California Bar Exam Tip: If Constitutional Law Is Tested . . .

Hello All,

I have received many emails asking for a link to my earlier Constitutional Law posts. I have copied and pasted the relevant portions below:

I have attached as a download, a past Constitutional Law Essay that I think is worth reviewing.

The reason I think it makes good sense to review this exam the day before is because of this simple fact – a very similar essay exam may appear on day three of the California Bar Exam. Therefore, it just makes sense to read through the essay. You can download it here: ConLaw Handout 2 F-05

This past essay exam 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 20 – 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 – simply read through 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 tomorrow.

And here is my earlier post regarding Constitutional Law and one of the approaches that would be helpful if you were faced with evaluating the Constitutionality of a state statute:

Constitutional Law: Constitutional Law was not tested on the last bar round. Now, that on its own is not enough to simply put it on the table so to speak. However, I do think it is a real possibility. But, this whole exam is not usually made up of all six essays from the MBE topics. So, something has to (in my opinion) come into the mix other than the MBE subjects being tested on the essays. Still Constitutional Law I think is a real possibility. First Amendment was tested last time (in February 2012). Now that does not mean that the First Amendment will not be tested again this time. However, I do have some thoughts on what I think might be a bit more likely. Just also keep in mind, the First Amendment is a favorite and is tested heavily – so do not presume it will not be on the test.

Possible Constitutional Law Essay Scenario: Evaluating the Constitutionality of a state or federal statute. Now this is a broad area as it could involve Equal Protection, Fundamental Rights (Privacy is a typical hot topic) and Due Process and either the Commerce Clause or Dormant Commerce Clause. And, of course whenever you are facing a Constitutional Law exam, you will typically begin your answer (but, pay attention to the call of the question) with an “Article III, Case or Controversy Requirements” discussion and State Action (both must be present to make a Constitutional claim). So, you might be thinking, she just predicted the possibility of virtually everything within Constitutional Law. Not really. If you have to evaluate the Constitutionality of a state statute – you will handle certain things in a certain order (unless directed otherwise by the call or calls of the question). For example, if you have to determine the Constitutionality of a state statute you will likely go about it in this order:

1) State Action (prove this up quickly – it is a preliminary issue generally – unless the facts really pose it as an issue – for example, a company town or a private entity performing some service or business that is generally conducted by the government – if you have facts like that, then develop this area, if not, then prove it up and move on)

2) Article III Case or Controversy Requirements (Standing - actual injury or personal stake in the outcome, causation, and redress ability (also, could be tested on third party standing or associational standing or the exception to the general rule that there is not “taxpayer standing” – but only bring these up if the facts generate it), the issue must be ripe, not moot, and must not involve a political question)

3) Is there an issue with respect to 11th Amendment Immunity?  This is generally a very quick discussion – but worth points to bring up IF you are dealing with a state statute (but, don’t dismiss the whole Constitutional Claim because of the 11th Amendment – it is just an area to bring up, address quickly and move on).

4) Does the state have the power to act? There will generally be a basis here and you should identify the state’s power as stemming from the 10th Amendment (certain powers are reserved to the states via the 10 Amendment – health, welfare, safety, education and morals)

5) Are there any pre-emption issues? Be careful here – there does not necessarily have to be a federal law provided to you on the fact pattern in order for preemption to be an issue (Supremacy Clause issue). Watch out for situations where the state is regulating the radio or television – if so – the FCC regulates this area and you then need to address the possibility that the state regulation is preempted by federal law.

6) Does the state law place an undue burden on interstate commerce? (this may or may not be an issue – it is simply a question you should ask yourself so that you are able to generate the issue, spot it, if it is present). If the state law discriminates between out-of-staters and in-staters (for example, a tax on all trucks coming in from out of state to deliver milk in plastic milk containers or a tax on all large trucks of a certain size and many of these trucks travel across the US) then you likely have an issue to discuss here.

7) Does the state law violate the Constitution? Here you should ask yourself whether or not there is an Equal Protection violation (it may be obvious and it may not be – hence, the reason to ask yourself). Also ask whether there is a Due Process violation (address both Procedural Due Process and Substantive Due Process and note that your discussion of Procedural Due Process on an essay exam is usually limited to notice and an opportunity to be heard . . . usually) and of course look to see whether there is a First Amendment violation (infringement on speech, the freedom of association or Religion – both free exercise and establishment clause. Also note: if you were tested on religion, you should discuss both Free Exercise and Establishment Clause – these come up together)

Possible Community Property Scenario:  Community Property was tested last time – but as a cross-over with Professional Responsibility. You may not want to hear this, but Van Camp and Pereira have not been tested in a while (these are the tests – or “accounting methods” for value enhanced separate property businesses). If this concept makes your eyes roll into the back of your head – take a deep breath and calm down. Remember that these tests are to determine what portion of a separate property business should be considered community property. It is not too much more complicated than that (for bar exam purposes). Review these tests (take five or ten minutes – even do it tomorrow morning if that is what you prefer – just in case), know which favors community property and which favors separate property – try your best to keep these tests straight – don’t worry – you can rely on short term memory for this. Also, remember that you should generally talk about both if either seems to be tested. It may be that the fact pattern (assuming you get a Community Property fact pattern that tests this area) where Van Camp seems to be the more applicable test. That is fine, write about it and still explain Pereira and quickly explain what the result would be if the court were to apply Pereira – remember, you are trying to show the grader your breadth of knowledge).

