California Bar Exam: Congratulations on Completing Day 3!

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Hello All,

By the time you read this, you will be done with the California bar exam! It is such an accomplishment. I know that all the weight is given to passing this beast of a test but, you really should be proud of yourself for the accomplishment of completing one of the hardest bar exams in the country!

SHHHHH people are still taking the test . . . 

Much has been said about day one’s essays – and a bit about the performance test. As there are examinees with testing accommodations that will be taking the bar exam through Sunday, I will not be discussing the performance test at all until after all examinees have completed the bar exam.

However, I am happy to entertain questions about the essays and will continue to update the blog as I hear more about today’s essays in the coming days. Please subscribe to the blog if you would like to be notified when I post next.

So far, from what I hear was tested, everything was pretty much as expected. Constitutional Law, Community Property and Professional Responsibility showed up today. No surprises here. I did not expect to see both Constitutional Law and Criminal Law on day three (I thought it would be one or the other) because of the heavy emphasis on day one of MBE topics. Still, I thought one more MBE topic was in your future on today’s essays. So, again, no real surprises.

I have not heard much yet about the actual fact patterns from today’s essay exams. However, I thought I would include a few of the brief breakdowns that I received during the lunch break today via email and text. Understand that I have not seen the exam – but, that you have – so – if you feel something else was tested – then trust your own interpretation of the the fact patterns and recognize that there are often multiple ways to both interpret the facts and to resolve the legal issues. In other words, do not freak out over what you read here!

Here you go!

A blog follower who emailed in during the lunch break, had this to say:

“Question 1 (Constitutional Law)
Procedural due process, Standing, 11th Amendment

Question 2 (Community Property)
Validity of prenuptial agreement, Property purchased with SP in H name only, Commingled savings account, W purchased rental property from commingle account in her name only, medical bill after permanent separation but before divorce

Question 3 (Professional responsibility)
Duty of loyalty, Conflict of interest, duty of diligence, duty of confidentiality vs duty of candor”

Here are a few text messaged reports from the lunch break today (as you can see, no facts or recaps of the actual fact patterns – yet):

SM Text Essays Day Three

And another who reported in via text:

Text Essays Day Three

And another who reported in via text (starting with a little encouragement from me yesterday):

Text Day Three Essays PY

Please continue to write in with your breakdown of what you saw on the essays as the more examinees that I hear from – the better picture I will be able to piece together of what was actually tested on today’s exams.

I will continue to post here in the coming days (although, do not be surprised if I take a day or two off this weekend – you should do the same too)! Be sure to subscribe to my blog so you will get a notification when I post next.

Get some rest & do something nice for yourself and those who have supported you . . .

I am sure you are all glad to have this test behind you. I know that I am. I always tell my students that they should be at least as tired from studying as I am from prepping my students. It has been a great bar round and truly a pleasure to work with all of the wonderful students I had the good fortune to work with – thank you to everyone who enrolled in one of our programs and to everyone following my blog. Get some rest in the coming days and do something nice for yourself (and for your family – for putting up with you – nothing like being married to someone studying for the bar exam, or a girlfriend or boyfriend studying for the bar exam, or a parent housing a son or daughter studying for the bar exam – you get what I mean – show a little gratitude for their support and do something nice for them too)🙂

If you have questions, please feel free to send me an email at: barexamguru@yahoo.com or you can comment on the blog and I will reply to you here.

All the best,

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

California Bar Exam: Congratulations on Finishing Day Two!

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Hello All,

Congratulations on completing day three of the California bar exam!

Thank you to all who have written in about the first day’s essays. There have been many examinees who have written in concerned about their performance on the Civil Procedure essay. Also, there is definitely a dispute among examinees as to whether Remedies was a feature or not on the third essay yesterday. I mention this simply to give you some perspective.

You’ve been through two grueling days so far. So, now what?

Rest, review, relax (to the degree that you can) and be positive. Also, commit to really fighting for it tomorrow. Especially if you feel that day one didn’t go as well as you had hoped – then really go for it tomorrow. You can do it!

This exam is as much about sticking it out and keeping your head above water and simply not letting the exam get to you as it is learning the material and memorizing the law.

As far as what to study this evening – look to any topic that you feel is not your best and review it (preferably a condensed version). If you feel like all subjects are essentially equal for you (in terms of your memory of the rules etc.) then, I would spend some time reviewing the topics that I have suggested in my earlier predictions. Of course, no one can predict the exam. But, if Criminal Law Murder is tested – you will want to be sure the you have the approach memorized. If Constitutional Law is tested, you will likely need to address Article III Case or Controversy requirements. Be sure you know these elements.

