California Bar Exam Predictions: July 2013 Bar Exam – Part One

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. I am truly humbled by the responses from examinees who have sent emails – thank you so much.

If you would like to reach me directly, please feel free to send me an email at: pass@barnonereview.com

Today, this blog will likely reach over 400,000 views. I am deeply humbled by the following. It truly gives me great satisfaction to be able to reach so many and to provide assistance to those who are in the midst of their bar studies.

A few caveats about my “predictions” . . . 

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. In the coming days (today included) I will be releasing these essay scenarios. Know that no one can predict what will be tested on the bar exam. And, anyone directing their studies completely around what someone has “predicted” is not making a sound bar exam prep decision. That being said, it cannot hurt to entertain potential essay scenarios – especially if this causes you to seek out examples and to improve the focus and intensity of your review. You should, of course, be prepared for any subject as any subject can be tested.

My commitment to my enrolled students: Please understand that my students who pay to take my course 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. So it simply isn’t fair to give away part of what they pay for to everyone else for free. In past rounds I have not made this available outside of our course. However, last year, after being asked over and over again, and after discussing it with my paying students (how they felt about it) I decided to release “predictions” – or – possible essay scenarios.

So here is the plan, As I have done in the past year, I will release the essay scenarios I have come up with over the coming days (one or two topics a day). To do anything else would really not be fair to my enrolled students. I hope you understand.

So here are a few thoughts on what I think could be tested:

Constitutional Law: Note: this was on my list of possible repeat topics for the last bar exam. It did not repeat and therefore, now that it has been skipped for an entire bar round, it is a subject that many are predicting. I also think that Constitutional Law is a very likely subject for testing. Possible areas of testing within Constitutional Law: I think an essay that requires you to address the constitutionality of a statute (state or federal) which can then require you to address due process (both substantive due process and procedural due process), commerce clause, dormant commerce clause (if it is a state statute regulating an interstate activity). While this is not the only area that could be tested, it is an area that the bar examiners have not tested as recently as some of the other testable areas. Free Handout: I provide a free downloadable approach for determining the constitutionality of a state or federal statute –  this approach will tell you when you should and should not address 11 Amendment immunity and provides a checklist of the order of things to go through in writing an exam like this – often students do not understand how a constitutional law question can bring up many different issues – 11th Amendment Immunity, Due Process, Equal Protection and Commerce Clause OR Dormant Commerce Clause can all very easily be tested on the same essay exam. So it is often not a matter of which you discuss but, how quickly you can manage to discuss all of these topics. I will be making this handout available again through this blog later today.

Evidence (or as I like to call it: Off to the races):  Like most people would predict, I am leaning towards an Evidence exam. Transcript style has not been tested in some time so I would not be surprised if you see that. Bear in mind, most are predicting this topic. As a result, most have given this area a bit of extra treatment in their review. Evidence essays are typically racehorse exams. This is important to keep in mind because you will need to work quickly and begin writing your answer as soon as possible to allow for enough time to address as many relevant (sorry for the bad pun) issues as possible. Be sure to know your form objections (for example: leading, non-responsive, assumes facts not in evidence, etc.). A great way to prepare for any essay tested subject is to review past essay exams. This is particularly true of Constitutional Law and Evidence. By reviewing past exams you can develop an efficient approach (which is necessary for both of these topics as both typically involve many issues on just one fact pattern).

POSSIBLE REPEAT SUBJECTS APPEARING ON THE JULY 2013 BAR EXAM (third time could be a charm):

Every bar round, the bar examiners repeat subjects from the prior bar round. Therefore, you should not eliminate any topic or presume that a subject will not be tested this July simply because it showed up on the last bar round or, showed up on the last two consecutive bar rounds. That’s right – subjects repeat sometimes back to back - three times. Civil Procedure has appeared back to back three times as have many other subjects. Therefore, I would not be surprised – nor should you be surprised – if you were to see either Civil Procedure OR Criminal Law – tested again (for a third time in a row) on the this next bar exam. Below are a few scenarios to consider should you see either Civil Procedure repeat or Criminal Law repeat:

Civil Procedure could come up again:  Some of the most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. Another area that has not been tested all that recently is supplemental jurisdiction (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. 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) and Collateral Estoppel and Res Judicata, it is not all that unusual that it has not come up in a while. Still, it is an area (Class Actions) that I would be certain to be familiar with in the event that it is tested. Even though class actions has been absent for many bar rounds, it is still no more likely in my mind, than jurisdiction or Collateral Estoppel and Res Judicata. What about California Civil Procedure? Well, one area that has yet to be tested on the California bar exam is the area of SLAPP Suits and Anti-Slapp Motions. I will write more about this possible area of testing in the coming days. In the meantime, I would give it a quick review.