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

Published in: on February 27, 2013 at 8:35 pm  Leave a Comment  
Tags: , , , ,

California Bar Exam Tips: “Predictions” for Day Three’s Essays & Performance Test

Hello All,

Congratulations on being 2/3 of the way done with the California Bar Exam.

Hopefully by now you are resting, have had a healthy meal and may be doing a light review of topics for tomorrow.

We had an issue with the site crashing (more bandwidth next bar round – even the California bar exam’s website has crashed in past years due to heavy traffic – so I guess my site is not immune either).

So, the long awaited “predictions” for day three’s essays and some tips and suggestions regarding tomorrow’s performance test . . .

DAY THREE – ESSAY “PREDICTIONS”:

The caveat (I know you have read it in previous posts) again is that no one can predict this exam. So far Criminal Law, Professional Responsibility and Tort Remedies (possibly some other Remedies too) were tested on day one. PTA was an objective writing assignment that involved a restrictive covenant.

None of the above was a surprise subject wise. Everyone expected Criminal Law (but, many were expecting a murder essay). I certainly expected to see a full Professional Responsibility essay and Tort Remedies was also on our list. Since the subjects I was expecting have shown up, I am not varying my earlier “predictions” much.

So here is the short hand version:

I still think that Torts is a real possibility. Many examinees will presume that Torts is not going to be tested since there was an issue of conversion on yesterday’s exam. However, I still think that Torts is equally likely to show up. I also would think it would be highly likely to see a cross-over exam. Torts makes for a good cross-over with Professional Responsibility.
I have not changed my mind much about the “predicted” topics. Therefore, I would most definitely look over Constitutional Law (I feel this is quite likely – I have posted a Constitutional Law Essay here on the blog in an earlier post – I do recommend that you read or re-read my prior posts on Con Law – you will find the Constitutional Law Essay and an approach that may come in handy).
I also feel that Civil Procedure is possible. (Again, I am not changing my mind much about my earlier predictions. Due to yesterday’s PT that involved a non-compete clause (so I am told) I am a bit less inclined to think that a Property essay is as likely. However, ANYTHING is possible. Looking over what has NOT been tested within the area of Property in some time – Covenants, Equitable Servitudes and Easements are all areas within Property that have not shown up incredibly recently.
Essentially, you know that you need to be prepared for anything. That does not mean that you need to know every single rule statement perfectly. But, if you have any subject that you are particularly dreading seeing tomorrow – then regardless of my “predictions” that is where I would spend some of my time if I were you.
Many are predicting Corporations – it is certainly possible – but not my first pick right now.
Professional Responsibility OFTEN repeats as part of a question on day three – so be sure to review PR.
Evidence always makes for a good cross over and could repeat.
I will be writing more in the next 20 minutes or so . . . I just want to get these basic “predictions” up right now. For those of you who have been following the blog – there is nothing really all that new.
Please check back in for other possible suggested essay scenarios – these will only take a few minutes to read and will be worthwhile – especially if you actually see it on tomorrow’s exam.
PERFORMANCE TEST TIPS:
Most would predict a persuasive PT for tomorrow. While I would tend to agree, the most important thing is to simply follow instructions to a T. PT A (from what I have heard) seems to have been fairly straightforward and was an objective assignment.
I would expect that perhaps PTB would include more cases, and or statutes and could possibly require you to write multiple documents.
However, if I had to pick a particular type of PT for tomorrow, I would pick an appellate brief. This may or may not be what you get, of course. But, in the event that you do . . . pay close attention to which parts of the “brief” you are asked to write. For example, on past Performance Tests, examinees were asked to write an Appellate Brief (in the senior partner memo – or assigning memo) but were also instructed in that same memo (to you, the applicant) to only write certain sections of the brief. In these past exams, there was an internal/firm-wide/”to all associates” memo within the case file that provided instructions on how all appellate briefs should be written. Often, examinees will follow that second “firm wide” memo to all associates blindly, disregarding the instructions from the Senior Partner memo to “only write sections . . . ” etc.
Just be careful, read very carefully and remember, the PT is form over substance and you must, must, must, above all . . . FOLLOW INSTRUCTIONS.
Keep your wits about you, you can do this!
All the best to all who are studying for the exam!
Published in: on February 27, 2013 at 8:16 pm  Leave a Comment  
Tags: , , , , , , , , ,

California Bar Exam: Day Two and “Predictions” for Day Three

Hello All,

Right now you are most likely taking the AM section of the MBE . . . unless you are an attorney taker. And, in just an hour or so, you will be half way done with the California bar exam! Congratulations!

So, as promised, I will be posting about what I think might be possible for day three’s essays. I am taking into account what was covered in yesterday’s Performance Test A into my assessments of what I would expect you to possibly see for testing tomorrow.

First, some comments about yesterday’s essays:

1. Day One is over – do not rehash it, replay or worry about it. It is done and you can not go back and re-do it and there is nothing to be gained from going over it and over it again.

2. The above being said – I think there are some things that I can say that might help you put Day One’s essays to bed – so to speak. Aside from simply putting Day One behind you – perhaps this will help: Essay number three had many options as to what could have been discussed. This essay was very similar to Essay #2 from the July 2003 bar exam (something I have brought up on many, many occasions in my bar review course). I have used this essay (from the July 2003 bar exam) as an example of what would be considered an “oddball” essay. On the July 2003 bar exam, the fact pattern was very similar, but the call of the question in 2003 was different. It was different in that examinees were asked to discuss “trust remedies”. This confused many examinees. This bar round it was a different call (and quite frankly, in my opinion, easier to deal with because the calls lead you to certain issues that a call of ‘trust remedies’ might not have). The point of all of this is that I have used this past exam as an example of what I would refer to as an “oddball” essay exam in order to illustrate how various answers (very different responses) would be acceptable. In fact, the story that I relay to my students is this:

“On Day One of the July 2003 bar exam, several of my students called me to discuss essay number two – the essay that tested ‘trust remedies’. I remember two students in particular with whom I spoke to that night. One was a valedictorian from an ABA law school and the other was a repeat taker who had attended a non-accredited law school. Both called me and told me how they handled that ‘oddball’ essay. Each had a very different route to resolving the issues presented and doing their best to answer the call of the question. However, both had some overlap in their coverage. I was confident that both examinees had successfully answered that question. And, both ultimately passed that bar round.”

