California Bar Exam – Day One’s Essays

Hello All,

Congratulations to all who have completed day one of the California bar exam! You are now one third of the way done!

I will be meeting with a group of my students in Ontario after the test this evening. But, I wanted to first let you know what I have heard was on the test, hopefully help you put it in perspective and also give you some suggested areas to focus on for Thursday’s essays.

So no real surprises so far – Civil Procedure (as most predicted), followed by Community Property  (with a little Professional Responsibility) and then Evidence (with CA distinctions). I felt that of the subjects that were most likely to repeat from the last bar round that it would be either Evidence or Constitutional Law. I also thought that IF Evidence were to repeat that you should be extra prepared for spousal and/or marital privilege. So far there was nothing that wasn’t expected.

Just so you know, many people have reported in with their list of what was tested (thank you to everyone who did that, by the way) and most people indicated that they had trouble finishing the last part of the second call on the Evidence essay. This is not unusual. If you did not finish, rest assured you are NOT alone AND it does not mean that you have failed, absolutely not. However, make sure you push yourself on day three to finish all three essays the best that you can.

And, just remember, many, many people will not have finished the third essay completely – and yet they will still pass. It is all in how you internalize it. If having run out of time ruins your confidence then that is a bad thing. Don’t throw the test away or let yourself become defeated simply because you ran short on a question. It is not the end. Today is over and make sure that you think of it that way – as being over, past, not on your mind any longer – only look forward. There is no point in agonizing over what did or did not happen today. Focus on tomorrow and on Thursday.

So, there are two things I am providing in this post: 1) a bit about today’s test (remember – I have not seen it, but, I have compiled information from examinees who wrote in) and 2) some thoughts on what you might want to focus on for Thursday’s essays.

July 2012 Essays – Day One (please keep in mind, this information comes from student accounts – if you remember something differently, do not panic or worry):

Essay 1 – Civil Procedure (PJ and SMJ, amount in controversy posed as issue)

Pam and Patrick are citizens of State A. They were travelling in State B when the got into an accident with State B driver from Corporation.

Corporation is incorporated in State B and does business exclusively in State B and its warehouse and workers and drivers are in State B.

Pam and Patrick sue in federal district court of State A. Pam is suing for personal injury of $70K and property damage of $10K. Patrick is suing for damages of $6K.

Corporation sought dismissal on the grounds of personal jurisdiction and court denied. Final judgment of $60K and $4K for Pam and Patrick. **

Corporation appeals to court of appeals on the basis of subject matter jurisdiction and personal jurisdiction. How should the court rule? Discuss.

**Note: I heard from some examinees that the corporation was a Canadian corporation,  so I presume this played out in the fact pattern as well – but, again, I have not seen the fact pattern. Most examinees felt that this essay was pretty straightforward.

Essay 2 – Community Property/Professional Responsibility

Wendy and Hal are married and live in California.

Hal likes to drink and Wendy kicked Hal out of their family home and told him not to come back until he finishes an alcohol treatment program.

Hal drinks, then drives, hits and injures a pedestrian. Pedestrian brings a civil suit against Hal. Wendy learns of the suit and tells Hal she wants a divorce. Hal is unemployed and the only asset he has is his interest in the family home which he and Wendy purchased together during their marriage.

Hal consults Lawyer about representing him in the civil suit. Lawyer asks Hal for a promissory note and lien on the family home. Hal accepts.

1.     Is Wendy’s interest in the family home subject to recovery of the civil suit.

2.     Is Wendy’s liable for the attorney’s fees.

3.     Did Lawyer violate any ethical rules? Discuss.

**Note: this essay was a bit different (at least that is what some have reported). However, there were no unusual concepts tested – nothing new at all. It was of the three essays, I think the one that most would find a little awkward. There was not a ton to write about on this one (that is often how Community Property essays go and that can make examinees feel like they are missing something. So, if you feel like it was too simple, don’t worry about it. And, besides, there is no point in worrying about it at all now. Just move forward and do your best tomorrow and Thursday!