Civil Procedure Tip: 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 claims. If you need further explanation of the “primary rights” view – please let me know and I will add a bit more here.

Criminal Law – especially – crossed with Criminal Procedure could come up again: Criminal Law was tested last on the February 2013 bar exam and on the July 2012 bar exam. However, Criminal Procedure has not been tested recently and neither has a murder exam. (The  February 2013 exam tested accomplice liability heavily and did not include any criminal procedure and the July 2011 exam tested larceny and other possession crimes but, no murder). As a result, I think that a Criminal Law murder exam, crossed with a significant amount of Criminal Procedure is a good possibility. I also think that an exam with only Criminal Procedure is possible as well.

NOTE: I do not think it is incredibly likely that you will see both Criminal Law/Procedure and Civil Procedure on the July 2013 bar exam. However, I do think that each is as likely to show up – so be sure to review both topics – do not dismiss either subject.

Okay, so that is it for now. Okay, well maybe not . . . make sure you know the California tests for value enhanced separate property businesses (Van Camp and Pereira) . . . more on this (Community Property) soon (this should serve as a hint to one of the next topics on my “predictions” list).

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. You should expect any topic and be ready for any topic. To that end – please read my prior posts about the importance of reading and studying past bar essays.

Clearly, no one should try to rely on predictions to guide their studies. You simply need to know everything as well as you can. Still, I think it can be helpful to have some possible essay scenarios to keep in mind especially in the few days leading up to the bar exam, just to have something new to focus on. Then in the event that you see any of it, you will feel good. And the odds that some of the above will be on the exam is fairly high (and that is not because I have some crystal ball, it is simply because there are only so many subjects, a person could throw a dart and get at least some right).

I hope this is helpful. Please, please understand that I give this out at this time as a way to be helpful and also to respect my enrolled students who are, after all, entitled to receive this information first. I wish you all the very best of luck. Best of luck to you all!

Lisa Duncanson
Program Director/Founder
Bar None Review
(213) 529-0990
barnonereview.com

July 2012 California Bar Exam Predictions – Free Essay Examples

Hello All,

I have had several requests for examples of how Van Camp and Pereira are tested on an essay. Our course materials include over 150 past California bar exam essays. However, my students are also all given extra sample essays for the topic areas that I think are most likely on that particular bar round. My students have our essay books, which provide a solid coverage of the range of essays that can be tested. But, I provide additional essay handouts for some of the areas that appear to be more likely or more probable for each bar round. Again, no one can predict this exam and I certainly do not claim to be able to predict it. I have had some bar rounds where I have come up with as many as 5 out of the 6 essay topics and even the specific sub topic (i.e., predicting defamation, not just Torts). However, this is not something I claim to be able to do every time.

You should be prepared for anything that comes your way and one of the very best ways to do that is to review past bar exam essays.

As anyone who has taken the bar and failed will tell you, simply memorizing the law is not enough. You really need to see how the concepts are tested in the context of the actual exam. If you have not spent a lot of time reviewing essays, then today would be a great day to start – it is never too late to review essays and perhaps stumble upon one or two that  you actually end up seeing on day one or day two of the bar exam. Remember, the California bar examiners repeat the same or nearly identical essays over and over again. Exams from four years ago are seen again all of the time, as are 10 year old exams – negligence is negligence, products liability is products liability, defamation is defamation . . .

My point is that there are only so many ways these topics can be tested. Therefore, reviewing past exams is an excellent way to improve your chances of understanding the issues and addressing the correct issues on exam day. Anything you see today or tomorrow, you will remember on the day of the exam.

Based upon the many requests for further explanation of certain concepts – like how does Van Camp and Pereira play out on a Community Property essay, what is/how do I handle the “primary rights” view (which is a minority and California held view) in Civil Procedure? – I have decided to provide some free essays along with additional study tips for the coming days/hours).

