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DE Bar practice questions

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Question 1Delaware Bar Examination content (official domain list not published on source page)

Under Delaware evidence law, which privilege belongs to the client and may be waived only by the client or the client's authorized representative?

  1. The clergy-penitent privilege
  2. The physician-patient privilege
  3. The attorney-client privilege Correct answer.
  4. The journalist's source privilege

Explanation

Delaware recognizes that the attorney-client privilege is held by the client, not the lawyer, so only the client (or an authorized representative such as a guardian or successor) can waive it. The other privileges, where recognized, protect different relationships and are held by other parties.

Question 2Delaware Bar Examination content (official domain list not published on source page)

A Delaware plaintiff files a complaint in Superior Court. Which pleading standard governs whether the complaint states a claim upon which relief can be granted?

  1. The complaint must contain a short and plain statement of the claim showing the pleader is entitled to relief Correct answer.
  2. The complaint must recite each element of the cause of action with supporting evidence attached
  3. The complaint must be verified under oath by the plaintiff in all cases
  4. The complaint must include an affidavit of merit signed by an expert in every civil action

Explanation

Delaware follows notice pleading: a complaint need only contain a short and plain statement of the claim that gives the defendant fair notice of what it is and the grounds upon which it rests. Detailed evidentiary recitals, universal affidavits of merit, and universal verification are not required.

Question 3Delaware Bar Examination content (official domain list not published on source page)

In a Delaware jury trial, a party objects to a venire member who has expressed a fixed opinion about the defendant's guilt before hearing evidence. Which challenge is the proper procedural vehicle?

  1. A motion for judgment as a matter of law
  2. A motion in limine
  3. A peremptory challenge
  4. A challenge for cause Correct answer.

Explanation

A venire member whose bias or fixed opinion prevents impartiality is subject to a challenge for cause, which requires the court to find actual bias. A peremptory challenge needs no stated reason but is limited in number and cannot be used on unconstitutional grounds.

Question 4Delaware Bar Examination content (official domain list not published on source page)

A Delaware corporation's board adopts a defensive measure in response to a hostile tender offer. Which standard of review does the Delaware Supreme Court apply to the board's action?

  1. The entire fairness standard in every defensive context
  2. Strict scrutiny, requiring a compelling state interest
  3. Enhanced scrutiny under Unocal, requiring a reasonable threat and a proportionate response Correct answer.
  4. The business judgment rule without any heightened inquiry

Explanation

Unocal v. Mesa Petroleum established intermediate or enhanced scrutiny for defensive measures: directors must show they reasonably perceived a threat and that the response was reasonable in relation to that threat. Ordinary business judgment deference is not applied, and entire fairness arises only in conflicted or disabling situations.

Question 5Delaware Bar Examination content (official domain list not published on source page)

A Delaware court is asked to pierce the corporate veil of an LLC to hold a member personally liable for the entity's debt. Which showing is required?

  1. The entity had fewer than three members at formation
  2. The member served as both manager and majority owner
  3. The member used the entity as a sham to perpetrate fraud or injustice Correct answer.
  4. The entity failed to hold an annual meeting of members

Explanation

Delaware treats the corporate veil as a doctrine of last resort, requiring proof that the entity was used as a sham or instrumentality to perpetrate fraud or injustice. Mere overlap of ownership and management, informality, or small membership is insufficient.

Question 6Delaware Bar Examination content (official domain list not published on source page)

Under Delaware contract law, which of the following is an essential element for formation of a binding contract?

  1. Registration of the agreement with the Secretary of State
  2. A writing signed by both parties in every case
  3. Mutual assent, consideration, and sufficiently definite terms Correct answer.
  4. Notarization of the agreement

Explanation

Delaware requires mutual assent (offer and acceptance), consideration, and terms definite enough to enforce. Writings, notarization, and registration are required only in specific statutory situations such as the statute of frauds or recorded instruments.

Question 7Delaware Bar Examination content (official domain list not published on source page)

A Delaware buyer and seller exchange emails that reference an unsigned draft agreement and state that they will sign a formal contract later. Under Delaware law, what is the strongest argument that no binding contract yet exists?

  1. The draft agreement omitted a merger clause
  2. The parties expressed an intent not to be bound until a formal writing was executed Correct answer.
  3. The price term was stated in a foreign currency
  4. The emails were not notarized

Explanation

Delaware looks to whether the parties manifested an intent to be bound; an express statement that no obligation arises until a formal document is signed is strong evidence they intended to defer contractual relations. Notarization, merger clauses, and currency choice do not determine whether assent occurred.

