relevant, it is a statement of present mental state which is admissible under Federal Rule 803(3). Answer D is incorrect. The parol evidence rule renders evidence inadmissible only when there is an integrated written contract. Then all contemporaneous or antecedent statements which are used to attempt to vary the words of the written contract are inadmissible. No such integrated written contract is in evidence in this case. Therefore, the parol evidence rule is inapplicable and will not prevent the admissibility of this evidence. Answer B is correct. Under the Hillmon doctrine, evidence of a statement of present mental state, which is excluded from the hearsay rule by Federal Rule 803(3), may be used circumstantially to show both that the mental state continued into the future and that the declarant acted in conformity with it. Here, the plaintiff’s statement that he would never buy a used boat without a warranty can be used as circumstantial evidence that he did in fact request a warranty. The statement is not hearsay and is admissible to prove that a warranty was demanded.

Answer A is incorrect. When character is not an issue in a lawsuit, the Federal Rules do not permit evidence of a person’s character to show that the person acted in conformity therewith in a civil case.

Answer C is incorrect. While the statement is hearsay because it must be believed to be relevant, it is a statement of present mental state which is admissible under Federal Rule 803(3).

Answer D is incorrect. The parol evidence rule renders evidence inadmissible only when there is an integrated written contract. Then all contemporaneous or antecedent statements which are used to attempt to vary the words of the written contract are inadmissible. No such integrated written contract is in evidence in this case. Therefore, the parol evidence rule is inapplicable and will not prevent the admissibility of this evidence.

]]> By: Steve http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-872 Steve Thu, 11 Feb 2010 15:11:19 +0000 http://barexambrief.com/?p=893#comment-872 B. Agree existing state of mind under Hillmon B. Agree existing state of mind under Hillmon

]]> By: ThomCA http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-869 ThomCA Thu, 11 Feb 2010 06:13:40 +0000 http://barexambrief.com/?p=893#comment-869 Me's answer is correct. A - the testimony is admissible to prove P's state of mind is that of a cautious person, one who would require a warranty for a major purchase. It is not admissible to prove P acted to demand a warranty. There a no written contract terms to explain so parol evidence is not at issue. Since there is a state of mind exception, C is wrong Me’s answer is correct. A – the testimony is admissible to prove P’s state of mind is that of a cautious person, one who would require a warranty for a major purchase. It is not admissible to prove P acted to demand a warranty. There a no written contract terms to explain so parol evidence is not at issue. Since there is a state of mind exception, C is wrong

]]> By: BV http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-868 BV Thu, 11 Feb 2010 03:11:30 +0000 http://barexambrief.com/?p=893#comment-868 Correction: B is best. I missed the boat on the first read (so to speak). There is no mention of a written agreement in the facts. Furthermore, the proffered testimony is not evidence of a contemporaneous oral agreement between plaintiff and defendant (as per the parol evidence rule). The testimony is admissible under FRE 803(3). So, I agree with everyone else on board. On another note, I have corrected my spelling (should be "parol"). Correction: B is best. I missed the boat on the first read (so to speak). There is no mention of a written agreement in the facts. Furthermore, the proffered testimony is not evidence of a contemporaneous oral agreement between plaintiff and defendant (as per the parol evidence rule). The testimony is admissible under FRE 803(3). So, I agree with everyone else on board. On another note, I have corrected my spelling (should be “parol”).

