Professor Franks

Final Examination, Fall 2001

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., "I-E."

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 pin 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 fictitious name and number 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.

Cindy Carter and Eddy Eldridge married in 1988. On December 25, 2000, the parties separated. They are now getting a divorce. You represent Cindy. On February 15, 2001, you filed for divorce in the Family Court of East Baton Rouge Parish on grounds of adultery. The Eldridges have two children, Sandra and Shawn. The case is now coming up for trial. At issue are the divorce itself, custody of the two children, alimony, child support, and division of community property.

Eddy runs a computer store, which operates as a corporation in which Eddy owns all the stock. The corporation was formed during the marriage.

Your evidence on Eddy's adultery is, to say the least, weak. Your only evidence of adultery consists of the following:

I-A. Eddy's girlfriend, Passionada Von Climax, was married to Freddie Von Climax at the time of the adultery (December 2000). Back in January 2001, Freddie sued for divorce and was granted an uncontested Article 102 (no fault) divorce on July 28, 2001. Passionada denies any adultery ever occurred. Freddie, angry at Passionada, called your law office and told you that Passionada admitted to him that she had committed adultery with Eddy Eldridge. Freddie now has changed his mind and says he will refuse to testify. Can you force him to do so? Discuss.

I-B. In early January 2001, Eddy and Cindy went to a psychologist, Dr. Sigmund Phroide, for marriage counselling. In a joint session, Eddy admitted to Dr. Phroide in Cindy's presence that he had committed adultery with Passionada Von Climax. As Cindy's attorney, you wish to call Dr. Phroide as a witness, but Dr. Phroide's attorney has advised you that he will claim privilege. Can you force him to testify? Discuss.

I-C. Your neighborhood bartender, Bud Weiser, tells you of a woman who came in last night and told everyone that she is furious with you for having subpoenaed her to court. "Just cuz I was ballin' this computer geek Eddy Eldridge, some lawyer wants to make me go to court." From the bartender's description of the woman, it is obviously Passionada Von Climax. You want to use Mrs. Von Climax's statement to the bartender. Discuss specifically how if at all you can use the statement at trial.

I-D. Back in 1999, over a period of six months Eddy committed adultery from time to time with his then-secretary, Flo Flooze. Eddy admitted the adultery in a letter to Cindy begging her to take him back, and Cindy forgave him. Cindy wishes to use the letter in evidence. Can she? How? Discuss.

I-E. In 1998, Eddy subscribed to Hot Sex magazine, having the subscription come to his office. In 1999, he entertained a client, Bill Dittser, by taking him to The Topless Club. Cindy wishes to use these incidents as part of her adultery evidence. May she? Discuss.

Eddy's stock in the computer store is undoubtedly community property and will need to be valued for purposes of partition of the community. Bob Beancounter, CPA, has been Eddy's accountant for years. He is prepared to testify on Eddy's behalf that the corporate stock is worthless and should be valued at zero. He arrives at this conclusion by using the ultraconservative "book value" method of appraisal, which most accountants would reject as totally inadequate to evaluate an ongoing business.

II-A. May Bob Beancounter testify as to the value of the business using the "book value" method of appraisal? Discuss.

II-B. Your research has revealed an article in the Journal of Accountancy entitled "How to Evaluate a Computer Sales Business." The article, by Professor Heinrich Grossflugzeug of Harvard Business School, says:

Book value is both obsolete and worthless as a method of valuing an ongoing business, such as a computer sales or service firm. One most often sees book value used today where an accountant friendly to a business owner tries to put a low figure on the value of the business for purposes of underpaying the heirs of a deceased partner or for purposes of undercompensating the owner's spouse when dividing property in a divorce.

You wish to use the article to impeach Mr. Beancounter. Can you? Explain in detail how if at all you might be allowed to do so. Discuss.

On the custody issue, Cindy contends Eddy is less than a perfect parent. She claims Eddy drives the children around without car seats or seat belts, and that Eddy on one occasion was convicted of DWI. Please answer the following:

III-A. Specifically, Eddy was stopped and ticketed in February 2001 by Officer Sam Jackson for allowing Sandra, age 7, to ride without a seat belt and Shawn, then age 4, without a car seat. At trial in City Court, Eddy was found not guilty.

III-A-1. May you introduce either the police report or a certified copy of the court record of the criminal charge in any way? Discuss.

III-A-2. When you call Officer Jackson as a witness at trial, his memory lapses and he remembers nothing. Explain in detail how you will deal with this. If the good officer persists in his amnesia, explain in further detail how you will deal with this. Under what circumstances, if any, is his written report admissible? Discuss.

III-A-3. Will Officer Jackson be allowed to testify as to the facts of the incident? Discuss.

III-B. On another occasion, only five months ago, Eddy was arrested for DWI. He was convicted. Assume this is relevant (as indeed it surely is in a child custody case). How exactly do you intend to prove the conviction? Discuss.

III-C. Eddy has witnesses, too. If allowed to testify, a nosy neighbor, Granny Gabber, will testify that in her opinion Eddy is an ideal parent and your client, Cindy, is the neighborhood liar. May she so testify? Discuss.

Weeks before Eddy moved out on Christmas Day 2000, Cindy noticed he had been coming home late every night smelling of alcohol and perfume. So Cindy went to her friendly Radio Shack and purchased a cassette recorder and a telephone connector of the type that automatically turns the cassette recorder on for the duration of the call whenever the line is used. Cindy installed the recorder at home, hiding it in the attic. The recorder recorded all calls made or received from any phone in the house.

One conversation was captured on December 18, 2000 while the two were still living together -- a call in which Eddy told his girlfriend, Passionada Von Climax: "That sure was good last night. I hope your birth control is working."

After Eddy moved out, Cindy continued recording all conversations. A full week after Eddy moved out, the recorder captured a conversation between Eddy and Cindy on December 31, 2000, in which Eddy told her: "Cindy, I went to bed with Passionada. I'm so sorry."

You want to introduce both tapes into evidence. Can you? How? Discuss.

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