The reason I even tell this story is to underscore for my students (and now for you) the importance of simply focusing on doing your absolute best to resolve the legal problem(s) presented in the fact pattern. Sometimes we get so caught up in the rules and definitions that we have been attempting to memorize for months that we lose sight of some of our common sense and practical ability to problem solve.

So where does that leave you with yesterday’s essays? Day one is over. What I want to make clear regarding essay number three is that there were variations of answers that will all be correct. Some will have addressed some Contract issues while others perhaps more regarding Torts and specific Tort Remedies – I could give you a list of the two or three issues that I believe a passing answer for that essay absolutely had to have . . . but I will not do that right now – because it will NOT serve you well to think that you missed one or more of those issues. AND regardless of how you did yesterday – you are still in the game – you simply have to take that approach. If you feel badly about yesterday – LET IT GO. That is your choice – to take that approach – and I urge you to make that choice.

You can take on today and tomorrow and no matter what happened yesterday, you can still take this test and make it your last. Be positive and let yesterday go.

One last thing about yesterday’s essays – many have written in indicating that day one was really hard. So, all of you reading this should keep the test in perspective. Yesterday was not likely a walk in the park for anyone. It was simply what it was – and now it is behind you – relish in that. And, resolve and commit to the rest of the exam with as much vigor and confidence as you can possibly muster.

One of the messages I received yesterday was from an examinee who told me of some of the mistakes he felt he had made and asked me if I thought there was “still hope”. I actually receive that same email many times over from many examinees. And, my answer is this: of course there is still hope. You go for it and do not allow this test to get the best of you. Perform at your best today, let yesterday go and tomorrow – do the exact same thing.

“Predictions”

I will be posting again today with my “predictions” for tomorrow’s essays and some thoughts about the Performance Test.

Until then, put yesterday and this morning behind you. Stay positive and believe in yourself.

All the best to all who are taking the exam today!

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

Published in: on February 27, 2013 at 11:57 am  Comments (5)  
Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,

California Bar Exam: Day One’s Essays

Hello Everyone,

Very soon you will be done with one third of the California bar exam! Congratulations!

I am about to meet up with some of my students here in Ontario. But, I wanted to write a post before heading out for a bit.

Below you will find: 1) three recounts of what was tested by three different examinees, and 2) my thoughts on what could be tested on day three’s essays.

Thank you to all of you who took the time on your lunch break to write in and tell me what was on today’s essays!

So, you all know that Essay One was Criminal Law, Essay Two was Professional Responsibility and Essay Three was Remedies.

Remember – I have not seen these fact patterns – so I am relying on examinee’s accounts of what was tested. But, I am fairly certain that the above topics were tested.

Here are a few of the reports I have received from examinees:

Report Number One – Examinee’s factual recollection of Day One’s Essays (DISCLAIMER: no one’s memory or assessment of what was tested is going to be perfect – do not freak out or worry that you might have missed something – this is ONE person’s account and it is fairly detailed. If reading this causes you anxiety – then do not read it):

Essay One – Criminal Law

Max and sons A B and C operate an art store. As partners. Max
regularly purchases stolen art and resells for profit. Max didn’t tell
sons of his illegal activities.

Sons suspect art is stolen.

Max contracted with Ted to buy a stolen painting. Max and sons picked
up the painting.

Allen read an article about the stolen painting and suspects that the
painting is stolen but didn’t discuss with anyone.

Burt contacted Ted and asked him to send a copy of the painting
instead to Max and planned to keep the real painting for resale.

Carl regularly sold information about Max’s illegal activities to law
enforcement and was continuing to participate for that purpose.

Discuss m a b and c’s:

1. Possibility of Conviction for conspiracy to receive stolen goods.
2. Possibility of conviction for receiving stolen property
3. Possibility of conviction of attempt to receive stolen property.

Essay 2 – Professional Responsibility

Carol applied for rental of an appartment from Landlords inc. Carol
had small children and believes that she was denied because she has
small children.

Carol hired Abel to represent her in suing Landlords for violating the
statute of anti-discrimination.

Landlords retained Barbara. Barbara told A that she is representing L.

Abel took Ford to lunch. Ford is a previous employee of L who
participated in the decision of C’s application and A asked about L’s
practices and what F and B talked about in their conversation.

B took deposition of C. During deposition A suspected that C was
falsifying her income but didn’t say anything.

After the deposition, B offered to settle for 5k. A agreed and signed the offer and
told C about it that night. C was not happy about the amount.

What ethical violations?

Essay 3 – Tort Remedies*

Mary and frank orally agreed to purchase property in 2004 jointly. They
agreed that F would occupy the property and if sold, M would receive
half of the sales price.

M gave $40k and F paid 40k, that he embezzled from Tanner, to purchase
the property at $80k.

F sold the property in 2012 for $300k. M asked for $150 and F offered to
pay back 40K.

M and T sues F for conversion. Court finds liability for conversion on F.

