February 2012 Bar Exam Tip: Shorthand Murder Approach

Okay all, this is likely the last post for the night (unless I think of something else).

Here is a quick murder approach – I am providing this because if you do end up with a Criminal Law(murder) cross over with Criminal Procedure (which certainly could happen), then you will need to make your way through your murder approach fairly quickly.

Here is quick shorthand approach for handling a murder question:

Address: Common Law Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought is proven four ways: 1) intent to kill, 2) intend to inflict great bodily injury, 3) depraved heart killings, and 4) felony murder.

(Address the above and then if you have a felony murder issue, prove up the underlying felony (BARRKS – Burglary, Arson, Robbery, Rape, Kidnapping or Sodomy – incidentally, I am not expecting the examiners to test one of the above common law inherently dangerous felonies, instead, IF they ware to test felony murder I would expect to see it in the context of a dangerous felony like drug trafficking or something like that – it forces you to reach a bit and explain that the prosecutor could charge the defendant for felony murder on the basis that it was an inherently dangerous felony, but not a c/l enumerated (BARRKS) felony)

Then move onto:

Statutory Degrees of Murder

First Degree Murder: First degree murder is the intentional killing with malice aforethought, premeditation and deliberation. (here do not spend all day on defining or explaining premeditation or deliberation – it either was premeditated and deliberate (lying in wait, planned, thought out etc.) or it wasn’t – address the issue and conclude and move on).

Second Degree Murder (here is the quick way: “all murders that are not first degree are second degree unless mitigated down to some form of manslaughter”).

Manslaughter

There are two types of manslaughter (Voluntary and Involuntary). If you know right away that the facts support a heat of passion killing, then address that first under Manslaughter as: Voluntary Manslaughter. (By the way, anytime there is a fight that results in a death – you should address heat of passion/voluntary manslaughter.

Voluntary Manslaughter: is a killing that would be murder but for the existence of adequate provocation and insufficient cooling time. (there are elements here that you could develop, but, the reality is that if you have a cross over exam and it involves a full murder discussion – from common law murder to manslaughter, then you simply do not have a lot of time. So spend your time focusing on whether what happened would arouse the passions of reasonable person to kill AND whether or not the person did not have time to cool).

Involuntary Manslaughter: A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act.

There is also the concept of Misdemeanor Manslaughter Rule – it is simply an accidental killing that occurs while engaged in a non-dangerous felony or misdemeanor.

Obviously there are defenses like: Intoxication, Insanity (know the four tests as best you can), self defense, defense of others etc. that can all word to either relieve the defendant of liability for common law murder and reduce the crime down to some form of manslaughter. Keep in mind the above is a basic approach. But, sometimes that is really the best thing to have in your head on the day of the exam. You should have a framework or basic approach and then allow yourself the freedom to write your answer based on the particular fact pattern you face.

Best of luck to you all!

February 2012 Bar Exam Tips: Free Exam Writing Templates

Hello Again,

Here are links to some of the templates we have given away in the past – see the following links

For a template for the 4th Amendment and 5th Amendment

For our 8th Amendment Writing Template

I will also post a quick version of our murder approach. But, if you want to see a quick video (4 minutes and 38 seconds) on how to approach a murder exam, go here: Bar None Review Home Page and scroll down about a third of the way down the page and you will see a video on murder (this is an excerpt from a review session involving a murder hypothetical – it covers a basic approach)

Over three thousand views of the blog today, wow. Thank you.

Best,

Lisa Duncanson

Published in: on February 29, 2012 at 8:09 pm  Leave a Comment  

Thank You!

Thank you for being one of the over 11 thousand who have viewed this blog in the past week. I am incredibly humbled and grateful. NOTE: Still answering last minute questions for free at: pass@barnonereview.com

Best of luck to all!

Lisa Duncanson

Program Director/Founder
Bar None Review
barnonereview.com

Published in: on February 29, 2012 at 4:59 pm  Leave a Comment  

February 2012 Bar Exam: More Final Thoughts

First of all, my apologies for the formatting on my preceding post (I tried to add spacing between paragraphs, but, for some reason my blog program would not cooperate today).

Second, I think it would be worthwhile to give some thought to what might be tested if anyone one of the topics tested on July 2011 are repeated (as topics generally are repeated from one bar round to the next – see my prior post). So, to that end, I am writing now to simply cover what the examiners might do in repeating prior topics from the July 2011 exam. First of all – my top picks for repeating from July 2011 are Criminal Law (but this time murder – see my earlier post from last Sunday) and likely crossed with Criminal Procedure. My second pick would be Civil Procedure – for some reason it seems every bar review company is predicting this one. If it comes up I would expect it to involve jurisdiction (subject matter and/or personal jurisdiction as the main components and then perhaps a minor joinder or venue or remand issue).