Above all, be positive and commit to doing your absolute best tomorrow. Fight for it. Don’t forget the reasons why you wanted to be a lawyer in the first place. Think about that and remind yourself of how much you want it.

Thank you again to all who have written in and thank you for following my blog! Please feel free to write in about tomorrow’s essays as I will continue to post about the exam in the coming days.

And, while my enrolled students come first, if you have a question, feel free to email me at barexamguru@yahoo.com and I will do my best to get back to you.

All the best to you on day three!

Sincerely,

Lisa Duncanson, Bar Exam Guru

 

 

 

California Bar Exam: What’s on the Plate for Thursday?

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Hello all,

Thank you again for writing in with your reports of what was tested today. I promised that I would put together my thoughts on what might be more likely to show up on Thursday’s essays. Again, today’s essays were all from the “predictions” posts – so I do not have any major changes. As I believe what is most likely still comes from these areas, I recommend that you take a look at my earlier posts: Predictions, Part One and Predictions, Part Two Still, I do have some additional thoughts based upon what I have heard was tested on day one.

So here are my thoughts . . .
Generally, each bar exam you will see at least two or three (sometimes more) of the MBE topics tested on the essays. Today, based upon what I have heard, so far there were already three MBE topic tested (Civil Procedure, Property and Contract/Remedies). Incidentally, I will not be writing about the Performance Test until next week as there are examinees who have testing accommodations that will be taking today’s PT later on in the week.

So far, Contracts and Remedies appear to have repeated from the February 2016. But, typically two or three subjects will repeat from one bar round to the next. I still think that you could see something else repeat from the February 2016 bar exam. Obviously, Professional Responsibility is likely (as it is almost always tested on the essay portion of the bar exam). But, as I mentioned earlier, possibly Evidence could show up as a cross-over with another topic. For example, you could see privileges or hearsay easily as a tack on type of issue on Community Property, Wills, Criminal Law, or really most any subject. This is just something to keep in mind. Be sure to review my earlier “predictions” posts.

Remember that each bar round the examiners usually repeat two to three subjects from the prior bar exam round. I still feel that Constitutional Law or Criminal Law murder (possibly crossed with Criminal Procedure) are likely for Thursday’s essays. The thing is that if you were to see both subjects, that only leaves room for one essay that is a non-MBE topic. It is possible, but, I could easily see Thursday being Criminal Law (murder and the areas that I have suggested earlier) OR Constitutional Law (in the areas I have suggested earlier) and then a Professional Responsibility essay or Business Organizations crossed with Professional Responsibility and Wills or Community Property as a third essay for the day. I think Criminal Law and Constitutional Law are equally likely to show up on Thursday’s essays. However, what would make for a good set of essays (given what was already tested on day one) might not include two additional MBE topics appearing on day three. So, obviously, we will just have to see.

Keep in mind that anything could be tested. But, given what we have seen so far, I stand by my earlier predictions. Be sure to be prepared for any of the suggested topics and essay scenarios. But, more importantly, be sure to review any subject that you feel you need to give more attention. And, by the way, these suggestions are for tomorrow – Wednesday. I wouldn’t expect you to study tonight for Thursday’s essays. Wait until you are done with the MBEs for that.

Don’t put away the subjects that were tested today
In addition, I want to caution you that sometimes we see subjects from day one’s testing repeat on day three. I am not saying this is a great likelihood, but it has happened and you should be aware of this. It never feels good to put a subject away – thinking it will not be tested again – and then seeing it on an essay. So just be sure to still take a look at Civil Procedure, Property and Contracts and Remedies briefly as you never know. And, given that Remedies often repeats (not only from bar round to bar round, but from day one to day three) be certain to give this a little time. One of the areas that I was thinking could be tested this bar round was Remedies. It was tested today, but could come up again on Thursday. We haven’t seen testing of injunctive relief (at least not from what I have been told). So, I could certainly envision additional Remedies testing for Thursday’s essays – the bar has done it before.