I will be happy to send you a copy of some of the essays that I think either help illustrate these concepts or that I think are worth reviewing right before the exam. In addition, I will be happy to send you tips regarding the coming days/hours.

How do I get the free essays and tips: If you want to receive essays along with additional tips and information about the exam, please send an email to me at: pass@barnonereview.com and include “send me essays & tips” in the subject line. Please include your first and last name and the law school you attended. (I do not release any of this information and never, ever, sell contact information that I receive from students or blog followers. Your information is kept confidential).

Further Predictions for day three: I will continue posting on my blog through the bar exam. After I know what was tested on day one, I will provide my suggestions of areas to focus on for day three’s essays (predictions of sorts). I will make these public on Tuesday afternoon while you are taking the exam. However, in order for me to do so, since I am not sitting for the test, I need to hear from examinees as to what was actually tested. My students will contact me, but, the more I hear from examinees, the more I will know and the more focused I can be about making suggestions for areas to study on day three.

Help me help you: So, if you have a moment, please feel free to email me on Tuesday during your break with your thoughts on what was tested. The more I know, the more I can offer to you.

Hang in there, I know these last few days can be tough, but, be positive and believe in yourself.

Best of luck to all who are taking the bar exam!

Also, I want to thank you all for following the blog, we have had over 10 thousand views in less than a week and the blog has now (as of this past week) received over 200,000 hits.

Thank you so much for the following and for your positive feedback via email – it is greatly appreciated.

Best,

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

California Bar Exam Predictions: Feb 2013 – Part One

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. I am truly humbled by the responses from examinees who have sent emails – thank you so much. If you would like to reach me directly, please feel free to send me an email at: pass@barnonereview.com

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. In the coming days (today included) I will be releasing these essay scenarios.

Please understand that my students who pay to take my course 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. So it simply isn’t fair to give away part of what they pay for to everyone else for free. In past rounds I have not made this available outside of our course. However, last February, after being asked over and over again, and after discussing it with my paying students (how they felt about it) I decided to release “predictions” – or, possible essay scenarios.

So here is the plan, I will release the essay scenarios I have come up with over the coming days (one or two topics a day). To do anything else would really not be fair to my enrolled students. I hope you understand. Once I have released all of the essay scenarios that I think are likely, I will put together a comprehensive post of all of the predictions (just like I did for the February 2012 bar exam – here is the link to this post: February 2012 bar exam predictions – it is worth taking a look at for some of the areas that I addressed thatdid not come up as these may be more likely now).

So here are a few thoughts on what I think could be tested:

Last bar round, I felt strongly that Evidence or Constitutional Law could repeat. I felt a slight preference for Evidence and it was in fact slated

Since I released my predictions last time, there is now an expectation that I will provide these again this bar round. I will do this. But, I need to respect my paying students and so I can not simply give out all of my predictions today. (Last bar round, out of respect for my enrolled, paying students, I did not release my “predictions” publicly until the day before the bar exam).

Civil Procedure: This topic is being predicted by many and is sort of an obvious possibility. Most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. The last time in personam jurisdiction was tested was in 2006. This exam is no longer on the California bar website. Incidentally, that administration tested Personal Jurisdiction (specifically: IPJ with a full minimum contacts analysis) and Collateral Estoppel and Res Judicata. This is a very possible combination. Another area that has not been tested all that recently is supplemental jurisdiction (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. I am leaning more towards an essay that has personal jurisdiction – since it has been since 2006 that the California bar examiners have tested In Personam Jurisdiction. But, anything is possible so be prepared for everything. 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) and Collateral Estoppel and Res Judicata. 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.

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 claims. If you need further explanation of the “primary rights” view – please let me know and I will add a bit more here.

Criminal Law/Procedure: Criminal Law was tested last on the July 2011 bar exam. However, Criminal Procedure has not been tested since 2010 and neither has a murder exam. (The July 2011 exam tested larceny and other possession crimes but, no murder and no procedural issues). As a result, I think that a Criminal Law murder exam, crossed with a significant amount of Criminal Procedure is a good possibility. I also think that an exam with only Criminal Procedure is possible as well.