Here are a few additional thoughts (but, please do review today’s previous post below).

If you were to be tested on Contracts (not saying that I expect it), but, if it were to repeat from July 2011 on this exam – then I would lean towards either a UCC formation or Remedies Exam (incidentally, specific performance has not been tested incredibly recently). The July bar exam tested a common law formation exam and so I would not be leaning towards seeing an exact repeat of that area, but, review it anyway because if you have a UCC Formation exam, then you will still need to address the common law in your discussion of formation – also, remember that the examiners like to see distinctions made between the UCC and the Common Law when they are testing the UCC). Still, Contracts is not my first pic for a repeat.

If you were tested on Professional Responsibility again, and statistically this is pretty likely (although, read below my comments on the fact that PTA tested PR pretty heavily and that Trusts from day one also had a coverage of duties) if it is tested, I believe it will be in one of the scenarios I listed previously (see prior post and link in that post to my earlier predictions). Also, I think it would be mighty tricky/sneaky of the bar examiners to test some of the advertising areas (since that involves commercial speech and they have been known to even test a topic from day one’s essays on day three’s essays). Still, I think it is more likely that you would see conflict of interest issues, perhaps in the dating or sexual relationship area in Professional Responsibility (the examiners like this area – as in it is tested pretty often – and it has not been tested real recently).

Real Property (this one was tested back to back on the July 2011 and February 2011 bar exam). As a result, most people would write it off. I would NOT write it off. Do I think it will show up as a full essay? No. But, it certainly could repeat (yes, three times in a row) as a cross-over with another topics. Topics that were most recently tested (July 2011: Joint Tenancy, Tenancy in Common, Fee Simple Subject to Condition Subsequent, Restraint on Alienation, Ouster by Adverse Possession. February 2011: Landlord Tenant Context – but, not your typical LL/T – it included coverage of easement, equitable servitudes, covenants). So, what could be tested if RP was tested again? Perhaps a deed issue or mortgage issue or land sale contract issue – still it is not my first pick for what could repeat and if it were to repeat, I am leaning more towards a crossover here).

Criminal Law/Procedure – the bar examiners list these topics together and so on the July 2011 bar exam, while only Criminal Law was tested, it was listed as Criminal Law and Procedure. I have already indicated in my prior posts what I think about this topic and the likelihood of it showing up. Please refer to my preceding post and the links there to my initial February 2012 Bar Exam Predictions/Essay Scenarios.

Okay, that is really it for now. Please review the prior posts from the past few days and be sure to review my initial February 2012 Predictions as well (there is a link to these predictions at the end of this post under “Related Articles”. Above all, review what you feel you need to review (what you would be least comfortable having to face tomorrow morning). Stay positive, you are 2/3 of the way done! Congratulations!

All the best,

Lisa Duncanson

Program Director/Founder
Bar None Review
barnonereview.com

Published in: on February 29, 2012 at 4:17 pm  Leave a Comment  

February 2012 Bar Exam “Predictions” For Day Three: Final Thoughts

Hello All,

First of all, congratulations to all of you who are taking the California bar exam today for getting through day one and day two!

So I promised that I would prepare something with respect to what I think might show up on Thursday. Several days ago I released my initial predictions – please see my earlier post here: February 2012 Essay “Predictions”/Essay Scenarios

I think you should review my first set of “predictions” before reading this post.

First, here are some fairly consistnet constants with the bar exam (the caveat being that the bar examiners can always test anything they want and in any fashion as many times in a row as they wish):

1) Usually the bar examiners repeat at least two subjects from the preceding bar round (so far, day one’s essays did not include a repeat of any topic from the July 2011 bar exam). And, just so you know, here are the topics that were tested on the July 2011 bar exam: Criminal Law (but, not murder), Civil Procedure (but not jurisdiction), Contracts (Common Law, no remedies, no UCC), Professional Responsibility, Real Property (JT, TC, restraint on alienation, adverse possession), and Community Property. So, if the bar examiners do what they usually do, something is going to repeat. Really any are fair game, given that day one has not repeated anything from the July 2011 bar exam. And, just so you know, the July 2011 bar exam repeated the following subjects from the February 2011 bar exam: Property and Professional Responsibility. And, the subjects that repeated on the February 2011 bar exam that were tested on the July 2010 bar exam were: Torts, Professional Responsibility, Evidence and Business Organizations (yep, FOUR subjects repeated from the July 2010 bar round to the February 2011 bar round). I mention all of this because I want to make certain that those of you who think something will not be on this bar exam simply because it was tested on the last bar exam will realize that this is wrong.

