Identify Facts Requiring Investigation - Next Generation Bar Exam

1. A client claims a former business partner defamed him. What fact most needs investigation first?

   The exact words used and to whom they were communicated. Defamation requires a defamatory statement published to a third party.

2. What facts must be investigated to determine whether a contract falls within the statute of frauds?

   The subject matter of the contract and whether a signed writing or an exception exists. Land sales, goods of $500 or more, and contracts not performable within a year are common categories.

3. What facts require investigation to determine whether a claim is timely?

   When the claim accrued and whether any tolling event occurred. Accrual may depend on when the plaintiff discovered the injury.

4. A client was arrested after a warrantless search of his car. What fact most needs investigation to evaluate a suppression motion?

   The circumstances that led to the search, including any consent or probable cause. Exceptions to the warrant requirement turn on these facts.

5. What facts require investigation to evaluate whether a seller made an express warranty?

   The seller's affirmations, promises, descriptions, or samples and whether they were part of the basis of the bargain. Statements of opinion or puffery do not create express warranties.

6. What facts require investigation to evaluate a negligence claim?

   Facts bearing on duty, breach, causation, and damages. Each element must be supported by evidence.

7. What facts require investigation to evaluate personal jurisdiction over a nonresident defendant?

   The defendant's contacts with the forum and their relationship to the claim. Minimum contacts and relatedness determine specific jurisdiction.

8. What is the most effective method to elicit a narrative of events from a client in an initial interview?

   Open-ended questions followed by focused follow-up questions. Open questions draw out the full story; narrow questions fill gaps.

9. What facts require investigation to evaluate whether an employer is vicariously liable for an employee's tort?

   Whether the employee acted within the scope of employment. Facts include the nature of the act, its timing and location, and whether it served the employer.

10. Under MRPC 4.3, what must a lawyer do when investigating facts by speaking with an unrepresented person?

    Not state or imply disinterest, and correct any misunderstanding of the lawyer's role. The lawyer also may not give legal advice, other than to secure counsel, if interests conflict.

11. A client slipped on a wet floor in a store. What fact most needs investigation to establish breach?

    How long the floor was wet and whether the store knew or should have known of it. A store is liable only for conditions it knew or should have discovered.

12. Under MRPC 4.2, what limit applies when investigating facts by speaking with an opposing party?

    A lawyer may not communicate about the matter with a person the lawyer knows is represented by counsel, without consent. The lawyer may communicate if the other lawyer consents or law or court order authorizes it.

Study these flashcards