California Bar Exam – Day One’s Essays

Hello All,

Congratulations to all who have completed day one of the California bar exam! You are now one third of the way done!

I will be meeting with a group of my students in Ontario after the test this evening. But, I wanted to first let you know what I have heard was on the test, hopefully help you put it in perspective and also give you some suggested areas to focus on for Thursday’s essays.

So no real surprises so far – Civil Procedure (as most predicted), followed by Community Property  (with a little Professional Responsibility) and then Evidence (with CA distinctions). I felt that of the subjects that were most likely to repeat from the last bar round that it would be either Evidence or Constitutional Law. I also thought that IF Evidence were to repeat that you should be extra prepared for spousal and/or marital privilege. So far there was nothing that wasn’t expected.

Just so you know, many people have reported in with their list of what was tested (thank you to everyone who did that, by the way) and most people indicated that they had trouble finishing the last part of the second call on the Evidence essay. This is not unusual. If you did not finish, rest assured you are NOT alone AND it does not mean that you have failed, absolutely not. However, make sure you push yourself on day three to finish all three essays the best that you can.

And, just remember, many, many people will not have finished the third essay completely – and yet they will still pass. It is all in how you internalize it. If having run out of time ruins your confidence then that is a bad thing. Don’t throw the test away or let yourself become defeated simply because you ran short on a question. It is not the end. Today is over and make sure that you think of it that way – as being over, past, not on your mind any longer – only look forward. There is no point in agonizing over what did or did not happen today. Focus on tomorrow and on Thursday.

So, there are two things I am providing in this post: 1) a bit about today’s test (remember – I have not seen it, but, I have compiled information from examinees who wrote in) and 2) some thoughts on what you might want to focus on for Thursday’s essays.

July 2012 Essays – Day One (please keep in mind, this information comes from student accounts – if you remember something differently, do not panic or worry):

Essay 1 – Civil Procedure (PJ and SMJ, amount in controversy posed as issue)

Pam and Patrick are citizens of State A. They were travelling in State B when the got into an accident with State B driver from Corporation.

Corporation is incorporated in State B and does business exclusively in State B and its warehouse and workers and drivers are in State B.

Pam and Patrick sue in federal district court of State A. Pam is suing for personal injury of $70K and property damage of $10K. Patrick is suing for damages of $6K.

Corporation sought dismissal on the grounds of personal jurisdiction and court denied. Final judgment of $60K and $4K for Pam and Patrick. **

Corporation appeals to court of appeals on the basis of subject matter jurisdiction and personal jurisdiction. How should the court rule? Discuss.

**Note: I heard from some examinees that the corporation was a Canadian corporation,  so I presume this played out in the fact pattern as well – but, again, I have not seen the fact pattern. Most examinees felt that this essay was pretty straightforward.

Essay 2 – Community Property/Professional Responsibility

Wendy and Hal are married and live in California.

Hal likes to drink and Wendy kicked Hal out of their family home and told him not to come back until he finishes an alcohol treatment program.

Hal drinks, then drives, hits and injures a pedestrian. Pedestrian brings a civil suit against Hal. Wendy learns of the suit and tells Hal she wants a divorce. Hal is unemployed and the only asset he has is his interest in the family home which he and Wendy purchased together during their marriage.

Hal consults Lawyer about representing him in the civil suit. Lawyer asks Hal for a promissory note and lien on the family home. Hal accepts.

1.     Is Wendy’s interest in the family home subject to recovery of the civil suit.

2.     Is Wendy’s liable for the attorney’s fees.

3.     Did Lawyer violate any ethical rules? Discuss.

**Note: this essay was a bit different (at least that is what some have reported). However, there were no unusual concepts tested – nothing new at all. It was of the three essays, I think the one that most would find a little awkward. There was not a ton to write about on this one (that is often how Community Property essays go and that can make examinees feel like they are missing something. So, if you feel like it was too simple, don’t worry about it. And, besides, there is no point in worrying about it at all now. Just move forward and do your best tomorrow and Thursday!