2) Usually (usually) there are three MBE topics tested. But, this does not always happen. However, there has only been one bar round in the past four years that has NOT included at least three MBE topics. This was the February 2008 bar exam – on that administration the bar examiners tested to MBE topics on day one (Torts and Criminal Law/Procedure – so I suppose the cross over of Criminal Law and Procedure could be viewed as two MBE topics, but, still it was light on MBE topics for that bar round) and then day three had essays that were all non-mbe topics (corporations, wills/trusts and I believe community property – I need to confirm that last topic to be sure). So, I would think that just based on history – statistically – you should see one more MBE topic – I think either Criminal Law/Criminal Procedure (specifically murder and procedural issues) or perhaps Torts (products liability) – the thing is that we are looking for something to repeat from the past bar exam and of those two MBE topics, Criminal Law was  on the prior bar exam (but did not test murder – they tested mostly crimes of possession, assault, battery and accomplice liability). Murder has not been tested since February of 2008, so it is due.
3) Statistically, Professional Responsibility shows up on nearly every essay portion of the bar exam – it has only been left off of the essay exam twice since 1994. However, on a few recent bar rounds it has only been tested as a cross over (especially when there is heavy coverage of Professional Responsibility on the PT and coverage of any other duty relationships like in trusts – the duty of the trustee for example). So this could  be a bar round where they either skip Professional Responsibility altogether from the essays or they may have it only as a cross-over. Still, keep in mind that statistically it usually shows up as a full essay – so be prepared for it. Definitely be prepared for it. And, since there has not been a heavy emphasis on California law (there does not have to be any emphasis on California law, by the way) Professional Responsibility would make for a nice topic to be able to include some California specific issues.
4) It would not be unusual to see a repeat of one of day one’s essay topics as part of a cross-over on day three. I know that sounds horrible, but, if it happens it won’t be horrible (especially if you know that it could  happen). For example, they could have a community property exam and add one evidence call that deals with marital and spousal privilege. Just a thought (not designed to freak you out). It has happened in the past and people seem to get really bothered by it, but, there really isn’t any reason to let it bother you. If they do repeat anything from day one’s essays, it will be a minor, one short call kind of issue. And, the examiners almost always spell it out for you pretty clearly in the separate calls when they are asking you any cross-over questions. So don’t worry about it, but do conduct a quick, light review of Evidence, for example, just to feel prepared for the possibility.
5) Civil Procedure – to be or not to be. It seems everyone is predicting this topic. I too feel it could come up and if it does here are a couple of areas that have been absent on the exam for some time: class actions and jurisdiction (subject matter and personal jurisdiction). Jurisdiction was tested far more recently than class actions. But, jurisdiction issues are probably the most commonly tested areas of Civil Procedure. And, if they really wanted to (the bar examiners, that is) they could test you on both class actions and jurisdictions (for example a class action brought in federal court based upon diversity of citenship – that is one way they could combine the two).
Please read/review my prior “predictions” (as I have not repeated it all here – so you should take it upon yourself to review this earlier post: February 2012 Essay “Predictions”/Essay Scenarios and please understand that no one can predict the bar exam.
I am still of the belief that you could see Criminal Law murder crossed with Criminal Procedure and/or Products Liability (keep in mind that Torts has made its way to the test quite a bit in the past four years and more than once strict liability has been tested, but, in the context of abnormally dangerous activities – so this one is a close one for me – I can completely see the bar testing products liability or as I mentioned before some miscellaneous torts area – including tort remedies or as a cross with professional responsibility).
Also given that there was only one (well, sort of two, non-mbe topics tested on day one – the Trust/Wills question) there obviously has to be some additional (at least I would think) non-mbe testing. Civil Procedure would fill that void, so too could Corporations or Community Property (remember that something usually repeats from the prior exam – anywhere from two to four topics – so far there have been no repeats. Therefore, based upon history, one would expect to see something from the list of topics tested on the July 2011 bar exam – see above list of what was tested on the July 2011 bar exam).
I know this is a lot. But, here is what I recommend that you do. Read over my initial “predictions” in the link above and see how that jives with what you saw on day one. Do not, I repeat DO NOT study only the topics on that list or anyone’s list. Instead, think about what you would be most afraid of seeing tomorrow morning and study that topic a bit extra. Then review all of the subjects (either in a condensed outline form – hopefully you have something like that to work from) and try to relax.
I have found that students generally know a lot more than they give themselves credit for. So be positive, and feel free to ask questions via email today – send questions or comments to: pass@barnonereview.com. I will do my best to return your questions. Also feel free to add any feedback you wish on this blog, especially if you think it would be helpful to someone else.
All the best to all who are taking the exam!

Lisa Duncanson

Program Director/Founder
Bar None Review
barnonereview.com

February 2012 Bar Exam – Day Two

Good morning bar takers!

Come back this afternoon to see more tips on last minute preparation for Thursday’s essays, my thoughts on what might be on the essays and just some good old fashioned encouragement! In the mean time, I thought hearing what a few examinees had to say to me privately (no names are included here) might be helpful to you.

