California Bar Exam: Criminal Law Murder Approach

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Hello Everyone,

Thank you again for following the blog. I mentioned earlier that murder might be on the exam. It has been absent for some time and would seem to be due. Of course, anything is possible. And, if you were studying for the bar at any time in the past couple of years, then you will know that many have been predicting a murder exam for some time. It was on my list of possible essay scenarios for July 2014 (along with Criminal Procedure – which did actually show up on the last exam).

But, most seem to have put aside the idea of a Criminal Murder exam showing up on this bar exam. I would not do that. (But, 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). And, if you have studied past bar exams, you know that on any particular bar round any subject is possible. Since murder has not been tested in a very long time, it would be a good idea to be prepared for it. 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 February 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 –  write your heart out tomorrow.

Did you know that many topics show up back to back (from one bar round to the next) sometimes even three times in a row? Therefore, all bets are simply off on presuming something is not likely to come up.

My main focus in writing during the bar exam days is to simply provide you with something to hang onto, some peace of mind and hopefully even a little bit of sanity.  

I know how demanding and draining and how seemingly impossible taking this exam can sometimes feel like to examinees. But, it doesn’t have to be that way – sometimes a few words of encouragement – or a quick review of an approach – like the approach below :) – can be all a person needs to make that little bit of difference between passing and failing. That is why I write here. I tell you this as a source of encouragement: it is completely normal to be a little bit freaked out about tomorrow (assuming you are awake – like most, and are thinking about the exam). This is normal. It is also normal to feel somewhat calm – we are all different. There is no one size fits all approach to this exam. Ideally you would get a good nights sleep before the bar exam. Some do. I never did – and yet I passed. So where ever you are at (asleep early or awake still and reading this post) you can do it!

OKAY – WHAT TO DO IF YOU WERE TO GET A CRIMINAL LAW MURDER ESSAY TOMORROW (OR THURSDAY)?

As a bar taker you undoubtedly 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.

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 murder question:

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), 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).

Best of luck to you all!

Lisa Duncanson

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

California Bar Exam: February 2015 Bar Exam Tips List – Join Here!

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Hello All,

If you are taking the February 2015 bar exam and would like to join our February 2015 Bar Exam Tips List, and receive a copy of our Constitutional Law Handout on how to evaluate the constitutionality of a state or federal statute, you can do so by completing the form below.

*Your information is safe; I do not release your contact information to anyone.

Incidentally, I do think that Constitutional Law is very possible – in particular, I think that the chances of your getting an exam testing a state statute that potentially places an undue burden on interstate commerce is very likely if you were to see Constitutional Law. This area of Constitutional Law has not been tested in several years and as a result is due. However, favorite areas for testing in Constitutional Law include: Privacy and First Amendment Speech. Still, if you were to see Constitutional Law, I am leaning more towards your seeing a state statute where your job essentially is to determine whether or not the state statute places an undue burden on interstate commerce. I will provide more detail on how to address this (approach and the typical issues to include) along with a sample essay testing this area. This will be provided as part of my February 2015 Bar Exam Tips.

All the best to you in your studies in the coming days!
Program Director/Founder
Bar None Review
(213) 529-0990
http://www.barexamcramsession.com and http://www.barnonereview.com

February 2015 California Bar Exam Predictions – Part One

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Hello All,

Thank you for following the blog and for your patience this February regarding the expected Bar Exam Predictions. We had a record turn out in our class sessions and this “guru” has been very busy. I hope that the materials available on this blog are helpful (see some of the “freestuff” if you haven’t already for downloads). Also, I will make additional handouts and a few recommended essays for your review (based upon my “predictions”) available. Please understand that my enrolled students expect me to provide this information to them first.

About my “predictions” I do not claim to be able to predict what will be tested on the California bar exam. Nor do I recommend that you study based upon anyone’s predictions. However, I do think it can be helpful to know of some possible essay scenarios when going into the bar exam. I base the essay scenarios that I come up with based upon the following: 1) historically favorite areas for testing by the California Bar Examiners, 2) areas that have not been tested on the bar exam for some time (Criminal Law MURDER, for example) and 3) just my gut and my experience with the exam over the past twenty plus years.