How should you study for Thursday?
I do recommend studying tomorrow (Wednesday) for Thursday’s essays. However, no extreme late night studying as it is important to get some rest if you can. That being said, I have never slept much at all the night before days of the bar exam. But, I did not spend the whole night studying – I still rested my eyes and brain and did my best to try to sleep. Some review is a good idea, just don’t pull an all-nighter. You will perform far better on Thursday if you get some rest. Also, remember that you know this stuff. Basically you do. Tell yourself this and it will help your confidence tomorrow and Thursday.

Remember that anything can be tested. And, remember, no one can predict this exam. I certainly can’t. I simply think it is helpful to be reminded of essay scenarios that might come up. If nothing else, it can serve to calm your nerves. And, I am super excited that Property – with Easements in the context of a land-sale contract was tested – I felt that this area was long over due.

So, does this mean that my other predictions are more likely to show up? Not necessarily. But, I would definitely review the “predictions” again. As I mentioned earlier, there were two posts for the predictions (Predictions, Part One and Predictions, Part Two). In between, I included coverage of a basic approach to writing Criminal Law Murder exams.

I will write more tomorrow. If you haven’t already, be sure to join our tips list, below!

Sign Up Now

If you have any questions about the exam, feel free to email me at: barexamguru@yahoo.com and I will do my best to get back to you.

Congratulations again on your completion of day one of the bar exam!

All the best,

Lisa Duncanson
Bar None Review
213-529-0990

California Bar Exam: Congratulations on Finishing Day One!

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Hello All,

Congratulations on completing day one of the California bar exam! And, thank you for following my blog! Nearly 847,000 views to date (thousands of which occurred just over the past 24 hours). It is very humbling, to say the least. Thank you! And, thank you to all who sent in reports from today’s essays. Please continue to send these in as it always helps me to complete a better picture of what was tested on the essays. You can email me at: barexamguru@yahoo.com While my enrolled students come first, I do try to respond to all emails and am happy to answer questions as I can.

So, what a way to start the day: Yes, the Civil Procedure essay was challenging! Anytime the bar examiners test areas for the first time it is a challenge for examinees as there are no points of reference from prior exams – there is no exact example of what was tested on today’s Civil Procedure essay because it has not been tested exactly like that before. So, if it felt challenging, well, that is because it WAS, but don’t let it get you down. You are not alone . . . which essay do you think I heard the most about today?

Which essay seemed to trouble the most examinees from the set of three? (I receive a LOT of emails after each day of the bar exam – and try to answer each personally). You guessed it – the Civil Procedure question. Four calls, lots to figure out and the very first time that California Civil Procedure was ever brought into play on the California bar exam! (Finally)! Whatever you wrote on that question – let it go and put it behind you. There are five additional essays and two performance tests in the balance for you, so don’t worry about it. I will write more about this essay from the reports I have seen. But, truly, you need to move on from it and perform tomorrow and Thursday. Still, I get that many want to hear more about the essays and what was likely tested as it kind of helps put it to bed in a way.

As you undoubtedly know by now, essay two was Property (Easements – as expected, in the context of a land-sale contract that likely generated issues regarding notice and warranty deed covenants – as expected). Not much to say about this one as it was pretty much straight out of the predictions/essay scenarios. This area has been overdue for some time, so no real surprise here.

Finally, essay three was (most likely, from what I have heard): Contract Remedies. The idea that Contracts and Remedies could repeat from the February 2016 exam is no surprise. And, the bar examiners could easily have more “repeats” up their sleeve for Thursday’s essays (more on that in my next post).

I know I said “Contract Remedies” – but, understand, that I have not seen the exam, so keep this in mind. I can not say with any certainty what was tested today – as I have not seen the exam. You have seen it, so you know better than I do what the fact patterns were like. I mention this here because this question (essay three) actually presented the most divide in terms of what I have heard from examinees today. By this I mean that I have heard varying reports of what was tested on essay number three. Just so you know. This means there are probably multiple ways that the exam could be handled and still be passing. For example, one examinee might spend more time on certain areas than another and still – both examinees can pass the essay. Again, whatever you wrote – put it behind you!

So, I promised that I would provide revised “predictions.” However, so far, the topics tested on the essay were subjects on my list of predicted/expected areas. As a result, I do not have any major changes to my predictions. But, I do have a few thoughts based upon the topics that were tested today. I will be putting this together in a separate post, a bit later this evening. In the meantime, keep staying positive and don’t let this test get you down!

Also, for more tips and insights, be sure to sign up for my Bar Exam Tips List, below!