Question 8Delaware Bar Examination content (official domain list not published on source page)

A Delaware property owner grants a neighbor a right to cross the owner's land to reach a public road. The right is created by a written instrument and is intended to benefit the neighbor personally. This interest is best described as which of the following?

  1. A profit à prendre
  2. An easement in gross Correct answer.
  3. An easement appurtenant
  4. A license

Explanation

An easement in gross benefits a particular person rather than a dominant parcel, which matches a personal right of way. An easement appurtenant requires a dominant tenement, a license is revocable permission, and a profit allows taking resources from the land.

Question 9Delaware Bar Examination content (official domain list not published on source page)

In a Delaware criminal trial, the prosecution seeks to introduce the defendant's confession obtained after a custodial interrogation without Miranda warnings. What is the correct result?

  1. The confession is admissible if the defendant was later arraigned
  2. The confession is inadmissible to establish the prosecution's case-in-chief but may be used for impeachment under limited circumstances Correct answer.
  3. The confession is admissible if a magistrate finds the statement voluntary
  4. The confession is admissible because Delaware has abolished the Miranda rule

Explanation

Statements obtained through custodial interrogation without warnings are excluded from the prosecution's case-in-chief, though Harris v. New York permits limited impeachment use if the statement was voluntary. Voluntariness alone does not cure the absence of warnings for substantive use.

Question 10Delaware Bar Examination content (official domain list not published on source page)

A Delaware criminal defendant argues that the evidence was legally insufficient to support a conviction. Which standard governs appellate review of that claim?

  1. Whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find the elements proved beyond a reasonable doubt Correct answer.
  2. Whether the prosecution presented at least two eyewitnesses
  3. Whether the appellate court would have reached a different verdict on the same record
  4. Whether the trial judge personally believed the defendant was guilty

Explanation

Delaware reviews sufficiency claims under the Jackson standard, asking whether any rational trier of fact could have found the essential elements beyond a reasonable doubt after viewing the evidence most favorably to the prosecution. The appellate court does not reweigh credibility or substitute its own verdict.

Question 11Delaware Bar Examination content (official domain list not published on source page)

A Delaware lawyer receives a settlement offer directly from a party the lawyer knows is represented by counsel. What is the lawyer's ethical obligation under the Delaware Rules of Professional Conduct?

  1. The lawyer must not communicate about the subject of the representation with a represented party without that party's counsel's consent Correct answer.
  2. The lawyer may communicate if the client approves the contact
  3. The lawyer may negotiate directly because settlement discussions are informal
  4. The lawyer may communicate only if the contact occurs in writing

Explanation

Rule 4.2 prohibits communication about the subject of the representation with a person the lawyer knows is represented by another lawyer, absent that lawyer's consent or authorization by law. Client approval does not override the rule, and the medium of communication is irrelevant.

Question 12Delaware Bar Examination content (official domain list not published on source page)

A Delaware attorney is admitted in Delaware but maintains an office in another state and practices exclusively there. Which statement best describes the attorney's obligations regarding Delaware's continuing legal education requirement?

  1. The attorney may substitute another state's CLE credits without any Delaware approval
  2. The attorney must comply with Delaware CLE requirements unless exempted by rule based on the nature of the practice Correct answer.
  3. The attorney is automatically exempt because the office is out of state
  4. The attorney need only comply if appearing in a Delaware court that year

Explanation

Delaware's CLE rules apply to active members, with limited exemptions such as those provided by rule for attorneys who practice outside Delaware or are otherwise exempt. Maintaining an out-of-state office does not automatically excuse compliance, and substitution of foreign credits requires approval.

Question 13Delaware Bar Examination content (official domain list not published on source page)

A Delaware court considers a motion to disqualify opposing counsel based on a prior representation. Which principle most accurately governs the analysis?

  1. Disqualification is automatic whenever the lawyer changes firms
  2. A former client may waive the conflict only by written consent of the new client
  3. The court must disqualify counsel whenever the current client consents
  4. A lawyer who formerly represented a client in a matter may not represent another person in the same or a substantially related matter with materially adverse interests Correct answer.

Explanation

Rule 1.9 prohibits a lawyer from representing a new client in the same or a substantially related matter where the new client's interests are materially adverse to the former client, absent informed consent. Firm changes alone do not trigger automatic disqualification, and the former client's consent is the relevant waiver.

