MBE Simulator Exam 1

Question 1

A state passed Public Health Law 2122(a), which provides for exemption from immunization for school age children if they are "...members of a recognized religious organization whose beliefs are opposed to immunizations..." A couple applied to the school district for an exemption from immunizations on behalf of their child.
They were not members of a recognized religious organization; instead, they requested an exemption based on their personal spiritual beliefs against immunization.
Will the courts declare the existing exemption to be invalid?

Accepted Answer

The law is unconstitutional because it lacks a rational relation to any legitimate government purpose and the denial of the right to seek protection is unprecedented in our jurisprudence.

Answer

The law was passed by a referendum majority vote of the people of the state and is thus constitutional and valid under state law.

Answer

The law is an appropriate measure because it merely denies preferential treatment to homosexuals and has no substantive effect on them.

Answer

The law is unconstitutional because it was not appropriately ratified by the executive and judicial branches of the government.

Question 2

In a civil action for injuries, the plaintiff contended that the highway was slippery on the bridge where the auto accident occurred. She testified that the other driver was going too fast for the slippery conditions. The defendant driver of the other auto denied that the bridge was slippery and claimed that the accident happened when he had to veer his car to escape a pothole. The plaintiff denied that there were potholes on the bridge. Defendant admitted that it had been raining at some point prior to the accident. The judge, being familiar with the bridge, took judicial notice that its surface always gets slippery when there is rain, and that there are no potholes on it. The plaintiff won the case, and the defendant appealed on the basis that it was legal error for the court to take judicial notice of disputed facts. What will the appellate court decide?

Accepted Answer

It was reversible legal error for the court to take judicial notice of disputed facts on the basis of the judge’s personal beliefs regarding the issue.

Answer

It is proper for the court to take judicial notice of something that it knows from personal experience to be true.

Answer

The court has wide discretion in deciding what is appropriate for judicial notice, and the judge’s decision will not be disturbed on appeal.

Answer

The court could take judicial notice of any fact that was not critical to the decision of the jury, and the condition of the bridge surface was irrelevant to issues of negligence.

Question 3

A man and woman lived together unmarried for 19 years. He assured her that they would live together as husband and wife but without the restriction of an official marriage license. She relied on those promises when giving up plans for a career in business. She assisted him in many substantial ways over the years as he progressed to becoming a successful neurosurgeon. During the years they displayed all of the trappings of being a married couple. When they split up, he refused to give her anything, saying that it was a meretricious relationship. She sued in state court claiming an interest in his income, profits and property. She claimed an express contract or an implied-in-fact agreement to share the economic wealth that was accumulated. The trial court dismissed, saying there could be no claim if there was no marriage. What is the most likely decision of the appellate court?

Accepted Answer

The couple had an implied-in-fact contract, in which the woman had relied in good faith to her detriment, and she was entitled to damages.

Answer

The rights and benefits claimed by the woman are based on a marital union under state law and there being no official marriage, her claims fail to have legal validity.

Answer

There was a right to collect damages based on the massive, lengthy fraudulent scheme that the man perpetrated to keep her within his consuming web but without any economic benefit.

Answer

This was a meretricious relationship in which the woman had been compensated for her services quite sufficiently over the years, but she had no residual legal claims that could be asserted.

Question 4

A married couple own a residential premises. They received a foreclosure action from the first mortgage lender in a state that has judicial foreclosure procedures. The state also statutorily extends the right of redemption both prior to the sale, and for a period of one year after the sale. The sale took place; the property was sold to the lender. The lender then filed a deficiency judgment action. The couple received a loan from family members about six months after the sale. It was sufficient to pay the balance on the mortgage plus interest and costs. The couple notified the lender and the court of their intent to exercise their right of redemption. What is the likely outcome?

Accepted Answer

The couple will exercise their right of redemption to retain ownership of their property.

Answer

The court ruled that the lender did not have a right to file a deficiency judgment, and it ordered the foreclosure action null and void without the couple having to exercise the right of redemption

Answer

A hearing must first be held to determine whether abatement has occurred.

Answer

The court will order the couple evicted because they should have acted prior to the entry of the deficiency judgment.

Question 5

A wife told her husband that she had extramarital relations with one of his friends, who was also his co-worker. The husband was enraged but “cooled off” by the next day when he went to work. At work, he approached the adulterous friend and asked why he did it. The so-called friend replied that the husband was a cuckold, the laughing stock of the office, and that he should open his eyes to the many sexual encounters that his wife had had behind his back. In a fit of rage, the husband returned home and violently strangled his wife to death. The stories of widespread infidelity were not true. The state prosecuted the husband for first degree murder but he defended on the basis that he acted in a heat of passion. Which of the following best describes the criminal liability of the defendant?

Accepted Answer

Voluntary manslaughter.

Answer

Depraved heart second degree murder.

Answer

Involuntary manslaughter.

Answer

Felony murder.

