Bar Exam Tip: Bar Exam Predictions, Criminal Law Murder

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Hello Everyone,

Thank you again for following the blog. We are almost at 700,00 site visits, so thank you!

I have not yet released my predictions publicly, but I will. Please understand that my enrolled students get access to the predictions first. Our last Bar Exam Cram Session on July 18th and 19th will be the last time we release predictions in our classroom setting. At that point all of our students will have my predictions. Once our students have had an opportunity to have the predictions, I will begin releasing these publicly on the site. It will likely be (as always) the week before the bar exam. For more information about our last Bar Exam Cram Session, click here, we still have some spots left.

In the meantime, however, I wanted to post an approach for Criminal Law Murder. I personally think that Criminal Law Murder is due. While Criminal Law has been tested several times in recent years (including showing up back to back on two consecutive bar rounds), the bar examiners have not tested Criminal Law Murder in several years. So, I think it is safe to say that it is coming soon.

First, a few words about my “predictions” . . .

I can not predict what will be on the bar exam. I have had a lot of luck in making the predictions that I make. I am glad of that. I spend a great deal of time reviewing several years of past exams and put in a lot of effort to come up with these predictions. However, no one can predict the bar exam. And, whatever you hear about predictions, you should NOT study based upon predictions. That being said, I think it is helpful to think about possible essay scenarios that might be a bit more likely to show up on the bar exam because these areas have not been tested in some time.

Also, understand – my theory and philosophy towards the bar exam is to be ready for anything – I firmly believe that is the best way to prepare. So, whether or not Criminal Law Murder shows up on the bar exam this July 2015, you want to walk into the bar exam prepared to write a Criminal Law Murder Essay. That is how you want to prepare for the bar exam.

The following is from an earlier post that I wrote covering the basic murder approach that we have seen traditionally embraced by the California bar examiners. You may have come across this post earlier if you have been searching through older posts. If so, this will be familiar to you – either way it is a good refresher.

Incidentally, if murder were to show up on the exam on day one or day three of the July 2015 bar exam, then I would not be surprised if it were crossed over with some of the lesser tested areas of Criminal Procedure. We have not seen any 8th Amendment issues in some time (see the “Free Stuff” page for a free download of an exam template for this area) and we also have not seen much testing of the 6th Amendment areas of void dire (peremptory challenges, right to an impartial jury, etc.). So these areas could easily be tested this bar round. Evidence is also an area that can repeat and sometimes we see it as a cross-over with Criminal Law, Criminal Procedure (and if you read my post from a few days ago – we have seen it tested with Wills and Community Property as a cross over with marital and spousal privileges).

It is this simple – as I have always maintained over the many years of writing this blog – the bar examiners can test anything on any bar exam round. I do not say this to send you into a panic. It is simply true. As a result, there will be topics that you are hoping for and there will probably be a few you hope not to get – that is the nature of the bar exam. But, you can do it, do NOT give up no matter what you see on the exam. And, remember, you have time to prepare adequately.

The bar exam is still weeks away. I know it does not seem like much time. But, if you use it effectively, then you can absolutely prepare in time. Our students in our last Bar Exam Cram Session generally come in without any approaches to the bar exam and yet, they are able to take the approaches we provide in class and memorize these and write the bar exam using these approaches. So, you have time now to start working on these things. I had to come up with my own approaches to the essays because the commercial bar prep companies at that time were not providing essay approaches. In fact, they still don’t. If I can come up with my own, you can too. Take control over your own bar studies and make certain you prepare from here on forward in such a way that you will know how to write any essay that you face. And, remember you should prepare for every topic, because any topic could come up.

YOU NEED TO HAVE AN APPROACH FOR EACH TOPIC

As a bar taker you will undoubtedly walk into the bar exam and have a very good grasp of the rules for Murder. However, it is very important that you are able to make your way through all of the necessary points efficiently and in a manner that the grader will recognize as a passing or above passing answer. This requires an essay approach. You should walk into the bar exam with approaches to every topic (each bar subject has either one approach or several. For example, Contracts really only has one approach – the approach for Contracts is essentially the same regardless of the Contracts essay, the only differences being whether you write on the Common Law of Contracts only or if you have a UCC exam. On the other hand, Torts has several approaches – a defamation approach, a products liability approach, a negligence approach a torts/remedies approach and a miscellaneous torts approach. I will do my best to write more on these topics as I have time).

DO YOU KNOW HOW TO START WRITING AN ESSAY

My point is that there is a lot you can do to effectively prepare for the bar exam now so that on exam day you know exactly what to do, what to write, how to start you essay, etc.. You should NOT be trying to figure this out on exam day. If you are in that position, you are likely to fail. So please take it upon yourself to prepare NOW for these situations. You know that you are going to have to write essays – so figure out ahead of time how you will start each topic.

