July 2012 California Bar Exam: Free “How to Pass the California Bar Exam Workshop”

Hello All, 

June 2nd will conclude our series of free workshops for this bar round season as we will then need to focus exclusively on our enrolled students.

Our next, and final, “How to Pass the California Bar Exam” workshop will be held tomorrow, Saturday, June 2nd from 10:00 am until 12:30 pm in the city of Orange. This workshop will be taught by Lisa Duncanson (the author of this blog).

Workshop attendees will receive free handouts (including selected Bar Exam Writing Templates). Space is limited, but, at the moment there is still room in our morning workshop. To reserve your space, contact us at: (949) 891-8831 or via email at: pass@barnonereview.com

Note: if you wish to reserve a space this evening or early tomorrow morning, please send us an email and we will get back to you.

All the best to all who are studying for the July 2012 Bar Exam!

barnonereview.com

Recent Testimonial From Successful February 2012 Bar Examinee

Here is one of our recent testimonials. Nick was a repeat bar taker (February was his 5th bar attempt) who had to work full time in a very demanding job all while juggling bar study and family responsibilities. We tailored a program to fit his study availability, he followed instructions well and worked hard. We are happy to report that he was successful. Congratulations Nick!

You can contact Nick at Kahuku@sbcglobal.net

California Bar Exam Tips: Free Score Review & Free Workshops

Hello All,

If you failed the February 2012 bar exam, you should know that you are not alone. The complete statistics will be available on the California bar website soon. Pass rates for the February bar exams are usually between 39% and 45%. Pass rates for July bar administrations are often about 50%. So, if you did not pass, you know that you are among a significant number of people who are in the very same position.

What do I do now?

So what do you do now? Do you take another bar review course? Do you hire a private tutor? Do you study on your own? The answers to those questions will be different for everyone. First, you need to properly evaluate why it is that you failed. Second, consider attending one of our free bar exam workshops.

Free Bar Exam Workshops

We will offer a free bar exam writing workshop during the next week, for more information and to register, contact us at (949) 891-8831 or via email at: pass@barnonereview.com

Free Bar Exam Score Review

We provide, for a limited period of time (as our classes and private tutoring obligations begin and then we are just not available to provide this service) a free review of your past bar scores. In order to participate in this program, you will need to send your scores to pass@barnonereview.com. We only accept scanned in score sheets or faxed scores sheets at this time (we do not accept your typed in scores in an email). We have to be sure that we are dealing with you. In addition, provide a phone number where you can be reached (all score reviews and evaluations are conducted via phone). If you would like to send your score sheet to us via fax, simply send us an email and we will provide you our fax number.

Why should I have my scores reviewed?

As a repeat bar examinee, the first step to passing the next bar exam is to review your bar exam score sheet. This can be a very confusing piece of paper. Partly because it is simply just painful to look at. Here you are, you have just received the terrible news that you have failed the bar exam and now you have to make sense of the scores. In my experience, examinees very often do not understand how the scaling works or what equals a passing “raw” score. So hopefully, what follows below will be of help to you.

Because the scoring of the California Bar Exam is scaled, it is not easy to understand what a given raw score means nor is it clear where you will need to focus from numbers alone. For example, if an examinee scores consistently the same scores on their essays (i.e., all sixties or three fifty-fives and three sixties) it will indicate a different problem than an examinee whose scores have a greater range (i.e., one 45, one 75, two 65s and two 60s etc.).

What is a passing raw score for an essay or performance test?

First of all, the raw score that is passing for the essays, performance tests and the MBEs varies from bar exam to bar exam. Most examinees incorrectly believe that a 70 is always required to pass an essay. However, this is simply not the case. In the past several bar rounds, a passing raw score on the essay has been as low as a 61 and as high as a 63 – not a 70. Of course, a 70 is a much better score to receive and better yet, 80s are really what you should be shooting for – this is the score we do our best to teach our students to be able to achieve consistently.

What is a passing raw score for the MBE?