 

And . . . Put today behind you!
Whatever you did today, however you felt about your performance today, it is over, history. There is no point in dwelling on it and there is no point in rehashing it. Do your best to put it out of your mind. We are often our own worst critics. If you have your doubts about today’s performance, I encourage you to put that behind you. You likely did better than you think. And, thinking that you did not do well is not going to improve your chances of doing well tomorrow or Thursday. So Put today behind you!

Congratulations again on your completion of day one of the bar exam! I will be posting additional thoughts on what might be more likely on Thursday’s essays a bit later this evening. But, you should be reviewing (if you are reviewing at all) for tomorrow’s MBEs. Whatever you do, keep it light – you need to be in good condition to get through the rigors of tomorrow’s 200 MBEs!

All the best,

Lisa Duncanson
Bar None Review
213-529-0990

Good luck on the bar exam tomorrow!

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Hello Everyone,

Thank you again for following the blog. I mentioned earlier that murder might be on the exam. It has been absent for some time and would seem to be due. Of course, anything is possible. And, if you were studying for the bar at any time in the past couple of years, then you will know that many have been predicting a murder exam for some time.

The following is from an earlier post that I wrote covering the basic murder approach that we have seen traditionally embraced by the California bar examiners. You may have come across this post earlier if you have been searching through older posts. If so, this will be familiar to you – either way it is a good refresher.

If you haven’t already, be sure to join our July 2016 Bar Exam Tips List!

Incidentally, if murder were to show up on the exam on day one or day three of the July 2016 bar exam, then I would not be surprised if it were crossed over with some of the lesser tested areas of Criminal Procedure. We have not seen any 8th Amendment issues in some time (see the “Free Stuff” page for a free download of an exam template for this area) and we also have not seen much testing of the 6th Amendment areas of void dire (peremptory challenges, right to an impartial jury, etc.). So these areas could easily be tested this bar round. Evidence is also an area that can repeat and sometimes we see it as a cross-over with Criminal Law, Criminal Procedure (and if you read my post from a few days ago – we have seen it tested with Wills and Community Property as a cross over with marital and spousal privileges).

It is this simple – as I have always maintained over the many years of writing this blog – the bar examiners can test anything on any bar exam round. I do not say this to send you into a panic. It is simply true. As a result, there will be topics that you are hoping for and there will probably be a few you hope not to get – that is the nature of the bar exam. But, you can do it, do NOT give up no matter what you see on the exam –  write your heart out tomorrow.

Did you know that many topics show up back to back (from one bar round to the next) sometimes even three times in a row? Therefore, all bets are simply off on presuming something is not likely to come up.

My main focus in writing during the bar exam days is to simply provide you with something to hang onto, some peace of mind and hopefully even a little bit of sanity.  

I know how demanding and draining and how seemingly impossible taking this exam can sometimes feel like to examinees. But, it doesn’t have to be that way – sometimes a few words of encouragement – or a quick review of an approach – like the approach below🙂 – can be all a person needs to make that little bit of difference between passing and failing. That is why I write here. I tell you this as a source of encouragement: it is completely normal to be a little bit freaked out about tomorrow (assuming you are awake – like most, and are thinking about the exam). This is normal. It is also normal to feel somewhat calm – we are all different. There is no one size fits all approach to this exam. Ideally you would get a good nights sleep before the bar exam. Some do. I never did – and yet I passed. So wherever you are at (asleep early or awake still and reading this post) you can do it!

OKAY – WHAT TO DO IF YOU WERE TO GET A CRIMINAL LAW MURDER ESSAY TOMORROW (OR THURSDAY)?

As a bar taker you undoubtedly have a very good grasp of the rules for Murder. However, it is very important that you are able to make your way through all of the necessary points efficiently and in a manner that the grader will recognize as a passing or above passing answer.

Here is a quick, basic essay approach for murder. (Note that you should use a lot of headings and have a physical structure that evidences your approach – this will give the graders a sense that you actually know what you are talking about and it will make your essay far more appealing to read, it will appear organized and it will make it easier for you to write your answer because you have an approach).

Approach for handling a murder question:

Address: Common Law Murder – 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) intent to inflict great bodily injury, 3) depraved heart killings, and 4) felony murder. (Note: if you have a slightly different definition for malice aforethought, that is okay, there are variations of this language. Go with what you know and have memorized – as long as it is correct).

