Evidence
Final Examination
IPAC Summer 2002
Professor Ford
INSTRUCTIONS
1. This is a partially open book exam. You may use the your rule book with any
handwritten notes (on the book pages themselves). No additional pages of
handwritten or typed notes are allowed. No other materials are allowed.
2. You have 2 hours and 30 minutes to complete this exam. ( have written this exam to be
completed in 2 hours, giving you an extra half hour to read through the questions and
organize your thoughts.
3. Write your answers in blue books, and clearly label which question (anti
subquestion you are answering).
4. Use only your exam number on your blue books. DO NOT USE YOUR NAME,
SOCIAL SECURITY NUMBER OR STUDENT ID NUMBER.
5. If you have any questions during the exam, please contact a proctor.
6. NO MATTER WHAT COURT THE PROBLEMS BELOW APPEAR TO BE
SET IN, ASSUME THAT THE FEDERAL RULES OE EVIDENCE APPLY
TO ALL QUESTIONS.
7. Be sure to explain each answer fully, referring to applicable rules, commission comments,
cases, and policy. Do not assume that I can read your mind. If you don't write down part
of your reasoning process, I cannot know whether it is because you considered it too
elementary or, on the other hand, it is because you did not use that part of the thought process. You will not get credit in either event. I only award points for reasons which are
expressed to me in writing. Similarly, be sure to reach a conclusion; "the judge might or
might not allow the evidence" does not qualify.
8. This exam consists and a total of five (5) pages. Please check over your exam before
you begin and make sure you have all of it.
GENERAL FACT PATTERN
Cam Client is a gay man living in a rent.-controlled apartment in San Francisco. He has lived
in his apartment with his partner Patrick for the past 7 years. Both men contracted AIDS, but were
quite private about their health status. Unfortunately, Patrick died two months ago and Cam is now
on his own. At about the same time, the kindly neighbor who owned the building was forced to sell
it to support herself while she's in the Peace Corps in Siberia, and Deevil Development, Inc. bought
the building. It appears that Deevil Inc. is trying everything in its power to make the old tenants
move out "voluntarily" so that it can increase the rents and its income. Further, Deevil's president is a
fundamentalist preacher, Reverend Thornton. In his church leader capacity and as an individual, but
not formally on behalf of Deevil Development, Thornton has openly decried homosexuality and
recently wrote a letter to the editor in the
San Francisco Chronicle, asserting that "AIDS is the just
reward for sin, and that he will expel from his buildings any person who has AIDS, so as not to
sully the living situation of his 'normal' tenants."
SHORT ESSAY QUESTIONS
SCENARIO I
Cam receives a letter from Deevil on August 1, indicating that his written lease will expire
this month and that unless Deevil receives a response from him in the next 10 days indicating that
he wishes to renew that lease, they will assume that he will move out by September 1. Cam
immediately wrote back that he disagreed; that his written lease expressly provided that its term
lasted until December 31, 2003; and that he had no intention of moving out anytime.
On August 11, Cam receives a follow-up letter from Deevil which says that since he did
not respond to the August 1 letter, they expect him to move out by September 1 and if he does
not do so, Deevil will proceed to court to get an order requiring him to do so and requiring him
to pay Deevil's attorneys' fees.
Cam comes to you to represent him. Despite your best efforts, negotiations are to no avail
and you find yourself headed to court to seek an injunction. The case is Cam Client v. Deevil
Development, Inc.
Cam brings you a photocopy of the lease agreement signed by himself and the former landlord,
which (take this as true) also binds Deevil. It clearly shows that the term of the lease is from January
1, 2000 through December 31, 2003. However, Cam says that he can't find the original. He doesn't
know if the former landlord has it, or if Patrick put it somewhere (he was the business end of their
relationship). You want to put the lease into evidence.
Question I
A. Who will you need to call as a witness to do this? Why?
B. What procedure, including specific questions, will you follow to introduce the exhibit? (Be
specific: write your questions out fully, in the exact order you will ask them and state the
reason for asking each).
C. What non-hearsay objections do you expect?
D. How will you respond?
E. What do you expect the judge to do: admit or refuse the exhibit? (One word willsuffice here).
F. If the judge did deny the exhibit, for some good or bad reason, could you still prove
the contents of the lease agreement? How?
SCENARIO II, based on first scenario but with additional facts. None are meant to
be inconsistent with Scenario I.
In addition to your position that the terms of the lease prevent termination now,
assume that you also want to show the judge that Cam did respond in a timely manner to
the landlord's August 1 letter and thus, even under the August 1 "requirements," eviction
is improper.
Cam testifies that he did send a response to Deevil indicating his intent to stay in
the apartment. You enter a copy of his letter as Plaintiffs Exhibit L without any
objection. (He doesn't have the original because it was sent out). Cam testifies that he
wrote the letter and sent it by regular first class mail, with a stamp affixed, to Deevil
Development at the return address on the letterhead of the August 1 letter he received.
Obviously, Cam cannot testify from personal knowledge that Deevil received his
response. However, the applicable law includes a rebuttable presumption that a letter
deposited in the U.S. mail is received by the addressee.
Question II
A. Who bears the burden of persuasion that Cam responded to the letter? Why?
B. What is that burden? Why?
C. What happens if the mailman does not remember delivering the letter? Must Cam
necessarily lose on this issue? Why or why not?
D. What happens if Reverend Thornton affirmatively testifies that he did not receive
the letter? Does either party automatically win? Why or why not?
E. Now the defendant calls to the witness stand the Leila Liar, secretary/office
manager for Deevil Development. She testifies that she is a very careful and
organized individual with very high integrity, and thus if the letter had come in, it
would be in the file. Thus, she will go on that the absence of the letter means it
was never received. Do you make any objection? Why or why not? Explain fully.
F. If you made and won your objection, do you expect Deevil's lawyer to be able to
get around the court's ruling? If so, how? Will defendant be: successful on this
point?
G. Assume that somehow, defendant has gotten. from Ms. Liar testimony that no
letter came in, thus supporting her boss and hurting your client. Assume further
that in your pretrial investigation, you uncovered the following facts about Ms.
Liar:
1. She recently completed an 18 month prison term for child abuse;
2. In prison, she became a member of Reverend Thornton's religious sect,
one tenet of which is that homosexuality is a scourge upon the earth and it
is up to each sect member to do all she can to eradicate this aberration;
and
3. Reverend Thornton provided her with sponsorship upon parole, a place to
live, and her job.
Which of these facts will you attempt to bring out in court? How? Why? Will you
be successful? Why? What if the witness denies the facts?
NON-SCENARIO GENERAL QUESTION
Question III
List, in order, the steps you would take to research a California Evidence Rule which we
have not discussed in class.
END OF THE EXAM
YOU'VE BEEN WONDERFUL
THANKS FOR THE PRIVILEGE OF TEACHING YOU!