Discuss what remedy or remedies m has and what defenses f can assert
and the probability of success.

Discuss what remedy or remedies T has and F’s defenses and
possibilities of success.

*Many are in agreement that “Tort Remedies” was tested. However, other examinees have reported Contract Remedies coming up as well as a Statute of Frauds issue being a possible discussable point. The thing to remember is that there IS latitude with respect to discussions – proof of this is pretty evident from the released answers from the California bar exam. So, if you disagree with any of this, do not panic.

Another Examinee’s report of what was tested on Day One’s Essays:

Essay 1: Criminal Law: Conspiracy, attempt, impossibility, mistake, partnerships?

Essay 2: Professional Responsibility: settlement offers, communications with represented client (former employee), suspected perjury (in deposition)
Essay 3:  Remedies: replevin, equitable lien, constructive trust, quasi-contract
Another Examinee’s report of what was tested on Day One’s Essays:
Essay 1: Crimes (no crim pro) – conspiracy, accomplice liability, receipt of stolen property, attempt.Essay 2: Professional Responsibility:  Lawyer had lunch with former employee of represented organization; lawyer didn’t communicate settlement offer to client and made the decision to accept it on his own; lawyer suspected client lied during deposition testimony.

Essay 3: Remedies – D was liable for conversion against 2 Ps.  Call was to discuss all remedies and defenses to remedies and decide who will prevail.

The whole thing felt like a major time crunch!  Hoping I did good enough! Thank you for all you do!

So, now what?

Well, on to day two (for those of you who are taking the MBEs tomorrow). And for those of you who are attorney takers, you will likely be spending the day tomorrow studying and would like to have some ideas as to what might be coming on Thursday’s Essays.

I want to know what was tested on today’s performance test before I commit to what I think might be likely/possible essay scenarios for Thursday. But, for now, I am still leaning towards Civil Procedure as a likely repeat from the July bar exam. I am also still thinking that Constitutional Law is likely (see my earlier posts that include a past Constitutional Law essay for your review as well as an approach). I think that Commerce Clause and/or Equal Protection is very possible. Remember that Due Process includes both Procedural Due Process and Substantive Due Process). Privacy is an area that has not shown up in a while and often when it does it is in the area of rights to familial decisions, having children etc. and therefore involves both a fundamental right (Privacy) as well as a potential Equal Protection claim – in particular if girls/women are being treated differently with respect to these rights – and if it is any other group – that is not a suspect class – but whose rights are being infringed upon – there can still be an equal protection claim (although not likely win-able) applying the rational basis test.

With respect to Constitutional Law - please review my prior posts from earlier this week. I am still leaning towards what I stated previously.

Now, what about Torts? I mentioned in an earlier post that I was a bit suspicious of Torts – it was too obvious and I was inclined to think that Tort Remedies might come up AND that if it did you could STILL see Torts again. (Review prior posts from the past week – past bar rounds examinees were tested on Contracts on Day one and then a full Contracts/Remedies essay on Day three – this is also possible with Torts and Tort Remedies). So, just don’t dismiss Torts.

My thoughts on Property - While I still see it as a possibility – it feels a bit less likely to me now given the context of today’s remedies essay. However, you know that anything is possible.

I will write more about my thoughts on “predictions” later after I hear what is/was on today’s Performance Test A.

For example, if it tested Professional Responsibility heavily – then I would not expect to see much in the way of Professional Responsibility on Thursday’s essays (remember, PR repeats from day one to day three – very often it is a cross over on one of the days and a full PR essay on another).

So, I am waiting to hear more about what was tested this afternoon before I weigh in more heavily.

Congratulations on being one third of the way done with the bar exam!

All the best,

Lisa Duncanson

Published in: on February 26, 2013 at 4:59 pm  Comments (6)  

Bar Exam Tips: Quick Recap of Bar Exam Predictions

First of all, good luck to all who are taking the bar exam today! Stay positive and keep your wits about you. Believe in yourself and be confident.

I thought I would put up a quick recap of the “predictions” to date (with the strong caveat that no one can predict this exam).

1. Most everyone is predicting Torts (this is a pretty obvious one, which makes me a bit suspicious of it . . . but, like most everyone else, I think you will likely see a Torts exam). Note earlier (more detailed posts about possible Torts scenarios that included products liability, or nuisance, tort remedies. Also a possibility is defamation – the fact that it has been a while since Torts has been tested, most anything is “up” so to speak).

2. Civil Procedure (generally a subject or two or sometimes three – will repeat from one bar exam round to the next). One of my first picks for repeat topics is Civil Procedure (of course there is always the great likelihood that Professional Responsibility will show up – it has only been skipped on the essay portion twice in the past 23 bar exam rounds).

3. Criminal law & Procedure (I already indicated earlier that I was leaning towards a Murder exam perhaps in the context of a 6th and or 8th Amendment – Capital Punishment issue). This scenario has not been tested in some time and murder has been absent from the bar exam for some time.

4. Constitutional Law (I think this is a very good possibility. And, if you were to see Constitutional Law, I think that there would be a high probability of seeing something in the arena of evaluating a state statute – which could generate a number of issues – equal protection, substantive due process (could involve fundamental right, privacy is commonly tested) and I provided an essay handout on a post from Monday that gives an example of a state statute and whether it places an undue burden on interstate commerce – this area is highly testable – review the essay I posted as well as the approach I posted for evaluating the constitutionality of a state law/statute (this was posted earlier on Monday).