The passing raw score for the MBE in the past few years has gone down dramatically. Several years ago, to pass the MBE portion of the exam you really needed to achieve at least 70% correct (a raw score of 140). However, in the past couple of years, the raw passing score has been between 62% – 66% (a raw score of 124 to 133). However, your practice scores should be much, much higher to ensure that you will do well enough on the MBE portion on the actual exam day.

Once the California bar releases the full statistics, some of these numbers will become more clear. However, what is most important is where you are – how far away from passing were you really? Most examinees that I speak with are quite off base when they call in to discuss their scores. There is a lot of misinformation out there. I have been following message boards and I am shocked at how little examinees know about how the test is scored. This is the fault of both law schools and bar preparation courses. It can be incredibly helpful to have someone who is knowledgeable about it to help you interpret your scores. This is really the first step in figuring out what you need or don’t need.

Free Downloads & Further Assistance

Also, be sure to visit our bar review course website free downloads of some of our Bar Exam Writing Templates as well as advice for those who are repeating the bar exam. Click here for additional Repeat Taker Information and click here for free downloads of some of The Exam Writing Templates.

Good luck to you and do not give up, this exam is do-able!

Thank you for reading and please feel free to leave a comment here on my blog or to email me directly at: pass@barnonereview.com

Good luck in your studies!

Sincerely,

Lisa Duncanson
Program Director/Founder
Bar None Review
(949) 891-8831
barnonereview.com

California Bar Exam: February 2012 PTA

Hello All,

I have received an advance copy of Performance Test A (PTA) from the February 2012 bar exam. This was sent to me by the Los Angeles Daily Journal (an excellent legal newspaper) who received it from the California Bar Examiners. I received this advance copy because I was asked to write a model answer to PTA in the Daily Journal’s upcoming “Bar Results Issue”. The Los Angeles Daily Journal will publish a model answer for each essay exam as well as both performance tests in their upcoming “Bar Results Issue”.

I will provide a link to the Daily Journal’s Online Version of their model answers as soon as it is available.

Until then, for those of you who are interested, here is a copy of Performance Test A from the February 2012 bar exam: Performance Test A from February 2012 Bar Exam *

* Source: California State Bar Examiners and The Los Angeles Daily Journal.

Good luck to all who are waiting on bar results!

Lisa Duncanson

Program Director/Founder
Bar None Review
barnonereview.com

February 2012 Bar Exam: Examinee’s Rehash

Hello All,

As you probably know, the California Bar Examiners have not yet posted the past bar exam essays or performance tests on their site. As a result, I have yet to see any of the essay questions. I have, however, seen Performance Test A as I received an advance copy so that I can write a model answer for PTA in time for the Los Angeles Daily Jounal’s Bar Exam Results Issue (where they publish model answers) and I have received many recounts of what was tested on the February 2012 bar exam.

Since the essay exams have yet to be posted on the California State Bar Exam site, it is anyone’s guess as to what was actually tested. However, I think most would agree about the general topics that were tested.

So, here is one of the recounts/analysis that was provide by a February 2012 examinee. I think that her coverage of which topics were tested on the essays is pretty comprehensive and evidences a good perspective on the last bar exam. I am also choosing to share this examinee’s account because I appreciate her humility and her approach to her “re-hash”. I also think that if you are waiting for results, it is helpful to hear that others have some of the same fears that you have about having potentially missed an issue here or there. Most people who pass the exam have missed a few issues.

Also, PLEASE understand that while I agree with most of the examinees’ accounts as to which subjects were tested – the actual issues can vary – in other words, you might answer something differently or fail to discuss an issue and yet still do a very good job and receive a good score on that particular essay. So, don’t be disturbed if you saw things differently. And, don’t assume that if I did not choose to share your recount/rehash of the last bar exam that I do not agree with you.

All of that being said, here is the first examinee written account/rehash that I am sharing. I will post more soon, but, due to the length, I will provide these in separate posts. You can see my comments at the end in bold, burgundy text.