Here is a quick, basic essay approach for murder. (Note that you should use a lot of headings and have a physical structure that evidences your approach – this will give the graders a sense that you actually know what you are talking about and it will make your essay far more appealing to read, it will appear organized and it will make it easier for you to write your answer because you have an approach).

APPROACH FOR HANDLING A CRIMINAL LAW MURDER QUESTION

First address: Common Law Murder – 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) intent 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, if this area is tested, the examiners may not test one of the above common law inherently dangerous felonies – watch out for a dangerous felony like drug trafficking or another dangerous (but not enumerated as a FMR felony) felony – 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 common law 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 the defendant is engaged in a non-dangerous felony or misdemeanor.

Obviously there are defenses like: Intoxication, Insanity (know the four tests as best you can – this has not been tested in years), 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.

Thank you again for following the blog!

Lisa Duncanson

Program Director/Founder
Bar Exam Cram Session & Bar None Review
(213) 529-0990
http://www.barexamcramsession.com and http://www.barnonereview.com

Day One of the July Bar Exam is Done: Full Steam Ahead

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Hello All,

Congratulations on completing day one of the California Bar Exam!  Thank you to everyone who wrote in with their recap of what was on the exam today.

As you know, today’s essays were: 1) Contracts/Remedies, 2) Evidence, and 3) Professional Responsibility/Business Organizations (specifically partnerships).

I have heard from many examinees and believe I have a pretty good sense of what was tested today on both the essays and performance test.

It is very important that you put today behind you. Simply be glad it is over, move forward, do not dwell on what you wish you could have written . . . let it go. This is key. Day one is behind you, there is nothing you can do about whatever you wrote or did not write. So move forward and focus on what is ahead.

Each bar round there is generally one essay that seems a bit more challenging or perhaps a bit harder to figure out than the rest of the essays. After reading many reports from examinees (thank you to all who have sent in recaps of day one’s essays), the consensus seems to be that essay three was the challenging, less straight forward essay of the day. Some examinees have reported that they were really thrown by this essay, while other examinees reported that this essay was “awkward” but do-able. Nobody, however, wrote in saying that they loved essay number three.

Why am I passing this along to you? Because I think it helps to have a little perspective – if you found essay number three troubling, well, you are not alone.

I have heard from hundreds of examinees today and nearly everyone made a comment about essay three being odd, unwieldy or very difficult. This is not to say that the Evidence Essay was a walk in the park. But, at least with Evidence you know what to expect and it is generally a fairly straightforward exam.

Okay, moving on from day one . . . 

Your focus now should be to move forward and do your very best in the days ahead. No matter how you feel day one went (good or bad) put it behind you and focus on doing your absolute best on Wednesday and Thursday!

Thoughts on what might appear on day three’s essays . . . 

So far there have been no real surprises – the subjects that showed up on the essays (and the PT, although I am not writing about the PT here until after the exam is over) were all expected. As a result, I am not eliminating anything from my prior list of predictions. However, I do have some thoughts . . . of course . . . and some advice.

Professional Responsibility could show up again on day three (either on another essay or on the performance test). Do not presume that since Professional Responsibility was tested on day one that it will not show up again on day three’s essays. In fact, there are many past bar exam administrations where Professional Responsibility showed up on day one and on day three. The February 2008 bar exam is one of those administrations. In February 2008 Professional Responsibility was tested on the essays on day one and then again on day three as a crossover with Business Organizations (sound familiar?) . . . so be prepared for the possibility of seeing Professional Responsibility again on day three.

What about California subjects and/or California Distinctions?

So far – other than Professional Responsibility – today’s exams did not test California material. So, this is something I would be prepared for on Thursday. I would expect to see either a subject on the essays that is either a California subject (Wills, Trusts, Community Property) or a topic that requires you to make California distinctions (California Civil Procedure, Evidence). I know, everyone has been talking about California Civil Procedure for years now and the California Bar Examiners have yet to test it. However, I think it has to be tested one of these days . . . and one of these days may very well be Thursday. So be sure to take a look over your California specific material for Civil Procedure. Also, be mindful of the areas I have mentioned so far (I recommend that you go back over my earlier “predictions” post) include: jurisdiction (a favorite area of testing), Collateral Estoppel and Res Judicata (this would typically allow for a discussion of the Primary Rights (minority) view that is followed in California), notice and code pleading (another California and federal distinction), additur and remittitur (the latter two areas are generally fairly short tack on types of issues). Incidentally, additur and remittitur are both available in California. But, only remittitur is allowed in federal court – additur is not allowed in federal court because it would violate the 7th Amendment right to a jury. This has been tested on past bar exams and could certainly come up again.

Don’t put Evidence away just yet . . . obviously you will see Evidence on the MBEs on Wednesday. But, there is also a chance that you will see Evidence again on Thursday. It is not my first choice. But, you should be aware that on past bar exams, Evidence was tested on day one and then again as a cross over on day three. So just keep this in mind. You could potentially see an evidence call even on a Wills or Community Property essay. See my post from yesterday about how spousal and marital privilege could show up as a cross over with another subject. The point is that you need to be prepared for the possibility so that you are not surprised by it, should it show up on day three.

