TEMPLE UNIVERSITY , LLM TRIAL ADVOCACY PROGRAM STUDY EXAM

SPRINGSemester Final Exam Preparation

Instructions

This Is a take-home exam preparation. You have the entire exam period to complete the exam.

You will have 14 calendar days to complete the exam Preparation .It really should not take you more than three-to-four hours to complete if you have the time to complete it in one sitting.

It will be YOUR RESPONSIBILITY to SAVE YOUR WORK.

You may consult the Federal Rules of Evidence; the Federal Rules of Civil Procedure;

THIS ISA COLLABORATIVE EXAM. YOU MAYWORK WITH YOUR CLASSMATES (OR ANY OTHER PRACTITIONERS) TO COMPLETE THE TEST.

The exam consists of 20 multiple choice questions and five short-answer essays

For each multiple-choice question, select the best possible answer.For the essays, a relatively brief but focused response is sought.However, answers should be in essay form, meaning full sentences and paragraphs, not bullet points or listed items.Organize your answer before writing.

EXPLANATORY NOTE:Dates are shown as "Yr-1," "Yr-2," etc.Place the current year [2020] in the form and then subtract - so "Yr-2," for example, is 2018 [2020-2] and "Yr-9" is 2011 [2020-9].

PROBLEM #1

Case File:

On August 15,Yr-2,Sandra Day, 74, was admitted to the St. Jude Hospital in Waymart, Pa.Day was there for a series of maladies - heart problems, diabetes, early on-set dementia, and fluid in the lungs.She was assigned to the critical care ward.

Starting August 18, Day's nurse on the 8-4 shift was Melanie Weiss.Weiss had the option of using restraints on Day, because Day's multiple conditions led her to throw her body around, risking injury.Weiss did not opt for the restraints, deciding to first observe Day by regularly checking her in the room.During the morning, there was no problem.Day was seated in an upright chair next to her bed.

After lunch on August 18, Weiss returned to the room and Day was on the floor, writhing in an apparent seizure.She was bleeding from the head.Day's daughter Hortense Burke came in, saw her mother, and became overwrought.Sandra Day was rushed to the ER and then to another hospital.In a coma for two weeks, Day then died.

Day's daughter Hortense has brought suit against St. Jude Hospital and Weiss, on behalf of her mother's estate, for wrongful death and medical malpractice.The claim is that (a) Sandra Day should have been in restraints; and (b) even with no restraints, there was a duty to monitor her every 10 minutes, and this duty was breached because Weiss did not keep to that tight a schedule; and the fall caused the come and death.The joint defense of the hospital and Weiss is that the decision to leave Day in the chair was reasonable, especially in light of the regular checks by the nurse; and that the coma was a result not of the fall but of internal bleeding in the brain [cranial bleeding] that existed when the mother entered the hospital.

Trial takes place in December,Yr-0 [the current year].

Question 1

Hortense wants to testify that after she calmed down and her mother had been taken to the ER, the head nurse (who came on duty just after the fall of the mother) said to her "we are so sorry for our neglectful behavior."

Group of answer choices

a) The statement is admissible against the hospital and against Nurse Weiss.

b) The statement is inadmissible as an offer of settlement or compromise.

c) The statement is inadmissible because the head nurse had no personal knowledge of what happened.

d) The statement is admissible against the hospital, but not against Nurse Weiss.

Question 2

Assume for this question only that Hortense is permitted to testify as set forth in question 1.May she be asked, on cross-examination, whether she was the planner of a major fraud, in which 50 elderly persons lost their life savings, inYr-12?

Group of answer choices

a) No, because this is beyond the ten year limit.

b) Yes, because this proves a motive for this lawsuit.

c) Yes, in the judge's discretion, as a fair challenge to her credibility.

d) No, because this is a civil case.

Question 3

The head nurse, Rose Salvaggio, is called to testify by the Day estate.Salvaggio will say "I was on and off the wing of the hospital the day this happened, but I know I saw Nurse Weiss one or two times before the fall of the patient, and I remember that Nurse Weiss seemed distracted, like something was on her mind."

Group of answer choices

a) The testimony is inadmissible, as it addresses the mental state of a defendant.

b) The testimony is inadmissible, as it does not resolve the critical fact at issue, whether Nurse Weiss was in the room a sufficient number of times.

c) The testimony is admissible, as there is a "state of mind" exception to the ban on hearsay.

d) The testimony is admissible as relevant and based on first hand knowledge.

