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

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