Okay, so that is it for now. Okay, well maybe not . . . make sure you know the California tests for value enhanced separate property businesses (Van Camp and Pereira) . . . more on this (Community Property) 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. You should expect any topic and be ready for any topic. To that end – please read my prior post about the importance of reading and studying past bar essays.

Clearly, no one should try to rely on predictions to guide their studies. You simply need to know everything as well as you can. Still, I think it can be helpful to have some possible essay scenarios to keep in mind especially in the few days leading up to the bar exam, just to have something new to focus on. Then in the event that you see any of it, you will feel good. And the odds that some of the above will be on the exam is pretty high (and that is not because I have some crystal ball, it is simply because there are only so many subjects, a person could throw a dart and get at least some right).

I hope this is helpful. Please, please understand that I give this out at this time as a way to be helpful and also to respect my enrolled students who are, after all, entitled to receive this information first. I wish you all the very best of luck.

Best of luck to you all!
Lisa Duncanson
Program Director/Founder
Bar None Review
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

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 Bar Exam “Predictions” – so far 4 for 4

Hello All,

Right now California bar examinees are taking the Performance Test. I am currently working on my predictions for Thursday’s essays. So far on day one of the bar the essays were as follows:

Essay One: Trusts and Wills (as I predicted here – see post below – where I thought that Trusts or Trusts & Wills would be a likely topic for testing. I also thought that if there were a Trusts exam that was crossed over with Wills that you should look for a pour over trust issue or what is some times called a pour over will. The other area that we suggested would be ripe for testing within Trusts is the area of discretionary or support type trusts. While I have not seen the exam, from the many examinees who have voluntarily sent emails and from my students who have called me, it appears that this is what was tested. There were clearly breach issues as well (potential breaches by Tara, the Trustee who resigned after distributing most of the trust assets to only one of the three daughters – her reasoning being that the one daughter (Ann) needed the money more because she was ill). the two remaining sisters were not happy and so they wish to seek to terminate the trust and to sue Tara. There were three calls on this exam:

Call # 1 – What are Dave’s rights (apparently Dave is an unknown son of the Settlor/Testator Sam)

Call # 2 – Can sisters terminate the trust?

Call #3 – Can sisters sue Tara (cousin who became a subsequent trustee after Sam’s death)

Please bear in mind that I have not seen the actual exam, and that this information has been compiled from several examinees who have reported what what was on the exam.

Essay Two – Con Law (as predicted, although this involved a the First Amendment. Still, since it was a suit/claim brought against the state, and not the federal government, therefore, the 11th Amendment could have been addressed (this is always a brief discussion), also standing – specifically associational standing since there was a group: America for American’s Organization (something like that) referred to as AAO, who brought suit against the city for requiring them to post in both English and Spanish if they wanted to make use of a city provided bulletin board. AAO wanted to post a flyer about a meeting (where they would charging $10.00 per person to attend) that was for the purpose of restricting immigration. As a result, this would require a fairly heavy First Amendment analysis – content based as well as content neutral (valid time place and manner restriction). There is also the possibility (although – please bear in mind that I have not seen the exam) that there may, and I say may be a place to discuss commercial speech since this was an advertisement (the flyer) for a for pay meeting. The other issue is that it is very likely political speech – speech that deserves the utmost protection under the first amendment. So, clearly a lot to talk about here. There was one general call essentially stating that AAO has asserted that their First Amendment rights have been violated and your job was to discuss that. Anytime you have a First Amendment speech claim you want to also be mindful of a possible freedom of association claim. I feel this is likely not a big part or even required on this exam. But, again, I have not seen the exam.

Essay Three – Evidence (also as predicted). The bar examiners on this one did something interesting (and something they often do) which is to sort of combine some of the features of a transcript style exam with a regular paragraph style evidence exam by referring to “on direct exam . . . Paul testified . . . ” 