Essay 3 – Evidence (I said that Evidence was on my list of topics that I felt were most likely to repeat and thought that spousal and/or marital privilege would be a likely point on the exam – it appears this was the case – nice – hopefully you reviewed this area a bit). And, as I said above – most people expressed difficulty in finishing this essay. So don’t worry too much if you were unable to finish the third part of the second call, it is pretty typical to run out of time on these. Here are the facts as reported to me:

Vicky is murdered. The prime suspect is Dean who is a rival business owner. Dean is married to Whitney.

Two weeks before the murder Whitney learns that Dean has been cheating on her with another woman. Whitney is upset and she tells Dean that the marriage is over and she moves out. Seeking revenge Whitney agrees to testify against Dean. During recess Whitney and Dean reconciled. Prosecution calls Whitney to the stand and Whitney refuses to testify. The court threatens Whitney with contempt and Whitney reluctantly testified that on the night of the murder Dean had mud on his shoes.

Prosecution calls Ella. Ella testifies that on the night of the murder she was standing at her kitchen window that was 20 feet away from Dean and Whitney’s home and she overheard Dean say to Whitney “I just killed the gal that stole my biggest account.” Whitney and Dean were unaware that Ella was there.

Dean calls Fred to testify. Fred testifies that on the day after the murder he was eating in a coffee shop when he saw two gangsters Gus and Hit. Gus asked Hit “did you take care of the Vicky business?” and drew his index finger across his throat.

Was the prosecution proper in calling Whitney to the stand? Discuss.

Was the testimony of (a) Whitney (b) Ella, (c) Fred proper? Discuss.

**It should be noted that because this case is a criminal case, that Proposition 8 applies. This does not mean that your analysis is any different – it simply means that it is worth pointing out that Proposition 8 is applicable because this is a criminal case and you are specifically asked to address California law.

So Now What?

So far what has been tested is pretty much what I expected – nothing unusual at all. Now, that doesn’t mean the rest of my “predictions” will all be on target. I am looking forward to hearing what was tested on the Performance Test this afternoon as this might change what I am thinking about what might come up on day three’s essays.

Obviously, Professional Responsibility is on virtually every essay exam. But, out of the past 23 bar exam administrations it was skipped from the essay section (completely skipped) two times. So, you just might not see it on day three. But, statistically it is more probable than not that Professional Responsibility will come up in some form (either as a cross over again or as an entire essay).

I am still leaning towards Criminal Law and Procedure (please see my previous posts: “Predictions” – Part One and “Predictions – Part Two). I am sticking to what I suggested from the beginning. Nothing happened today that was unexpected and all was from the list. I suggested Products Liability (and most have predicted this for July). However, now I am thinking that is perhaps just too easy. Be prepared for it, assume it will be there – because most people are assuming that – but, make certain that you don’t bank on it (or on any of mine or anyone’s “predictions”).

Remember that Defamation could be just as likely. And, I still think a Torts cross-over with PR is possible (malicious prosecution, abuse of process, PR – this is not an unusual combination). So be ready for Torts. If you do get Products Liability recognize that everyone is expecting that – so you will need to do a really good job on this exam in order to distinguish yourself from the pack (and that is something you need to do – make your essay look better than most – use headings, lots of headings and know the approach).

Something significant about today’s exam is that you were only tested on one MBE subject – most exams test two or three essays that are MBE subjects. So . . . that means I would expect at least one more. I would not write off any topic at this point (I know no one wants to hear that, but, you need to realize that anything is always fair game). In fact, on my bar exam we had an Evidence essay on day one (transcript style) and then on day three we had a Community Property/Wills/Evidence essay. The evidence question was a spousal and marital privilege issue. I managed to get through it, but, I had not looked at Evidence since day one – so let that be a warning to you.

I believe that Professional Responsibility could be tested as an entire essay or crossed with virtually anything. Criminal Procedure and PR show up together as do Torts and PR and really – any subject could be crossed with PR. But, Criminal Procedure and Torts both make for good cross overs with PR.