Criminal Law Murder (perhaps crossed with Criminal Procedure and/or Evidence). This is still very possible. Nothing that was tested today really changes my initial list. What is significant to me, however, is that you had a lot of MBE testing today. Not unusual. But, I do think that it suggest you may see a California subject on Thursday.  Remember that the Evidence Essay from day one was to be answered according the Federal Rules of Evidence.  Of course, anything is possible. Criminal Law Murder has not been tested in some time. Neither have the insanity tests for the insanity defense. I would make sure you send a few minutes reminding yourself of the four tests.

Fifth Amendment Takings – I still think that Fifth Amendment Takings could possibly show up as part of an essay. This area has not been tested in some time. So, I think it is due.

So, what should you study on Wednesday night before the exam on Thursday? First, you should review any subject that you feel is weak, or that you would fear seeing an essay in that topic. This is far more important than reviewing all of the “predicted” topics. Remember, no one can predict what will be tested, you should be ready for anything.

Please be sure to review my earlier “predictions” and essay scenarios.

I will continue to post here in the coming days. For those of you who are just signing up with our Bar Exam Tips List, we are sending out my initial predictions email (that was sent out last week) and  then you will receive our subsequent emails.

Thank you again to everyone who sent in reports of what was tested today! I try to respond to every email. This becomes increasingly difficult as the traffic grows. But, I will do my best to get back to everyone. The blog has received over 8,000 views in just the past couple of days. I am truly honored to have this following and grateful to be able to offer some help. There is still time to join our July 2014 bar exam tips list (see blog post below).

All the best to you on the MBE section tomorrow. And, for those of you who are taking the “Attorney” Taker’s exam, I would spend day two studying in this order: 1) review the topic(s) that you are least comfortable with, and  2) Review any of the “predicted” topics. Above all, review the areas that you feel the least secure about so that if you do see one of these areas, you will have a better opportunity.

I will keep posting and keep sending out emails. Stay tuned. If you have a question, please free to send me an email at: barexamguru@yahoo.com. I will do my best to get back to you personally.

All the best of luck to you tomorrow! Stay positive!

Lisa Duncanson

Program Director/Founder
Bar None Review
(213) 529-0990
http://www.barexamcramsession.com and http://www.barnonereview.com

 

California Bar Exam: Three Days Away!

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Good luck photo for blog

Hello All,

The bar exam is now just three days away. It is normal to have some anxiety right now (okay, it is normal to have a lot of anxiety right now).  But, there is still time to review, and still time to gain a better understanding of how areas are tested, and still time to continue to memorize the law. You need to believe this in order to make the best use of the remaining time. Actively work at remaining calm and maintaining a positive attitude – it will only lead to a better study period in the next couple of days.

If you would like to be added to our July 2014 Bar Exam Tips Email List, please see my earlier post to sign up.

If you have read my prior posts, you know that Evidence is one of the subjects that I have suggested as a possibility for this July’s exam. Also, Constitutional Law could repeat – remember, anything can show up on the bar exam. Of course, you may not see either Constitutional Law or Evidence on the July 2014 bar exam. But if you were to see either subject on the essay portion of the exam, would you know how to handle it?

If you do not feel confident on how to handle a Constitutional Law essay or an Evidence essay today, just a few days before the test, is it too late?  Should you give up?  Of course not!

Two essays for your review: I am posting two essays here (I have posted these same essays previously on this site, I mention this in case you have already downloaded these). One is a Constitutional Law essay (involving a state statute that treats out of staters differently than in-staters . . . so what area does that bring to mind? If you do not know the answer to that, then you definitely need to read this essay and the answers . . . hint: you are required to determine whether the state law places an undue burden on interstate commerce). So, if Constitutional Law is something you are fearing – then I would take a look over the subject again (preferably by relying on a condensed outline of some kind). In addition, I would recommend that you take a look at a few essays in Constitutional Law. I would do the same for Evidence. Both subjects can be race-horse exams. So, keep this in mind when you are writing your answers. Get to writing as quickly as you can.

I have attached as downloads, a past Constitutional Law Essay and a past Evidence Essay that I think are worth reviewing (yes – even the Sunday before the exam – why not)?

The reason I think it makes good sense to review these exams a few days before the exam is because of this simple fact – a very similar essay exam could appear on day one or day three of the California Bar Exam. Therefore, it just makes sense to read through both essays. You can download the Constitutional Law Essay here: ConLaw Handout 2 F-05 and the Evidence Essay here: Evidence Transcript Style Essay

A couple of thoughts about Evidence: If you were to see Evidence on the exam (as you know) Hearsay is likely. It is hard to imagine an Evidence exam without hearsay showing up. Beware that the most commonly tested exceptions are Present Sense Impression and Excited Utterance (and both exceptions should be discussed if you think either is colorable). I would review Judicial Notice and Subsequent Remedial Measures as I think either could come up if you have Evidence (or even as a cross-over on another topic). Also, Best Evidence Rule is tested frequently on Evidence essays. If you have been reviewing past Evidence essays then you already know this. If, however, you have not reviewed many Evidence Essays, then it is not too late to review a few now, before the exam.