Question 14Delaware Bar Examination content (official domain list not published on source page)

In a Delaware civil action, the plaintiff seeks punitive damages against a defendant for breach of contract. What is the general rule?

  1. Punitive damages are available whenever the breach was intentional
  2. Punitive damages are capped at double the contract price
  3. Punitive damages require proof by a preponderance of the evidence of gross negligence alone
  4. Punitive damages are not recoverable for ordinary breach of contract absent an independent tort Correct answer.

Explanation

Delaware generally does not permit punitive damages for breach of contract; they require tortious conduct that is independently actionable and meets the malice standard. Intentional breach alone does not suffice, and no fixed multiplier applies to contract claims.

Question 15Delaware Bar Examination content (official domain list not published on source page)

A Delaware testator executes a will leaving property to two witnesses to the will. Under Delaware law, what is the effect of the witnesses being beneficiaries?

  1. The bequest to an interested witness is void unless the will is otherwise duly executed
  2. The witnesses forfeit their bequests but the remainder of the will stands
  3. The will is invalid entirely
  4. The bequest is valid, and the interested-witness rule does not invalidate the gift Correct answer.

Explanation

Delaware has abolished the common-law interested-witness rule, so a bequest to an attesting witness does not invalidate the gift or the will. The will must still satisfy the formal execution requirements, but the witnesses' status as beneficiaries is not disqualifying.

Question 16Delaware Bar Examination content (official domain list not published on source page)

A Delaware resident dies intestate survived by a spouse and two children who are also the spouse's children. How does Delaware's intestacy statute generally distribute the estate?

  1. The spouse receives the first $100,000 plus one-half of the balance, and the children share the remainder Correct answer.
  2. The children take the entire estate and the spouse takes nothing
  3. The entire estate passes to the spouse
  4. The estate is divided equally among the spouse and children

Explanation

Under Delaware's intestacy statute, when the decedent is survived by a spouse and descendants who are also the spouse's descendants, the spouse receives the first $100,000 plus one-half of the balance, with the remainder to the descendants. The spouse does not take the entire estate, nor are the children excluded.

Question 17Delaware Bar Examination content (official domain list not published on source page)

A Delaware court is asked to enforce a forum-selection clause designating another state's courts. Which approach reflects Delaware law?

  1. Forum-selection clauses require the Secretary of State's approval
  2. Forum-selection clauses are presumptively enforceable unless enforcement would be unreasonable or unjust Correct answer.
  3. Forum-selection clauses are enforceable only if the chosen forum is Delaware
  4. Forum-selection clauses are unenforceable because they oust Delaware courts of jurisdiction

Explanation

Delaware enforces contractual forum-selection clauses as a matter of policy, subject to limited exceptions such as unreasonableness, fraud, or contravention of a strong public policy. The clauses are not invalid merely because they direct litigation elsewhere.

Question 18Delaware Bar Examination content (official domain list not published on source page)

A Delaware employer terminates an at-will employee after the employee reports a workplace safety violation to a state agency. Which claim is most likely cognizable under Delaware law?

  1. A claim for intentional infliction of emotional distress based solely on the termination
  2. A claim for breach of an implied covenant of good faith and fair dealing in every employment relationship
  3. A common-law claim for wrongful discharge in violation of public policy Correct answer.
  4. A claim for defamation based on the termination notice

Explanation

Delaware recognizes a narrow public-policy exception to at-will employment, permitting a tort claim where discharge violates a clear statutory mandate such as whistleblower protections. The implied covenant does not generally displace at-will termination, and the other claims require elements not present.

Question 19Delaware Bar Examination content (official domain list not published on source page)

In a Delaware negligence action, the plaintiff's own negligence contributed to the injury. Under Delaware's comparative negligence statute, what is the effect?

  1. The plaintiff's recovery is reduced proportionally, and recovery is barred only if the plaintiff's negligence exceeds the defendant's Correct answer.
  2. The plaintiff recovers nothing if contributorily negligent at all
  3. The plaintiff recovers fully regardless of comparative fault
  4. Recovery is reduced only if the plaintiff's fault exceeds 50 percent

Explanation

Delaware uses modified comparative negligence: damages are diminished in proportion to the plaintiff's fault, and recovery is barred only when the plaintiff's negligence is greater than the defendant's. Pure contributory negligence and pure comparative fault do not describe Delaware's rule.