I will write more when I hear from students this evening about what was tested on the performance test.

Until then, review the areas that you are least comfortable with and also review my prior posts regarding the “predictions” (Part One, Part Two) as all of this is still relevant since nothing showed up today that was unexpected.

All the best to everyone who is taking the bar exam today. And, a big thank you to all who wrote in with your synopsis of the exams!  And, a big fat disclaimer: as you know I have not seen the test. PLEASE, please, please d0 not get worried if the facts above are different than you remember the facts to be. This is just some information that was compiled from some examinees.

Stay tuned for more later!

Best,

Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

California Bar Exam Predictions: July 2012 – Part Two

Hello All,

The bar exam is one week from today. So here are more of my “predictions”. Remember that I use the word predictions loosely. However, I really do think that it is helpful to think of potential exam scenarios. I pass these along to my students throughout our review course. And, now I am passing some of these along to you.

So here are my thoughts:

So far we have suggested Civil Procedure and Criminal Law & Procedure. I want to make a few additional comments about Criminal Law/Procedure: First of all, as I stated in my previous post (“Part One”) Criminal Procedure has not been tested since July of 2010 (four bar administrations ago). That is a long time for it to be absent. What is also significant (at least I attach significance to this) is what was tested and what was not tested on the past Criminal Law and Criminal Procedure essays:

July 2011: Criminal Law was tested without Criminal Procedure (the Criminal Law issues were: burglary, robbery, larceny, criminal battery and accomplice liability issues – no murder)

July 2010: Both Criminal Law and Criminal Procedure were tested (the Criminal Law issue was kidnapping – no murder, the Criminal Procedure issues were: 4th Amendment admissibility issues – which are very typical and common – and a guilty plea issue – not so common – no 5th Amendment, no 8th Amendment).

So, here is what I think you should keep in mind: 1) Criminal Law and Procedure is a likely topic – know it, 2) Criminal Law and Procedure may very well not be on the exam, but KNOW IT, 3) if you were to be tested on Criminal Law and Procedure it would seem like a cross over with Murder (the whole Murder approachcrossed with Criminal Procedure issues is likely.

*Note: For a good example of how to address murder in a quick fashion, search this blog for: “shorthand murder approach”

The 4th and 5th Amendments are always likely in this context. But, what hasn’t been tested in some time are the jury issues (6th Amendment) that can come up within the context of a murder exam. For example, peremptory challenges on the basis of not believing in the death penalty and then an 8th Amendment issue about the constitutionality of imposition of the death penalty (the most commonly tested aspect of 8th Amendment imposition of the death penalty issues are: the requirements that there be guidelines and discretion (discretion to impose – “automatic imposition” of the death penalty is NOT allowed, anything that would require a judge or jury to automatically impose a death sentence would be unconstitutional) and allowance of mitigating factors (defendant must be allowed to present mitigating evidence, also hearsay evidence IS allowed in the penalty/sentencing phase).

In addition to the above, you should be cognizant of issues that can come up in the context of the imposition of the death penalty and felony murder – imposition of the death penalty will not be allowed where a co-felon was not a major participant in the felony murder).

Review the 8th Amendment in general (search this site for “8th Amendment Template” (I released it as a download in a prior post – you should be able to easily find it by searching the blog for it. It covers both the capital punishment issue as well as bail issues (another area I would review).

The above issues are things that I would want to brush up on. Just as likely is a very run of the mill, straight forward, Criminal Law Murder crossed with 4th and 5th Amendment issues. Still, be ready for any of the above.

Okay, that is what I wanted to pass along about Criminal Law and Procedure.

NEXT:

Torts – Products Liability or Miscellaneous Torts (miscellaneous torts like: Abuse of Process & Malicious Prosecution). So it should be no real surprise that I think Products Liability is a likely possibility (see last February for my “predictions” where I indicated “IF you were to be tested on Torts, here is what I think might be likely . . . products liability . . .” ).