5. Corporations/Business Organizations – most are predicting this subject. I could see it happening. The last bar round was light on Professional Responsibility – therefore I would not be surprised if you had other subjects that involve duty issues (like Corporations: duty of loyalty, duty of care + the business judgment rule as a potential defense, or Trusts – with a focus on Trustee duties – these are favored areas for testing). An area worth noting that has been absent from the essays is the area of winding up a partnership. This is ripe for testing. Securities laws (10b5 corporate pronouncements and tipper/tippee and 16b Shortswing Profits) have not been tested in some years. Still, anything can come up in this area – in past years the bar examiners have provided a fact pattern that seems to scream of 10b5 and 16b and then the call of the question tells you NOT to answer under the federal securities law, but instead to answer according to the common law – many are stumped by this and do not know what to do. Well, this is part of what you would do – if you were given such an essay – write about common law misrepresentation and fraud and ultra vires.

6. Property – now this one is tricky. It has been on the exam – but there are areas that have been absent for some time (Covenants & Equitable Servitudes and Easements. Covenants and Equitable Servitudes could come up in the context of a Land lord/tenant issue (this is fairly common) OR it could come up with respect to a landsale contract (so too could Easements). The area of recording acts, notice have not come up in a while and could in the context of marketable title for example or simply to determine if a buyer takes subject to an easement. The reason Property is a tricky pick is because it has shown up on the bar exam with some regularity. However, the issues tested have not been the most typical (for example – in 2011 the bar examiners tested a FSA with a future interest, restraint on alienation, ouster, adverse possession – and that just mentions a few of the areas tested on one of the past Property essays – so not your most typical coverage/testing. That is why I think it could be a real possibility.

7. I also think you could see Community Property OR Evidence again – these could come up as cross overs with other topics or alone. Wills and Trusts (although both tested in the past year) are always possibilities. As mentioned above, an exam with Trustee duties is a possible area – it is favorite area of testing and see earlier “predictions” posts regarding spendthrift, support and discretionary trusts).

Remember, no matter what you see on the exam tomorrow, do not let it get the better of you . . . if it seems hard, it is because it is hard – which means that everyone  thinks it is hard. Keep it all in perspective and don’t allow yourself to doubt yourself or to hesitate too much – just write. Trust your instincts and show them what you know – remember not to dismiss issues in your head, but instead to dismiss issues on your paper – this shows a breadth of knowledge the examiners seem to be looking for.

Above all, remember you do not have to be perfect! Just do your best to resolve each legal issue presented . . . and DO NOT throw common sense out the window!

All the best to you all tomorrow!

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

Published in: on February 26, 2013 at 12:37 am  Leave a Comment  
Tags: , , , , , , , , , , , , , , , , , , , ,

Bar Exam Tip: The Most Popular Question of the Day: “What Should I Study Today”

Hello All,

I have been asked this question by many examinees and so I thought I would take a moment to answer it here for everyone to see.

Many people are writing in asking what subjects they should study today. I recognize that the reason these individuals are asking me this question is because they think that they should study today what is most likely to show up tomorrow . . . and they are asking me because I have had a reasonably good track record of “predicting” the essay topics. Well, that is risky business . . . studying around what anyone might say is going to be on the test. First of all, I do not claim to be able to predict what you will see on the exam. I spend time coming up with what I think are possible essay scenarios (incidentally, one of my competitors is now calling it that: “possible scenarios” . . . interesting . . . but, I digress). My point is that while it feels good to go into the exam with these potential essay scenarios and it will feel even better if you see even just one of these essay scenarios tested – you should study what is the weakest subject for you.

Now, that is assuming you are studying at all today. I did not study the day before the bar exam. I planned on it, but when I got to the day before the exam, I simply decided not to study anymore. I passed. I have friends that continued to study up into the evening prior to the exam and they too passed. You really have to do what feels right for you. I personally think that you should not stay up late studying.

And, with respect to predictions and how you should study today (assuming you do study today) you should take a look over the “predicted” possible essay scenarios. But, your time should be spent reviewing any subject you would be afraid to see tomorrow – that is where you should focus.

Remember, no one has a crystal ball with respect to this exam. Therefore, while I think it helps calm students down to have some areas of focus – you should really think about the following:

1) Do I need or want to study today? (really – it is okay not to study today – sometimes rest is the best thing and just a light review of topics or no review), and - If you are planning on studying today then:

2) Focus on an area that is one that you are hoping you will not see on the essay exam. You may not be able to resolve every aspect of that topic or subject in your favor – but at least you can go into the test knowing that you gave it some extra attention close in time to the actual exam.

Above all, do things today that are good for you. Do not panic. You might say: “Easy for you to say . . . you are not taking the test tomorrow”. You are right, I am not taking the test tomorrow. But, I have taken and passed two bar exams. Some degree of panic is normal. But, do not allow it to overwhelm you. Push it away. That is imperative and will do far more for your likelihood of success on the exam than virtually anything else you could do today.

All the best to all of you who are taking the exam tomorrow! Be positive, trust your instincts and remain as calm as possible.

Best of luck!

Published in: on February 25, 2013 at 10:27 am  Leave a Comment  
Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

California Bar Exam Tips: A Handout and Some Final Thoughts . . .

Hello All,

The bar exam is now just a day away. I wish all of you who are taking the exam tomorrow, the very best of luck.

If you have read my prior posts, you know that Constitutional Law is one of the subjects that I am leaning towards your seeing on the February 2013 bar exam. Of course, you may not see Constitutional Law on the February 2013 bar exam. But if you were to see it, would you know how to handle it?