Question 20Delaware Bar Examination content (official domain list not published on source page)

A Delaware limited partnership's limited partners seek to manage the partnership's day-to-day affairs. What is the consequence under the Delaware Revised Uniform Limited Partnership Act?

  1. Limited partners may manage freely without any liability consequence
  2. A limited partner who takes part in control of the business may lose limited liability protection to the extent of the participation Correct answer.
  3. Only the general partner may be sued, so limited partners are always shielded
  4. Limited partner liability is capped at the amount of the partner's capital contribution in all events

Explanation

Under the DRULPA, a limited partner who participates in the control of the business may be liable to persons who transact with the partnership believing the limited partner is a general partner. Delaware has narrowed this safe harbor, but the control principle remains.

Question 21Delaware Bar Examination content (official domain list not published on source page)

A Delaware court reviews a challenge to a stockholder-approved merger. The board had a majority of disinterested directors and the transaction was approved by a fully informed vote of a majority of the outstanding shares. What standard generally applies?

  1. Entire fairness
  2. Enhanced scrutiny under Unocal
  3. Strict scrutiny
  4. The business judgment rule Correct answer.

Explanation

Under Corwin v. KKR Financial Holdings, a fully informed, uncoerced vote of disinterested stockholders restores business judgment review to a transaction that would otherwise be subject to entire fairness. Unocal applies to defensive measures, and strict scrutiny is not a Delaware corporate standard.

Question 22Delaware Bar Examination content (official domain list not published on source page)

A Delaware litigant wants to compel production of documents from a nonparty in another state. Which mechanism is most appropriate under Delaware procedure?

  1. A writ of capias ad respondendum
  2. A subpoena issued under the Delaware rules, served in compliance with the rules for out-of-state discovery Correct answer.
  3. A motion for default judgment against the nonparty
  4. A bill of discovery filed in the Court of Chancery in every instance

Explanation

Delaware's discovery rules permit subpoenas to nonparties, with service and enforcement governed by the rules and, where applicable, interstate discovery statutes. Default judgment, capias, and bills of discovery are not the ordinary vehicles for obtaining documents from an out-of-state nonparty.

Question 23Delaware Bar Examination content (official domain list not published on source page)

A Delaware defendant in a criminal case moves to suppress evidence obtained during a warrantless search of a vehicle. Which principle most accurately states Delaware's approach to the automobile exception?

  1. The exception applies only if the vehicle is on a public highway
  2. A warrant is always required before searching any vehicle
  3. Police may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence Correct answer.
  4. The automobile exception applies only to vehicles owned by the driver

Explanation

The automobile exception permits a warrantless search of a vehicle when officers have probable cause to believe it contains contraband or evidence of a crime, given the vehicle's inherent mobility and reduced expectation of privacy. A warrant is not invariably required, and the exception is not limited by ownership or location.

Question 24Delaware Bar Examination content (official domain list not published on source page)

A Delaware plaintiff seeks specific performance of a contract to sell unique real property. Which factor is most important to the court's decision?

  1. Whether the buyer paid a deposit
  2. Whether the legal remedy of damages is inadequate because the property is unique Correct answer.
  3. Whether the contract contained a liquidated damages clause
  4. Whether the seller had listed the property with a broker

Explanation

Specific performance is an equitable remedy available when damages are inadequate, and land is traditionally treated as unique so that monetary relief is insufficient. A deposit, liquidated damages clause, or broker listing does not answer the inadequacy inquiry.

Question 25Delaware Bar Examination content (official domain list not published on source page)

A Delaware attorney is asked to hold client funds in trust. Under the Delaware Lawyers' Rules of Professional Conduct, which practice is required for the trust account?

  1. Client funds may be held in the lawyer's personal account with client consent
  2. Client funds must be kept in a separate trust account, and earned fees must be withdrawn promptly Correct answer.
  3. Client funds must be converted to cash and kept in the office safe
  4. Client funds may be commingled with the lawyer's operating funds if records are kept

Explanation

Rule 1.15 requires that client funds be held in a separate trust account and that the lawyer promptly withdraw earned fees and disburse funds to which the client is entitled. Commingling with operating funds is prohibited regardless of recordkeeping or consent.

Question 26Delaware Bar Examination content (official domain list not published on source page)

Under Delaware evidence law, a party seeking to admit a document as a business record must typically establish which foundational element before the court will admit it?

  1. The document was signed and notarized by a corporate officer
  2. The author of the document is available to testify in person
  3. The document was produced in response to a subpoena
  4. The document was prepared in the regular course of business at or near the time of the event by a person with knowledge Correct answer.