So, if you were to get Products Liability (or defamation, or any other topic) would you know how to start your exam? You should work on having an introduction to sort of get the ball rolling and to use as a framework for the organization of your exam. Remember, Products Liability is a race-horse exam. As a result, you do not have a lot of time to think about it, you simply have to get writing. So, having a canned up approach ahead of time (one of the cornerstones of our program) is not only a good idea, I think it is a necessity. 

Here is a good introductory statement: The plaintiff may have claim against defendant (here, insert the defendant or defendants plaintiff is suing) for Products Liability. A Products Liability claim may be based upon the following theories: 1) Intentional Tort, 2) Negligence, 3) Strict Liability (for defective products), 4) Implied Warranty theories and 5) Express Warranty.

Something like the above is very handy. It will work on virtually any Products Liability exam even if your particular essay ends with a discussion of Implied Warranty of Merchantability  and does not have any relevant discussion for Implied Warranty of Fitness for Particular Purpose or Express Warranty. Why is this the case? Because you have just, in one quick paragraph, at the very beginning of your exam, told the grader that YOU know what you are talking about, that you get it. You can modify the above paragraph, but, keep in mind that laying it out ahead of time not only puts the grader at ease with your knowledge and where you are going, it also anchors YOU in an approach. It is much easier to write from this position – having an approach.

Community Property – Value Enhanced Separate Property Business Like many, I think Community Property is likely. I would definitely know the two tests for determining the Community Property interests in a separate property business that has increased in value (Van Camp and Pereira). One of these tests favors separate property and one favors community property (meaning that one favors finding more of the value to be considered separate property and the other favors finding more of the value of the business to be considered community property).

So how does this come up? Often it comes up where an ex-spouse is attempting to collect for child support – and you have to determine whether the ex-spouse can reach a separate property business. Here is an example: Wilma and Hank were married in 2001. In 1999 Wilma opened a brokerage account. Wilma continued to manage her brokerage account through the course of her marriage to Hank. The brokerage account increased in value. Wilma and Hank divorce in 2012. The call of the question is whether Wendy, Hank’s first wife, who has obtained a judgment for past due child support may reach Wilma’s brokerage account.

Keep in mind, it could be any creditor of Hanks that is trying to reach Wilma’s brokerage account.

The key is to recognize that the only way you can properly answer this call of the question is to apply the tests (Van Camp and Periera) for value enhanced businesses so that you can determine what portion of the business is considered Community Property and therefore what Wendy (or any other creditor) can reach.

You should always address BOTH tests, even if you believe that based upon the facts, one test is more applicable than the other. If you do feel you can make that call – then simply bring up both and weigh in on which test you think is more applicable. But, remember the bar examiners really want to see your breadth of knowledge – so bringing up both tests is important.

You may not be given numbers to deal with and you need to be comfortable with the absence of numbers.  You may also get numbers (what Wilma initially used as start up capital for her business, what it is now worth today, etc.). So either is an option. Review past exams for how the bar expects you to deal with this – it is simpler than you might think.

What is Goodwill – another consideration for community property when dealing with a separate property business is the concept of goodwill. This is something that is important to address when you have a separate property business that has NOT increased in value. In these situations, a court may assign a value to the “goodwill” of the business. For example, any business where there are repeat customers and/or a good reputation, long standing business, etc. the concept of goodwill is important to mention. The goodwill of a business has some value – the fact that there will be continued customers, a future business, etc.

Therefore, if you end up in the situation on the exam where you have a separate property business, but, there is no increase in value or the business has gone down in value, the non-owner spouse may receive some interest based upon the “goodwill” of the business.

With respect to Community Property, be sure to be ready for any issues and remember that you MUST know the introductory paragraph for Community Property. You should have it as I do not know if any bar review course that does not provide it (and if for some reason you do not have it, you ought to be able to find it in virtually any California bar released answer for Community Property). Still, if for some reason you can not find it, feel free to email me or leave a comment here and I will provide one for you.