A couple of thoughts about Constitutional Law: This Constitutional Law essay is from the February 2005 bar exam. I think it is worth a read. DO NOT test yourself on this. Instead, simply read through it (stay calm while you do so) and read and study the answer. Spend about 25 – 30 minutes on it (a few more minutes if you think you will benefit from it). The key here is to be able to glean some insights into both the approach for Constitutional Law (the approach that is embraced by the California Bar Examiners) and also how to handle an essay that is similar to this Constitutional Law exam. I think it is quite likely that you would see something like this tested. It is certainly possible. Given that possibility – it can not hurt you to read through it. And, remember, it is really important that you simply “read through it” – DO NOT TEST yourself on this – just read it and do your best to connect the dots between the fact pattern and what was generated in the answers. Focus on this: “If I were to get this particular essay exam on the actual bar exam, how would I write my answer?”

Hopefully, you would stick to the issues that are addressed in both answers and even better, if you do see something similar to this particular essay exam, you will remember how to handle it on exam day.

With respect to the Evidence Essay – note the style of writing (what I call a “shot-gun” type of approach) that is used in the exam answers. Both are brief where needed and get through all of the calls in a pretty efficient manner. Also note that in a transcript exam you need to be prepared to write on form objections (examples of form objections include: leading, compound, assumes facts not in evidence, non-responsive, etc.).

Help me help you . . . 

I will be posting again on Tuesday right after the essay portion of the bar exam – I will be counting on my students and blog followers to send me what was tested on the essay section of the bar exam so that I can update my predictions with respect to what I think might be more likely to show up on day three of the essay exam. So, if you have a moment, please email me after the essay portion of the bar exam on Tuesday. This will help me, help you – it is always good to have a sense of where to focus in these final days and even on the days of bar exam. Of course, no one can predict this exam. But, it can not hurt to put some extra time into an area that might be more likely to show up.

I will be hearing from my enrolled students on the break after the essays on Day One. But, the more people I hear from, the better I will have a fix on what was actually tested on Tuesday (essay wise) so that I can work up my next set of predictions for day three. Just a note – because there are some examinees with accommodations who will be taking the bar exam over a six day period, I will limit my discussion to the essays only – I will not discuss the performance test until the week after the bar exam.

Thank you again for following the blog.

I wish you all the very best of luck in your remaining studies! Remember to stay positive and to believe in yourself!

Best of luck to you all!

Lisa Duncanson
Program Director/Founder
Bar None Review and BarExamCramSession.com
(213) 529-0990

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California Bar Exam: Congratulations to all who completed day two!

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Hello Everyone,

Congratulations to all who have completed day two of the California bar exam. I want to make a few comments about yesterday. Number one, regardless of how you think you performed on yesterday’s essays or performance test, the exam is not yet over and all is not lost. I say this because I have received many emails from blog followers who are certain that they failed day one. Number two, do not listen to what anyone has to say about what was supposedly tested on day one’s essays or performance test – and yes, that includes me. I have not seen the essays or performance test. I have heard from many what was tested and believe I have a good idea of what was on the exam. However, it really doesn’t matter now, not really. I do appreciate hearing from examinees about what was on day one as it enables me to better advise my enrolled students – provide some reassurance and it helps me to get an idea of what might be just a little bit more likely to show up on day three’s essays. That being said, there is no way to predict this exam.

I did think that interlocutory appeals could be an issue on a civil procedure essay and that the amount in controversy could also be posed as a particular issue if civil procedure were to be tested – that is why I sent out an example of these very issues to my students and to blog followers who signed up for our February 2014 Bar Exam Tips List. In our last Bar Exam Cram Session just two weeks ago, we discussed how to handle Community Property should it repeat, and, in particular – how to handle a business if this issue were to come up again. Hearing what was tested yesterday, gives me great hopes and confidence for our students.

But, yesterday is over. And, regardless of how you felt you did, tomorrow is another day. I want to encourage anyone who is sitting for the bar exam right now to let go of Tuesday (and, today) and simply focus on what is coming tomorrow. I can not tell you how many examinees I have met over the years who came to me after they took the bar exam having given up after day one, completely certain that they had failed the exam to only get their exams back and learn that day one (despite their fears) was actually not a low scoring day and in fact it was day three that was the reason they had failed the bar exam – because they had simply already given up, thrown in the towel.

It is not over until it is over. Keep your spirits up, keep fighting, keep writing and prevail. You can do it. And, if you think you can not do it . . .well you risk proving yourself right . . . do not make that mistake.

Predictions:

I know that one of the reasons you are visiting the site today is for any possible updates on the
predictions. So here goes . . .