Explanation

Delaware Rule of Evidence 803(6) admits records of a regularly conducted activity when made at or near the time by someone with knowledge, kept in the course of a regularly conducted activity, and shown by a custodian or qualified witness. Personal testimony of the author and notarization are not required elements.

Question 27Delaware Bar Examination content (official domain list not published on source page)

A Delaware corporation's board adopts a bylaw amendment that shifts authority to remove directors from the board to a supermajority of stockholders. Under Delaware law, how is such a bylaw provision generally analyzed?

  1. It is valid if adopted by stockholders but a board-adopted bylaw conflicting with the certificate is invalid Correct answer.
  2. It is automatically void unless approved by the Court of Chancery
  3. It is permissible only if the certificate of incorporation is silent on removal
  4. It is invalid because bylaws may never address director removal

Explanation

Under 8 Del. C. provisions and Delaware case law, bylaws must be consistent with the certificate of incorporation, and the charter may not be circumscribed by bylaw. Stockholders retain authority to adopt or amend bylaws, but a board-adopted bylaw that conflicts with the charter does not override it.

Question 28Delaware Bar Examination content (official domain list not published on source page)

In a Delaware Superior Court civil jury trial, a party objects to a prospective juror who has a close family relationship with a party's litigation counsel. What is the most appropriate basis for the challenge?

  1. A peremptory challenge, which requires no stated reason
  2. A motion to change venue
  3. A challenge for cause, because the relationship may create implied bias Correct answer.
  4. A motion for a mistrial

Explanation

Challenges for cause target jurors whose relationships or circumstances create actual or implied bias, and close ties to counsel or a party are classic grounds. Peremptory strikes need no reason but are limited in number and cannot cure an underlying disqualifying bias if the juror should be excused for cause.

Question 29Delaware Bar Examination content (official domain list not published on source page)

A Delaware lawyer is retained to represent a client in a matter in which the lawyer previously served as a neutral arbitrator between the same parties. What is the most significant ethical concern under the Delaware Lawyers' Rules of Professional Conduct?

  1. The lawyer need only notify the court, not the parties
  2. The lawyer must immediately withdraw because a former neutral's personal and confidential information from the proceeding creates a conflict Correct answer.
  3. The lawyer may proceed if both parties consent in writing after full disclosure
  4. The lawyer may proceed because arbitration is not the practice of law

Explanation

Rule 1.12 restricts a lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, arbitrator, or other adjudicative officer, absent informed written consent of all parties. The rule reflects the confidentiality and impartiality concerns inherent in the neutral role.

Question 30Delaware Bar Examination content (official domain list not published on source page)

A Delaware testator's will leaves a specific bequest of a particular painting to a friend, but the painting was sold before death and replaced with a similar one. Under Delaware law, what happens to the specific bequest?

  1. The bequest is adeemed and the beneficiary receives nothing for that item Correct answer.
  2. The beneficiary may elect to take the replacement painting
  3. The bequest is paid out of the residuary estate at fair market value
  4. The bequest lapses and passes to the intestate heirs

Explanation

When specifically bequeathed property is no longer part of the estate at death, the doctrine of ademption applies and the gift fails. Delaware follows this common-law rule absent a statute providing otherwise, and the beneficiary generally has no claim to a substitute item.

Question 31Delaware Bar Examination content (official domain list not published on source page)

A Delaware limited liability company's operating agreement is silent on whether a member may assign economic rights. Under the Delaware Limited Liability Company Act, what is the default rule?

  1. An assignment automatically transfers full membership rights
  2. A member may not assign any interest without a unanimous written agreement
  3. An assignment is void unless filed with the Secretary of State
  4. A member may assign the member's economic interest, but the assignee becomes a member only with consent of all members Correct answer.

Explanation

Under 6 Del. C. § 18-702, a membership interest is assignable, and the assignee receives the assignor's economic rights but not membership status unless admitted in accordance with the operating agreement or by consent of all members. This preserves the distinction between economic and governance rights.

Question 32Delaware Bar Examination content (official domain list not published on source page)

In a Delaware criminal prosecution, the defendant seeks to introduce evidence of a prior inconsistent statement made by a witness who is now testifying. What is the most accurate statement of the governing evidentiary principle?