What I think is very possible to show up on the exam: First of all, you should know (if you do not already) that any topic can be tested on the essays AND that generally at least two topics (and I don’t just mean Professional Responsibility) will repeat from one bar exam round to the very next. And, some topics repeat three or more times back to back. For example, Community Property was just tested three times in a row and is still fair game on this upcoming bar exam.

But, what am I leaning towards? I think you could see a Property essay. If you were to see Property on the essay I would be prepared for a few different scenarios: Covenants (either of the promise type that generally is tested in conjunction with Equitable Servitudes) or in the General Warranty Deed context. These are both completely different areas, but neither have shown up in some time on the California bar exams. So, how could these be tested? First of all, you should be mindful of the fact that one of the most popular areas of testing on the essay in Property is the area of Landlord/Tenant. This area allows for a nice cross-over with Covenants and Equitable Servitudes. Remember that one of the key distinctions between Covenants and Equitable Servitudes is that Covenants are enforceable at law (meaning you can get money damages) while Equitable Servitudes are enforceable at equity and therefore your likely remedy would be an injunction. I do think that Remedies will show up somewhere on your bar exam and this type of essay would satisfy that as well (the injunction as a remedy).

If you were to see the covenants that go along with a General Warranty Deed then you would need to see something on your essay exam that deals with a landsale contract. One possible scenario would be a situation where there is an Easement (or purported easement) and the issue becomes whether or not the Easement is valid, and if so, is it valid against a subsequent purchaser (in other words, does “buyer” take the land subject to the easement)? This would likely take you into a discussion of the present and future covenants, notice (actual notice, constructive/record notice and inquiry notice) and possibly recording statutes (I know, everyone’s favorite). But, if it were me taking this next bar exam, I would review these areas and make sure that you have it down. It is also helpful to see examples in past essays for how these areas come up. I will make essays available to anyone who would like to sign up for our Bar Exam Tips List.

Criminal Law: Criminal Law has certainly been tested quite a bit over the years. However, what has not been tested in many years is a Criminal Law Murder exam. See earlier posts with our approach for writing a murder essay. Of course I do not know if murder will show up on this bar exam. But, it is certainly a topic that I think is overdue. So make sure you are comfortable with it and be clear on your defenses. We have not seen the insanity tests tested in a very long time either.

Other possible topics: Wills or Business Organizations or both. If you were to see Wills, I think the area of pretermitted heirs (child or spouse) is highly testable as are the concepts of integration, incorporation by reference and acts of legal significance and dependent relative revocation. Of course the rules are very important. But, in my experience, the difficulty for students is not in knowing the rules, but in knowing when these issues arms (how these issue show up on an essay) and knowing that you are expected to discuss many things rather than approaching the essay from the standpoint of discussing only provable, definite issues. You should include in your answer those things that you are dismissing – and – showing the bar exam grader your thought process and why you are dismissing that particular issue. You will see from a review of past bar exam essays and released answers that the bar examiners embrace answers that discuss many options, many issues per area, not just the ball park issues.

I will add more about what I think could come up if Business Organizations were to be tested. But, always consider that Professional Responsibility is a common cross over with anything in Partnerships or Corporations. And, a recent favorite of the bar examiners has been the area of: a lawyer assisting a non-lawyer in the unlicensed practice of law.

If Torts were to repeat: If you were to see a Torts exam, I would expect to possibly see a Tort Remedies essay or perhaps Defamation. Other areas we have not seen in a very long time in Torts include: Nuisance (which makes a great gateway for a Tort Remedies exam) and the process torts (Abuse of Process and Malicious Prosecution – which can make for a great cross-over with Negligence – yes, negligence could repeat again – or Professional Responsibility). The point is that you should not dismiss any topic and you especially should not dismiss topics that were just tested in July thinking that you will not see these topics repeat on the February bar exam.

More tomorrow: I will post more tomorrow about what I think could show up on Tuesday or Thursday’s essays.