Examinee’s Account of the February 2012 Bar Exam:

From A (I have kept all email addresses and names private):

“Dear Ms Duncansan,

Thank you in advance for your response to my inquiry.  I sat for the February 2012 exam- and just discovered your blog as a wave of terror slash panic overwhelmed my being today thinking that after ALL that work- I might not pass!  

Realizing this is now two months post-exam- I wanted to give you the following thoughts to add to the collection: 

Day One:
Essay 1- Wills and Trusts crossover with intervivos trust, pour over will, a pretermitted child, dead father and california exception where I think the son could have a share in the estate because of the CA exception, but because of the trust – he gets locked out .  I blew this essay- I had a plan, but I blew it because I don’t think I ever actually answered question 1- regarding the pretermitted child. I went around the issue- and of course- think I was correct that he would have a stake- but the a) question actually asked what his ACTUAL share would be (and the daughters who had been in the trust)- which I think is nothing because of the trust/will.
The c) question was trustee duties but for the life of me now I don’t remember the b).  I did nail the c) question- but only if the gods were smiling upon me- can I pull off a 55- which I am VERY hopeful was the worst I did on that question!

As for Essay Two: 100% Pure CON LAW! 
You first had to know that there was standing and that an org could bring a suit. I neglected the org/suit- and literally stubbed my own toe kicking myself later, addressing the standing issue on the injury in fact/concrete and individuated pov- I might have also said it was ripe- I then addressed the public function law making ability of cities (as opposed to states) and then one had to address the whole 9 yards- Equal Protection analysis; and then the First Amd- Speech issues. I addressed them all in neat paragraphs from Commercial Speech on down- Time and Place, sign restrictions, prior restraint, overbreadth and vagueness (addressing the criminal distinction that applied to one and not the other that I now don’t remember), I also said it could be a force the person to speak kind of thing- you know – force someone to speak in Spanish language they don’t know or don’t want to know/speak- and even touched on right of association- even though it was a bit tenuous. and then a conclusion. I addressed both points of view- Govt and Org for each paragraph plus conclusion. I think I did ok on this- but have no idea what totally missing the “org-standing” issue will do to my score.

Essay 3 – Evidence- 
This was your typical racehorse…I can’t remember at all now- I’m sure more timely responses to you will address which jurisdiction- I feel like it was one or the other- Fed?  Anyhow- I used a memory method that taught me to address each and every Evidence issue in order- the method works like a dream for Evidence-type questions… 

Relevance- Logical, Legal, Reliability- I feel like I spoke a bit about reliable based on the dead-quality of Mary the witness- Double Hearsay; spoke about Witness testimony; spoke about Unavailable Witnesses; Extrinsic Policies- I definitely addressed the Offers to compromise/settle claims- I think I may have slipped here- I know thinking afterwards- I was on autopilot- may have spoken about BOTH Fed and Cal distinctions- even thought I strongly remember the question asking only for one… anyhow- or was if offer to pay med expenses- anyhow- you probably had better clarification closer to the time of the test. 

Character Evidence- I know there was something about character evidence in this question- I can’t remember which distinction

Impeachment- I KNOW there should have been an IMpeachment discussion- this is the one thing I missed- don’t ask me how- I was racing and my brain failed me. I hope it will not kill me. 

Hearsay- Of course the intro paragraph and then I literally took each statement for A and B and went down the line- Declaration against interest, addresed dying declaration ( I feel like I remember it was not because she didn’t know she was dying at the time), etc. I think there was probably Biz and official declarations- I think I talked about equivalency /catch all if it was the fed question- no if it was CAL- I just can’t remember-. Of course the sense impressions- I know I knew the difference at the time but because I can’t remember if they tested Fed or Cal… but again-  consistent/inconsistent stmts….I think the kitchen sink approach worked- I concluded each one with a decision- so even if something didn’t quite apply- I didn’t skip it… My essay was well organized and headed properly. H0pefully this will count for something?