Nothing on day one was a surprise. So far, everything that was tested was absolutely expected. The only thing that was perhaps a little bit less than usual was the fact that there were no full blown MBE topics on day one’s essays. However, all subjects were expected and all three essays tested in the ways I would have expected. So where does this leave you for essay testing tomorrow? As always, anything could be tested. Do I expect you to see a Community Property essay? No, but, they could test it if they choose too. Literally anything can show up tomorrow. What do I think is likely? The same subjects I predicted earlier – Evidence is a likely possibility (despite the heavy appearance of Evidence on the July 2013 Performance Test), Property is very likely. I have also indicated that Criminal Law – specifically a murder essay crossed over with Criminal Procedure could come up (murder has been absent from the California bar exam for years now). But, Criminal Law (sans murder) has been tested quite frequently in the past several years. There simply is no way to know what will be tested tomorrow. Also another way to test Criminal Procedure (that has not been done in some time) is for it to be tested as a cross over with an Evidence issue (like hearsay or a privilege).

But, I will share with you a bit of what I share with my enrolled students about how to prepare tonight for tomorrow. Rather than being able to pin down exactly what is going to show up (and let’s face it, no one can do that) I prefer to provide essay scenarios. So while I think Business Organizations is very possible tomorrow, that you should expect to see some MBE topics on tomorrow’s essays, I really prefer to look over many subjects and provide a run down of what might be mostly likely if you were to see that particular subject tomorrow. So here is some of what I provide to my enrolled students:

If you were to be tested in Constitutional Law – I would expect Commerce Clause/Dormant Commerce Clause 0r First Amendment (I am leaning more towards an essay that involves a state statute that potentially places an undue burden on interstate commerce). Here is an example of this type of essay. I don’t know if it will be tested tomorrow or not. But, this type of essay has not shown up on the California bar exam in some time . . . so it is worth a quick read . . . can’t really hurt.

If you were tested on Property – I would expect something with Covenants (either restrictive covenants and equitable servitudes or the covenants of title – three present, three future). Easements has not been tested in a while and that too could come up. Please see my earlier post regarding my predictions – “part one” of my predictions.

If you were to see Business Organizations – I would be prepared to discuss Duty of CARE along with the Business Judgement Rule and Duty of Loyalty. The area of federal securities has not been tested in many years now (10b5 and 16b). The issue of whether a dividend must be declared (paid out to a stock holder or stock holders) is an area that I feel is now due for testing. This would generally be a tack on type of issue and could come up in the context of a shareholder derivative suit or simply a duties type of exam for Corporations.

Please review my earlier predictions post – “Part One” for more detail.

I wish you all the very best of luck tonight and especially tomorrow.

Lisa Duncanson
Program Director/Founder (213) 529-0990
Bar None Review and The Bar Exam Cram Session (TM)

February 2014 Bar Exam Predictions: Part Two

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Hello All,

I want to wish everyone who is taking the bar exam tomorrow all of the very best of luck!

Some additional thoughts on potential areas for testing on the essays:

Typically a few subjects repeat from one bar exam round to the next. And, sometimes a subject will repeat three times back to back. This means that really anything can be tested. If you have been following this blog, you will know this as it is a theme here – be prepared for anything, as anything is testable.

That being said, I do have some additional thoughts on what could potentially show up on the exam either Tuesday or Thursday.

Of the topics from the July bar exam that might be a bit more likely to repeat, I think that perhaps Wills or Constitutional Law are possibilities.

Possibly Wills: The reason I suggest Wills, is because it could easily be tested as a cross over with Trusts. This would bring in a new topic and repeat Wills. It makes sense, but of course there are no guarantees. If you were to see Trusts (either as a cross over with Wills or alone as a Trusts only essay) I am leaning towards the essay involving either a Spendthrift/Support/Discretionary Trust scenario (these three are typically tested together) or a Charitable Trust issue (requiring a discussion of the Doctrine of Cy Pres and Equitable Deviation). Another point worth making about Trusts is that the area of Testamentary Trusts has not come up in some time. It is worth noting that the last time Trusts was on the bar exam it was in the context (primarily) of Trust Remedies, specifically a constructive trust.

Possibly Constitutional Law: Another area to keep in mind for the essays is the possibility of Constitutional Law repeating. So why Constitutional Law? There are a few reasons: 1) subjects repeat back to back, and 2) there are several areas within Constitutional Law that were not tested on the July bar exam that could make up an entirely different Constitutional Law essay exam. For example, a First Amendment Speech issue could be tested (which was not tested on the July bar exam) or a Commerce Clause or Dormant Commerce Clause issue could come up. I think the latter is more likely than First Amendment Speech.

