I-A. How do you intend to prove the negligence of ValueAir? How exactly do you intend to prove the gas cylinders had no caps? Discuss in detail.
| Prove the FAA rule the defense violated; | 9 points _______ |
| Ask court to take judicial notice under 202 (B)(1)(e); | 9 points _______ |
| Get certified copy of the rule; | 9 points _______ |
| Obtain expert testimony as to the application of the rule. | 9 points _______ |
| Call witnesses from the FAA and NTSB to testify in person at trial. | 9 points _______ |
| How did FAA and NTSB learn these things? Call their witnesses. | 9 points _______ |
| Call Nick Nabor to testify as to the admission of Dittswit. | 9 points _______ |
| Dittswit's statement is probably a relational admission of ValueAir. | 9 points _______ |
| Was Dittswit employed by ValueAir when statement was made? | 9 points _______ |
| Was his statement was made in course and scope of employment? | 9 points _______ |
| Is Dittswit a defendant, making his statement an admission of a party? | 9 points _______ |
| If not, and if Dittswit is unavailable, his is 804 admission against interest. | 9 points _______ |
| If not, Dittswit will have to be called as an adverse witness, | 9 points _______ |
| And then be impeached by Nick Nabor. | 9 points _______ |
| Dittswit's statement to Father Priestly is privileged. | 9 points _______ |
| But privilege was waived, and statement to Nabor is not privileged. | 9 points _______ |
I-B. May you use the NTSB and FAA reports to prove negligence? How if at all may you use those documents? Assuming an NTSB transcript exists, how if at all may you use such testimony?
| Investigative reports are inadmissible in Louisiana. | 9 points _______ |
| Investigative reports may still be used for purposes of impeachment. | 9 points _______ |
| Investigative reports may be used for present memory refreshed. | 9 points _______ |
| Investigative reports may be used for prior recollection recorded. | 9 points _______ |
| NTSB testimony may be used in lieu of testimony at trial, | 9 points _______ |
| But only if the witness is unavailable. | 9 points _______ |
| Were parties and issues similar? | 9 points _______ |
| Was ValueAir given an opportunity and motive to cross examine? | 9 points _______ |
| Expert testimony may not come in in this manner. | 9 points _______ |
| The NTSB testimony may contain admissions of parties and agents. | 9 points _______ |
| Other facts brought out at NTSB hearing will need witnesses at trial. | 9 points _______ |
I-C. May you call the FAA inspector who found other violations?
| Issue is one of relevance. | 9 points _______ |
| Widespread sloppiness and fraud may be evidence of habit or routine under 406. | 9 points _______ |
| Evidence of other wrongs may also be admissible under 404 (B). | 9 points _______ |
| Defense will of course argue irrelevancy | 9 points _______ |
| FAA inspector may of course testify as to what he found. | 9 points _______ |
| If qualified as an expert, he may also give opinion testimony. | 9 points _______ |
I-D. May the defense admit Harvey Dittswit's cargo manifests? How?
| Clearly, yes. | 9 points _______ |
| The cargo manifests are a business record. | 9 points _______ |
| Only the custodian of the record needs to be called as a witness. | 9 points _______ |
I-E. What will you do if the cargo manifests are admitted?
| Prove on cross examination that Harvey Dittswit made the entries. |
9 points_______ |
| Or call Harvey Dittswit to admit that he made the entries. | 9 points _______ |
| Then call Nick Nabor as to Harvey Dittswit's admission. | 9 points _______ |
| Move to strike admission because evidence shows lack of trustworthiness? | 9 points _______ |
| She may testify as an expert witness. | 9 points _______ |
| She may use unpopular theories. | 9 points _______ |
| Goes to weight only. | 9 points _______ |
| Discussion of Daubert v. Merrell Dow. | 9 points _______ |
| Here, however, the basis for her opinion seems speculative. | 9 points _______ |
I-G. May the defense use Mitchell McPlaintiff's arrest, indictment and admission to Percival Partner? Discuss.
| Yes, they will succeed. | 9 points _______ |
| Statement is a privity admission. | 9 points _______ |
| Statement is relevant as to damages as it impacts earning ability. | 9 points _______ |
| Arrests (as opposed to convictions) are inadmissible for impeachment. | 9 points _______ |
| This, however, is not sought to be admitted here for impeachment. | 9 points _______ |
I-H. May the defense use Susan McPlaintiff's statement to Bertha Bestfriend? Discuss.
| Yes, they will succeed. | 9 points _______ |
| Statement is an admission by a party. | 9 points _______ |
| It is also a statement of intent. | 9 points _______ |
| Statement is relevant as to damages for loss of affection. | 9 points _______ |
II-A. Explain difference between present memory refreshed and prior recollection recorded.
| Present memory refreshed: | |
| Show witness anything that will jog memory, | 2 points _______ |
| Then take it back. | 2 points _______ |
| Witness testifies from memory. | 2 points _______ |
| Refreshing document not admitted. | 2 points _______ |
| Prior recollection recorded: | 2 points _______ |
| Statement made by witness, | 2 points _______ |
| Or adopted, | 2 points _______ |
| Accurate when made. | 2 points _______ |
| Comes in as an exhibit, | 2 points _______ |
| But does not go to jury room. | 2 points _______ |
II-B. Discuss whether a prior inconsistent statement is hearsay.
| Statement is defined as not hearsay if declarant testifies at the hearing, | 2 points _______ |
| And is subject to cross-examination concerning the statement, | 2 points _______ |
| And the statement is inconsistent with testimony given under oath, | 2 points _______ |
| At accused's preliminary examination or prior trial, | 2 points _______ |
| And witness was subject to cross examination. | 2 points _______ |
| Or statement is consistent and offered to rebut charge of recent fabrication, | 2 points _______ |
| Or statement is one of identification, | 2 points _______ |
| Or statement is one of initial complaint of sexually assaultive behavior. | 2 points _______ |
| Or is a statement offered against a party, | 2 points _______ |
| And made by the party, | 2 points _______ |
| Or by someone in privity with the party. | 2 points _______ |
| Or is a verbal act (things said or done), | 2 points _______ |
| Or is on an optical disk imaging system. | 2 points _______ |
| Other prior inconsistent statements are hearsay, | 2 points _______ |
| But are admissible for impeachment purposes. | 2 points _______ |
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