Question 4

Nurse Weiss, in the weeks after the fall, attended a two-day training on "specialized care for elderly, fall-risk, patients."

Group of answer choices

a) The evidence is admissible in plaintiff's case to prove a lack of knowledge on caring for such patients.

b) The evidence is admissible as an admission, by conduct, of a lack of knowledge on caring for such patients.

c) The evidence is inadmissible as having no relevance other than propensity.

d) The evidence is inadmissible as a matter of public policy.

Question 5

The attorney for Nurse Weiss seeks to call 8 dementia patients, each of whom was elderly and in her care at the hospital inYr-5.Each will say "Weiss came into my room every fifteen minutes, always making sure I was not woozy and likely to fall."

Group of answer choices

a) The evidence is inadmissible character, as it is in the nature of "did it once, did it again."

b) The evidence is inadmissible, as the elderly witnesses are automatically incompetent due to their dementia.

c) The evidence may be admissible as habit or routine practice.

d) The evidence may be admissible to show Weiss' motive.

Question 6

Nurse Weiss testified in a deposition in January,Yr-1, that she entered Ms. Day's room every fifteen minutes, the time required by internal hospital policy.The attorney for the Day estate has a sheet of paper dated 8/18/Yr-2, stating "Patient S. Day, visual checks" with times written on it.The times are 9:15 a.m., 10:20 a.m., , 10:45 a.m., 10:55 a.m., 11:30 a.m., 1:20 p.m."

Group of answer choices

a) The note is admissible only if Weiss first testifies at trial.

b) The note is admissible only if it was the regular practice of the hospital to have such information charted.

c) If authenticated as having been written by Weiss, the note is admissible only for impeachment.

d) If authenticated as having been written by Weiss, the note is admissible against Weiss and against the hospital.

Question 7

The lawyers for the Day estate call Jacqueline Ross, who was a patient in the room next door to that of Ms. Day on August 18.She will testify that "I heard someone calling from the room next door.That person was saying 'I feel faint.'"

Group of answer choices

a) Ross' testimony is inadmissible, as it is conveying hearsay.

b) Ross' testimony is admissible as the statement of a party opponent.

c) Ross' testimony is admissible only if she can authenticate the voice of the speaker as being Ms. Day.

d) Ross' testimony is inadmissible, as she is repeating opinion testimony with no foundation.

Question 8

Assume for this question only that Ross is permitted to testify as described in question 7.May she be asked, on cross-examination, whether she received an all-expenses-paid vacation, from the lawyer for the estate, over the Christmas break in DecemberYr-2?

Group of answer choices

a) Yes, but if Ross denies this the defense is stuck with her answer.

b) Yes, to support a claim of witness bias.

c) Yes, but doing so opens the door to all of the witness' consistent statements.

d) Yes, as an attack on witness character.

Question 9

Assume for this question only that Ross is cross-examined about the vacation, and admits that she in fact was the beneficiary of the paid vacation.Ross gave an unsworn interview to the news media in September,Yr-2; and testified at a deposition in February,Yr-1; and in both she said basically what she testified to on direct.The estate's lawyer would like to bring in these statements on redirect.

Group of answer choices

a) Both prior statements are admissible for the truth.

b) Neither prior statement is admissible for its truth.

c) Only the sworn deposition is admissible for its truth.

d) Only the unsworn news interview is admissible for its truth.

Question 10

The lawyer for the estate calls Professor Jeannette Engler, a professor of critical care nursing at Tulsa State.Professor Engler will testify that she reviewed all records and depositions, drew upon her years in the field, and concluded that "it is clear that Nurse Weiss' state of mind was reckless or careless that day."

Group of answer choices

a) The testimony is improper, as it addresses an ultimate issue.

b) The testimony is improper, as it addresses the state of mind of a defendant.

c) The testimony is proper if reliable and helpful to understanding the expert's testimony.

d) The testimony is proper if reliable and helpful to determine a fact at issue.

Question 11

Assume for this question only that Professor Engler is permitted to testify as an expert.May she say "in forming my opinion I relied on a report prepared and issued by the United States Government's surgeon general's office, authored by Dr. Newton Figmore of that office and titled BEST STANDARDS FOR IN-HOSPITAL CARE OF THE ELDERLY, A REPORT TO CONGRESS.The Report states that 'nurses must check patients who are elderly and are hospitalized suffering from heart problems, diabetes, early on-set dementia, and fluid in the lungs.'"