Here is what a few of your fellow examinees had to say:

“Ms. Duncanson, your essay predictions were spot on!!!  I still don’t feel too good about my con law essay because it was tough, but I’m sure glad I had your blog to refer to when deciding which issues would merit some additional review!

The PT also, in my opinion, might as well have been a crossover PR/Business Associations (Partnerships) essay!  I am now eager to learn what your outlook is for PR come Thursday because I recall having read in your blog that the way PR is tested has a lot to do with how extensively it was implicated, if at all, in PT A.  Well, the gist of the PT concerned a proposed partnership between a lawyer and a non-lawyer to run a legal self-help business allowing customers who wish to represent themselves in legal matters (sort of like services provided by Legal Zoom).  One major sub-issue involved in the receptionist’s duties and their potential ethical implications under the code.  Unlike previous PTs in which the library contained case law, this PT had absolutely NO case law, but two sets of professional conduct code sections governing the prescribed/proscribed conducts in the fact scenario!  It also included a “formal opinion” from the State Bar of Columbia as to the code of professional conduct.

Just thought I’d give you a brief background of the PT and also let you know that, so far, you are batting 100% in the essay predictions!

Thank you!”

And another email from one of your fellow examinees:

“I just wanted to say thank you for posting something about the essays today. It really helps to move on to tomorrow having some closure about what happened today. I’m sure I missed a bunch, but hearing that I was at least writing on the correct subject areas (and that someone else was equally tripped up by Question 2 and rushed with Question 3) gives me some peace of mind. So thank you for taking the time to provide that information, and for making it available to the public.

The one thing I will add is that the first call for the Trusts/Wills question (whether Dave, the unknown 25 yr old son, had a legal claim to the trust) specifically said answer according to CA law. I wasn’t quite sure what this was looking for, but I thought it would be worth mentioning since I know there’s a pattern of there being at least one specific CA law question.

Ok, on to tomorrow!! Thanks again :)”

Note: I added the underlining above to highlight the apparent California interrogatory (call of question). Please bear in mind, I have not seen the test. I have heard from many, many examinees and have put together what sounds like was tested. But, your focus should not be on day one any longer. However you feel about your performance on day one, you can still get through day two and three with flying colors. So much of this exam is about rising above how you feel, forging onward, pushing ahead. And, to that degree (regardless of what you might think about the bar exam, whether it is fair or not) if you were a client, you would want your lawyer to be able to do just that – forge ahead, work through whatever physical difficulties the day might present and simply do their absolute best on their behalf. So today and tomorrow – do the absolute best on YOUR behalf!

I have a story I want to share with you. The semester before I was to take the bar exam (back in 1994) my best friend was taking the bar exam in February of 1994. She felt so horribly about day one of the exam, was so certain that she had failed, that she packed her bags, got on the elevator to head down to the lobby of her hotel, check out and head home. Now what you need to know first is that this friend of mine was tough, not a baby, not weak and was smart. But, she had convinced herself that she had failed and that was simply that.

While on the elevator another bar taker asked her where she was going (it was pretty obvious she was leaving). She told him she was going home. He asked her why and she explained that she knew she had already failed the bar exam. (I think you may know where I am going with this by now). Well, the short version is that this fellow bar taker talked her into staying, told her, “Hey, at least you will know what the MBEs are like so that when you take it next time you will be better prepared”. So, she stayed for day two and she stayed for day three and guess what? She passed. She told me about how she was sure she had failed the test before she got her passing bar results, how she had planned to walk out, how she did feel like day three was a “little bit easier” but, that she still believed that she had missed too many issues and had not finished enough of the essays to pass.

So, the moral of the above, true story, is that you should never give up, not today, not tomorrow.

And one last thing, if you think an essay is hard or the MBEs are hard or the PT is/was hard . . . remember that you are not alone in thinking that way. It is hard. But, you can do it. So stay as positive as you can and hang in there.

I am packing up and saying goodbye to my Ontario students this afternoon. But, will be back online with more tips and areas to focus on by this afternoon.

All the best to you! And, thank you so much to all of you who have written to me personally – it is much appreciated and it really makes me feel like what I am trying to do here is worthwhile. So thank you. Also, feel free to comment on my blog, it can only help others.

Best,

Lisa Duncanson

Program Director/Founder
Bar None Review
barnonereview.com

California Bar Exam: February 2012

I thought I would share this it is an email from an examinee that I received over the lunch hour – thank you, you know who you are :)

It sounds to me like this examinee had a pretty good handle on what was tested today. And yes it was pretty hard. So here is their message. Please feel free to add a comment below (it is a pretty small comment link, but, if you look hard enough, you should see it at the bottom of this post).