(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, if this area is tested, the examiners may not test one of the above common law inherently dangerous felonies – watch out for a dangerous felony like drug trafficking or another dangerous (but not enumerated as a FMR felony) felony – 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 common law enumerated (BARRKS) felony). Another note about malice aforethought – years ago, I would advise my students to only prove up one of the four ways to show malice aforethought and then move on. But, in more recent years, the examiners have embraced answers that address more than one of the ways to prove up malice aforethought. So, that is what I would recommend you do – write on two or three ways to prove it up – if the facts lend to a discussion of more than one way to prove up malice aforethought.

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”). Note: Most exam answers embraced by the California bar examiners handle second degree murder this way. However, if the call of the question asks you specifically about second degree murder, then you should use the definition of second degree murder instead and discuss it.

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 four 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 the defendant is 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 work 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, utilizing the facts as much as possible.

If you were to get a murder essay, I am thinking it could be in the context of Criminal Procedure (possible in the context of the 8th Amendment and/or 6th Amendment). If, however, you are tested on Criminal Law murder alone, then you will likely have issues with either the inchoate crimes (Solicitation, Attempt and Conspiracy) and/or accomplice liability. The reason for this is that it makes for a better one hour essay to include additional areas outside of the Criminal Law murder approach.

Focus on the call(s) of the question:

Finally, one of the things that can be challenging with any essay exam is simply understanding the call of the question. For murder exams, the California bar examiners often state the call as follows: “Can D be convicted of murder or any lessor included offense?” If this is your call, then you will follow the approach I have addressed above, with little variance.

However, sometimes, the examiners ask you multiple calls on a murder exam. For example, call number one might be: “What defenses can D assert?” Call number two might be: “Can D be convicted of voluntary manslaughter?” And, then you may have a third and fourth call that are from Criminal Procedure.

If you end up with an essay that is broken out into these separate calls, you need to do your best to address the calls in the order asked and to respond to the calls. This means that you will need to address the defenses to murder (most likely, it will be defenses to murder) in the first call without even having discussed murder yet. This might feel uncomfortable to you – to write on the defenses before writing on the crime that the defenses are for, but it is something you just have to do.

Next, under the second call, typically you would need to address common law murder, first degree murder and second degree murder before you could determine whether the killing should be mitigated down from some type of murder to voluntary manslaughter. Many will focus simply on the heat of passion killing without getting credit for going through common law murder, malice aforethought, first degree and second degree. But, you will want to show your breadth of knowledge and show the examiners that you have a good grasp on the approach.

This is just an example of how the material can be tested and how it may require you to go a bit out of order. Just do it. Don’t let it bother you, just focus on the task at hand and answer what has been asked of you. Always focus on the call or calls of the question.

Okay, that is it for now. I wish everyone who is taking the bar exam tomorrow, the very best of luck!

Remember, if you have a chance to email me with your thoughts on what was tested on day one of the essays, that will help me in my reworking of the predictions for Thursday’s essays. You can email me at: barexamguru@yahoo.com

Stay tuned, as I will post here during the days of the bar exam.

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

 

July 2016 Bar Exam Predictions: Part Two

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Hello All,

The bar exam is less than two days away now. I wish all of you who are taking the exam, the very best of luck!

If you have read my prior posts, you know that Constitutional Law is one of the subjects that I am leaning towards your seeing on the July 2016 bar exam. I also think that Criminal Law Murder (possibly crossed with Criminal Procedure or Evidence) could show up on the the July 2016 bar exam. Of course, you may not see either Constitutional Law or Criminal Law on the July 2016 bar exam. But, if you were to see either subject on the essay portion of the exam, would you know how to handle it?

This might not seem like a question that you would want to ask yourself right before the bar exam  – but why not? If you do not know how to handle a Constitutional Law essay or a Criminal Law Murder essay today, two days before the test, is it too late?  Should you give up?  Of course not.

So, if Constitutional Law is something you are fearing – then I would take a look over the subject again (preferably by relying on a condensed outline of some kind). In addition, I would recommend that you take a look at a few essays in Constitutional Law. I would do the same for Criminal Law & Procedure. Both subjects can be race-horse exams. So, keep this in mind when you are writing your answers. Get to writing as quickly as you can.