I thought the evidence question was reasonable- if not a lot of work- but what I expected having practiced MANY exams. I was racing for the finish-  I am not happy about skipping Impeachment… I guess to me- the mystery is whether that violent omission will overshadow what I think was a very comprehensively written everything else!? 

PTA- 
This was a total nightmare.  The problem for me was a (somewhat wasted) hecka long time organizing with my ruler and so on- and this was a racehorse- pure and simple- with a zillion little niggling sub questions- I copied the format EXACTLY and created an outline with subheadings- but I found myself really pressed for time and while I think I wrote total BS at the end- I did try to conclude no matter what. I thought it was difficult because when you first started, you thought it would be easy and easy to organize- but realized you really had to address paragraph (part B) first in order to create the proper outline. 

I dunno about this one!

Day Three:
Essay 4: Corporations with Remedies- Certainement… My memory castle had me writing a fully formed contract/remedies essay- with time to address the secondary analysis- whether they were actually a Partnership. I did the same analysis for both- with Remedies and the differences between the two. I am 100% certain it was appropriate to address the Partnership distinctions… How Formed; Characteristics/Rights and Liabilities of Dir/SH/Partners and Fiduciary Duties Limited liability issues- why they weren’t executed properly, (no filings), etc. and then of course the Corporations questions- validly created/ veil piercing ( I think I talked about  fraud, undercapitalization. alterego) I think there was a dividends analysis- or was it repurchase/limitations/ can’t remember- but the analysis was there- power to issue- surplus etc. liability for unlawful issuance, etc. no SEC issues/public company issues- Duties and Rights of SH/DIR/OFF… controlling sh fiduciary duty- etc. Duty of Loyalty, care, biz judgment rule/ and termination? I think?  Anyhow- I felt confident about this essay- I am 120% sure the partnership analysis was warranted. 

Oh and the remedies- that was pretty straightforward- wrote the essay in a neat format, and followed instructions- I think you did the analysis within the body of the remedy response? NOt sure, can’t exactly remember how worded- but the actual ANSWER was a remedies answer, but fueled by the Partnership/Corps analysis… 

Essay 5 – Real Property- Landlord Tenant… 
I 100% remember that this was a LL/T question- again- pretty straightforward legal analysis- but the conclusion they wanted was kind of wonky- I feel like it almost had a remedies vibe-  To be sure- I am drawing a total blank as to the Professional Responsibility portion of that question-  I can’t truthfully remember… at all…but don’t feel like it was there? I know there was something else about that LL/T question…hmm…I think it was remedies- tort remedies (NO TORTS)? I’m not sure- but I know people were chatty that it was a “TORTS” question- it was not. 

Wait- I remember- it WAS TORTS-esque question- you needed to talk about the Duty to Owner of Land-/Duty to Lessee!  That’s right- a kind-of negligence question- but it was more subtle- no injury talk…you had to address that DUTY in the context of the RP-LL/T issues- which included both the T’s duty to pay rent and exceptions to that duty, etc.  and the landlord’s duty to x, y and z. Too far out to remember exactly- but I think that is why people are saying Professional Responsibility. I can say even with this James Joyce-esque stream of fairly reliable consciousness that there was absolutely no PR in that essay- Duty- of the LL….

Essay 6 – PROFESSIONAL RESPONSIBILITY. 
Well- this was a great essay- I wrote again, stem to stern- addressed each of the lawyer’s duties to client, (I hit almost all, if I recall) and then he Lawyer’s duty as an advocate- and last, the Layer’s advertising rules. You had to hit almost EVERY single outlineable PR issue- except Prosecutor’s responsibilities and I think it asked for the CAL/ABA distinctions- so two little mini-responses for each section. 