Here is what one bar examinee (whom I believe to be pretty astute) thought was covered today:

“Hi Lisa. 

We were just tested on trusts/wills, conlaw, and evidence. Spot on as you “predicted”! 

Conlaw was tough. It asked for a first amendment analysis of a city bus stop bulletin – where free flyers could be posted. An organization against immigration was prohibited from posting there because it failed to provide both English and Spanish language flyers as city required. 

Where was the commerce clause and dormant commerce clause in this??! 

Was public forum/time place manner restriction the proper analysis along with equal prot and due process? 

What were they looking for??? 

Its possible there was also a commercial speech issue bc the orgs flyer promoted membership at $10/person… 

Evidence involved 2 statements with various components – unavailable/dead decl, a note-writing to which an available decl testified but didn’t recall what was written on it… Medical statement, etc. it was a racehorse type f question bc there were a lot of subissues and no time. 

You probably have this info from other students already but wanted to share in support of further predictions from you. 

Thanks for your wisdom on your blog. I’ve been following it – both study wise for mbe’s and writing.

Look forward to your thoughts about Thursdays test.”

Published in: on February 28, 2012 at 4:51 pm  Leave a Comment  

February 2012 Bar Exam “Predictions” – so far 4 for 4

Hello All,

Right now California bar examinees are taking the Performance Test. I am currently working on my predictions for Thursday’s essays. So far on day one of the bar the essays were as follows:

Essay One: Trusts and Wills (as I predicted here – see post below – where I thought that Trusts or Trusts & Wills would be a likely topic for testing. I also thought that if there were a Trusts exam that was crossed over with Wills that you should look for a pour over trust issue or what is some times called a pour over will. The other area that we suggested would be ripe for testing within Trusts is the area of discretionary or support type trusts. While I have not seen the exam, from the many examinees who have voluntarily sent emails and from my students who have called me, it appears that this is what was tested. There were clearly breach issues as well (potential breaches by Tara, the Trustee who resigned after distributing most of the trust assets to only one of the three daughters – her reasoning being that the one daughter (Ann) needed the money more because she was ill). the two remaining sisters were not happy and so they wish to seek to terminate the trust and to sue Tara. There were three calls on this exam:

Call # 1 – What are Dave’s rights (apparently Dave is an unknown son of the Settlor/Testator Sam)

Call # 2 – Can sisters terminate the trust?

Call #3 – Can sisters sue Tara (cousin who became a subsequent trustee after Sam’s death)

Please bear in mind that I have not seen the actual exam, and that this information has been compiled from several examinees who have reported what what was on the exam.

Essay Two – Con Law (as predicted, although this involved a the First Amendment. Still, since it was a suit/claim brought against the state, and not the federal government, therefore, the 11th Amendment could have been addressed (this is always a brief discussion), also standing – specifically associational standing since there was a group: America for American’s Organization (something like that) referred to as AAO, who brought suit against the city for requiring them to post in both English and Spanish if they wanted to make use of a city provided bulletin board. AAO wanted to post a flyer about a meeting (where they would charging $10.00 per person to attend) that was for the purpose of restricting immigration. As a result, this would require a fairly heavy First Amendment analysis – content based as well as content neutral (valid time place and manner restriction). There is also the possibility (although – please bear in mind that I have not seen the exam) that there may, and I say may be a place to discuss commercial speech since this was an advertisement (the flyer) for a for pay meeting. The other issue is that it is very likely political speech – speech that deserves the utmost protection under the first amendment. So, clearly a lot to talk about here. There was one general call essentially stating that AAO has asserted that their First Amendment rights have been violated and your job was to discuss that. Anytime you have a First Amendment speech claim you want to also be mindful of a possible freedom of association claim. I feel this is likely not a big part or even required on this exam. But, again, I have not seen the exam.

Essay Three – Evidence (also as predicted). The bar examiners on this one did something interesting (and something they often do) which is to sort of combine some of the features of a transcript style exam with a regular paragraph style evidence exam by referring to “on direct exam . . . Paul testified . . . ” 