As always, I wish everyone who is taking the bar exam the best of luck. There is still time to resolve problem areas in your favor. Stay calm, be confident and recognize that it is absolutely normal to feel anxious in these days leading up to the exam. I will be posting daily from here on out and will add to these predictions by tomorrow.

I will be sending out tips as usual on our Bar Exam Tips List that we will make sign ups available tomorrow or you can send us your name and email address to us at: barexamguru@yahoo.com. You will also be able to sign up here on the blog tomorrow.

All the best,

Lisa Duncanson

California Bar Exam: Retaking it or First Time

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Hello All,

I want to thank you for following this blog, we’ve had over 600,000 views now and I am absolutely humbled and grateful to have your readership.

For those of you who find yourself having to retake the bar exam, do not lose heart. You CAN do it.

I will be writing as much as possible this weekend and in the coming days about: 1) about what to do if you have recently failed the bar exam, 2) how to deal with the addition of Civil Procedure to the MBE exam (as you probably know, the NCBE has added Federal Civil Procedure to the MBE effective on the February 2015 bar exam), and 3) how to pass the bar exam while working a full time job and/or raising a family (yes, it is possible . . . many of my students just did that on the July 2014 bar exam).

These are the major issues as I see them for those of you who are confronting the February 2015 bar exam.

If you are a repeat taker, then you likely can not take much time off of work, or you may not be able to take any time off from work to study. As a result, it will be very important to figure out a study plan that will work around your work and/or family responsibilities. It can be done. And, if you are repeating the bar exam, you may very well have taken Barbri (this isn’t a dig or jab, just the reality – most first time takers take Barbri) and you have a “free retake” . . . so the question for some of you becomes whether you should retake what did not apparently work for you the first time around?  The answer to that question isn’t the same for everyone. I will be writing about this soon – hoping to give you some advice as to how to tailor what you might already have at your disposal and ultimately pass this very next bar exam.

Again, thank you for following this blog and stay tuned for more. Here are a few messages from some of our July 2014 bar exam students.

Hi Lisa!!!
I passed!! Thank you so much :) with one daughter and a baby on the way you helped me pass the bar and were so positive!
I got my money back from that other horrible tutor too. Really appreciate your help. Thank you!
Xoxo
Jessica Javaherian

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

California Bar Exam: We’ve added a second workshop date!

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Hello all,

We now have two free “How to Pass the California Bar Exam Workshop” dates available for the February 2015 bar exam:

Los Angeles, December 3rd:

How to Pass the February 2015 California Bar Exam Workshop – December 3, 2014, 7:00 pm to 9:30 pm. Los Angeles, California – taught by the Bar Exam Guru!

Back by popular demand, our next “How to Pass the California Bar Exam Workshop” will be held on December 3, 2014 in Los Angeles. Our workshops fill up quickly. Reservations are on a first-come, first-served basis. This workshop is free and includes free bar exam templates. Space is limited. Click here to make your reservation for the Los Angeles Dec 3rd Free Workshop.

Orange County, December 4th:

How to Pass the February 2015 California Bar Exam Workshop – December 4, 2014, 7:00 pm to 9:30 pm. Orange County, California – taught by the Bar Exam Guru!

We have added a second “How to Pass the California Bar Exam Workshop” to be held on December 4, 2014 in Orange County. Our workshops fill up quickly. Reservations are on a first-come, first-served basis. This workshop is free and includes free bar exam templates. Space is limited. Click here to make your reservation for the Orange County Dec 4th Free Workshop.

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

We’re changing our look a bit :)

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Hello all,

If you have been here before (visited this blog before, that is) then you will notice it looks a lot different. I am working on a new look for the blog – one that will hopefully be easier to navigate. I am not done with the changes – but this is our interim look for right now. Please feel free to leave a comment or send me an email if you have any thoughts, suggestions or just want to say hello! I am always interested in hearing from our readers and open to suggestions for topics you want to read about (areas you would like some extra tips, advice in etc.)

Thinking of all of you who are waiting for bar results and wishing you all the best on November 21st!

All the best,

Lisa Duncanson

Founder/Program Director

Bar None Review, Bar Exam Cram Session and

author of the Bar Exam Guru Blog

213-529-0990

pass@barnonereview.com