I thought it was a chance to get a lot of points- lots of issues to hit… 

Last but not least- the PTB- 
So- this wasn’t as bad as the first day (in my opinion) BUT it had a LOT of facts to organize. I felt more comfortable with the completing of this PT- but I was racing- it was difficult- and you had to remember to follow the instruction- I think they specifically wanted this to be for the Judge, not the jury- but your language was not supposed to regurgitate law, nevertheless- mostly tell the story. I used a story telling voice- whatever the instructions said- to convince the judge of the facts in issue- and organized by…hmm…I think it was the three possible convictions- each building on the last- with pretty straightforward legal analysis…Mini IRAC like crazy for the elemental parts of the law adding in the supporting facts. 

I liked this one- but was very glad the test was over. 

I hope this is somewhat helpful. 

A”

Lisa’s Comments:

Hello “A”, thank you for your detailed, from the best of your memory, recount. First of all, no one writes 8 perfect exams. All you can do is your very best and it sounds like you did just that. You have addressed some issues that many miss – for example, on your constitutional law essay you state that you addressed over breadth, vagueness and prior restraint (granted, I have yet to see this essay question, but, the California bar examiners definitely embrace First Amendment Speech exams to address these points – so good for you for seeing these as issues – so many forget or fail to see it as important).

In addition, you addressed the right not to speak (which to me is something I thought of after hearing about the fact pattern from students after the end of day one – and it is something that most examinees would not catch). Now, I am not saying that a person would have to address all of these things to achieve a good score, but, over breadth, vagueness and prior restraint are part of what should  be on everyone’s First Amendment Speech checklist/approach. (Your addressing the right not to be forced to speak is what I would consider a bonus coverage on this essay – again though – remember I have NOT yet seen the essays .  .  . so I can only interpret the interpretations :))

I know it is stressful waiting, but, it really sounds like you did well – given your report. Everyone makes mistakes on exam day (whether they realize it or not). Your other coverage sounds like it was right on as far as the major topics that were tested.

Regarding your comment about PTA, I agree with you 100 percent about it being a tough one – that is a question I have actually seen as I received an advance copy of it in order to write a model answer for the Los Angeles Daily Journal. I will post PTA here (yes, the actual question) in a separate post. To everyone, please feel free to add comments here. (I will moderate these to to maintain a positive blog – no negative comments about fellow examinees will be allowed – so if you want your comment to be approved, please be respectful of fellow examinees).

All the best to those of you waiting for bar results! May 18th will be here soon! Best regards,

Lisa Duncanson

Program Director/Founder
Bar None Review
barnonereview.com

February 2012 California Bar Exam: Rehash About The Rehash

Hello All,

First of all, thank you to all who have been following the blog. And thank you to all who have written me personally. It is humbling to have such a large audience and I greatly appreciate your following.

I know some are waiting for a “rehash” of day three’s exams (at least some of you are – although, I am sure many would like nothing more than to not think about it at all.  And by now, maybe you have forgotten day three’s essays). In any case, a rehash there shall be.

I received many emails about day three’s exams. However, the recollections provided of the fact patterns have varied quite a bit. This makes providing a rehash (without the benefit of actually seeing the essays) pretty challenging. I pride myself on providing high quality content. And, the last thing I want to do is to ruin someone’s day by suggesting that they interpreted an essay (that I have not yet even seen) incorrectly.

So, I have decided to share with you some of what I believe to be the better breakdowns provided by actual examinees (with my own thoughts added – I will let you know when it is me and when it is an examinee’s interpretation of what was tested).

The California bar examiners are due to release the past questions (all essays and performance tests) any day now. At that point, I will be in a much better situation to provide my own interpretation of what issues were required.

However, in the meantime, I thought it would be helpful to share some of what I have received from some of the many examinees who took the time to write to me.

In addition to examinees writing in with their descriptions of what was tested, I have received many emails asking specific questions about the last exam. I believe that some of these these questions would be useful and so I will also post some of your fellow examinees’ questions (along with my answers). I will keep all email addresses private, of course.

I am still willing to address questions by email at: pass@barnonereview.com

I commit a certain number of hours each week to addressing questions at no charge and take all questions on a first-come, first-served basis.

