MS Bar Multistate Performance 1 — Questions and Answers
Question 1: You are asked to draft a memorandum of law arguing whether a client's contract breach is excused under the doctrine of impossibility. Which of the following arguments should be included?
- The contract was void from inception because it was illegal.
- The client’s performance was impossible due to unforeseen events that made it impossible to perform. (Correct answer)
- The client was simply dissatisfied with the contract’s terms.
- The client’s performance was delayed due to minor difficulties.
Correct answer: The client’s performance was impossible due to unforeseen events that made it impossible to perform.
The doctrine of impossibility excuses a party from performing a contract when an unforeseen event makes performance objectively impossible, not merely difficult or unprofitable. To successfully argue impossibility, the event must be one that the parties could not have reasonably foreseen or guarded against when forming the contract. Therefore, the core argument is that unforeseen circumstances rendered the client's performance literally impossible.
Question 2: Your client, a small business owner, is concerned about a potential trademark infringement lawsuit. What is the most appropriate initial advice to include in your letter?
- Suggest they immediately cease use of the trademark and prepare for settlement negotiations.
- Advise them to conduct a trademark search and review the potential risks and benefits of continuing use. (Correct answer)
- Recommend they ignore the infringement claim and continue using the trademark.
- Inform them to contact the plaintiff’s attorney directly to negotiate a settlement.
Correct answer: Advise them to conduct a trademark search and review the potential risks and benefits of continuing use.
When facing a potential trademark infringement lawsuit, the most crucial initial step is to thoroughly understand the strength of the claim and the associated risks. Conducting a comprehensive trademark search helps determine the validity and scope of the alleged infringement and identifies any prior rights. This information is essential for advising the client on the potential risks and benefits of continuing to use the mark, allowing for an informed strategic decision.
Question 3: When drafting a complaint for a breach of contract case, which of the following elements is essential to include?
- A summary of the defendant’s character and previous legal history.
- A detailed description of the contract’s terms and how they were breached. (Correct answer)
- A list of witnesses who will testify on behalf of the defendant.
- An outline of the defendant’s financial status and ability to pay damages.
Correct answer: A detailed description of the contract’s terms and how they were breached.
To state a valid claim for breach of contract, a complaint must clearly establish the existence of a contract, the plaintiff's performance, the defendant's breach, and resulting damages. A detailed description of the contract's specific terms and how the defendant allegedly violated those terms is essential to inform the court and the defendant of the basis of the claim. Without this specificity, the complaint fails to adequately plead the elements of a breach.
Question 4: In drafting a motion for summary judgment, what is the key component that must be demonstrated?
- That the opposing party has failed to respond to discovery requests.
- That there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Correct answer)
- That the case should be dismissed because the moving party has no legal standing.
- That the trial should be postponed due to the moving party’s scheduling conflicts.
Correct answer: That there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
A motion for summary judgment is granted when there are no genuine disputes as to any material fact, and the moving party is entitled to judgment as a matter of law. This means that even if all facts are viewed in the light most favorable to the non-moving party, the law dictates a clear outcome. The key component is demonstrating that no reasonable jury could find for the non-moving party based on the undisputed facts.
Question 5: When reviewing a client’s will to ensure it meets legal requirements, which of the following should you check for?
- Whether the will is drafted in a specific legal format required by the state.
- Whether the will includes detailed instructions for the distribution of the client's personal property.
- Whether the will is signed by the client in the presence of two witnesses who also sign the document. (Correct answer)
- Whether the will is notarized by a licensed notary public.
Correct answer: Whether the will is signed by the client in the presence of two witnesses who also sign the document.
For a will to be legally valid and enforceable in Mississippi, it must meet specific formal requirements, including proper execution and attestation. A fundamental requirement is that the will must be signed by the testator (the client) in the presence of at least two credible witnesses. These witnesses must then also sign the will in the testator's presence, signifying their attestation to the testator's signature and capacity.
MS Bar Multistate Performance 1
You are asked to draft a memorandum of law arguing whether a client's contract breach is excused under the doctrine of impossibility.
Which of the following arguments should be included?