One possible scenario would involve a state statute that essentially taxes out of staters – in this type of scenario you are faced with balancing the state’s interest in the regulation and the burden that is placed on interstate commerce. I think this is a very likely area for testing. Should you see an exam like this, you will need to identify the power that the state has to act (those powers that are reserved to the states via the 10th Amendment: safety, health, welfare, education and morals of its citizens). You will also need to identify the state’s interest and ultimately determine whether upholding the regulation places an undue burden on interstate commerce.

Torts is not my first pick of topics to repeat. However, if it were to be tested, I think that Defamation is a real possibility. It could, someday, be tested as a cross-over with an anti-slapp motion (which has yet to be tested from California Civil Procedure). An anti-slapp motion is a type of responsive pleading available in California and could be an appropriate response to a suit for defamation. This has yet to show up on the California bar exam and I do think it will some day. Of course whether that is tomorrow is another thing.

I will be posting again tomorrow after I hear what was tested on the essays. I will not address the performance test tomorrow. The reason for this is because there are examinees with accommodations who will not be taking the performance test until Wednesday. As a result, I will not be posting anything here about tomorrow’s performance test until after Wednesday evening.

I want to thank you again for following my blog.

I wish you much success on the bar exam!

All the best,

Lisa Duncanson
Program Director/Founder (213) 529-0990
Bar None Review and The Bar Exam Cram Session (TM)

California Bar Exam Predictions: July 2013 Bar Exam – Part Two

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Hello All,

The test is five days away.  It is normal to have some anxiety right now (okay, it is normal to have a lot of anxiety right now).  But, there is still time to review, and still time to gain a better understanding of how areas are tested, and still time to continue to memorize the law. You need to believe that in order to make the best use of the remaining time. Actively work at remaining calm and maintaining a positive attitude – it will only lead to a better study period in these next few days.

If you would like to be added to our July 2013 Bar Exam Tips Email List, click here.

A bit about writing for the California Bar Examiners and how to prepare in the final days leading up to the exam:

I highly recommend that you review as many essays as you can. Of course, continuing to work on memorization is important. But, anyone who has reviewed past California bar exam released answers will tell you that the graders’ focus is not on perfect rule statements. The bar examiners know that you can go look up a rule.  A passing answer will evidence that you know what the issues are and that you know how to resolve the legal problems. This is key.

I am not suggesting that you shouldn’t strive to write perfect or near perfect rule statement. But, it is more important to evidence a true understanding of the legal issues presented by each fact pattern and to resolve these issues to your best ability. Your focus should be on issue coverage (identifying as many of the relevant issues as possible) and on the analysis (fully explaining why something is an issue and how it could be resolved). All too often examinees write towards the answer – by this I mean that many examinees first (before writing anything) try to figure out what the correct answer is and then write towards that conclusion. A better approach is to present all possible issues and to discuss all possible resolutions of those issues.

Okay, I promised more “predictions” . . . so here we go . . .

Property – Property is a possibility. I think that Constitutional Law, Evidence and Property are all about equal in terms of the chances of each subject showing up on your next bar exam (and that Criminal Law is a possible topic that might repeat – although I do not necessarily think you are likely to have four MBE topics – but it is possible). What is most likely for Property (if it were tested): Easements is very possible (either on its own or – in a possible land sale contract setting). I also think that Covenants and Equitable Servitudes are possible.

Also, if you were to get an essay on Easements and it was in the land sale context – the scenario could go like this: Betty is granted an easement by Grant for a 20-foot road. She receives this easement by express grant, but never records. Betty uses the road and ultimately paves a thirty-foot wide road and begins using it for part residential and part commercial use. Grant sells his land (the servient tenement, the land that is burdened by the easement) to Buyer. The issues become 1) Does Betty have a valid Easement, 2) Does Buyer take the land subject to Betty’s easement etc.

The above scenario generates many discussable points. To determine whether Betty has a valid easement you should follow the Easements approach:

1. Is the easement appurtenant or in gross, 2. Is the Easement affirmative or negative easement, 3. Creation – how was the easement created (PING)? 4. Scope – what is the scope of the easement and was the scope exceeded – or was the easement overburdened? 4. Was the easement terminated.

With respect to whether Buyer takes the land subject to Betty’s easement will likely require a few discussions: 1) a discussion of notice and potentially recording act statues and 2) a potential Warranty Deed discussion where you discuss the present and future covenants. **Incidentally, I think this is as likely an essay testing scenario in Property as a straight Covenants/Equitable Servitudes essay. Bear in mind that in Property, the favorite area of testing is the area of landlord tenant. While this was tested recently, it does not mean the examiners could not do it again. It is just not my first pick for what will come your way. However, be ready for it.