Group of answer choices

a) Engler may rely on the report, but not read it into the record.

b) Engler may read the report into the record, but not for its truth.

c) Engler may rely on the report and read it into the record for its truth.

d) Engler may not rely on the report, as she did not herself participate in its preparation.

Question 12

The best challenge to the surgeon general report is

Group of answer choices

a) Hearsay, no exception

b) 403

c) Lack of trustworthiness in the method of preparation

d) Inability to attack the author [declarant]

Question 13

Assume for this question only that the judge rules that the surgeon general report is admissible against Nurse Weiss and the hospital.Lawyers for the estate discover that the report's author, Dr. Newton Figmore, had given an interview two months before this trial, and stated that "there is no one right way to care for elderly patients with a bundle of symptoms, even when those symptoms include early on-set dementia."That interview was taped on National Public Radio.

Group of answer choices

a) The interview may be played to the jury for impeachment.

b) The interview proves dishonest character.

c) The interview proves that Figmore is not an expert.

d) The interview may be played to the jury for impeachment and for its truth.

Question 14

Lawyers for the Day estate investigated Weiss' background. They found that she was the nurse responsible when an 8 year old child died in the hospital due to being given the wrong medication.This occurred inYr-7.

Group of answer choices

a) The prior act is admissible to prove motive

b) The prior act is admissible to show character, but only if Weiss testifies

c) The prior act is inadmissible as it shows character

d) The prior act is inadmissible except to impeach Weiss' character witnesses.

Question 15

Weiss was married at the time of the death of Day.Her husband, Jarod Weiss, divorced her in July,Yr-1.He will testify that "my wife told me, in AugustYr-2, that she killed someone at work."He will also testify that "my wife was drinking heavily the week before Mrs. Day fell."

Group of answer choices

a) Because of the divorce, Jared may opt in or opt out of testifying.

b) Jared must testify to all of this information.

c) Jared may testify to the drinking, but no more.c) Jared may testify to the drinking, bc) Jared may testify to the drinking, but no more.ut no more.

d) Jared may testify to his then-wife's words, because they are an admission of a party opponent.

Question 16

Assume for this question that Jarod is allowed to testify to at least some of the information in the prior question.Jarod Weiss was convicted of drug selling inYr-6and received a sentence of 3 years probation.

Group of answer choices

a) The conviction is automatically admissible if he testifies

b) The conviction is inadmissible, as drug selling is not a crime of deception

c) The conviction is admissible, subject to a 403 analysis

d) The conviction is inadmissible, as he is not a party in this case

Question 17

To prove that the cranial bleeding was occurring before Ms. Day came to St. Jude's Hospital, the defense seeks to present Day's records from aYr-2hospitalization at Chase Medical Center. The records read "7/29/Yr-2cat scan discloses intermittent cranial blood leakage."

Group of answer choices

a) The record entry is admissible for its truth if authenticated

b) The record entry is admissible only as a basis for an expert's opinion if authenticated

c) The record is inadmissible without the presence of the radiologist who interpreted the cat scan.

d) The record is admissible, but only to show that Ms. Day received a scan; the results of the scan are not admissible.

Question 18

Assume for this question only that the Judge rules the contents of the Chase Medical Center record admissible.

Group of answer choices

a) There must still be a physician or nurse with personal knowledge who must identify the record.

b) Any hospital employee may present the record.

c) With proper certification, there need be no witness to accompany the record.

d) Even if the contents are admissible, rule 403 requires their exclusion if there is no doctor to cross-examine.

Question 19

The Chase Record also contains this entry: "patient reports blood in ear canal on occasion."

Group of answer choices

a) This entry is inadmissible, as the patient is not part of the hospital business.

b) The entry is inadmissible as it is not subject to cross-examination.

c) The entry is admissible as a statement of medical condition.

d) The entry is admissible as a present sense impression.

Question 20

Weiss will testify that "I have handled patients like Ms. Day for years - probably hundreds. For every one, I never used restraints because I was in the room every ten minutes.

Group of answer choices

a) The evidence is inadmissible, as it bolsters credibility.

b) The evidence is admissible.

c) The evidence is inadmissible because there is no corroboration, and thus no reliability.

d) The evidence is inadmissible because it is self-serving.