This exam brought up several issues, Relevance (of course, as this is ALWAYS tested on every Evidence essay) hearsay, likely a double hearsay on the second call, hearsay exceptions (declaration against interest, present sense impression as well as possibly other hearsay exceptions). By, the way, I am not taking this in any particular order. But for example on paragraph one where reference is made to Paul’s testimony where he states that “Vera ‘calmly’ said to Paul that there is a black SUV weaving recklessly through traffic behind us . . . ” this would be hearsay – since Paul is relaying a statement by Vera that was made out of court and is now being used to prove the truth of the matter asserted: that there was a black SUV driving recklessly. The typical hearsay exceptions for a statement like this would be both present sense impression AND excited utterance. However, here the examiners have told you that Vera spoke “calmly”. Still, I would bring up Excited Utterance and explain that it could be problematic since one would think that if she were acting under the stress and excitement of the event that she would speak loudly or make an exclamation. There were other issues – for example on the second paragraph where Dave testifies that Molly (who was a witness) told Dave that Paul admitted to her that the accident was his fault and that she immediately wrote down everything that she witnessed into a journal. This is where the double hearsay comes in (assuming I am being told the facts correctly), also there is the admission of her journal and this could bring up issues with respect to past recollection recorded, refreshing the witnesses’ memory. I haven’t really heard enough about this last call to feel confident in relaying what the issues would be. But, there are, as with most Evidence exams, many issues. I will write more about the exams after the exam is over. The main thing is to move forward and not to worry about what you did or did not do today. AND, remember I have not seen this exam yet. So, I am writing based upon what I have heard from examinees.

CAVEAT: It is not typical for me to provide a rehash of what was tested on the essays. There are two main reasons for this: 1) I have not seen the essays and can therefore, only base my assumptions on what has been relayed to me and 2) What has already been tested has been tested – it is best to let it go and simply move on to the next task – continuing to prepare for day two and day three of the exam. However, I have already received several emails over the lunch break from non-students asking if they should have discussed this or should have discussed that. And so I thought I would post a little bit about what I have heard was tested on the three exams here. Also I am excited to once again have three essays pretty much spot on for day one.

The most important thing to do right now is to let go of whatever you did today and move forward. Everyone misses something, no one is perfect and the bar examiners are not looking for perfection. Just keep moving forward, stay positive and believe that you CAN do this. And, remember, my notes above are from a poll of some examinees. It is definitely not the end all or definitive anything on what was actually tested – other than the fact that we know for sure that 1) Trust/Wills, 2) Constitutional Law, and 3) Evidence were all tested.

I will be posting in a separate post – soon – my thoughts on what I think might come up on Thursday. I want to wait to hear what the performance test was like (for example, did it heavily test Professional Responsibility – because if it did, there is a possibility that Professional Responsibility could be skipped from the essays. While this is rare, it does happen, and when it does Professional Responsibility is then tested pretty heavily on the performance test). So, I will reserve further comments until I hear from examinees on what was tested this afternoon.

Also – please feel free to provide any feedback on your take on what was tested on the essays today (the fact patterns, the issue you thought were tested, etc.). This always helps me to come up with a closer approximation of what I think might show up on Thursday’s essays.

One final note (before I sign off to get ready to meet my students here in Ontario): the bar examiners usually test at least one or two topics that were tested on the preceding bar exam administration. For example, this past July 2011 tested Professional Responsibility (no real surprise) and Real Property which were both tested on the preceding February 2011 bar exam. And the February 2011 bar exam tested: Evidence, Torts, Professional Responsibility and Business Associations – all of which were tested on the preceding July 2010 bar exam (mind you, the Business Associations exam in February 2011 was in the area of Corporations and the Business Associations exam tested in July 2010 was in the area of Partnerships – still that is 3 to 4 repeated subjects from the preceding July 2010 exam to the following February 2011 exam). So my point is that the California bar examiners like to repeat topics back to back. Today you had four subjects – Trusts&Wills, Evidence and Constitutional Law – none of which were tested on the July 2011 exam. So, my prediction so far is that something has to come from the prior exam, historically this is what they do. So expect some subject(s) from July to pop up on Thursday again.

I am still predicting that there could be a Criminal Law/Procedure Exam (a murder exam crossed with procedural issues), but, I want to wait to see what was covered on today’s performance test before I write any further about Thursday’s likely topics.

All the best to all who are taking the bar exam.

P.S. We are not answering our Bar None Review phone during the three days of the bar exam as all of our current students have our cell phone numbers and all of our staff are physically present at testing centers to support our existing students. However, if you need to reach us, please send an email to: pass@barnonereview.com and we wills see to it that someone gets back to you.

February 2012 Bar Exam Predictions, Tips and Essay Scenarios

Hello All,

First of all I want to wish you all the very best of luck on the exam tomorrow. If you have been following my blog you will know that I do not really like to call my “predictions” predictions. I do not claim to be able to predict the bar exam. I have simply come up with some essay scenarios that I think might be worth considering. So, please review my “predictions” with that in mind.

There have been over 9,000 views of our blog in the past several days. Thank you for your interest . . . it definitely encourages me to continue providing free advice and handouts. I also want thank those of you who have expressed your appreciation via private emails – I truly appreciate it. And, I also appreciate your suggestions of things to include in the future. Please keep your suggestions coming after the bar exam. And, if you have any questions, I am still accepting questions via email at: pass@barnonereview.com at no charge. I will answer any and every question that I can.