Another race-horse type of exam, perhaps the hardest to finish within time, is the Evidence Transcript Style exam. The California bar examiners have not tested an Evidence Transcript Style essay in a very long time. While I do not think this is the most likely essay to appear on the July 2016 bar exam, it is one that would be pretty challenging to write if you have not seen an example of how it is tested and how it is answered. Any topic can repeat from the February 2016 bar exam (and usually two or three repeat from one bar round to the next). If Evidence were to repeat on the July 2016 bar exam, I still think it would be more likely to see it repeat as just a cross-over with another topic. (See my earlier post, Part One of the Bar Exam Predictions – that Marital and Spousal Privilege or Hearsay make for great cross-over testing with other subjects). Still, I think it can not hurt to review a Transcript Style Evidence essay.

I have attached as downloads, a past Constitutional Law Essay and a past Evidence Essay that I think are worth reviewing (yes – even the day before the exam – why not)? Incidentally, if you would like to see an example of a Criminal Law Murder essay, sign up for our July 2016 Bar Exam Tips List here.

The reason I think it makes good sense to review this exam the day before is because of this simple fact – a very similar essay exam could appear on day one or day three of the California Bar Exam. Therefore, it just makes sense to read through both essays. You can download the Constitutional Law Essay here: ConLaw Handout 2 F-05 and the Evidence Essay here: Evidence Transcript Style Essay

With respect to the Evidence Transcript Style Essay – This is included here not because I think it is incredibly likely to appear, but instead so that you can take a look at it to see how you could handle this on the off chance it shows up on the bar exam this coming week. It is one of those essays that the examiners test from time to time and if you do not have experience with it, well, it is quite difficult to handle and to finish within time.

The Constitutional Law essay is from the February 2005 bar exam. I think it is definitely worth a read. DO NOT test yourself on either of these exams. Instead, simply read through it (stay calm while you do so) and read and study the answer. Spend about 25 – 30 minutes on it (a few more minutes if you think you will benefit from it). The key here is to be able to glean some insights into both the approach for Constitutional Law (the approach that is embraced by the California Bar Examiners) and also how to handle an essay that is similar to this Constitutional Law exam. I think it is quite possible that you could see something like this tested (especially since this area has not been tested on the essays in a very long time). Given the possibility – it can not hurt you to read through it. And, remember, it is really important that you simply “read through it” – DO NOT TEST yourself on this – just read it and do your best to connect the dots between the fact pattern and what was generated in the answers. Focus on this: “If I were to get this particular essay exam on the actual bar exam, how would I write my answer?”

Hopefully, you would stick to the issues that are addressed in both answers and even better, if you do see something similar to this particular essay exam, you will remember how to handle it on exam day.

With respect to the Evidence Essay – note the style of writing (what I call a “shot-gun” type of approach) that is used in the exam answers. Both are brief where needed and get through all of the calls in a pretty efficient manner. Also, note that in a transcript exam you need to be prepared to write on form objections (examples of form objections include: leading, compound, assumes facts not in evidence, non-responsive, etc.). Note also, that this “shot-gun” type of approach/style of writing is frequently employed on products liability exams – as it is often required to write in this style to simply be able to finish the exam. I think it is helpful to realize that this style of writing is not only accepted (in certain race-horse style exams) but that is actually often the only way to finish the exam on time. Just recognize that it is not a good style to use on non-racehorse exams (most professional responsibility essays, for example, are not race-horse exams).

Other subjects you should consider . . . 

Business Organizations was not tested on the February 2016 bar exam and as a result, many are predicting this topic. Any area could be tested. But, it makes sense to look at favorite areas of testing. For example, within Corporations – the area of pre-incorporation contracts and promoter liability (which typically requires a discussion of defacto, dejure and corporation by estoppel) is a frequently tested area of Corporations law. Also, it is fairly common for the bar examiners to test Business Organizations crossed-over with Professional Responsibility. One example of how Business Organizations and Professional Responsibility can be tested together is when a lawyer and a non-lawyer go into business together and the business (whole or in part) provides legal services. In this scenario, the examiners can test you not only on partners’ liability for contracts or torts that were entered into on behalf of the partnership, but also in professional responsibility. The Professional Responsibility issues in this scenario include: assisting a non-lawyer in the unlicensed practice of law, and sharing of legal fees with a non-lawyer.

Federal securities law has not been tested in a very long time (10b5 and 16b). If this were to be tested, you will want to make sure that you know the elements as this really becomes your essay approach for these areas. Without a checklist memorized, it might be difficult to write this type of exam. If you have not reviewed this area recently, then review the requirements for 15 or 20 minutes – just to make sure that you have the elements ready to go should it be tested.