Community Property – most are “predicting” community property. I do think it is very likely. There is not a lot to community property (in terms of what the California bar examiners test). So, like all subjects, you simply need to know it. However, I would be certain to know the Accounting Methods for Value Enhanced Separate Property businesses (Van Camp and Pereira). Simply know this topic. Because there is not a lot to this subject, we typically see the same issues tested over and over from one testing round to the next (transmutations come up a lot, the fiduciary duty between husband and wife and rights to equal management and control also come up a lot). In addition, I would be mindful of the following scenario (this would just be one part of a Community Property Essay): husband sells diamonds to a third party way below market value. Wife wants the diamonds back. The issues that come up are: 1) equal management and control, 2) fiduciary duty (the duty owed between husband and wife is of the highest level), 3) whether the third party buyer is a “Super BFP” (a buyer who purchased for value without notice of the marriage). Keep in mind that if the buyer paid way below market value, then they probably are not a “purchaser for value” and so whether they knew of the marriage or not, will not likely matter. You could then potentially discuss remedies – the remedies available would likely be a constructive trust or tracing (if the buyer sold the diamonds for cash). Yes, remedies concepts can show up pretty much anywhere. The key is to simply use your common sense – don’t write your answers in a vacuum – rely on both your knowledge of the law and common sense and focus on resolving the legal issues at hand (this is something that applies to all subjects).

Professional Responsibility – Professional Responsibility is tested on the essay section of the bar exam on virtually every bar examination administration. In fact, the California bar examiners have only skipped Professional Responsibility from the essay portion of the exam twice since 1994. It will be tested on either the essays or the performance test (as that is what the bar tells us – from 1994 tested every bar round on the written portion – this can be either the essays or the performance tests or both). So, not a real surprise that I would be predicting this topic. However, there are some areas that are favorites (typically) and some areas that have not been tested as recently as others. Bear in mind, there is only so much to Professional Responsibility – so the same issues repeat frequently. Therefore, a review of any of the recent Professional Responsibility Essays would be appropriate.

Professional Responsibility in the context of a corporationSome are predicting that you might see PR in the context of a corporation. The scenario is often this: where the Lawyer is representing a corporation and then a lower level employee meets with Lawyer (perhaps offsite) and confides in Lawyer about a past or ongoing fraud on the part of the corporation). This is being predicted because it is a past favorite and we haven’t seen it for a while. In this scenario the Lawyer’s client was supposed to be the corporation and now the issue or problem that arises in the facts is that Lawyer – in meeting with the lower level employee – is also the lower level employee’s attorney – that an attorney-client relationship formed when Lawyer met with lower level employee. And, of course there is now a conflict of interest. You might also have the opportunity to discuss the rules about crimes that the client has committed, is committing or is about to commit and the rules with respect to what Lawyer may or must do. This area has been tested quite a bit historically, but not recently. Therefore, it is a very likely possibility. 

Other Professional Responsibility favorites are: 1) Mom hiring attorney for her son and 2) Lawyer engaging in a sexual relationship with his/her client. All of these areas present many of the same issues: breach of the duty of loyalty, breach of the duty to give candid advice, and especially – conflict of interests. Keep in mind that when dealing with conflict of interests in Professional Responsibility, the bar examiners embrace answers that discuss both potential conflicts and actual conflicts. 

Okay, that is it for today. Remember that these are just possible scenarios. I do not have a crystal ball.

Be positive, believe in yourself, and know that you CAN do this. The bar examiners are not looking for perfection. Simply do your best and trust that you are capable and that your best will be more than good enough.

All the best,

Lisa Duncanson
Program Director/Founder
Bar None Review
(213) 529-0990
barnonereview.com

California Bar Exam Predictions: July 2013 Bar Exam – Part One

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First of all I want to wish you all the very best of luck in your studies this week and I want to thank you for following my blog. I am truly humbled by the responses from examinees who have sent emails – thank you so much.

If you would like to reach me directly, please feel free to send me an email at: pass@barnonereview.com

Today, this blog will likely reach over 400,000 views. I am deeply humbled by the following. It truly gives me great satisfaction to be able to reach so many and to provide assistance to those who are in the midst of their bar studies.

A few caveats about my “predictions” . . . 

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 what I call essay scenarios that I think might be worth considering. In the coming days (today included) I will be releasing these essay scenarios. Know that no one can predict what will be tested on the bar exam. And, anyone directing their studies completely around what someone has “predicted” is not making a sound bar exam prep decision. That being said, it cannot hurt to entertain potential essay scenarios – especially if this causes you to seek out examples and to improve the focus and intensity of your review. You should, of course, be prepared for any subject as any subject can be tested.

My commitment to my enrolled students: 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 outside of our course. However, last year, after being asked over and over again, and after discussing it with my paying students (how they felt about it) I decided to release “predictions” – or – possible essay scenarios.

So here is the plan, As I have done in the past year, I will release the essay scenarios I have come up with over the coming days (one or two topics a day). To do anything else would really not be fair to my enrolled students. I hope you understand.

