Evaluate Strengths & Weaknesses of a Position - Next Generation Bar Exam

1. A client's breach-of-contract claim rests on an oral promise to sell land. What is the principal weakness?

   The statute of frauds, which requires a signed writing for a land sale contract. The client must look for an exception, such as part performance.

2. What is a common weakness of a position supported only by testimony of an interested witness?

   The testimony may be impeached for bias or interest. Corroborating evidence strengthens a position resting on interested testimony.

3. A client's claim arose six years ago, and the governing limitations period is four years. What is the principal weakness?

   The claim appears to be barred by the statute of limitations. The lawyer should investigate accrual and tolling rules before concluding the claim is time-barred.

4. How does the burden of proof affect the evaluation of a position?

   The party bearing the burden must produce sufficient evidence on each element, or it loses on that issue. Weak evidence on a burdened element is a significant weakness.

5. How should a lawyer evaluate the strength of an opposing party's position?

   By applying the same element-by-element analysis to the opponent's claims and defenses. Anticipating the opponent's best arguments helps develop responses.

6. A plaintiff's negligence claim has strong evidence of duty, breach, and injury, but no evidence linking the breach to the injury. What is the principal weakness?

   The lack of evidence of causation. Without causation, the claim fails regardless of the strength of the other elements.

7. How does the admissibility of key evidence affect a position's strength?

   Inadmissible evidence cannot support the position at trial or summary judgment. A lawyer must evaluate likely evidentiary objections, such as hearsay.

8. What effect does contrary mandatory authority have on the strength of a legal argument?

   It is a serious weakness unless the authority can be distinguished. A lower court must follow binding precedent that is directly on point.

9. What is the starting point for evaluating the strength of a client's claim?

   Identifying each element of the claim and the evidence supporting or undermining each. A claim fails if any required element cannot be proved.

10. How do affirmative defenses bear on the strength of a plaintiff's position?

    They may defeat the claim even if the plaintiff proves every element. Examples include the statute of limitations, release, and statute of frauds.

11. What weakness arises when a client's damages are speculative?

    The client may be unable to recover because damages must be proved with reasonable certainty. Lost profits of a new business are a common example.

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