After I learn what is tested on day one of the essays, I will post what I think may be more likely to show up on day three’s essays. I will be in Ontario, meeting with my student’s immediately after day one of the bar exam. I will put together my initial ideas about what I think might be tested on Thursday sometime tomorrow afternoon (while you are all taking the performance test). I will likely make some additional comments once I find out what was tested on the performance test. So . . . stay tuned.

Above all, stay positive, believe in yourself, trust your instincts and recognize that the bar examiners are not expecting perfection. At this point, believing in yourself is key, choose to believe that passing IS within your reach, it can only help you.

Best of luck to all who are taking the exam tomorrow!

Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

California Bar Exam Predictions: February 2012

Okay here are my thoughts:

Evidence. Like most people would predict, I am leaning towards an Evidence exam. Transcript style has not been tested in some time so I would not be surprised if you see that. Usually (last July was a rare exception) there are about 8 topics tested on each bar round – six essays of course and at least two cross over exams. So, like many people I think you should expect to see cross over exams. In the past (July of 1994 was one round, but, there have been many since) the bar examiners have tested as many as three subjects on one essay exam. I know that at first this sounds kind of horrific. But, in reality it is often a pretty easy exam. For example on the 1994 exam that I am referring to it was a Wills, Community Property and Evidence essay. There were separate calls each identifying the specific issue that was being tested – the Evidence call was whether a communication between a husband and wife was “privileged” – that can only lead to one thing: evidence – spousal/marital privilege. I would not be surprised to see a return of Community Property in a very light way as a cross-over like the examiners did in 1994 and have repeated this same type of exam multiple times since. Still, I believe Evidence is worthy of being an entire essay question this round (since it has been absent). I would also not be surprised if you saw it as  full exam on one day and then a cross over on day three (this has been done many, many times). It would not be surprised if the examiners were to retest community property or property as a cross-over exam. Community Property could easily be crossed with wills and/or trusts or as been done in the past – crossed over with Evidence.

Trusts or Wills and Trusts. Trusts has been absent for some time. It is clearly due. And most are predicting it. I would be ready for it, but, clearly you need to be ready for everything. Here is the thing about the California bar examiners – they love to test duties (Trusts and Corporations can easily become very much like a Professional Responsibility essay – I do not believe that the focus on Trusts is as likely to be in the area of trustee duties – at least not the whole essay. Instead, I think the examiners would be more likely to test a specific type of trust and issues that come up with respect to that trust type (like, for example: spendthrift trust, discretionary trust and support trust – since all three often need to be discussed in relationship to one another and have differing results in terms of what a creditor can reach). The other type of trust that generates a nice discussion is a charitable trust, which then requires a discussion of the doctrine of Cy Pres and Equitable Deviation. These are common areas of testing in Trusts when Trusts is tested alone. If it is tested as a cross over with Wills then you testamentary trusts and issues relating to secret trusts, semi-secret trusts or pour over wills/trusts are obviously possible.

Torts. While I am not specifically predicting Torts, If (IF) Torts were tested I would lean towards products liability since it too has not been tested in a while (the trouble with that one is that it is kind of an obvious one – so it may be more likely that if Torts is tested that you will see miscellaneous torts like abuse of process and malicious prosecution crossed over with PR or something else, or Tort Remedies – although that was tested more recently than products liability).

Constitutional Law (specifically something that requires you to address the constitutionality of a statute (state or federal) which can then require you to address substantive due process, commerce clause, dormant commerce clause (if it is a state statute regulating interstate activity) (I provided a free downloadable approach for determining the constitutionality of a state or federal statute – scroll down to the post below this one and get it – it will tell you when you should and should not address 11 Amendment immunity and give you a checklist of the order of things to go through in writing an exam like this – often students do not understand how a constitutional law question can bring up many different issues – 11th Amendment Immunity, Procedural and Substantive Due Process, Equal Protection and Commerce Clause OR Dormant Commerce Clause can all very easily be tested on the same essay exam. So it is often not a matter of which you discuss but, how quickly you can manage to discuss all of these topics. Review the handout, if you have questions about it, email me and I will do my best to answer your questions.

Civil Procedure – IF civil procedure is tested then I would predict that jurisdiction would be tested. I know many are predicting “California Civil Procedure” – Okay, well that sounds fine, except that there is NOT enough California Civil Procedure to actually make up an entire one hour essay exam. But, could the examiners test some of the California Civil Procedure distinctions? Sure. Be ready for those. One area (not that I am predicting this) could be Slap/Anti-slap lawsuits (a California only area – there is nothing equivalent under the federal rules). If they were to test you on this it would involve the right to petition or speak (first amendment areas – so some day – this is not my first pick for this for this exam – but some day – I see this as a nice cross over between Civ Pro (CA specific) and Conlaw).