  1. The statement is admissible only if signed under oath
  2. The statement is inadmissible because prior statements are hearsay without exception
  3. The statement is admissible only if the witness is first given an opportunity to explain or deny it, and extrinsic evidence may be excluded if the witness admits making it Correct answer.
  4. The statement is always admissible as substantive evidence regardless of the witness's testimony

Explanation

Delaware Rule of Evidence 613 governs impeachment by prior inconsistent statement: the witness must generally be given an opportunity to explain or deny, and extrinsic proof is unnecessary if the witness admits the statement. The statement is used for impeachment and is not automatically substantive evidence.

Question 33Delaware Bar Examination content (official domain list not published on source page)

A Delaware property owner wants to establish a private prescriptive easement over a neighbor's driveway. Which element must the owner prove under Delaware law?

  1. Use that is open, notorious, continuous, and adverse for the statutory period Correct answer.
  2. Approval of the use by the homeowners' association
  3. A written grant from the neighbor recorded in the county
  4. Payment of property taxes on the driveway

Explanation

A prescriptive easement requires use that is open, notorious, continuous, and adverse under a claim of right for the statutory period. Delaware courts require the same elements used for adverse possession, though the period and character of use must be shown.

Question 34Delaware Bar Examination content (official domain list not published on source page)

A Delaware corporation's board considers a transaction in which a majority of directors have a personal financial interest. Under Delaware law, which standard of review generally applies if the transaction is not protected by disinterested director approval or stockholder ratification?

  1. The business judgment rule
  2. Reasonableness of the price only
  3. Entire fairness Correct answer.
  4. The summary judgment standard

Explanation

When a majority of the board is interested and the transaction is not cleansed by approval of disinterested directors or informed stockholder ratification, Delaware courts apply entire fairness, examining fair dealing and fair price. The business judgment rule applies only when the presumption of director independence and good faith is intact.

Question 35Delaware Bar Examination content (official domain list not published on source page)

A Delaware attorney is licensed in Delaware but seeks to appear pro hac vice in a Delaware court on behalf of an out-of-state client while a Delaware lawyer also appears. What is the general requirement under Delaware rules for such admission?

  1. The out-of-state attorney must first pass the Delaware bar examination
  2. The out-of-state attorney may appear alone if the client consents
  3. The out-of-state attorney must associate with a Delaware attorney who actively participates and must comply with the court's pro hac vice procedures Correct answer.
  4. The out-of-state attorney may appear only in federal court

Explanation

Delaware court rules generally require pro hac vice applicants to associate with a member of the Delaware bar who participates in the representation, and to follow the application procedures of the court. This ensures accountability to the local bar and familiarity with Delaware practice.

Question 36Delaware Bar Examination content (official domain list not published on source page)

A Delaware plaintiff sues on a promissory note and the defendant asserts the statute of limitations. The parties dispute when the cause of action accrued. Under Delaware law, which principle generally governs accrual for a claim on a written instrument?

  1. The cause accrues when the plaintiff first learns of the defendant's intent not to pay
  2. The cause accrues only after a written demand is refused
  3. The cause accrues when the note becomes due and payable according to its terms Correct answer.
  4. The cause accrues when the note is signed

Explanation

A claim on a promissory note generally accrues when payment is due under the instrument's terms, because that is when the holder may sue for breach. Delaware's limitations period then runs from that accrual date, subject to any tolling doctrines.

Question 37Delaware Bar Examination content (official domain list not published on source page)

In a Delaware negligence action, the defendant argues that the plaintiff assumed the risk of injury by voluntarily participating in a recreational activity. How does Delaware treat express assumption of risk?

  1. It is not a defense in Delaware
  2. It shifts the burden of proof to the defendant
  3. It operates as a contractual limitation that may bar recovery if knowingly and voluntarily agreed Correct answer.
  4. It applies only in products liability cases

Explanation

Delaware recognizes express assumption of risk, treating a knowing and voluntary agreement to accept a risk as a contractual limitation on liability, subject to public-policy limits. Implied assumption of risk has been folded into comparative negligence analysis.

Question 38Delaware Bar Examination content (official domain list not published on source page)

A Delaware court is asked to enforce a contractual liquidated damages clause that sets a fixed sum far exceeding any plausible actual loss from a minor delay. What is the likely result under Delaware law?

  1. The clause is enforced as written because parties are free to contract
  2. The clause is reformed to the market rate of interest
  3. The clause is unenforceable as an impermissible penalty Correct answer.
  4. The clause is enforceable but capped at actual damages

Explanation

Delaware enforces liquidated damages provisions only when the amount is a reasonable forecast of anticipated harm and actual damages are difficult to estimate. A sum grossly disproportionate to any plausible loss is treated as a penalty and is unenforceable.

