5.31.11 Complex Litigation

Product Liability Defenses
1. Statute of Limitations- 4yrs warranty, 3yrs negligence and Strict Liability.
2. Useful Safe Life- 12yrs in WA from purchase date
3. Comparative Negligence- Use of product, usually disregard of instructions/warnings
duty, breach, causation, damages. Comp negligence when plaintiff is negligent.
4. Assumption of Risk- Continued use after danger becomes apparent
must be knowing and voluntary.
5. Disclaimer- warranty ONLY, cannot disclaim negligence/SL. "As is, with all faults, as it stands, etc." Implied warranty of merchantability requires "merchantability" in disclaimer.
6. Unforseeable product misuse- trim toenails with chain saw
7. State of the Art- still may be defective if danger outweighs utility. (if they didn't have it then, it's not defective now) (If you make a product that is made with state of the art technology but is still too dangerous to be worth the utility, it should not be released)
8. Unavoidably Unsafe- not really "defective" in the first place. (knives must be sharp, danger is utility)

REVIEW FOR FINAL
Final Test Essays-
1. Bankruptcy
2. 1st Amendment
3. Product Liability

How to Answer

FIRST STATE THE LAW

1. Religion and Speech Issues
-RELIGION- Establish whether it is Establishment or Exercise question.

A. Establishment Case
Accomodationist-no govt inhibiting or advancing any religion, but may neutrally assist. Separationist view- wall of separation between church and state, cross over "Not permitted".

-How do we tell what is neutrally assisting?
The Lemon test sets up a three prong test
1. The first test is to determine whether there is a valid secular purpose for the law. For example...
2. Is the PRIMARY effect to enhance or inhibit religion?
3. Is there excessive government entanglement? Requiring the govt to continually supervise.

Now takes facts and APPLY them to the outline.

B. Exercise Case
-Belief (unfettered, cannot be controlled or restricted in any way) vs. Conduct (can be controlled and regulated)
-1. Does the govt have a compelling reason?
How invasive is the practice to the rights of others?
2. Sincere religious principle? (does not have to be a recognized religion)
3. Inconvenience or outright prohibition? The less restrictive the govt is, the more likely it will be upheld.
4. Time/Place/Manner (police powers vs. content) If the govt is using TPM to restrict the content, likely to be struck down.

Now takes facts and APPLY them to the outline.

SPEECH 6+6
6 Exceptions- 3 will be on test
1. Clear and present danger of inciting imminent lawless action
2. Obscenity- not if it has literary, artistic, political value
3. Fighting Words- words that hurt for their mere utterance bring about visceral reaction. Must be directed at an individual person.

6 Key Elements- "Statutes that restrict speech must not be vague or overbroad because freedom of speech must not be chilled unless it falls under one of the six exceptions."
1. Vagueness- can't do anything to upset anyone. Apply "STRICT SCRUTINY"
2. Over-breadth - all nudity on television, etc.
3. Prior Restraints- stop speech BEFORE it is uttered. Not unconstitutional, PRESUMPTIVELY unconstitutional, require strict scrutiny.
a. Injuntions
b. Permits
c. Tv/radio/licensing
d. Censorship
4. Symbolic Speech- Pure/Speech Plus/Symbolic (Symbolic speech falls closer to conduct and is less protected than pure speech)
5. Traditional Forums- Park, town squares, etc., areas historically reserved for the exchange of views, are given greater protection.
6. Police Powers- Legitimate balance of your rights versus the rights of others.

Now takes facts and APPLY them to the outline.
Show Bruce that you know what you are saying. Explain the terms.

2. BANKRUPTCY-no codes sections needed
-3 Purposes
Help debtors, creditors, and society at large.
-Automatic Stay- What, why and how.
-Adequate Protection- 3 forms
Adequate protection hearing, balancing interests of creditor and debtor.
-Chapter 7, only chapter with INVOLUNTARY process. 12/3 or 11 or less than 12/1
-4-5 types of property that are exempt
Health Aids, tools of the trade, equity, etc.
-Preference-preferring one creditor over another. You may not pick and choose who you pay. Trustee can go back 90 days before filing. If an "insider" (family, friend) can go back 1 year.
-Fraudulent Transfer- Property to anyone for less than reasonable value. And debtor must have intent to hinder, defraud or delay.
-Distribution- Secured/Priority/Unsecured Creditor
-Discharge- kicked out of bankruptcy court, all claims are now non-dischargeable.
-Discharge-ability- Applies to individual claims of creditors, some claims survive bankruptcy (non-dischargeable).

-Chapter 11
½ # creditors and 2/3 in $.

-Chapter 13
Amount of time a plan must cover (36-60months), and total amount of money (ALL disposable income).

PRODUCT LIABILITY
1. 3 types of losses- personal injury, economic (lose ability to perform work), property
2. 3 types of recovery- contract (express warranty- description/sample)(express warranty of suitability for particular purpose)(express warranty of merchantability)(puffing is not a warranty), tort (defect in design-forseeable misuse, manufacturing, instructions/warning), strict liability
Add product liability defense
3 most likely to appear on test:
-comparative neg.
-assumption of risk
-disclaimer

USE QUOTES FROM QUESTION IN ANSWER
OUTLINE-OUTLINE-OUTLINE

5.25.11 Criminal & Family Law

FINAL ASSIGNMENT- Due next Wednesday

You are a paralegal working for a firm representing one of the parties (choose Arnica OR Mark). Your attorney is about to go into mediation with the judge. You must write a memo to assist the attorney. Use memo form. Include: Name. Date. Name of class. Subject Calhoun Mediation. Do not make up names. Give attorney client's primary goals. What to keep in mind at all times. Client's position on each issue (property, parenting, child support, spousal maintenance). Evaluate competing claims for each issue, strengths and weaknesses. Custody from client's position, based on facts, and in best interest of child. You do some evaluation for attorney. Child support based on custody. Spousal maintenance based on goal identified, distribution of assets, lifestyle. Evaluate strength and weaknesses of position, what points might the other side bring up in opposition? Where is there room for agreement, based on arguments form other side. "Our positions are not so far apart on this issue...". "Our positions are so polar that it cannot be resolved...". Suggest a resolution for each issue, that might be accepted by the other side. State proposed resolution, support with facts and law if necessary. Use subheads. Make easily referenced by attorney. Not more than four pages. Shorter is better.