Question 6

A waitress was opening a bottle of a popular soft drink to serve to a customer when the bottle broke into two jagged pieces and inflicted a deep and long cut that severed blood vessels, nerves and muscles of the thumb and palm of the hand. She later had to have several operations to restore use of and feeling in the hand. In a lawsuit against the manufacturer, the waitress alleged negligence and strict liability in tort, but found it difficult to prove the nature of the defect. She presented several witnesses familiar with the fact that some of the bottles would explode, but the cause was unknown. She proved that she did nothing wrong with the bottle and that it remained in the same condition as when it left the manufacturer’s plant. She also proved by expert testimony that there were tests that the manufacturer performs or can perform on the bottles to give a fairly foolproof determination whether the bottle is safe. The defendant moved for summary judgment for failure to prove a defect and failure to show causation. What legal theory can the plaintiff rely on to establish liability in this kind of a situation?

Accepted Answer

The principle of res ipsa loquitur is used to prove negligence and causation due to the defendant having exclusive control and there being no indication of any carelessness by plaintiff.

Answer

The principle of implied breach of warranty of merchantability proves that the warranty was breached.

Answer

The “unreasonably dangerous defect” doctrine is used whenever proof is insufficient to establish a defect.

Answer

The Homeland Security Safety Act applies to impose absolute liability whenever there is an unexpected explosion of a retail consumer product.

Question 7

In a medical malpractice case, the plaintiff's attorney sends a notice to the defending doctor to appear for her oral deposition. Because the doctor did not appear the first time it was scheduled, the plaintiff sends a subpoena ordering the doctor to attend and to bring her medical file with her. The respective lawyers discussed the matter but did not stipulate to the deposition, although the doctor's counsel have not objected to the scheduling notice. Does the doctor have to attend and bring her records?

Accepted Answer

Yes, under Rule 30(a)(1) it may be scheduled without leave of court, and under Rule 45, she may be compelled to appear by a subpoena served on her.

Answer

No, because in this case the deponent was already sent a notice and did not appear the first time; therefore, leave of court is required.

Answer

Yes, she must appear because she is a party to the case and she will automatically be held in contempt if she does not comply.

Answer

No, because the parties never stipulated to holding the deposition.

Question 8

A state’s voters approved an amendment to the state’s constitution that prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class. The state’s highest court ruled that the measure could not pass strict scrutiny, and was a denial of equal protection for gays and lesbians. The proponents of the act appealed to the U.S. Supreme Court. What will the Court decide with respect to the validity of the law?

Accepted Answer

The law is unconstitutional because it lacks a rational relation to any legitimate government purpose and the denial of the right to seek protection is unprecedented in our jurisprudence.

Answer

The law was passed by a referendum majority vote of the people of the state and is thus constitutional and valid under state law.

Answer

The law is an appropriate measure because it merely denies preferential treatment to homosexuals and has no substantive effect on them.

Answer

The law is unconstitutional because it was not appropriately ratified by the executive and judicial branches of the government.

Question 9

A bankruptcy attorney advised a client that he could be committing a crime if he did not disclose all assets on his personal bankruptcy schedules. The client signed a form agreeing that he had received specific legal advice from regarding the legal duty to reveal all assets. The client was later prosecuted for bankruptcy fraud for allegedly not fully disclosing assets in his bankruptcy papers. In the federal court prosecution, the United States Attorney subpoenaed the attorney to testify regarding the advice given to the client and to authenticate the acknowledgment signed by the client. The defendant objects to that evidence on the basis of it being inadmissible and in violation of the attorney-client privilege. What is the most likely decision of the trial court regarding the admissibility of the attorney’s proposed testimony and the exhibit?

Accepted Answer

The evidence is inadmissible because the communications did not in any way tend to further a crime by the client, and they constituted legal advice normally given with an expectation of confidentiality.

Answer

The attorney-client privilege does not apply to situations where the lawyer is advising the client on legal duties that the individual has under the criminal laws, so that the evidence is admissible.

Answer

The advice and signed document are within the fraud-crime exception to the privilege and would be fully admissible.

Answer

The proposed evidence is not admissible because discussions about potential criminal behavior are always protected under the privilege.

Question 10

A husband applied for a life insurance policy for $50,000 on his life, listing his wife as the beneficiary. He paid the insurance company an initial amount of $100 at the time of submitting the application. The agent accepted the down payment, which represented two months of the premium payment. In exchange for this payment, the agent gave the husband a "conditional receipt." A few days later the husband died in an auto accident. The wife as beneficiary demanded payment despite the fact that the insurance company had not officially issued a policy and the husband had not taken a required medical examination required in the wording of the application. The company denied liability, asserting that certain conditions contained in the application and in the conditional receipt (namely the taking of the medical examination) had not been fulfilled by the applicant. The insurer claimed that the condition precedent (the medical examination) was never performed and the contract was not formed. What is the most likely decision of the court?

Accepted Answer

The conditional receipt stood as the temporary formation of a contract of insurance until the company made a final decision on whether to issue a policy.

Answer

No contract of insurance exists until the insurer is satisfied as to an applicant's acceptability.

Answer

There is no such thing as a temporary insurance contract – nothing can exist until the condition precedent is performed.

Answer

A contract existed because public policy forbids the requirement of a medical examination for simple term insurance policies under the face amount of $100,000.