]]> By: Me http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-867 Me Thu, 11 Feb 2010 02:50:53 +0000 http://barexambrief.com/?p=893#comment-867 If the facts stated that the contract was written, D may have been a good answer since the defendant suit was for fraudulent representations. The statement is nonetheless admissible as an state of mind exception to the hearsay rule. However, it will not come in to show that the plaintiff demanded a warranty, but to show that the plaintiff was cautious. Hence I'll vote for A, final answer If the facts stated that the contract was written, D may have been a good answer since the defendant suit was for fraudulent representations. The statement is nonetheless admissible as an state of mind exception to the hearsay rule. However, it will not come in to show that the plaintiff demanded a warranty, but to show that the plaintiff was cautious. Hence I’ll vote for A, final answer

]]> By: Cheese http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-866 Cheese Thu, 11 Feb 2010 02:44:27 +0000 http://barexambrief.com/?p=893#comment-866 B then existing state of mind B then existing state of mind

]]> By: BV http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-865 BV Wed, 10 Feb 2010 21:06:24 +0000 http://barexambrief.com/?p=893#comment-865 I am going with D as the best choice. Here, defendant placed plaintiff's intent in issue by claiming that he never asked for a warranty. In rebuttal, plaintiff would like to avoid the parole evidence rule by showing that he did not intend the written agreement to be the complete and exclusive expression of the parties' agreement (i.e. "he would never buy a used boat without a warranty"). It seems that FRE 803(3) would allow the testimony as a hearsay exception to show plaintiff's then existing mental condition (i.e. intent). However, this testimony does not seem to clear the parole evidence rule that would prohibit contradicting the terms of a written contract. Notwithstanding the fact that the terms may be explained or supplemented by consistent additional terms, course of dealing, usage of trade, or course of performance, these facts do not seem favorable. We are dealing with a "used boat dealer" after all. Used (fill in the blank) dealers often disclaim warranties or sell "as is". I do not believe that evidence of any prior agreement or contemporaneous oral agreement will be allowed to contradict the parties' written agreement here. Caveat emptor! I am going with D as the best choice. Here, defendant placed plaintiff’s intent in issue by claiming that he never asked for a warranty. In rebuttal, plaintiff would like to avoid the parole evidence rule by showing that he did not intend the written agreement to be the complete and exclusive expression of the parties’ agreement (i.e. “he would never buy a used boat without a warranty”). It seems that FRE 803(3) would allow the testimony as a hearsay exception to show plaintiff’s then existing mental condition (i.e. intent). However, this testimony does not seem to clear the parole evidence rule that would prohibit contradicting the terms of a written contract. Notwithstanding the fact that the terms may be explained or supplemented by consistent additional terms, course of dealing, usage of trade, or course of performance, these facts do not seem favorable. We are dealing with a “used boat dealer” after all. Used (fill in the blank) dealers often disclaim warranties or sell “as is”. I do not believe that evidence of any prior agreement or contemporaneous oral agreement will be allowed to contradict the parties’ written agreement here. Caveat emptor!

]]> By: Ken http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-864 Ken Wed, 10 Feb 2010 20:01:21 +0000 http://barexambrief.com/?p=893#comment-864 B, statement is out of court and seeks to come in for the truth of the matter asserted --that he would never buy a boat without a warranty -- then mental state; admissable under FRE 803.3 (availability of witness is immaterial) B, statement is out of court and seeks to come in for the truth of the matter asserted –that he would never buy a boat without a warranty — then mental state; admissable under FRE 803.3 (availability of witness is immaterial)

]]> By: mimi http://barexambrief.com/2010/02/10/mbe-question-of-the-day-43/comment-page-1/#comment-862 mimi Wed, 10 Feb 2010 19:12:03 +0000 http://barexambrief.com/?p=893#comment-862 answer B. Present mental state/ Existing State of Mind: when state of mind is in issue in the case. Talking about what exist now. What you intend to do. Wb admissible. If you heard it, you could be called as a witness. Present intentions. Declarant stated he was sad, happy, down, blue, those statements are exceptions to hearsay rule. What you intend to do answer B.
Present mental state/ Existing State of Mind: when state of mind is in issue in the case. Talking about what exist now. What you intend to do. Wb admissible. If you heard it, you could be called as a witness. Present intentions. Declarant stated he was sad, happy, down, blue, those statements are exceptions to hearsay rule. What you intend to do

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