This might not seem like a question that you would want to ask yourself this close to the bar exam  - but why not? If you do not know how to handle a Constitutional Law essay today (very early on Monday morning) the day before you take the test, is it too late? Of course not.

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 have attached as a download, a past Constitutional Law Essay that I think is worth reviewing (yes – the day before the exam – why not)?

The reason I think it makes good sense to review this exam the day before is because of this simple fact – a very similar essay exam may appear on day one or day three of the California Bar Exam. Therefore, it just makes sense to read through the essay. You can download it here: ConLaw Handout 2 F-05

This past essay exam 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 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 – simply read through 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.

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 (examinees with six day testing conditions, take the performance test on Wednesday), I will limit my discussion of PTA to the end of day two of the bar exam.

Thank you again for following the blog.

I wish you all the very best of luck tomorrow. Remember to stay positive and to believe in yourself!

Best of luck to you all!

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

Published in: on February 25, 2013 at 1:33 am  Leave a Comment  
Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

California Bar Exam Predictions: February 2013 – Part Two

Hello Everyone,

Thank you for following my blog and for your kind words and emails. Okay, so here we are (here you are) about to take the bar exam in a few days. And there is so much to know . . . and it might seem like there isn’t enough time to know it all . . .

You should know that everyone feels this way. I felt this way before the bar exam when I took it (and passed it) and everyone I know who has passed the exam feels this way leading up to the exam. So, before I get into more “predictions” (and the caveat about how there is absolutely no way that anyone can “predict” the essay topics) I wanted to give you some advice about how to approach the weekend.

1) Actively work at being calm. It is perfectly normal for bar examinees to go into panic mode. While it is normal, it is not helpful. Therefore, you simply have to keep your level of panic and anxiety under control – I tell my students to actively concentrate on being calm while they study and to constantly tell themselves (especially in these final days leading up to the exam) that they can do it.

2) Be realistic. Understand that no one walks into the bar exam knowing everything and, thankfully, that is not what is required of you to pass. Instead, your focus should be on identifying and resolving the legal issues and problems presented by each fact pattern. All too often, examinees lose sight of this and think that the exam is about having an absolutely perfect memory of definitions and rules. Take a look at any released bar exam answer and you will know that this is not true. Of course, it is important to know the law and to have the ability to write proper rule statements. But, far more important than perfect rule statements is to be able to show the graders that you truly understand the legal concepts that are being tested and that you can resolve these issues by having a solid discussion (using the facts and explaining why something is or is not . . . something). This is the key – to identify and resolve legal issues and to do so consistently.

Some of the released answers are flat out wrong when it comes to the definitions. However, what the released answers evidence consistently is that the examinee has a breadth of knowledge about the subject and that they have a command of what the legal issues/problems are presented by the fact pattern. Therefore, you should . . . READ ESSAYS (see number 3, below):

3) Read past bar exam essays and answers. I know that I have emphasized this before many times. But, you may not see the benefit of reading essays right now, on Friday or on Saturday, for example. I know the temptation is to simply stick to your memorization (and this is certainly something that you should spend time on). However, if you can not identify the issue on the fact pattern – your memorization of an outline will be of little service to you. So, to that end, please take time out to review essays and to especially study the answers (this is often the only way to truly gain an understanding of how the issues and legal problems come up on the California bar exam).

Okay . . . “predictions”

So I have mentioned that I think Civil Procedure could repeat and that Criminal Law and Procedure could  repeat. And, I believe I already suggested that you take a look at Property Easements as well as Torts (with Products Liability being a possibility as well as a Tort/Remedies crossover – remember, however, that whenever a subject has been absent from the test for a while – as Torts has – that virtually anything could be tested within the topic – so do not skip Defamation – that is certainly a possibility).

If you would like to see some past exams and receive other tips, I will be happy to put you on our email list for tips – simply send me an email to: pass@barnonereview.com and indicate: “Send me bar exam tips” in the subject line and I will add you to our list.

Okay, now onto . . .

Other Possible Areas for Testing:

Constitutional Law: Constitutional Law was not tested on the last bar round. Now, that on its own is not enough to simply put it on the table so to speak. However, I do think it is a real possibility. But, this whole exam is not usually made up of all six essays from the MBE topics. So, something has to (in my opinion) come into the mix other than the MBE subjects being tested on the essays. Still Constitutional Law I think is a real possibility. First Amendment was tested last time (in February 2012). Now that does not mean that the First Amendment will not be tested again this time. However, I do have some thoughts on what I think might be a bit more likely. Just also keep in mind, the First Amendment is a favorite and is tested heavily – so do not presume it will not be on the test.

Possible Constitutional Law Essay Scenario: Evaluating the Constitutionality of a state or federal statute. Now this is a broad area as it could involve Equal Protection, Fundamental Rights (Privacy is a typical hot topic) and Due Process and either the Commerce Clause or Dormant Commerce Clause. And, of course whenever you are facing a Constitutional Law exam, you will typically begin your answer (but, pay attention to the call of the question) with an “Article III, Case or Controversy Requirements” discussion and State Action (both must be present to make a Constitutional claim). So, you might be thinking, she just predicted the possibility of virtually everything within Constitutional Law. Not really. If you have to evaluate the Constitutionality of a state statute – you will handle certain things in a certain order (unless directed otherwise by the call or calls of the question). For example, if you have to determine the Constitutionality of a state statute you will likely go about it in this order:

1) State Action (prove this up quickly – it is a preliminary issue generally – unless the facts really pose it as an issue – for example, a company town or a private entity performing some service or business that is generally conducted by the government – if you have facts like that, then develop this area, if not, then prove it up and move on)

2) Article III Case or Controversy Requirements (Standing – actual injury or personal stake in the outcome, causation, and redress ability (also, could be tested on third party standing or associational standing or the exception to the general rule that there is not “taxpayer standing” – but only bring these up if the facts generate it), the issue must be ripe, not moot, and must not involve a political question)

3) Is there an issue with respect to 11th Amendment Immunity?  This is generally a very quick discussion – but worth points to bring up IF you are dealing with a state statute (but, don’t dismiss the whole Constitutional Claim because of the 11th Amendment – it is just an area to bring up, address quickly and move on).