Good luck to all who are waiting for bar results!  It can be a painfully slow wait to May 18th . . . hang in there!

Best,

Lisa Duncanson

Bar None Review

California Bar Exam: February 2012 Day Three Rehash Coming Soon

Hello All,

First of all, thank you to everyone who has written in with their thoughts on the essays. We will be sharing some of the more detailed analysis that students have provided and I will be weighing in with what I think was expected. Know this for sure (from what I have been told by examinees about the three fact patterns) there were many issues tested and there were different routes you could take to solve/resolve some of the issues presented.

We have received many, many emails from examinees out there who are worried because they feel that they missed an issue or two. Please understand that when an essay exam is heavily issue loaded or has more than one route to resolving the issue, then you are bound to “miss” something. It is normal and it certainly does not mean that you have failed that essay.

I know it is difficult, but, it makes sense at some point to let it go. To that end, I will be posting some of the issue analysis that were provided to me by examinees (detailed lists of what they felt was tested) so that you can see what other students felt they caught or missed. I will also do my best to weigh in on what I think the examiners were truly looking for on day three’s exams.

By the way, I really felt that Criminal Law had to show up on this exam . . . PTB was heavy Criminal Law. So they really covered quite a few of the MBE topics this round and of course heavy on Professional Responsibility (day one’s PT and day three – on one essay if not two). So, nothing too surprising really. I know, from the reports that I received from examinees, that this exam was tough. But, quite frankly it was a pretty typical bar exam round. If anything, it was a more typical bar exam round than July 2011 which really did not have any cross-over essays. I know that may sound easier (no cross-overs) but, it wasn’t an easy exam at all. Take a look at the July 2011 Real Property essay and you’ll see just how tough a non-cross-over can be (very heavily issue loaded and difficult to finish in one hour).

Day three threw many examinees for a loop. However, you should bear in mind that if you felt like it was tough, then so did everyone else. The key to passing an exam like the California bar exam is to keep writing in spite of the fact that you are a little thrown by the essay (as opposed to sitting there and thinking for too long about what to write – that can be dangerous).

We will have something here by tomorrow on day three’s essays.

Thank you again to all of you who have written in and given your essay synopsis and analysis. And for those who have not done so already, feel free to do so. Also, still trying to answer questions as I can about the test. However, the point of my next post will be to hopefully address many questions all at once and to help you put this test mentally behind you.

All the best,

Lisa Duncanson

Bar None Review

 

California Bar Exam Tip: Rest!

Hello all,

Congratulations to all who have completed the bar exam! My tip for today is to try to get some rest, unwind, decompress. I will be posting more here in the coming days (a rehash of day three’s essays and PTB for example, posts on whether you should continue your studies – not to be grim or negative – but, some students actually prefer to pick up their studying again – after a break – while they are waiting for bar results – just as a bit of insurance). I am sure the last thing you want to hear from me right now is anything about studying. But, it will be one of the topics that I will address in the coming weeks. First, however, I will post on what seems to have been tested on day three’s essays (which, I am sure is of more interest to you than study tips at this point) soon.

Again, I want to thank you for following my blog. We had 4,478 views just yesterday alone and had over 3,000 views as of 6:30 pm today. I have received many emails from examinees relaying what they felt was tested on today’s exam (thank you to all who have provided your breakdowns and analysis and for those of you who would still like to, please do). I will be compiling this information and reporting it here soon. I also want to thank those of you who have, during this exam, taken the time to write to me personally and thank me. It really makes me want to continue providing this information. I am humbled. Thank you.

The point of doing this is to hopefully give you some peace of mind (to know that you addressed the right issues enough of the time, that you weren’t – as some worry – completely off track).

