Recommend Claims, Remedies & Defenses - Next Generation Bar Exam

1. Under FRCP 8(c), how must a defendant raise an affirmative defense such as the statute of limitations?

   Affirmatively state it in the responsive pleading. Failure to plead an affirmative defense may result in waiver.

2. What remedy should be recommended to stop an ongoing trespass that damages cannot adequately redress?

   An injunction. Continuing trespass is a classic case for injunctive relief.

3. What defense should be raised against a negligence claim when the plaintiff's own carelessness contributed to the injury?

   Comparative negligence. Under comparative fault, the plaintiff's recovery is reduced by the plaintiff's share of fault.

4. What claim should be recommended when a defendant was unjustly enriched by a benefit conferred without a contract?

   Restitution, such as quasi-contract. Recovery is measured by the benefit conferred.

5. A client purchased a defective toaster that caught fire and burned her kitchen. Which claim avoids proof of the manufacturer's negligence?

   Strict products liability. Strict liability requires proof of a defect, not fault.

6. What remedy should be recommended when a client seeks to undo a contract induced by fraud?

   Rescission and restitution. Rescission returns the parties to their pre-contract positions.

7. What defense should be raised to a contract claim against a minor?

   Lack of capacity. A minor may disaffirm most contracts, subject to liability for necessaries.

8. What must a lawyer confirm before recommending a claim to a client?

   That the claim has a nonfrivolous basis in law and fact. MRPC 3.1 and FRCP 11 both require a good-faith basis.

9. A client's neighbor built a fence two feet onto the client's land. What claim should be recommended?

   Trespass to land. An unauthorized physical intrusion on land is a trespass.

10. A client's employee, in the course of employment, injured a pedestrian while making a delivery. In the pedestrian's suit against the client, what defense is unavailable?

    Lack of personal fault by the employer. Respondeat superior imposes vicarious liability regardless of the employer's own fault.

11. What remedy should be recommended when a client seeks the benefit of the bargain for breach of contract?

    Expectation damages. Expectation damages put the nonbreaching party in the position performance would have produced.

Study these flashcards