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

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

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