Question 39Delaware Bar Examination content (official domain list not published on source page)

A Delaware resident dies intestate survived only by a spouse and parents. Under Delaware intestacy law, how is the estate distributed?

  1. The spouse takes the entire estate Correct answer.
  2. The spouse takes one-third and the parents take two-thirds
  3. The spouse takes one-half and the parents take one-half
  4. The parents take the entire estate

Explanation

Under Delaware intestacy statutes, if the decedent leaves a spouse and no descendants, the surviving spouse takes the entire estate. Parents take only when no spouse or descendants survive.

Question 40Delaware Bar Examination content (official domain list not published on source page)

A Delaware attorney is offered a fee that is contingent on the outcome of a criminal matter. Under the Delaware Lawyers' Rules of Professional Conduct, how is such a fee arrangement treated?

  1. It is permitted if approved by the court after disclosure
  2. It is prohibited because contingent fees in criminal cases are not allowed Correct answer.
  3. It is permitted if the client agrees in writing
  4. It is permitted only in misdemeanor cases

Explanation

Rule 1.5(d) prohibits contingent fee arrangements in criminal matters because they create incentives that may undermine the lawyer's duty to the client and the integrity of the proceedings. Written consent or court approval does not cure the prohibition.

Question 41Delaware Bar Examination content (official domain list not published on source page)

A Delaware corporation's stockholder seeks to inspect the corporation's books and records to investigate suspected mismanagement. Under 8 Del. C. § 220, what must the stockholder demonstrate?

  1. Ownership of at least ten percent of the outstanding shares
  2. Approval of the inspection by the Court of Chancery before any demand
  3. A proper purpose reasonably related to the stockholder's interest as a stockholder, supported by some evidence Correct answer.
  4. A prior written demand refused by the board for at least one year

Explanation

Section 220 requires a stockholder to show a proper purpose reasonably related to the person's interest as a stockholder and to present some evidence to support the stated purpose. Ownership thresholds, waiting periods, and pre-demand court approval are not statutory prerequisites.

Question 42Delaware Bar Examination content (official domain list not published on source page)

A Delaware court considers a motion to dismiss a complaint for failure to state a claim. Which standard applies under Delaware Superior Court civil rules?

  1. The court requires the plaintiff to prove each element at a preliminary hearing
  2. The court weighs the evidence and resolves factual disputes
  3. The court accepts all well-pleaded factual allegations as true and draws reasonable inferences in the plaintiff's favor Correct answer.
  4. The court grants dismissal unless the complaint attaches documentary evidence

Explanation

On a Rule 12(b)(6) motion, Delaware courts accept well-pleaded factual allegations as true and draw reasonable inferences in the non-moving party's favor, dismissing only if the plaintiff cannot recover under any reasonably conceivable set of circumstances. The court does not weigh evidence or require documentary attachments.

Question 43Delaware Bar Examination content (official domain list not published on source page)

A Delaware partnership agreement provides that a partner may withdraw at any time but is liable for damages caused by wrongful withdrawal. Under Delaware partnership law, what is the effect of a partner's withdrawal that breaches the agreement?

  1. The withdrawal dissolves the partnership automatically without liability
  2. The withdrawal is void and the partner remains a partner
  3. The withdrawal requires court approval
  4. The withdrawal is effective but the partner may be liable for damages for breach Correct answer.

Explanation

Under Delaware partnership law, a partner has the power to dissociate even if doing so breaches the partnership agreement; the exercise of that power is effective, but the partner bears liability for damages caused by the wrongful dissociation. Power and right are thus distinguished.

Question 44Delaware Bar Examination content (official domain list not published on source page)

A Delaware criminal defendant is charged with an offense and the State seeks to use evidence obtained from a wiretap. Which showing is generally required before the wiretap evidence may be used?

  1. Compliance with the statutory authorization and minimization requirements for the interception Correct answer.
  2. The consent of the defendant's attorney
  3. A unanimous vote of the grand jury
  4. A public hearing on the interception

Explanation

Wiretap evidence is admissible only if the interception complied with the authorizing statute, including proper authorization and minimization of non-relevant communications. Attorney consent, grand jury voting, and public hearings are not conditions of admissibility.

