February 2014 Bar Exam Predictions: Part One

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First of all I want to wish you all the very best of luck in your studies this week and I want to thank you for following my blog. It is quite humbling and is truly an honor to have this reach into bar examinees’s lives and to be able offer some support and advice for free. It is one of my favorite things to do. That being said, please understand that my students who pay to take our courses 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.

During the last February bar round, out of respect for my enrolled, paying students, I did not release my “predictions” publicly until the day before the bar exam. But, this year I am releasing predictions a bit earlier. I know, not as early as some would like.

WHAT TO EXPECT FROM ME: I will post predictions here today and additional predictions in the coming days. The “predictions” are really just possible essay scenarios that I think are a bit more likely on this bar round. Always, my enrolled students needs must come first. But, I will continue to post here as often as I can.

WHAT SHOULD YOU DO WITH THIS INFORMATION? The point of making predictions is not to tell you that you should study these areas exclusively. It is simply intended as some guidance for what might show up and should it show up, the fact that you have given these areas a little bit of extra thought will feel very good on exam day. If you are weak in any of these areas, then it especially deserves some extra treatment. If you are weak in an area that is not on my list – you NEED to give that area extra attention. Do not assume something will not be on the bar exam. ANYTHING can be tested on the essays and you should have prepared with that in mind. Anyone who tells you something is not going to be tested is ignorant of what the bar exam in California is like – topics repeat back to back on multiple bar rounds – so do not discount any topic.

CAVEAT: NO ONE CAN PREDICT WHAT WILL BE TESTED ON THE BAR EXAM. 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.  I do not recommend that someone conduct their studies around predictions. However, I do think it is helpful to focus a little extra time on some of the areas that might be a bit more likely to show up on the bar exam – especially if any of these topics are areas that are weaker areas for you. So with that in mind here are some of my thoughts on what could be tested on the February 2014 bar exam.

Last bar round, I felt strongly that Constitutional Law could be tested. I also thought that Community Property (specifically the area of Van Camp and Pereira) would be tested. Both essays came up, and in the way that I would have expected. No, I did not see the 13th Amendment coming – but – the 13th Amendment on that last bar exam should not have thrown anyone – if you simply know how to handle the bar exam (more on “handling the bar exam” later). Of all of the essay topics that I thought might come up, I was most certain about Constitutional Law and Community Property (specifically Van Camp and Pereira). I tell you this simply because there were other areas that I thought were less likely, but possible areas for either repeat testing or simply possible, but not my first choice. Some of those areas (like Civil Procedure) are now on the top of my list.

Civil Procedure: This topic is being predicted by many and is sort of an obvious possibility. The most commonly tested issues in civil procedure are jurisdictional issues (Personal Jurisdiction, Subject Matter Jurisdiction) as well as venue (generally always a very short issue in terms of how much time you should spend on it), removal (also a very short issue coverage) and collateral estoppel and res judicata.

So, what specifically do I think could come up in Civil Procedure? Always Personal Jurisdiction and Subject Matter Jurisdiction are likely – since these areas are historical favorites for testing on the California bar exam. But, there are some areas that we just have not seen tested in a while (and many of these areas actually have a Federal/CA distinction).  These areas – that have been tested heavily historically – but have not been tested recently – are where I am leaning a bit more heavily for this bar round.

The areas that I feel are particularly due include: Collateral Estoppel and Res Judicata (one of my first picks if you were to have Civil Procedure on this bar exam) and the possible tack on type issues of: Notice and Code Pleading and/or Remittitur and Additur. See more detail below:

Pleading issues – like Notice and Code Pleading – would not require a long discussion, but it is tested often and does include a Federal/CA distinction. Federal Courts utilize Notice Pleading and California follows Code (or what is also referred to as “Fact” pleading). Another tack on area (by tack on – I mean it is typically a shorter issue on your essay exam, not something that can make a full one hour essay) that I could imagine might be on this next bar exam is the concept of remitittur and additur. But, recognize that these “tack on” type issues of Notice/Code Pleading and Remittitur/Additur are typically short issues.

What about Supplemental Jurisdiction? Sure, it can always be tested. BUT, 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.

What about Class Actions? 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, Supplemental Jurisdiction) and Collateral Estoppel and Res Judicata the absence of Class Actions does not necessarily mean it is coming. So while class actions has been absent for many bar rounds, it is still no more likely in my mind, as jurisdiction or Collateral Estoppel and Res Judicata. But, if you were to see a class actions issue, it is easy. Simply know the requirements, state each and address each separately (using separate headings for each requirement).

Incidentally – 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 claim preclusion.

Final thoughts on Civil Procedure: I do think that Collateral Estoppel and Res Judicata are both long overdue for testing. I still think you could see jurisdictional issues (it is, after all, a favorite area for testing) but, I would also expect to see some of the shorter, tack on issues appear (especially the areas where there is a relevant California distinction). Okay, enough said about Civil Procedure!

PROPERTY: Most are predicting Property. I would tend to agree that Property is very likely. I have some specific thoughts about what could come up if you were to see Property on this next bar exam. I think the area of Covenants (either in the restrictive covenant/equitable servitude context or the covenants of title) is a likely possibility. I also think that Easements are possible. The area of Landlord/Tenant is a favorite of the California bar examiners and it could be tested with either a covenant or easement issue. If covenants of title were to be tested, you would also have other issues that typically come up in the land sale context like: notice (constructive, inquiry, and actual) and recording act statutes. Be prepared to also (potentially) discuss constructive, inquiry and actual notice in the context of an Easements essay – where you might be asked to discuss whether or not the buyer of a parcel of land is taking that land subject to a purported easement.

Possibly Criminal Law – Murder: Make sure you know your essay approach for murder – murder has not been tested in a long time and it would make for a nice cross over with Criminal Procedure. Criminal law has been tested quite a bit over the last few years. This is not uncommon. But, what is unusual is the long absence of murder. It is due for testing. It is not my first pick for this bar exam, but the simple fact that murder has not appeared on the California bar exam for a few years now, ought to suggest it is coming sometime soon.

OTHER TOPICS that I think are likely: Business Organizations, Evidence (perhaps – finally – a transcript style essay) and of course Professional Responsibility (as you know Professional Responsibility is generally always tested on the essay). Take a look at my predictions from July 2013 bar exam – you will note that I suggested that you could see a professional responsibility fact pattern that straddles corporations a bit – for example, a lawyer who is representing a corporation and the specific issues that come up in that context. This did not show up on the last bar exam and as a result I feel it is more likely).

I will post more on the “predictions” very soon.

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.

All the best,

Good luck to you!

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

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