4) Does the state have the power to act? There will generally be a basis here and you should identify the state’s power as stemming from the 10th Amendment (certain powers are reserved to the states via the 10 Amendment – health, welfare, safety, education and morals)

5) Are there any pre-emption issues? Be careful here – there does not necessarily have to be a federal law provided to you on the fact pattern in order for preemption to be an issue (Supremacy Clause issue). Watch out for situations where the state is regulating the radio or television – if so – the FCC regulates this area and you then need to address the possibility that the state regulation is preempted by federal law.

6) Does the state law place an undue burden on interstate commerce? (this may or may not be an issue – it is simply a question you should ask yourself so that you are able to generate the issue, spot it, if it is present). If the state law discriminates between out-of-staters and in-staters (for example, a tax on all trucks coming in from out of state to deliver milk in plastic milk containers or a tax on all large trucks of a certain size and many of these trucks travel across the US) then you likely have an issue to discuss here.

7) Does the state law violate the Constitution? Here you should ask yourself whether or not there is an Equal Protection violation (it may be obvious and it may not be – hence, the reason to ask yourself). Also ask whether there is a Due Process violation (address both Procedural Due Process and Substantive Due Process and note that your discussion of Procedural Due Process on an essay exam is usually limited to notice and an opportunity to be heard . . . usually) and of course look to see whether there is a First Amendment violation (infringement on speech, the freedom of association or Religion – both free exercise and establishment clause. Also note: if you were tested on religion, you should discuss both Free Exercise and Establishment Clause – these come up together)

Possible Community Property Scenario:  You may not want to hear this, but Van Camp and Pereira have not been tested in a while (these are the tests – or “accounting methods” for value enhanced separate property businesses). If this concept makes your eyes roll into the back of your head – take a deep breath and calm down. Remember that these tests are to determine what portion of a separate property business should be considered community property. It is not too much more complicated than that (for bar exam purposes). Review these tests, know which favors community property and which favors separate property – try your best to keep these tests straight – don’t worry – you can rely on short term memory for this. Also, remember that you should generally talk about both if either seems to be tested. It may be that the fact pattern (assuming you get a Community Property fact pattern that tests this area) where Van Camp seems to be the more applicable test. That is fine, write about it and still explain Pereira and quickly explain what the result would be if the court were to apply Pereira – remember, you are trying to show the grader your breadth of knowledge).

Okay, I will write more tomorrow.

Keep reading essays and stay positive!

All the best to you in your studies!

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

Published in: on February 22, 2013 at 12:02 am  Leave a Comment  
Tags: , , , , , , , , , , , , , , , , , , ,

California Bar Exam Predictions: February 2013 – Part One

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

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.

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 February, 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, 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. Once I have released all of the essay scenarios that I think are likely, I will put together a comprehensive post of all of the predictions. Incidentally, it is worth taking a look at my “predictions” from the July 2012 bar exam for some of the areas that I addressed that did not come up as these may be more likely now – you can find these by scrolling way down on the right for our postings by month – click on July 2012 and you should be able to to look back through that month’s postings and find the predictions from last time).

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

Last bar round, I felt strongly that Evidence or Constitutional Law could repeat. I felt a slight preference for Evidence and it was in fact tested on the July 2012 bar exam. Since Constitutional Law did not show up – I am leaning towards your seeing it this time. I will write about this more in upcoming posts.

As far as subjects that could repeat from the July 2012 bar exam round – this time, I feel that of the subjects that could repeat, that Civil Procedure is a very good possibility as is Community Property.

Wills could also repeat (as could any subject from the last bar exam – be very careful not to presume that simply because something was not tested last time that it will not be tested again this time). And – as usual – a Professional Responsibility essay is typically likely (no surprise there).

Possible Essay Scenarios:

If Civil Procedure were to repeat: The most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. Last bar round, personal jurisdiction was tested (along with subject matter jurisdiction and supplemental jurisdiction). The essay was primarily about personal jurisdiction (and had a full discussion of minimum contacts). Prior to July 2012, the last time in personam jurisdiction was tested was in 2006. As a result, it would certainly not be unusual if you were tested on Civil Procedure again and in fact personal jurisdiction again. This happens. So – be prepared for it. Most would not be expecting it. However, if Civil Procedure were to repeat then I would expect an essay exam that possibly tested either some of the California specific areas (the California bar examiners have yet to test anything California specific in Civil Procedure – take a look at demurrer and SLAPP Suits and the responsive motion to a SLAPP Suit called an “Anti-SLAPP” motion – incidentally the area of SLAPP suits would be a great cross over with the First Amendment – I am not saying you will get this on this bar round - but some day it is coming) and/or some of the other issues that were not tested on the last bar administration. For example – collateral estoppel and res judicata. I thought both were a good possibility for testing (along with personal jurisdiction) on the last bar exam.

One of the last times collateral estoppel and res judicata were tested was in the context of in personam jurisdiction. I have a past essay exam from the bar exam that tests both together. This exam is no longer on the California bar website. Incidentally, that administration tested Personal Jurisdiction (specifically: IPJ with a full minimum contacts analysis) and Collateral Estoppel and Res Judicata.