Okay, that is it for right now. Do a search for the “Shorthand Murder Approach” (I put this up in a blog post for the February 2012 bar exam, it is easily found by searching this blog for” shorthand murder approach”).

Stay tuned . . . there is more to come.

Good luck to everyone who is studying for the July 2012 bar exam!

Sincerely,

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

California Bar Exam Tips: July 2012 Bar Exam Predictions are on the way!

Hello all,

I will be posting my “predictions” for the July 2012 bar exam later today.

In addition, I will post tips each day between now and the bar exam. Topics will include: how to study in the final days and hours, likely essay scenarios, as well as quick approaches for some of the possible essay topics.

So be sure to check back here on a regular basis.

Also, I am taking questions, so please feel free to email me if you have a question you would like to ask and I will do my best to answer it for you. You can email me at: pass@barnonereview.com (My enrolled students are my first priority. However, I will do my best to answer any questions that I can between now and the bar exam).

In the mean time, take a look at some of the study plans on this blog. It is very important to have a plan of attack for the remaining days leading up to the exam. While I have provided sample study plans, your plan can vary. It is more important that you have a plan for each day than your following every aspect of the suggested plans on this site. The key is to mix it up – rotate in multiple subjects into your review each day and be sure to spend a significant amount of time reviewing past essays – this is critical. Do not test yourself on these essays – simply read the fact pattern two or three times and then study the answer(s).

This is one of the best ways to prepare in the final days leading up to the bar exam. Most examinees make the mistake of spending all of their time cramming and memorizing the law and end up neglecting the essays. It is so important to see how the issues come up (how the issues are tested) on the California bar exam. No outline will accomplish this for you. And sadly, most examinees spend most of their time in outlines – divorced from the actual exam. My advice to you today and for next 7 days is to review as many past essays as possible. This is how you will improve your issue spotting and handling of the essays on the actual day. Also, it will greatly increase the likelihood that on the bar you will see essays that you have already seen all or part of before. How great would that be? You can make that happen by simply reviewing many essays every day.

Not only will review – right before the actual exam – of past essays improve your chances of spotting the correct issues, this essay review really is a substantive review. By reviewing four Civil Procedure essays in a row, you will have a much better understanding of how to approach the subject if it shows up on the exam. By the way, I am predicting Civil Procedure. This is a fairly obvious pick. Of course, it may or may not be there. But, if it is, it would probably be nice to know that the last time the California bar examiners tested In Personam Jurisdiction (the full minimum contacts analysis) was in 2006. And, this essay is no longer on the California bar exam website . . . interesting. This does not mean that Civil Procedure is a definite for the exam. But, it does mean that personal jurisdiction (specifically in personam jurisdiction) is due. Many things are “due” or “up”. All of this being said – no one can predict this exam. Nor should you direct your studies away from a topic because it isn’t on someone’s list of predicted topics. That would be very, very foolish.

So, read lots and lots of essay exams and answers. This will increase your issue spotting skills, serve as a substantive review that is in the actual context of the exam, and increase the chances of your actually seeing the exact or nearly exact essay or essays on the actual bar exam.

I will post again later today with my thoughts on what I believe is most likely to be tested. Keep in mind that anything can be tested. Do not dismiss any topic. First Amendment Speech was once tested three times back to back. Many other subjects have been tested three times in a row. Anything is possible. However, I will post what I think is more probable and provide essay scenarios of what I believe could come up on this exam.

Be sure to check back here for more and be sure to let others you know who are studying about my blog.

Remember that you can accomplish so much in these final days. This is really the most important time. You will be relying heavily on short term memory, so make certain that you study well in these last days. I am always stunned at how some examinees will say: “If I don’t already know it now, it is too late”. That could not be more untrue. It is NOT too late. Read essays, read essays, read essays!

I wish all who are studying for this exam the very best of luck!

Sincerely,

Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

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