I will say this for now: today’s exams threw many for a loop. It was not “fun” and many examinees have expressed their fears about having “messed” up. I can also say, from what I have heard about the essays from day three so far, that there were definitely differing ways to interpret some of the issues tested. Therefore, if you are talking with friends about the exam and you hear that someone addressed different issues than you did, this does not mean that one of you is wrong. I believe (as often is presented by some of the essays on the California bar exam) that there were some areas that allowed for multiple interpretations. So hopefully this will give you some peace of mind tonight (assuming you are here reading this) :)

Feel free to contact me directly at: pass@barnonereview.com I am happy to continue answering questions as I can. I will be taking a bit of a break tomorrow and possibly for a day or so. But, I will most definitely provide what I think the bar examiners were testing on Day three’s essays (I think that is mostly what examinees are looking for me to address at this point). If you have something else you are concerned about, please feel free to send me an email or leave a comment on this blog.

Congratulations to all who have finished the exam today! Wishing you all the best in your results!

Sincerely,

Lisa Duncanson

Bar None Review

February 2012 Bar Exam Tip: Shorthand Murder Approach

Okay all, this is likely the last post for the night (unless I think of something else).

Here is a quick murder approach – I am providing this because if you do end up with a Criminal Law(murder) cross over with Criminal Procedure (which certainly could happen), then you will need to make your way through your murder approach fairly quickly.

Here is quick 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) intend 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, I am not expecting the examiners to test one of the above common law inherently dangerous felonies, instead, IF they ware to test felony murder I would expect to see it in the context of a dangerous felony like drug trafficking or something like that – 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 c/l 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 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.

Best of luck to you all!

February 2012 Bar Exam “Predictions” For Day Three: Final Thoughts

Hello All,

First of all, congratulations to all of you who are taking the California bar exam today for getting through day one and day two!

So I promised that I would prepare something with respect to what I think might show up on Thursday. Several days ago I released my initial predictions – please see my earlier post here: February 2012 Essay “Predictions”/Essay Scenarios

I think you should review my first set of “predictions” before reading this post.

First, here are some fairly consistnet constants with the bar exam (the caveat being that the bar examiners can always test anything they want and in any fashion as many times in a row as they wish):

1) Usually the bar examiners repeat at least two subjects from the preceding bar round (so far, day one’s essays did not include a repeat of any topic from the July 2011 bar exam). And, just so you know, here are the topics that were tested on the July 2011 bar exam: Criminal Law (but, not murder), Civil Procedure (but not jurisdiction), Contracts (Common Law, no remedies, no UCC), Professional Responsibility, Real Property (JT, TC, restraint on alienation, adverse possession), and Community Property. So, if the bar examiners do what they usually do, something is going to repeat. Really any are fair game, given that day one has not repeated anything from the July 2011 bar exam. And, just so you know, the July 2011 bar exam repeated the following subjects from the February 2011 bar exam: Property and Professional Responsibility. And, the subjects that repeated on the February 2011 bar exam that were tested on the July 2010 bar exam were: Torts, Professional Responsibility, Evidence and Business Organizations (yep, FOUR subjects repeated from the July 2010 bar round to the February 2011 bar round). I mention all of this because I want to make certain that those of you who think something will not be on this bar exam simply because it was tested on the last bar exam will realize that this is wrong.

