Mixed Deck — All DE BAR Topics Flashcards

During settlement negotiations over a disputed claim, a defendant says, 'I'll pay you $50,000, and honestly the brakes were bad.' At trial, the plaintiff offers the brake admission. Under D.R.E. 408, the statement is:

Answer: Inadmissible because statements made in compromise negotiations are excluded to prove liability

D.R.E. 408 excludes both compromise offers and statements made during compromise negotiations when offered to prove liability or the amount of a disputed claim.

What is the hearsay rule?

Answer: Out-of-court statements offered to prove the truth of the matter asserted are generally inadmissible

Hearsay is an out-of-court statement offered to prove the truth of what was stated. It is generally inadmissible unless an exception applies.

Under Delaware law, a parent's duty to pay child support generally continues until the child reaches 18, but extends if the child is still in high school until what point?

Answer: Until the child graduates or turns 19, whichever comes first

Delaware support obligations run to age 18, or if the child is still enrolled in high school, until the child graduates or turns 19, whichever occurs first.

What is consideration in contract formation?

Answer: A bargained-for exchange of legal value between the parties

Consideration is the legal concept requiring each party to give something of value — a promise, performance, or forbearance — in exchange for the other's promise or performance.

Under the Second Restatement, a contractual choice-of-law clause will generally NOT be enforced if:

Answer: The chosen state has no substantial relationship to the parties or transaction and there is no reasonable basis for the choice

Under Restatement (Second) §187, a party autonomy clause is unenforceable if the chosen state has no substantial relationship to the parties or transaction and no reasonable basis exists for the choice, or it violates a fundamental public policy.

Which activity most clearly triggers strict liability for abnormally dangerous activities?

Answer: Commercial blasting with dynamite near homes

Blasting is the classic abnormally dangerous activity because its high risk cannot be eliminated by reasonable care.

Which Delaware statute governs the formation and operation of limited liability companies?

Answer: 6 Del. C. Title 18

The Delaware Limited Liability Company Act is codified at 6 Del. C. §§ 18-101 through 18-1208 (Title 18).

A neighbor builds a garage that encroaches two feet onto adjacent land. The adjacent owner knowingly waits until the statutory limitations period expires before suing in ejectment. What is the likely outcome?

Answer: The claim is barred and the encroacher may have gained title to the strip by adverse possession

An open, continuous, hostile encroachment maintained for the full statutory period can ripen into title by adverse possession, barring the ejectment action.

A party in a Delaware civil case objects that relevant evidence should be excluded under D.R.E. 403. Exclusion is proper only if the probative value is:

Answer: Substantially outweighed by dangers such as unfair prejudice, confusion, or waste of time

Rule 403 tilts toward admissibility, excluding relevant evidence only when its probative value is substantially outweighed by countervailing dangers.

What is a material breach of contract?

Answer: A breach so substantial that it excuses the non-breaching party from further performance

A material breach is a failure to perform a substantial part of the contract, going to the essence of the agreement and depriving the other party of the expected benefit.

An employer is sued for an employee's tort committed while making a personal stop far outside the delivery route. The employer's best argument is:

Answer: The employee was on a frolic, outside the scope of employment

A frolic is a major deviation from employment duties that takes the employee outside the scope of employment, defeating respondeat superior.

A seller delivers goods to a debtor and retains a purchase-money security interest (PMSI) in the goods, which are equipment. To have priority over an earlier-filed blanket lien, the seller must perfect within what period?

Answer: Within 20 days after the debtor receives possession

Under UCC 9-324(a), a PMSI in goods other than inventory has priority if perfected within 20 days after the debtor receives possession of the collateral.

A Delaware lawyer is contacted by a prospective client who shares confidential details but does not retain the lawyer. Under Rule 1.18, the lawyer:

Answer: May not use or reveal information learned in the consultation except as Rule 1.9 would allow

Rule 1.18 protects prospective clients' information much like former clients' information under Rule 1.9.

A non-testifying accomplice's statement to police during a stationhouse interrogation, implicating the defendant, is offered at a Delaware criminal trial. The primary constitutional obstacle is:

Answer: The Confrontation Clause, because the statement is testimonial and the defendant had no opportunity to cross-examine

Under Crawford v. Washington, testimonial statements of an unavailable declarant are inadmissible unless the defendant had a prior opportunity for cross-examination.

What privilege protects spousal communications?

Answer: Confidential communications between spouses during marriage are privileged and cannot be compelled

The marital communications privilege protects confidential communications made between spouses during the marriage. The privilege generally survives divorce for communications made during the marriage.

In Delaware, a deficiency judgment after a mortgage foreclosure sale is:

Answer: Permitted, allowing the lender to pursue the borrower for the shortfall

Delaware permits lenders to seek deficiency judgments when foreclosure sale proceeds do not satisfy the debt.

Which Delaware constitutional provision mirrors the federal privilege against self-incrimination?

Answer: Article I, § 6

Article I, § 6 of the Delaware Constitution provides that no person shall be compelled to give evidence against himself in a criminal proceeding.

Which law governs the validity and testamentary disposition of a decedent's personal property under traditional conflict of laws?

Answer: The law of the testator's domicile at the time of death

For personal property (movables), the law of the testator's domicile at death governs the validity and effect of a will — the 'movables rule.'

A Delaware lawyer is offered a contingent fee arrangement by a client in a divorce case, with the fee based on the amount of alimony secured. This arrangement is:

Answer: Prohibited because contingent fees are barred in domestic relations matters based on securing alimony or support

Rule 1.5(d) prohibits contingent fees contingent on securing a divorce or on the amount of alimony, support, or property settlement.

A landowner drills a well that drains water from beneath a neighbor's land, drying the neighbor's well. Under the reasonable use doctrine for groundwater, when is the landowner liable?

Answer: When the water is wasted or exported for use unrelated to the overlying land

Under reasonable use, an owner may use groundwater for beneficial purposes on the overlying land but is liable for wasteful or off-site uses that harm neighbors.