If you would like to see this exam, I will be happy to put you on our email list for tips – simply send me an email to: pass@barnonereview.com and indicate: “Send me bar exam tips” in the subject line and I will add you to our list.

Another area within Civil Procedure that I would suggest you take a look is the area of “interlocutory appeals” – this is usually tested briefly as a fairly short “tack on issue” in a Civil Procedure exam. The issue is usually tested in this way – one of the parties is appealing prior to there being a final judgment (could even be on the basis of the court’s denial of one of the parties wish to use collateral estoppel or res judicata to bar the re-litigation of an issue or a claim). Since the party is attempting to appeal prior to a final judgment in the instant case – this generates an issue with respect to interlocutory appeals. It is a short discussion, but one that must be had and one that has certainly come up many times on the bar exam in the past.

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. So while class actions has been absent for many bar rounds, it is still no more likely in my mind, as Collateral Estoppel and Res Judicata. Since jurisdiction is such a heavily tested area, it would not be unusual to see an exam on this bar administration that tested (in a more emphasized way) subject matter jurisdiction. This could easily be done and tested with other typical issues like: Venue, Remand and/or Removal.

Incidentally – with respect to issue and claim preclusion – 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 (Res Judicata). If you need further explanation of the “primary rights” view – please let me know and I will add more about this area in a future posting.

If Criminal Law/Procedure were to repeat: Criminal Law was tested last on the July 2012 bar exam. While Criminal Law was also tested on the July 2011 bar exam, prior to this past bar exam round Criminal Procedure had not been tested since 2010. Also, Murder has not been tested since 2010. That is quite a long time for the bar exam to skip an area that is historically heavily tested. So – there are two things that I am thinking of in terms of Criminal Law/Procedure repeating on this bar round: 1) Murder seems like a likely area for testing since it has not shown up on the exam in a very long time and 2) Criminal Procedure makes for a good repeat area as well since it has not been tested incredibly heavily in the last several bar rounds. I am not saying it is a definite – I am suggesting that you should be prepared for it. Areas within Criminal Procedure that have not been tested in a long time are: some of the 6th Amendment “tack on issues” like peremptory challenges (perhaps based upon a juror’s “lack of belief” in the death penalty or “opposition to the death penalty” and the 8th Amendment (capital punishment) – both of these areas have been absent for some time on the essay portion of the bar exam. For an approach to writing a murder essay exam click here for a shorthand approach to writing a murder essay.

Torts (Products Liability or Tort Remedies): Most are predicting Torts. I would have to agree that this is a very likely subject for testing. And, most are predicting a products liability essay. While I think this is entirely possible – there are some other areas that are also possible. The longer it has been since a subject has been tested – the more likely (in my opinion) that it could be in any area within that subject. Therefore, simply be ready for Torts. Last bar round I was suggesting that if you were to be tested in Torts that Products Liability was a possibility or perhaps an exam that tests Malicious Prosecution and Abuse of Process crossed over with Professional Responsibility. As I look at it again – another area that has not been tested in some time is the area of Tort Remedies. Now – here is the thing – in past bar exam administrations we have seen bar rounds where Contracts was tested on day one of the bar exam and then on day three Contract/Remedies was tested. So . . . am I suggesting that Torts could be tested on day one or day three and then on the other day a Torts/Remedies exam? Well . . . it could  happen. It is not my first pick of scenarios (that you will see both a Torts essay on one of the days of the bar exam and then a Torts/Remedies exam on the other essay day – BUT – it has happened previously with Contracts and Contracts/Remedies – so simply be prepared for that slight possibility. And, since Torts is so heavily predicted by so many this bar round – then you clearly would want to be ready for anything within this subject and that would include a Tort Remedies exam.

Incidentally – a nice area for testing with Torts and Tort Remedies is an essay that tests Nuisance (and then a Nuisance that becomes a Trespass to Land, causes perhaps a Trespass to Chattel (maybe items on a person’s property are damaged and then this results in Conversion as well) and then the remedies of Damages for the intentional torts and injunctive relief are tested. Know the elements of an injunction and know that when injunction is being tested – one of the areas you are typically expected to discuss in a bit more length is the area of “balancing of the hardships”.

Okay, so that is it for now.

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 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.

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

Published in: on February 20, 2013 at 9:40 am  Leave a Comment  
Tags: , , , , , , , , , , , , ,

February 2013 Bar Exam Tip: Shorthand Murder Essay Approach

Hello Everyone,

I wish all of you who are studying for the February 2013 bar exam this week the very best of luck!

I mentioned that murder might be on your upcoming bar exam. It has been absent for some time and would seem to be due. Of course, anything is possible. But, many will presume that Criminal Law and Procedure is not going to be tested simply because it was tested on the preceding bar exam. Remember, the bar examiners do repeat subjects from one bar round to the next – back to back. And, murder (while within Criminal Law) was not tested on the last bar exam. And, murder has not been tested in a very long time. As a result, I would be prepared for it.

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 if you have an approach going into the exam).

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) 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), 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.

If you were to get a murder essay, I am thinking it could be in the context of Criminal Procedure (specifically in the context of the 8th Amendment and/or 6th Amendment). I will write more on that possible scenario soon.

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

Published in: on February 20, 2013 at 5:00 am  Comments (1)  
Tags: , , , , , , , , , , , , , , , , , , ,
« Older Entries
Newer Entries »
Follow

Get every new post delivered to your Inbox.

Join 14,300 other followers