Question 45Delaware Bar Examination content (official domain list not published on source page)

A Delaware lawyer discovers that a client intends to commit a fraud that will cause substantial financial harm to a third party. Under the Delaware Lawyers' Rules of Professional Conduct, what may the lawyer do?

  1. The lawyer may reveal the information only after the fraud occurs
  2. The lawyer must remain silent because of confidentiality
  3. The lawyer may reveal information reasonably necessary to prevent the fraud, to the extent permitted by the rules Correct answer.
  4. The lawyer must join the scheme to preserve the client relationship

Explanation

Rule 1.6 permits, but generally does not require, disclosure of confidential information to the extent the lawyer reasonably believes necessary to prevent a client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests of another. The disclosure must be limited to what is necessary.

Question 46Delaware Bar Examination content (official domain list not published on source page)

A Delaware property owner leases commercial space under a written lease. The tenant fails to pay rent and the landlord seeks to terminate. Under Delaware law, which statement best describes the landlord's duty to mitigate damages?

  1. The landlord must mitigate only for residential leases
  2. The landlord has no duty to mitigate and may recover all future rent as it becomes due
  3. The landlord has a duty to make reasonable efforts to relet the premises and mitigate damages Correct answer.
  4. The landlord must mitigate only if the lease expressly says so

Explanation

Delaware law imposes on commercial landlords a duty to make reasonable efforts to mitigate damages after a tenant's abandonment or breach, and the landlord may not simply collect future rent while leaving the premises idle. The duty arises from the implied covenant of good faith and fair dealing as applied to leases.

Question 47Delaware Bar Examination content (official domain list not published on source page)

In a Delaware civil action, the plaintiff wants to amend the complaint after the defendant has filed an answer. What is the general rule governing amendment?

  1. The plaintiff may amend once as of right within a set period, and afterward only with the defendant's written consent or the court's leave, which is freely given when justice requires Correct answer.
  2. Amendment is never permitted after an answer is filed
  3. Amendment is permitted only if the defendant consents in open court
  4. Amendment requires a new filing fee and a new case number

Explanation

Under Delaware Superior Court Civil Rule 15, a party may amend once as of right within the prescribed period after service, and later amendments require opposing consent or leave of court, which the court freely grants when justice so requires. The policy favors resolving cases on the merits.

Question 48Delaware Bar Examination content (official domain list not published on source page)

A Delaware corporation's charter contains an exculpation provision authorized by 8 Del. C. § 102(b)(7). Which claim can still be brought against a director despite such a provision?

  1. A claim for breach of the duty of care
  2. A claim for a good-faith error in judgment
  3. A claim for breach of the duty of loyalty Correct answer.
  4. A claim for grossly negligent oversight

Explanation

Section 102(b)(7) permits a charter provision eliminating monetary liability for breaches of the duty of care, but it cannot exculpate directors for breaches of the duty of loyalty, acts not in good faith, intentional misconduct, knowing violations of law, improper personal benefits, or certain other claims. Loyalty claims therefore survive.

Question 49Delaware Bar Examination content (official domain list not published on source page)

A Delaware court reviews a stockholder challenge to a board's decision to adopt a rights plan. Which standard of review generally applies to the adoption of a defensive measure?

  1. The business judgment rule without any enhanced scrutiny
  2. The per se illegality standard
  3. Strict scrutiny
  4. Enhanced scrutiny under Unocal, requiring the board to show reasonable grounds for believing a threat existed and proportionality of the response Correct answer.

Explanation

Defensive measures such as rights plans are reviewed under the Unocal enhanced scrutiny standard, which requires the board to demonstrate it reasonably perceived a threat to corporate policy and that the response was reasonable in relation to the threat. Ordinary business judgment deference does not apply.

Question 50Delaware Bar Examination content (official domain list not published on source page)

A Delaware attorney is asked to represent two co-defendants in the same criminal matter whose defenses may conflict. What must the attorney do under the Delaware Lawyers' Rules of Professional Conduct?

  1. Represent both if they sign a general waiver of all future conflicts
  2. Represent both but keep one client's confidences from the other
  3. Represent both because criminal defendants have a right to counsel of choice
  4. Decline the joint representation if the conflict is serious and cannot be reasonably waived, after evaluating the risk Correct answer.

Explanation

Rule 1.7 requires a lawyer to assess whether joint representation will create a significant risk that the representation of one client will be materially limited by responsibilities to another. If the conflict is serious and cannot be consented to after full disclosure, the lawyer must decline or withdraw.