California Bar Results February 2014: What Should I Do If I Just Failed The Bar Exam?

NOTE: This is a repeat of a former posting, but relevant now, if you have just received failing results. Therefore I have posted it again. Good luck to all of you who are either repeating the bar exam this July or taking the bar exam for the first time this July. Time is on your side, especially if you utilize it. Here is my earlier post about “What to do if I failed the bar exam” – Also, please consider attending one of our free upcoming workshops: OUR NEXT FREE “How to Pass the California Bar Exam Workshop” will be held on May 22, at 7 pm in the city of Torrance, California, to register for this free workshop, click here.  And, for tips on how to create a study plan, click here.

We offer a variety of course options (including a live course designed specifically for the repeat taker as well as home study options, tutoring online and in person, The Score Maximizer Program, Performance Test Courses, Attorney taker bar review and of course our Bar Exam Cram Sessions). Best of luck to all.

What should I do if I just failed the bar exam?

If you have failed the bar exam, keep in mind that you are in good company. Also, realize that the bar exam is not an IQ test. Many very bright and hardworking examinees fail the exam. If you have failed, you will need to do the following:

1) Get past being devastated as quickly as possible – as harsh as this sounds, you really do just need to get back to work as soon as you can. Those that do, have the best chance of passing the next exam. Start by doing MBEs.

2) This is going to hurt, but – find out why you failed - this starts by getting your scores back from the bar. The bar will automatically mail score sheets to all examinees who failed the bar. This usually takes 1 – 3 days after bar results come out. When you get your scores, don’t panic and don’t make assumptions about any one section. You will receive both a raw score and a scaled score. Take the time to read the materials that come with your score sheet that explain the raw and scaled scores. See also, other posts on this blog about making it to re-read and interpreting bar scores. And, if you need help interpreting your scores, you can get it free through Bar None Review - contact me (Lisa Duncanson) directly at: pass@barnonereview.com

3) Commit to taking and passing the next exam - in almost every case, I would recommend taking the very next bar exam. Obviously there are sometimes reasons to sit out a bar exam administration – but in most cases, the best advice is to take the very next exam. Think about it, the material seems like it has fallen out of your head right now – just think how hard it will be to put it all back together if you wait another six months – that would be a whole year since your last review – not a good plan.

4) Develop a plan of attack - Your plan might include taking another bar review course, hiring a tutor, or continuing your studies on your own. There are many courses available (assuming you already tried barbri) that cater to different needs – small classes, private tutorials. Do your research and due diligence before enrolling in a course. Ask for references, ask to see the course materials before enrolling, make sure the bar review provider is a good fit for your needs. And, don’t abandon your common sense – if it sounds too good to be true – it probably is. But, whatever you do (take a course or study on your own) make a plan – figure out how many hours you will study each day, where you will study, how long will you have to review each topic, how many essays you will write each week, how many MBEs you will do each day, how many PTs you will write – figure it out, map it out and develop a plan. For tips on how to create a study plan, click here.

5) Work hard - no matter how hard you worked the first time, you are going to have to work just that hard again. And, if in your honest assessment of your prior bar studies you conclude that you did not work hard enough – well then you are going to have to work harder. There simply is no magic bullet.

Best,

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

barnonereview.com

Bar Exam Tips: #1 Reason Why People Fail the California Bar Exam

California Bar Exam – The Bar Exam Cram Sheets – Excerpts

Hello All,

We still have a few seats left in our February 15th and 16th two Day Bar Exam Cram Session. For more information on The Two Day Bar Exam Cram Session, click here.

See photos below for a few excerpts from The Bar Exam Cram Sheets (click on the image to see a larger view):

Wishing everyone the very best in their studies!

 

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Evidence Bar Exam Cram Sheet Preview

 

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Civil Procedure Bar Exam Cram Sheet Preview (California distinctions are included, for example, Anti-SLAPP Motions). NOTE: The California Bar Examiners have yet to test California Civil Procedure.

Bar Exam Tips: 10b5 and 16b

Hello All,

One of the areas we spent a little extra time on in our Two Day Cram Sessions was Corporations – and in particular – 10b5 (tipper and tippee liability, corporate pronouncements and misappropriaters) and 16b (short swing profits). This (federal securities law) is an area that has not been tested in several years. As a result, in our class sessions we gave it a little extra treatment just in case. There are past exams as examples of this area, but I do not believe there are any on the bar website (as the exams on the bar website do not go back far enough). So, here is an example of one of the past exams testing federal securities (this essay also tests Professional Responsibility – it works out to be a nice cross-over essay). You can download the sample Corporations essay here: Corporations SEC & PR Essay - it can’t hurt to take a look – do not test yourself on this – just review it. I personally prefer Answer B.

I recommend reviewing this essay (spend 15 to 20 minutes on it) and spend a few minutes to review Sarbanes-Oxley. It can’t hurt. You can do this over breakfast if you wish. And, if you would rather read something for comic relief – I recommend this blog post by a bar taker – it is quite funny: “A Strongly Worded Letter to the Bar Exam”

Okay, I really am calling it a night.

All the best to all who are taking the exam tomorrow!  You can do it!

Best,

Lisa Duncanson
Program Director/Founder
Bar None Review & Bar Exam Cram Session
www.BarExamCramSession.com

If you have found this blog helpful and wish to make a donation, you may do so through the following link: 

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Bar Exam Tips and Free Constitutional Law Handout

Hello All,

If you would like to be added to our July 2013 Bar Exam Tips Email List and/or receive a free copy of our Constitutional Law Handout (our recommended steps for evaluating the constitutionality of a state or federal statute), complete the form below and we will send the handout to you via email and add you to our Bar Exam Tips Email List.

Please select “yes” or “no” in the drop down menus below and click on the “submit” button at the bottom of the form.

Good luck in your studies!

Note: This handout will be available until 1:30 pm on August 1, 2013.

Your contact information is safe – we do not share, or sell your information.

California Bar Exam Predictions: July 2013 Bar Exam – 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

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

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

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

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!

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

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