So far I have suggested the following topics as possible essay scenarios (please see Parts One and Two below for details): Civil Procedure, Torts (perhaps Products Liability, but, anything is possible – defamation has not been tested in a very long time . . .), Criminal Law/Procedure and Community Property.
Here is a bit more on Civil Procedure (and yes, additional essay “predictions” or essay scenarios):
Civil Procedure (possibly In Personam Jurisdiction – since the last time it was tested was on the February 2006 bar exam – along with other potential issues – Collateral Estoppel and Res Judicata are always testable. And, while I don’t think I mentioned it earlier, Class Actions has been absent for a long time as well). Just know Civil Procedure and, read my prior posts addressing Civil Procedure for more details.
Know all of the topics as well as you can – do NOT predict a subject is NOT going to be on the exam and fail to study that subject. Anyone who tells you that Property can’t be on this exam “because it was tested three bar exam administrations in a row” is flat out wrong. I am not predicting Property, but, you should be ready for it. Anything is possible . . . anything. So, if you were to get Property, I would expect something that tested easements – perhaps in a land sale contract setting where you have a marketability of title issue (perhaps a general warranty deed discussion, notice and recording acts) or Covenants and Equitable Servitudes. These areas are not complicated. And, you might very well get tested on Property again. It is definitely not out of the question. So, just endeavor to review all that you can, don’t discount any topic and remember the bar examiners do not expect perfection. They do expect you to spot enough issues.
A few words about issue spotting: Your ability to issue spot is very, very important. Think about it . . . how can you be a good lawyer if you are unable to determine what the actual and potential issues are when given a particular set of facts? Your ability to evidence an understanding of the legal problems/issues and resolve these legal problems/issues is far more important than reciting exact rules. Show the graders that you understand the law by identifying the issues, using the facts and analyzing. This is where the points are – in your ability to identify the correct issues (both actual and potential) and apply the law (hopefully a decent definition, but, it does not have to be perfect).
The best way to improve issue spotting: The best way to improve your ability to identify the correct issues on the actual exam is to see how these issues come up in the context of actual past bar exams. I have written about this quite a bit – the value of reading past essays. If you do not know what to do for the remaining days, then spend a significant amount of your time reviewing (not testing yourself – just reading and reviewing) past essays and answers. Anything you read in the coming days you will remember on the actual test days.
Other Essay Possibilities:
Contracts and or Contract Remedies: The last time Contracts was tested was in July 2011. The July 2011 Contracts essay was a common law formation exam with no testing of remedies. While the examiners could very well test all of these same things again (common law formation, defenses to formation etc.), I think that a UCC formation and remedies exam is possible.
Also, take a look at hybrid contracts – where you have an important or significant part of the contract that is clearly a service (and therefore, governed by the Common Law) and another important or significant part of the contract (a moveable, tangible good) that is governed by the UCC. The test to use is the predominant purpose test. However – be aware of the fact that sometimes the examiners will give you a fact pattern that is a hybrid contract – where both parts of the contract (the part governed by the UCC and the part governed by the Common Law) are really both important and significant and therefore you can not simply just choose to apply the Common Law or the UCC – instead, you must treat it as a hybrid contract and apply both. When the examiners are testing you on a hybrid contract you will be given a fact pattern where this is obvious (or fairly obvious). For example, past exams have tested it in this way: Buyer contracts with Seller for the purchase and installation of a large turbine. The cost of the turbine is a majority of the cost of the contract. However, Seller is the only person/company that can install the turbine because it is being installed out in the middle of the Atlantic Ocean.
So, applying the “predominant purpose test” you could go either way (that is what makes it a hybrid contract). For example, if you used the high cost of the good as a way to evaluate the value of the contract and determine that the predominant purpose of the contract was to get the turbine, then the UCC would apply. However, if you recognize that the part of the contract for installation services (while possibly a much lower percentage of the cost of the entire contract) is very significant because the seller is the only person or company that can install the turbine (the good) then there is a good argument that the services are what is most significant about the contract. The key is to recognize that this scenario generates a discussion of how it could be either the Common Law or UCC, that you will address the predominant purpose test and then recognize that in a situation like the above hypo, that they want you to address it as a hybrid contract.
So how would remedies come up in a situation like this? Breach of the contract would result in a remedies discussion – for example Specific Performance to deliver and install the turbine. There would be obvious problems here – feasibility of the court to supervise – for example. But, you would simply address all aspects of Specific Performance and take each required point (inadequate remedy at law . . . etc.) and explain each element – how it is met or how there may be a problem with the element being met – and keep moving through it.
Professional Responsibility (duh . . . but, watch out, maybe not this time . . .). Professional Responsibility is generally a given. However, on occasion, the bar examiners skip Professional Responsibility on the essays and leave it for the Performance Test alone. However, be mindful of how rare this is: out of the past 23 bar administrations, the California bar examiners skipped Professional Responsibility on the essay portion only twice (It was tested 21 out of 23 times – 90% of the time). Still, it was left off twice . . . so this is always a possibility.
Wills or Wills/Trusts - I know Trusts was just tested. But, subjects do repeat. While it is not my first pick of subjects to repeat from the February 2012 bar exam, it is a possibility. I think that either Community Property OR Wills (possible crossed with Trusts, which is very common) could be on this exam. When you look at the statistics either is equally probable. I am leaning a bit more towards Community Property, but, be sure to be prepared for Wills (and of course any topic) as well.
Possible Repeat Subjects: Remember the bar examiners can repeat any topic they wish to repeat – and – they do repeat topics. Property was tested on the past three bar exams – and could be tested yet again. However, of the subjects that I think are possibly most likely to repeat are Evidence and/or Constitutional Law and perhaps Trusts (if you have a Wills exam for example, Trusts could easily come up again in this context). Know your Evidence approach, know how to handle form objections – I could easily see you getting a transcript style Evidence essay or simply getting an essay that asks you about a privilege (for example, marital and spousal privilege could come up as a cross over issue with Criminal Law/Procedure or Community Property. Also, know how to deal with the constitutionality of a state (or federal) statute - a very possible area to be tested would be a state statute – perhaps testing the dormant commerce clause as well as other issues. Always, always, always the bar examiners can retest any of the prior subjects and they have – First Amendment Speech was tested three times, back to back – so anything is possible.
Okay that is it for now. I have received many emails and am doing my best to respond to everyone. There are a couple of questions that have come up repeatedly and so I will likely address these in a blog post (I won’t release your name, just the question).
Keep at it, you are in the home stretch. Above all, stay positive, believe in yourself and in your abilities. This is key. Resolve to be positive and to remain calm. Encourage yourself, reassure yourself, be your own cheer leader.
Best of luck to all who are studying for the bar exam. Please feel free to email me at: email@example.com.
Bar None Review