Community Property and/or Wills – Either of these topics could show up on the July 2016 bar exam. Community Property was not tested on the February 2016 bar exam. Trusts was tested on the February 2016 bar exam, but Wills was only tested in a very brief way on the February 2016 bar exam. As a result, I think either of these topics is very possible.

What about Civil Procedure? Civil Procedure could absolutely be tested. If you were to see Civil Procedure, it would not be surprising to see jurisdictional issues (personal jurisdiction and subject matter jurisdiction) as this is a favorite area of testing on the California bar exam. Essay exams that test subject matter jurisdiction often test diversity jurisdiction as a basis for subject matter jurisdiction. Remember that the requirements for diversity jurisdiction are: 1) diverse citizenship (no plaintiff and defendant from the same state), and 2) the amount in controversy must exceed $75,000.00. Most will get this right. However, you should note that this often also brings up issues of aggregation (to meet the amount in controversy requirement) and a person or a corporation’s citizenship. Other areas that could come up in this context are: joinder of claims or parties, supplemental jurisdiction, necessary and indispensable parties. Also, be mindful of tack-on type of issues (an issue that does not make for a whole essay, but could be a short call) such as Notice and Code Pleading and remittitur and additur. Additur is not allowed in federal courts.

Help me help you . . . 

I will continue to post more on the “predictions” and will also post again on Tuesday night after the essay portion of the bar exam – I will be counting on my students and blog followers to send me what was tested on the essay section of the bar exam so that I can update my predictions with respect to what I think might be more likely to show up on day three of the essay exam. So, if you have a moment, please email me after the essay portion of the bar exam on Tuesday. This will help me, help you – it is always good to have a sense of where to focus in these final days and even on the days of bar exam. Of course, no one can predict this exam. But, it can not hurt to put some extra time into an area that might be more likely to show up.

Thank you again for following the blog.

I wish you all the very best of luck on Tuesday. Remember to stay positive and to believe in yourself!

Best of luck to you all!

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

Bar Exam Predictions: Part One

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Hello All,

Thank you for following the blog and for your patience this July regarding the expected Bar Exam Predictions. We had a record turn out in our class sessions and this “guru” has been very busy. Also, please understand that my enrolled students expect me to provide the predictions to them first. I hope that you find the materials available on this blog helpful (see downloads on the “free stuff” page, if you haven’t already, for downloads). Also, be sure to join our July 2016 Bar Exam Tips List here.

About my “predictions” I do not claim to be able to predict what will be tested on the California bar exam. Nor do I recommend that you study based upon anyone’s predictions. However, I do think it can be helpful to know of some possible essay scenarios when going into the bar exam. I base the essay scenarios that I come up with upon the following: 1) historically favorite areas of testing by the California Bar Examiners, 2) areas that have not been tested on the bar exam for some time (Criminal Law MURDER, for example) and 3) just my gut and my experience with the exam over the past twenty-five plus years.

What I think is very possible to show up on the exam: First of all, you should know (if you do not already) that any topic can be tested on the essays AND that generally at least two topics (and I don’t just mean Professional Responsibility) will repeat from one bar exam round to the very next. And, some topics repeat three or more times back to back. My point: you should not dismiss any topic because it was already tested on the past two or even three bar exams.

What was tested last time that could repeat? Anything, but . . . While anything could repeat from the prior bar round, I am inclined to think that Evidence could repeat either as an entire essay or as a cross-over (think spousal and marital privileges crossed-over with a wills or community property essay – yes, the bar examiners have done this before and could do it again). If you would like to see an example of this kind of cross-over, sign up for our bar exam tips list, and I will send you one.

Past bar exam essays have also tested Evidence with Criminal Law & Procedure. Sometimes we see testimonial issues that come up in the Criminal Law & Procedure context that involve a hearsay issue. While the admissibility of a statement on a Criminal Procedure essay usually involves the 5th Amendment – the examiners have (and easily could) test hearsay in this context as well. Professional Responsibility is typically on every bar exam essay, so naturally this would be an expected repeat topic. No surprise there

But, what about Remedies? The February 2016 bar exam had Contracts and Contract Remedies on the same day, two different essays. Most would write off Contracts and would figure that Remedies is also not likely. However, it would be unwise to assume that the bar examiners could not repeat these topics. What do I think is more likely to repeat? Possibly Remedies. But, remember, with Remedies there needs to be a gateway to the Remedies discussion. This is typically Torts or Contracts. I would not be surprised if you were to see another Remedies exam, but this time with Torts as the gateway to the Remedies discussion (think of Nuisance, for example) In this way, the examiners could repeat Torts and Remedies without re-testing any of the issues that were tested in the Torts essay or Remedies essays from the February 2016 bar exam. Just keep this in mind. Mostly, I want to underscore that you SHOULD NOT assume that a topic will not show up this time, simply because it was tested last time. That could not be further from what is typical.