Essay 3 – Evidence (I said that Evidence was on my list of topics that I felt were most likely to repeat and thought that spousal and/or marital privilege would be a likely point on the exam – it appears this was the case – nice – hopefully you reviewed this area a bit). And, as I said above – most people expressed difficulty in finishing this essay. So don’t worry too much if you were unable to finish the third part of the second call, it is pretty typical to run out of time on these. Here are the facts as reported to me:

Vicky is murdered. The prime suspect is Dean who is a rival business owner. Dean is married to Whitney.

Two weeks before the murder Whitney learns that Dean has been cheating on her with another woman. Whitney is upset and she tells Dean that the marriage is over and she moves out. Seeking revenge Whitney agrees to testify against Dean. During recess Whitney and Dean reconciled. Prosecution calls Whitney to the stand and Whitney refuses to testify. The court threatens Whitney with contempt and Whitney reluctantly testified that on the night of the murder Dean had mud on his shoes.

Prosecution calls Ella. Ella testifies that on the night of the murder she was standing at her kitchen window that was 20 feet away from Dean and Whitney’s home and she overheard Dean say to Whitney “I just killed the gal that stole my biggest account.” Whitney and Dean were unaware that Ella was there.

Dean calls Fred to testify. Fred testifies that on the day after the murder he was eating in a coffee shop when he saw two gangsters Gus and Hit. Gus asked Hit “did you take care of the Vicky business?” and drew his index finger across his throat.

Was the prosecution proper in calling Whitney to the stand? Discuss.

Was the testimony of (a) Whitney (b) Ella, (c) Fred proper? Discuss.

**It should be noted that because this case is a criminal case, that Proposition 8 applies. This does not mean that your analysis is any different – it simply means that it is worth pointing out that Proposition 8 is applicable because this is a criminal case and you are specifically asked to address California law.

So Now What?

So far what has been tested is pretty much what I expected – nothing unusual at all. Now, that doesn’t mean the rest of my “predictions” will all be on target. I am looking forward to hearing what was tested on the Performance Test this afternoon as this might change what I am thinking about what might come up on day three’s essays.

Obviously, Professional Responsibility is on virtually every essay exam. But, out of the past 23 bar exam administrations it was skipped from the essay section (completely skipped) two times. So, you just might not see it on day three. But, statistically it is more probable than not that Professional Responsibility will come up in some form (either as a cross over again or as an entire essay).

I am still leaning towards Criminal Law and Procedure (please see my previous posts: “Predictions” – Part One and “Predictions – Part Two). I am sticking to what I suggested from the beginning. Nothing happened today that was unexpected and all was from the list. I suggested Products Liability (and most have predicted this for July). However, now I am thinking that is perhaps just too easy. Be prepared for it, assume it will be there – because most people are assuming that – but, make certain that you don’t bank on it (or on any of mine or anyone’s “predictions”).

Remember that Defamation could be just as likely. And, I still think a Torts cross-over with PR is possible (malicious prosecution, abuse of process, PR – this is not an unusual combination). So be ready for Torts. If you do get Products Liability recognize that everyone is expecting that – so you will need to do a really good job on this exam in order to distinguish yourself from the pack (and that is something you need to do – make your essay look better than most – use headings, lots of headings and know the approach).

Something significant about today’s exam is that you were only tested on one MBE subject – most exams test two or three essays that are MBE subjects. So . . . that means I would expect at least one more. I would not write off any topic at this point (I know no one wants to hear that, but, you need to realize that anything is always fair game). In fact, on my bar exam we had an Evidence essay on day one (transcript style) and then on day three we had a Community Property/Wills/Evidence essay. The evidence question was a spousal and marital privilege issue. I managed to get through it, but, I had not looked at Evidence since day one – so let that be a warning to you.

I believe that Professional Responsibility could be tested as an entire essay or crossed with virtually anything. Criminal Procedure and PR show up together as do Torts and PR and really – any subject could be crossed with PR. But, Criminal Procedure and Torts both make for good cross overs with PR.

I will write more when I hear from students this evening about what was tested on the performance test.

Until then, review the areas that you are least comfortable with and also review my prior posts regarding the “predictions” (Part One, Part Two) as all of this is still relevant since nothing showed up today that was unexpected.

All the best to everyone who is taking the bar exam today. And, a big thank you to all who wrote in with your synopsis of the exams!  And, a big fat disclaimer: as you know I have not seen the test. PLEASE, please, please d0 not get worried if the facts above are different than you remember the facts to be. This is just some information that was compiled from some examinees.

Stay tuned for more later!

Best,

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

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7 CommentsLeave a comment

  1. Is it likely for PR to show up on multiple essays in the same bar administration? You talk about being ready for PR on Thursday, but, as you noted, it was already included in a crossover with Community Property today. How likely is it for PR to show up a second time?

    • Hello Justin,

      Thank you for your comment. PR is often tested on both days of the bar exam. The fact that it was tested as one call yesterday does not mean it will not appear tomorrow. It could be that that was it, but, that would be pretty unusual (out of the past 23 bar exam administrations, Professional Responsibility showed up 21 times as a full essay and on quite a few of those administrations it showed up as part of another essay). So statistically speaking – it is pretty likely it will come up. So be prepared for it on Thursday – it could come up a a cross over or as an entire essay. You should be ready for that possibility. Of course you may not see it on Thursday, but, it would be better to assume that it may there.

      I hope this helps.

      All the best today and tomorrow!

      Lisa

  2. Lisa, thanks for the update. I’m interested to hear what you’re Thursday predictions will be. I’ve been thinking that Ks, torts and crim have to be tested, but now that evidence came up I’m thinking torts or Ks might be combined with remedies and crim will still come up. I think wills will be there to, but I originally thought it would be paired with CP.

    The PT in the afternoon was absolutely brutal. It was a corporations objective memothat dealt heavily with the duty of care and loyalty of board members of a non profit. It seemed straightforward enough from the prompt, but the library was dense with statutes and the only case they gave us was convoluted. On top of that, the file really didn’t give us much to work with.

    Everyone i talked to hated it and had real issues with organization.

    Anyway, back to the MBE.

    • Hello Cujoespo,

      Thank you for your comment and thank you for following my blog. I added a post yesterday about what I thought might be likely. At this point I am still sticking with my original predictions (from last week) since yesterday was pretty much as expected (I thought of the subjects from the February bar exam that Evidence or Constitutional Law were most likely to repeat and that if Evidence repeated they might throw in a spousal or marital privilege). So, everything so far, is as expected. However, I will be writing more today about what I think you should consider focusing on for Thursday.

      Stay tuned for a post later today.

      I wish you all the best today and tomorrow!

      Lisa

  3. Hi Lisa. Thank you for your blog. 

    I had a comment/question about day 1.

    Re the Evidence essay for call 2(a) (testimony for the wife). Your facts are right, in addition to Spousal Privileges, I also found a 5th A and 14th A violation. I may be wrong, but Court put fear in her be stating she was going to be in Contempt so she “reluctantly” testified. I stated it was a 5th A violation b/c she felt she was t free to leave (custody) and was an interrogation (bc they wanted to illicit incriminating statement from her about husband). Also, I stated 14th A violation bc she didn’t “voluntarily” testify, as the threat of contempt was an act of coercion from govt/court. 

    Do you think this was a far reach? What’s your thought?

    Thanks. I look forward to any reply. 

    • Hello Alex,

      Thank you for your comment and for following my blog.

      You have made a very interesting argument. I do think it might be a bit of a reach, but, I also know that the bar examiners accept reaches – truly, they do. And it is creative. The best thing you can do is to keep writing . . . on anything that you know about. So, if it wasn’t their first pick of issues to be addressed, at least you wrote something and worked with the facts and applied law that you know – trust me – the examiners give you credit for this whether it was an issue they intended or was their first pick of issues. Don’t worry about Tuesday now. It is past. Be proud of what you have accomplished – all of it – and just forge ahead. I think you will likely see some Criminal Law/Procedure tomorrow – so your working with it on Tuesday was perhaps a good warm up. I mean it. I hope this helps. And, if you have seen many of the released answers from the bar examiners, then you know that they include answers that touch upon areas that others do not – there is definitely some real latitude. All examinees should take comfort in that – the latitude.

      All the best,

      Lisa

  4. Hi, I’m confused about the PJ part of the Civ Pro question. I thought you couldn’t raise lack of PJ as a defense on appeal (bc it was waived by that point).


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