Criminal law and Procedure – Criminal Law was on the last two bar exams. But, the examiners often test subjects back to back three times in a row. So my thinking is that since murder has not been tested in some time (the past two bar exams tested criminal law but, did not test murder) that a Criminal law/Procedure exam with a murder call and a criminal procedure call or two could be very likely. Here is the thing – the 4th and 5th amendments are historically tested over and over again. However, 8th amendment death penalty (whether the imposition of the death penalty is constitutional) has not been tested in a very long time (there is a free download on my blog for the 8th amendment) and this can work in nicely with a felony murder exam (testing whether the death penalty can be imposed on co-felons – this will depend upon whether the defendant was a minor or major participant in the crime, or showed a reckless disregard for life – i.e. watched the person die and failed to get help).

Corporations – if corporations is tested, here is what I would expect – either a securities exam (10b5/16b and or common law – ultra vires and misrepresentation). Both areas have been absent from the bar exam for some time.

Professional Responsibility – This is the obvious one (except that one of these days they will decide to skip it again from the essay portion, this is why I always want to hear what is tested on day one – if PR is not on the essay portion but, is heavily tested on the PT on day one, then it is a suggestion that this might be one of the few bar rounds that PR is skipped on the essay). The bar examiners made a decision in 1994 to include Professional Responsibility on the written portion of the bar exam (either the essays or performance tests or both) on every bar exam administration – prior to 1994 it was not always tested). Since 1994 the California bar examiners have skipped Professional Responsibility on the essay portion only two times. On those two administrations it was tested very heavily on the performance test. It is often tested on both essay days (look at February 2008 where Professional Responsibility was tested alone and then on the second day as a cross over. This is not unusual. So assuming that Professional Responsibility is tested (which is a pretty fair assumption – duh) here is what has NOT been tested most recently: client gives attorney a gun or tells attorney where a gun (or other weapon) is located. There are, as you all know, specific rules regarding this area. It i has not been tested in some time. Another area that has not been tested in some time is where the attorney has a sexual relationship with his/her client. Also, not tested very recently is when attorney represents a group of clients and does not communicate a settlement offer to all of the clients before agreeing to the settlement offer (perhaps two clients are told, but, a third is not etc.) Duty of loyalty and the area of conflicts of interests are the most commonly tested area within professional responsibility – so you need to always be ready for these areas. But, it seems like it is time to see something that has not been tested in a while.

Other areas in general that have been absent from the bar exam – jury selection and jury issues (was it appropriate to dismiss a juror, etc). Other 6th amendment issues, like right to a speedy trial (this would, if it were to come up, be a tack on type of question – a short call. Incidentally there are four factors for determining whether a defendant’s rights to a speed trial have been violated). Within Corporations (as I already mentioned above) ultra vires and common law fraud have not been tested in some time and securities issues (10b5 and 16b) have also been absent for some time. Duties has been tested over and over, but, it is a favorite for the California bar examiners, so it is hard to imagine duties not showing up somewhere (PR, Trusts, Corporations). Just remember that if duty of care is tested within the area of Corporations that you must discuss the business judgment rule (even if you know that the director of officer etc. has breached their duty, you still must discuss the business judgement rule after duty of care – the examiners expect it). Okay, that is it for now, something similar/essentially the same will be posted on my blog. Please understand that my students who pay to take my course do not appreciate it if I release our “predictions” weeks in advance to the world. They pay for the privilege of our insights – at least they see it that way. So it simply isn’t fair to give away part of what they pay for to everyone else for free. In past rounds I have not made this available. After being asked over and over again, and after discussing it with my paying students (how they feel about it) I decided to release “predictions’ this round again. Clearly, no one should try to rely on predictions to guide their studies. You simply need to know everything as well as you can.

Still, I think it can be helpful to have some possible essay scenarios to keep in mind especially in the few days leading up to the bar exam, just to have something new to focus on. Then in the event that you see any of it, you will feel good. And the odds that some of the above will be on the exam is pretty high (and that is not because I have some crystal ball, it is simply because there are only so many subjects, a person could throw a dart and get at least some right.

I hope this is helpful. Please, please understand that I give this out at this time as a way to be helpful and also to respect my enrolled students who are, after all, entitled to receive this information first. I wish you all the very best of luck.

Please feel free to direct any questions to me at: pass@barnonereview.com. I may share these questions and my answers her on my blog – however, I will NOT reveal your name or contact information. But, if I feel that your question and my answer might be helpful to others, I might publish it here. But, of course, your name and information will not be shared.

Also, I will make additional “predictions” here after day one of the essays (once I know what was actually tested on day one of the exam). I will do this as quickly as I can – I am meeting with a group of my enrolled students in Ontario and so they will come first. But, I will do my best to get further thoughts and “predictions” on the blog as soon as possible.

Best of luck to you all!
Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

Published in: on February 26, 2012 at 11:46 am  Comments (4)  
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