2) Usually (usually) there are three MBE topics tested. But, this does not always happen. However, there has only been one bar round in the past four years that has NOT included at least three MBE topics. This was the February 2008 bar exam – on that administration the bar examiners tested to MBE topics on day one (Torts and Criminal Law/Procedure – so I suppose the cross over of Criminal Law and Procedure could be viewed as two MBE topics, but, still it was light on MBE topics for that bar round) and then day three had essays that were all non-mbe topics (corporations, wills/trusts and I believe community property – I need to confirm that last topic to be sure). So, I would think that just based on history – statistically – you should see one more MBE topic – I think either Criminal Law/Criminal Procedure (specifically murder and procedural issues) or perhaps Torts (products liability) – the thing is that we are looking for something to repeat from the past bar exam and of those two MBE topics, Criminal Law was  on the prior bar exam (but did not test murder – they tested mostly crimes of possession, assault, battery and accomplice liability). Murder has not been tested since February of 2008, so it is due.
3) Statistically, Professional Responsibility shows up on nearly every essay portion of the bar exam – it has only been left off of the essay exam twice since 1994. However, on a few recent bar rounds it has only been tested as a cross over (especially when there is heavy coverage of Professional Responsibility on the PT and coverage of any other duty relationships like in trusts – the duty of the trustee for example). So this could  be a bar round where they either skip Professional Responsibility altogether from the essays or they may have it only as a cross-over. Still, keep in mind that statistically it usually shows up as a full essay – so be prepared for it. Definitely be prepared for it. And, since there has not been a heavy emphasis on California law (there does not have to be any emphasis on California law, by the way) Professional Responsibility would make for a nice topic to be able to include some California specific issues.
4) It would not be unusual to see a repeat of one of day one’s essay topics as part of a cross-over on day three. I know that sounds horrible, but, if it happens it won’t be horrible (especially if you know that it could  happen). For example, they could have a community property exam and add one evidence call that deals with marital and spousal privilege. Just a thought (not designed to freak you out). It has happened in the past and people seem to get really bothered by it, but, there really isn’t any reason to let it bother you. If they do repeat anything from day one’s essays, it will be a minor, one short call kind of issue. And, the examiners almost always spell it out for you pretty clearly in the separate calls when they are asking you any cross-over questions. So don’t worry about it, but do conduct a quick, light review of Evidence, for example, just to feel prepared for the possibility.
5) Civil Procedure – to be or not to be. It seems everyone is predicting this topic. I too feel it could come up and if it does here are a couple of areas that have been absent on the exam for some time: class actions and jurisdiction (subject matter and personal jurisdiction). Jurisdiction was tested far more recently than class actions. But, jurisdiction issues are probably the most commonly tested areas of Civil Procedure. And, if they really wanted to (the bar examiners, that is) they could test you on both class actions and jurisdictions (for example a class action brought in federal court based upon diversity of citenship – that is one way they could combine the two).
Please read/review my prior “predictions” (as I have not repeated it all here – so you should take it upon yourself to review this earlier post: February 2012 Essay “Predictions”/Essay Scenarios and please understand that no one can predict the bar exam.
I am still of the belief that you could see Criminal Law murder crossed with Criminal Procedure and/or Products Liability (keep in mind that Torts has made its way to the test quite a bit in the past four years and more than once strict liability has been tested, but, in the context of abnormally dangerous activities – so this one is a close one for me – I can completely see the bar testing products liability or as I mentioned before some miscellaneous torts area – including tort remedies or as a cross with professional responsibility).
Also given that there was only one (well, sort of two, non-mbe topics tested on day one – the Trust/Wills question) there obviously has to be some additional (at least I would think) non-mbe testing. Civil Procedure would fill that void, so too could Corporations or Community Property (remember that something usually repeats from the prior exam – anywhere from two to four topics – so far there have been no repeats. Therefore, based upon history, one would expect to see something from the list of topics tested on the July 2011 bar exam – see above list of what was tested on the July 2011 bar exam).
I know this is a lot. But, here is what I recommend that you do. Read over my initial “predictions” in the link above and see how that jives with what you saw on day one. Do not, I repeat DO NOT study only the topics on that list or anyone’s list. Instead, think about what you would be most afraid of seeing tomorrow morning and study that topic a bit extra. Then review all of the subjects (either in a condensed outline form – hopefully you have something like that to work from) and try to relax.
I have found that students generally know a lot more than they give themselves credit for. So be positive, and feel free to ask questions via email today – send questions or comments to: pass@barnonereview.com. I will do my best to return your questions. Also feel free to add any feedback you wish on this blog, especially if you think it would be helpful to someone else.
All the best to all who are taking the exam!

Lisa Duncanson

Program Director/Founder
Bar None Review
barnonereview.com

Follow

Get every new post delivered to your Inbox.

Join 8,423 other followers