Section III, Professor Franks

Final Examination, Fall 1999

1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.

2. State the issues and answers to each question concisely. Lengthy answers are not necessary.

3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.

4. Number your answers to correspond with the question, e.g., "II-B."

5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6. Do not write in the margin of the book.

7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8. Write your personal identification number and the name and section number of the course on which you are being examined on the cover of each examination book.

9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your PIN and the name and section number of the course on the cover of each examination book.

10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.

Upon graduation from Southern University Law Center, you pass the bar on your first attempt and immediately accept an offer of employment as an associate in the law firm of Dewey Billum & Howe. Shortly before you went to work for the firm, Pyramid Air Lines flight 982 from New York to Cairo, Egypt, crashed over the Atlantic, killing all 250 passengers and crew members. A Baton Rouge oilfield worker, Joe Roughneck, was on the flight. The ticket was sold in Baton Rouge.

An airplane's cockpit voice recorder contains the last conversations in the cockpit. This one went as follows:

In addition to a cockpit voice recorder, every large airplane has a flight data recorder that contains the airplane's last instrument readings. Flight 982's flight data recorder reveals that at the time of the crash the airplane's instruments showed it to have been in a nose-down dive.

Immediately after the accident, the vice president of public relations for Pyramid Air Lines told the news media, "We're really sorry for this. The accident appears to have been caused by the severe mental depression of a distraught first officer (co-pilot)." The story was carried in the Baton Rouge Advocette.

Following the accident, the National Transportation Safety Board (NTSB) took the testimony of the accident investigators for the NTSB and the Federal Aviation Administration, air traffic controllers at Kennedy Airport in New York, and others. The NTSB also considered the flight data recorder and heard the tapes from the cockpit voice recorder aboard the aircraft.

The NTSB has now issued its findings, and finds that the accident was caused intentionally by the first officer, Harry Kerry.

Pyramid Air Lines has changed its tune, and now its theory of the case is that the engines failed from fuel starvation as a result of Boeing's faulty aircraft design. They now claim the co-pilot shut the engines down only because he had no choice, and his prayer was not suicidal.

Plaintiff's discovery has uncovered the fact that Harry Kerry had his FAA airline pilot's certificate suspended for thirty days back in 1996 for flying in excess of the number of hours per day that an airline pilot is permitted to fly under Part 121 of the Federal Air Regulations.

Josephina Roughneck, Joe's widow, has filed a wrongful death claim. Her late husband, Joe Roughneck, was an oilfield worker making $250,000 a year. Attorney L. S. Yew represents Mrs. Roughneck, and they are alleging respondeat superior liability for negligence of the pilot in leaving the cockpit, and also respondeat superior liability for the intentional tort of the co-pilot. Your employer, Dewey Billum & Howe, has been hired to defend the suit filed against Pyramid Air Lines in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. Your firm represents the airline. You may assume that the airline's insurance carrier has instructed you not to remove the case to federal court.

Prior to his demise, Joe frequented Larry's Lounge. The cocktail waitress there, Passionada von Climax, had been having an affair with Joe. Before his death, Joe confided to Passionada, "I've been smuggling drugs from the Middle East. The feds are on to me. My career is over. Will you visit me if I go to prison?"

Two weeks before the accident, Josephina told her best friend, Bertha Bestfriend, "Joe is a no-good skirt chaser. I'm divorcing the bum as soon as I can scrape up my lawyer's retainer."

For each of the following listed exhibits, state how you or your opponent will get such exhibit admitted. For each witness, discuss the rules or principles involved. Reference to rule numbers is not necessary.

I-A. EXHIBIT: COCKPIT VOICE RECORDER TAPE. How if at all do you anticipate a skilled plaintiff's attorney will go about getting it into evidence? Discuss.

I-B. EXHIBIT: FLIGHT DATA RECORDER TAPE. How if at all do you anticipate a skilled plaintiff's attorney will go about getting it into evidence and the data thereon interpreted so a jury can understand it? Discuss.

I-C. EXHIBIT: NTSB REPORT. How if at all will the plaintiff get it into evidence? Will the plaintiff succeed over your objection? And what use, if any, may properly be made of the NTSB report at the trial? Discuss.

I-D. EXHIBIT: TRANSCRIPT OF TESTIMONY of witnesses appearing before the NTSB. How if at all will the plaintiff get this into evidence? When may the testimony of a witness before the NTSB be used in the trial of the present case in place of the live testimony of that witness in open court in the present case? What other uses may be made of the NTSB transcripts? Discuss.

I-E. JAMAL MUBAREK is an aviation accident investigator for the Republic of Egypt. He participated in the accident investigation. He echoes your client's theories of how the accident happened (it was all Boeing's fault), and his theories are helpful to your case. However, they are based on techniques of aviation accident investigation developed in Egypt and not used in the United States. May he testify as an expert witness, and may he express an opinion based on those techniques? Discuss.

II-A. How if at all might the plaintiff use the article that appeared in the Advocette? Can they get the article into evidence? How? Under what circumstances? On what evidentiary bases? Discuss.

II-B. As defense counsel you wish to use Josephina Roughneck's statement to Bertha Bestfriend. Will you succeed? Discuss.

II-C. As defense counsel you wish to use Joe Roughneck's statement to Passionada von Climax. Will you succeed? Discuss.

II-D. Assume Passionada is willing to testify and tells you she sometimes works as a police informant and that she actually made a tape of her conversation with Joe. She wishes to use it to bolster her testimony. May her tape be so used? How? Discuss.

II-E. Assume early on you learned, from an insurance claims adjuster who interviewed Bertha Bestfriend, of Josephina Roughneck's statement to Bertha Bestfriend. Assume further that on the eve of trial Bertha tells you she now denies Josephina ever told her any such thing. What should you do? Discuss.

II-F. How if at all may First Officer Kerry's prior safety violation be used at trial? Discuss.

Recall the required outside reading, "The Eye of the Wolf," from Gerry Spence's book From Freedom to Slavery. Answer the following questions briefly. Three- or four-word answers will do nicely. Discussion is neither needed nor desired.

III-A. In precisely what setting does Gerry Spence first meet his client Mr. Weaver face to face?

III-B. Where exactly in the United States did the events involving Mr. Weaver occur? Name the state or town.

III-C. How would Mr. Weaver's political views best be described? What would most Americans call him?

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