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: firstname.lastname@example.org and we wills see to it that someone gets back to you.