Criminal Law/Murder – It has been some time since the bar examiners have tested murder. This topic has been predicted for several bar rounds now as it has been absent from the California bar exam for some time. Perhaps this will be the bar round that it finally reappears on the essay section of the bar. If so, keep in mind that Criminal Law murder is often tested in conjunction with Criminal Procedure. Criminal Procedure was tested last on the July 2015 and tested almost exclusively 4th Amendment issues. As a result, I could envision a Criminal Law & Procedure exam that tests a 5th, 6th and/or 8th Amendment issue crossed over with a murder. Of course, you could also see testing of the 4th Amendment (admissibility of physical evidence) too. But, it has been a very long time since the California bar examiners have tested 6th Amendment jury issues (voir dire, peremptory challenges, Batson issues, right to an impartial jury and jury of peers) and it has also been some time since we have seen testing of 8th Amendment issues on the essay exam.

Remedies as a possible repeater – Last bar round I felt that you would see testing in either Contract Remedies or Tort Remedies and that either was equally likely. I also thought that Torts was very likely. In February 2016, the bar examiners tested Torts, Contracts and Contract Remedies. So, no real surprises there. I do think that there is a good possibility that you will see Remedies again and this time (as I mentioned above) I think it could be in the context of Torts (perhaps Nuisance) but also be sure to review all areas of Torts, including strict liability. But, also recognize that it could be something as simple as mentioning that a party could use Constructive Trust to recover – for example one spouse from another on a Community Property exam. Always be mindful of Remedies. And, the last thing you want to do is assume that a topic will not appear on the exam because it was tested last time!

Property – this is a topic that was not on the February 2016 bar exam. Still, the fact that Property was not tested in February does not guarantee that Property will show up on the July 2016 bar exam. However, if Property were to be tested, I think there are a few areas that might be a bit more likely than others. First of all, Landlord Tenant is one of the most heavily tested areas of Property. As a result, this is always something you should be prepared to handle on the California essay exam. Other frequently tested issues are Joint Tenancy, Tenants in Common and rights of c0-tenants. Joint Tenancy was tested not all that long ago, but it comes up quite frequently and has been a recent favorite area for testing (along with restraints on alienation and future interests). As a result, it could certainly be tested again.

However, an area that has not been tested in some time is the area of Easements. It is not as much of a frequent flyer on the bar exam as is Landlord Tenant issues, but it has been a while since it has been tested on the essays. As a result, I think you should be prepared for it (and of course, you should be prepared for anything)!

If you were to see an Easements issue, I would not be surprised if you saw it in the context of a land sale contract fact pattern (where Betty is granted an easement by Grantor for a right of way over Grantor’s land, Betty fails to record. Grantor sells his parcel to Buyer. This issue becomes (in part) whether Buyer takes the land subject to an Easement or not. This requires 1) a discussion of whether Betty had a valid easement (full Easement Approach), 2) whether Buyer had notice (actual, constructive or inquiry), and possibly a discussion of everyone’s favorite: the Recording Statutes. In addition, this essay scenario also requires a discussion of the covenants of a general warranty deed (the three present and three future covenants). Here is a quick, step-by-step approach for Easements:

  1. Define easements (and be sure to include that an easement is a non-possessory interest in land).
  2. Is the easement appurtenant or in gross? (This is a quick discussion, but necessary)
  3. Is the easement affirmative or negative? (This is also a quick discussion)
  4. How was the easement created? (Here, you should discuss as many ways that the easement could have been created. This is often the longest part of your discussion in an easement analysis).
  5. What is the scope of the Easement? (This can be an issue, but is not generally as heavily discussed as step 4.
  6. Termination (NOTE: on the essay exam, Termination is generally not an issue because it does not make for good testing to include it as an issue on an Easements essay – think about it this way: if there were facts for termination, then there would be no reason to discuss steps 1 – 5. Historically, when the bar examiners have tested Easements, they have not included facts that show the easement has been terminated. Just something to keep in mind).

Constitutional Law – