322. What is the general rule concerning what is said during a mediation and a later court proceeding?
a. mediators must always testify about what they know
b. mediators will often, but not always, have to testify
c. mediators cannot be required to testify
d. mediators may never testify
e. none of the other choices is the correct rule as stated by the Colorado Supreme Court
Fact Pattern 3-1
Amanda is a twenty-four year old student. For two years Amanda has been going to gym and using weight
equipment, stationary bicycles, and step machines to improve muscle tone. One spring afternoon Amanda was
using a weight machines in the usual way (and the way she was showed how to use it), when the machine
malfunctioned causing her serious injury. The company that made the machine, Musclematic, has known for the
past year that this problem existed, but the company took no steps to warn people who owned or used these
machines of the problem.
323. Refer to Fact Pattern 3-1. If Amanda files a lawsuit against Musclematic, the company might want to seriously
consider:
a. how this litigation will affect its goodwill
b. whether or not a settlement with Amanda is a viable option
c. whether this suit will adversely affect other business relationships
d. the costs associated with litigating this claim
e. all of the other choices
324. Refer to Fact Pattern 3-1. Because Musclematic is a business, if Amanda files suit against them, the case is:
a. likely to be over rather quickly
b. likely to require use of many documents and exhibits
c. likely to result in a small jury award
d. likely to be appealed before the trial is over
e. none of the other choices
325. Refer to Fact Pattern 3-1. If Amanda sues Musclematic she will probably file a products liability claim. If she does,
if she wins the case, and if she receives an average award from a jury, Amanda will receive:
a. over $10,000
b. over $100,000
c. over $500,000
d. over $1,000,000
e. an order for specific performance
326. Refer to Fact Pattern 3-1. You are Amanda’s attorney. To begin your lawsuit against Musclematic you must first:
a. file a for a hearing
b. file a complaint
c. file a reply
d. file an answer
e. file a counterclaim
327. Refer to Fact Pattern 3-1. Amanda does file a suit against Musclematic. But assume that she waits too long to file
the claim. When Musclematic replies to Amanda’s initial pleading, it should:
a. file a complaint
b. file a response
c. answer with an affirmative defense
d. file a motion for judgment
e. file a request for rehearing
328. Refer to Fact Pattern 3-1. Assume that Amanda files her suit against Musclematic. After the pleadings are
completed and Amanda and her attorney have reviewed the responses of Musclematic, they believe the defendant
has no good defense. Amanda should:
a. file a motion for judgment on the pleadings
b. file a motion for new trial
c. file a motion for j.n.o.v
d. demand to be repaid by her attorney
e. file a motion for a pretrial hearing
329. Refer to Fact Pattern 3-1. After the pleading stage of Amanda’s lawsuit is complete, she need to use the discovery
process to gather information. If Amanda wants to see the design plans for the machine that injured her she should:
a. request a deposition
b. request a set of written interrogatories
c. request a special verdict
d. request an admission
e. request a production of documents
330. Refer to Fact Pattern 3-1. What is the likelihood that Amanda will be able to depose the president of Musclematic
or obtain an interrogatory?
a. wholly unlikely
b. maybe, but almost certainly not
c. slightly likely
d. very likely
e. forget it, she couldn’t depose the president if her life depended upon it
331. Refer to Fact Pattern 3-1. Suppose that Amanda and Musclematic do not settle the case. It must go to trial. Who
will present their case first?
a. Amanda
b. Musclematic
c. the judge
d. the attorney for the gym
e. none of the other choices
332. Refer to Fact Pattern 3-1. After Amanda presents her case, the attorney for Musclematic would be best advised
to:
a. head for the hills
b. start writing a great big check
c. move for a directed verdict
d. move for a j.n.o.v
e. move to another state
333. Refer to Fact Pattern 3-1. To win against Musclematic, Amanda must prove that the machine caused her injuries:
a. beyond a shadow of a doubt
b. by a preponderance of the evidence
c. by all due means
d. with good intent
e. with equitable intent
Fact Pattern 3-2
Ellen contracts with James to be her stockbroker, making stock trades for Ellen’s account. Ellen need not pre-
approve the trades that James makes, only trades for more than $20,000. Ellen and James include a clause stating
“that in case of any disputes arising out of this contract; the dispute shall be arbitrated using the rules of the New
York Stock Exchange.”
Ellen learns that since signing her contract with James, he has routinely been making trades worth more than
$20,000 without her permission, and losing money.
334. Refer to Fact Pattern 3-2. If Ellen takes her dispute to the local court, according to the Federal Arbitration Act,
what should happen?
a. the court will hear the case
b. the court should dismiss the case
c. the court will hear the case, but only if both parties disagree as to the subject matter
d. the FAA will not apply here, because the dispute involves intangible property
e. none of the other choices
335. Refer to Fact Pattern 3-2. Assume that Ellen sees James’ unauthorized actions as the basis for a legal dispute. If
she arbitrates, what must she do first?
a. file a complaint
b. file an answer
c. file a submission
d. file a reverter
e. file a rejoinder
336. Refer to Fact Pattern 3-2. Ellen and James arbitrate their dispute, who is most likely to be selected as an arbitrator?
a. a federal judge
b. a neutral expert on investment issues
c. a partial expert on consumer affairs
d. a mediator
e. a conciliator
337. Refer to Fact Pattern 3-2. After Ellen presents her dispute for arbitration, the parties will present their evidence
before an arbitrator, or arbitral panel. This presentation is known as:
a. the trial
b. the post-trial
c. the showing
d. the hearing
e. the award
338. Refer to Fact Pattern 3-2. After presenting her evidence at arbitration, Ellen is quite happy when they decide that,
in fact, James has violated his contractual obligations to her, and owes her damages. Any damages that Ellen wins
are known as:
a. an award b.
a judgment c.
an exaction
d. a presentation
e. a collection
339. Refer to Fact Pattern 3-2. After Ellen receives her determination from the arbitrators, James decides that the
arbitrator was wrong in his understanding of the brokerage agreement. James decides to appeal the decision of the
arbitrators. In this case:
a. he may not appeal the decision
b. only Ellen may appeal the decision
c. he may appeal to a court, but he is unlikely to win
d. he may appeal only to the New York Stock Exchange
e. none of the other choices
340. Refer to Fact Pattern 3-2. Assume that James appeals the decision of the arbitrators to a state court. He wants to
argue that using the New York Stock Exchange rules was unfair to him. Most likely, James will:
a. win hands down; the rules are unfair
b. win, if he shows that the rules favor stockbrokers
c. win, based on the legal doctrine of res judicata
d. lose, because the arbitrators were acting like judges
e. lose, because the courts routinely uphold arbitration proceedings
341. Refer to Fact Pattern 3-2. Before arbitrating this disputes, Ellen and James might be wise to attempt:
a. litigation
b. physical violence
c. negotiation
d. reconciliation
e. animation
342. Refer to Fact Pattern 3-2. If Ellen and James were to mediate their dispute, rather than arbitrate (assume this is
ok), what would they need to do?
a. select a mutually agreed upon mediator
b. present their dispute to a court
c. get a court to select an arbitrator
d. nothing besides sitting down together
e. prepare a brief for consideration of a panel
343. Refer to Fact Pattern 3-2. If Ellen and James did mediate this dispute, their mediator:
a. would have to be an attorney
b. would have to represent one of them
c. could be anyone at all, in any state
d. might have to be professionally trained
e. must be professionally trained according to federal law