Assess Probable Outcome of a Claim or Motion - Next Generation Bar Exam

1. What is the general rule on the outcome of an evidentiary objection to testimony lacking personal knowledge?

   The objection should be sustained under FRE 602. A lay witness may testify only to matters within personal knowledge.

2. An employee sues over pay, but her signed employment agreement has a valid arbitration clause covering pay disputes. The employer moves to compel arbitration. What is the probable outcome?

   The motion will be granted. The Federal Arbitration Act requires courts to enforce valid arbitration agreements according to their terms.

3. A plaintiff seeks a preliminary injunction to stop a breach of contract fully compensable by money damages. What is the probable outcome?

   The injunction will be denied for lack of irreparable harm. Harm compensable by damages is ordinarily not irreparable.

4. A defendant moves to dismiss for lack of personal jurisdiction after filing an answer that omitted that defense. What is the probable outcome?

   The motion will be denied because the defense was waived under FRCP 12(h)(1). Personal jurisdiction must be raised in the first Rule 12 response.

5. What is the probable outcome of a discovery request seeking privileged communications between a client and counsel?

   The request will be denied as to the privileged material, which is outside the scope of FRCP 26(b)(1). Discovery extends only to nonprivileged matter.

6. After judgment, the losing party moves for relief based on a document that it could have found before trial with reasonable diligence. What is the probable outcome?

   The motion will be denied. Rule 60(b)(2) requires newly discovered evidence that could not have been discovered in time with reasonable diligence.

7. On direct examination, counsel asks her own cooperative witness, 'The light was red when the truck entered, wasn't it?' The opponent objects. What is the probable ruling?

   The objection will be sustained as a leading question. FRE 611(c) bars leading questions on direct examination, except as necessary to develop testimony.

8. A complaint alleges only that the defendant 'acted negligently and caused plaintiff injury,' with no facts. What is the probable outcome of a Rule 12(b)(6) motion?

   The motion will be granted, likely with leave to amend. Conclusory allegations do not state a plausible claim under Iqbal.

9. A defendant removes a case to federal court, and 45 days later the plaintiff moves to remand because of a defect in the removal procedure. What is the probable outcome?

   The motion will be denied as untimely. Under 28 U.S.C. 1447(c), a remand motion based on a non-jurisdictional defect must be made within 30 days after removal.

10. At summary judgment, the plaintiff offers only her own sworn statement, based on personal knowledge, contradicting the defendant's witnesses on a material fact. What is the probable outcome?

    Summary judgment will be denied. Conflicting admissible evidence on a material fact creates a genuine dispute; credibility is for the jury.

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