This exam brought up several issues, Relevance (of course, as this is ALWAYS tested on every Evidence essay) hearsay, likely a double hearsay on the second call, hearsay exceptions (declaration against interest, present sense impression as well as possibly other hearsay exceptions). By, the way, I am not taking this in any particular order. But for example on paragraph one where reference is made to Paul’s testimony where he states that “Vera ‘calmly’ said to Paul that there is a black SUV weaving recklessly through traffic behind us . . . ” this would be hearsay – since Paul is relaying a statement by Vera that was made out of court and is now being used to prove the truth of the matter asserted: that there was a black SUV driving recklessly. The typical hearsay exceptions for a statement like this would be both present sense impression AND excited utterance. However, here the examiners have told you that Vera spoke “calmly”. Still, I would bring up Excited Utterance and explain that it could be problematic since one would think that if she were acting under the stress and excitement of the event that she would speak loudly or make an exclamation. There were other issues – for example on the second paragraph where Dave testifies that Molly (who was a witness) told Dave that Paul admitted to her that the accident was his fault and that she immediately wrote down everything that she witnessed into a journal. This is where the double hearsay comes in (assuming I am being told the facts correctly), also there is the admission of her journal and this could bring up issues with respect to past recollection recorded, refreshing the witnesses’ memory. I haven’t really heard enough about this last call to feel confident in relaying what the issues would be. But, there are, as with most Evidence exams, many issues. I will write more about the exams after the exam is over. The main thing is to move forward and not to worry about what you did or did not do today. AND, remember I have not seen this exam yet. So, I am writing based upon what I have heard from examinees.

CAVEAT: It is not typical for me to provide a rehash of what was tested on the essays. There are two main reasons for this: 1) I have not seen the essays and can therefore, only base my assumptions on what has been relayed to me and 2) What has already been tested has been tested – it is best to let it go and simply move on to the next task – continuing to prepare for day two and day three of the exam. However, I have already received several emails over the lunch break from non-students asking if they should have discussed this or should have discussed that. And so I thought I would post a little bit about what I have heard was tested on the three exams here. Also I am excited to once again have three essays pretty much spot on for day one.

The most important thing to do right now is to let go of whatever you did today and move forward. Everyone misses something, no one is perfect and the bar examiners are not looking for perfection. Just keep moving forward, stay positive and believe that you CAN do this. And, remember, my notes above are from a poll of some examinees. It is definitely not the end all or definitive anything on what was actually tested – other than the fact that we know for sure that 1) Trust/Wills, 2) Constitutional Law, and 3) Evidence were all tested.

I will be posting in a separate post – soon – my thoughts on what I think might come up on Thursday. I want to wait to hear what the performance test was like (for example, did it heavily test Professional Responsibility – because if it did, there is a possibility that Professional Responsibility could be skipped from the essays. While this is rare, it does happen, and when it does Professional Responsibility is then tested pretty heavily on the performance test). So, I will reserve further comments until I hear from examinees on what was tested this afternoon.

Also – please feel free to provide any feedback on your take on what was tested on the essays today (the fact patterns, the issue you thought were tested, etc.). This always helps me to come up with a closer approximation of what I think might show up on Thursday’s essays.

One final note (before I sign off to get ready to meet my students here in Ontario): the bar examiners usually test at least one or two topics that were tested on the preceding bar exam administration. For example, this past July 2011 tested Professional Responsibility (no real surprise) and Real Property which were both tested on the preceding February 2011 bar exam. And the February 2011 bar exam tested: Evidence, Torts, Professional Responsibility and Business Associations – all of which were tested on the preceding July 2010 bar exam (mind you, the Business Associations exam in February 2011 was in the area of Corporations and the Business Associations exam tested in July 2010 was in the area of Partnerships – still that is 3 to 4 repeated subjects from the preceding July 2010 exam to the following February 2011 exam). So my point is that the California bar examiners like to repeat topics back to back. Today you had four subjects – Trusts&Wills, Evidence and Constitutional Law – none of which were tested on the July 2011 exam. So, my prediction so far is that something has to come from the prior exam, historically this is what they do. So expect some subject(s) from July to pop up on Thursday again.

I am still predicting that there could be a Criminal Law/Procedure Exam (a murder exam crossed with procedural issues), but, I want to wait to see what was covered on today’s performance test before I write any further about Thursday’s likely topics.

All the best to all who are taking the bar exam.

P.S. We are not answering our Bar None Review phone during the three days of the bar exam as all of our current students have our cell phone numbers and all of our staff are physically present at testing centers to support our existing students. However, if you need to reach us, please send an email to: pass@barnonereview.com and we wills see to it that someone gets back to you.

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