So here are a few thoughts on what I think could be tested:

Constitutional Law: Note: this was on my list of possible repeat topics for the last bar exam. It did not repeat and therefore, now that it has been skipped for an entire bar round, it is a subject that many are predicting. I also think that Constitutional Law is a very likely subject for testing. Possible areas of testing within Constitutional Law: I think an essay that requires you to address the constitutionality of a statute (state or federal) which can then require you to address due process (both substantive due process and procedural due process), commerce clause, dormant commerce clause (if it is a state statute regulating an interstate activity). While this is not the only area that could be tested, it is an area that the bar examiners have not tested as recently as some of the other testable areas. Free Handout: I provide a free downloadable approach for determining the constitutionality of a state or federal statute –  this approach will tell you when you should and should not address 11 Amendment immunity and provides 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, 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. I will be making this handout available again through this blog later today.

Evidence (or as I like to call it: Off to the races):  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. Bear in mind, most are predicting this topic. As a result, most have given this area a bit of extra treatment in their review. Evidence essays are typically racehorse exams. This is important to keep in mind because you will need to work quickly and begin writing your answer as soon as possible to allow for enough time to address as many relevant (sorry for the bad pun) issues as possible. Be sure to know your form objections (for example: leading, non-responsive, assumes facts not in evidence, etc.). A great way to prepare for any essay tested subject is to review past essay exams. This is particularly true of Constitutional Law and Evidence. By reviewing past exams you can develop an efficient approach (which is necessary for both of these topics as both typically involve many issues on just one fact pattern).

POSSIBLE REPEAT SUBJECTS APPEARING ON THE JULY 2013 BAR EXAM (third time could be a charm):

Every bar round, the bar examiners repeat subjects from the prior bar round. Therefore, you should not eliminate any topic or presume that a subject will not be tested this July simply because it showed up on the last bar round or, showed up on the last two consecutive bar rounds. That’s right – subjects repeat sometimes back to back – three times. Civil Procedure has appeared back to back three times as have many other subjects. Therefore, I would not be surprised – nor should you be surprised – if you were to see either Civil Procedure OR Criminal Law – tested again (for a third time in a row) on the this next bar exam. Below are a few scenarios to consider should you see either Civil Procedure repeat or Criminal Law repeat:

Civil Procedure could come up again:  Some of the most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. Another area that has not been tested all that recently is supplemental jurisdiction (bear in mind that if supplemental jurisdiction is tested, it will likely be what I refer to as a “tack on” issue or call because it would not be a large part of the question, but rather a shorter call within an essay exam). Typically you would expect supplemental jurisdiction to come up in the context of a Federal Diversity Jurisdiction essay. Class actions has not been tested in a very long time – I keep thinking that is due, but, If you look at what is most often tested in Civil Procedure it is jurisdiction (PJ and SMJ and Venue) and Collateral Estoppel and Res Judicata, it is not all that unusual that it has not come up in a while. Still, it is an area (Class Actions) that I would be certain to be familiar with in the event that it is tested. Even though class actions has been absent for many bar rounds, it is still no more likely in my mind, than jurisdiction or Collateral Estoppel and Res Judicata. What about California Civil Procedure? Well, one area that has yet to be tested on the California bar exam is the area of SLAPP Suits and Anti-Slapp Motions. I will write more about this possible area of testing in the coming days. In the meantime, I would give it a quick review.

Civil Procedure Tip: Be sure not to mix up Res Judicata and Collateral Estoppel – make sure you know which one is issue preclusion and which one is claim preclusion. Here is one way to keep the two straight: the “C”s do not go together – in other words: Collateral Estoppel is Issue Preclusion and Res Judicata is Claim Preclusion. Should you get tested on this area – be certain to make note of the California (and minority) “primary rights” view with respect to claims. If you need further explanation of the “primary rights” view – please let me know and I will add a bit more here.

Criminal Law – especially – crossed with Criminal Procedure could come up again: Criminal Law was tested last on the February 2013 bar exam and on the July 2012 bar exam. However, Criminal Procedure has not been tested recently and neither has a murder exam. (The  February 2013 exam tested accomplice liability heavily and did not include any criminal procedure and the July 2011 exam tested larceny and other possession crimes but, no murder). As a result, I think that a Criminal Law murder exam, crossed with a significant amount of Criminal Procedure is a good possibility. I also think that an exam with only Criminal Procedure is possible as well.

NOTE: I do not think it is incredibly likely that you will see both Criminal Law/Procedure and Civil Procedure on the July 2013 bar exam. However, I do think that each is as likely to show up – so be sure to review both topics – do not dismiss either subject.

Okay, so that is it for now. Okay, well maybe not . . . make sure you know the California tests for value enhanced separate property businesses (Van Camp and Pereira) . . . more on this (Community Property) soon (this should serve as a hint to one of the next topics on my “predictions” list).

In the meantime, keep at it. Believe in yourself and stay positive. Maintaining a positive attitude in the days leading up to the exam is key. There is still a lot of time – use it well. You should expect any topic and be ready for any topic. To that end – please read my prior posts about the importance of reading and studying past bar essays.

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 fairly 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. Best of luck to you all!

Lisa Duncanson
Program Director/Founder
Bar None Review
(213) 529-0990
barnonereview.com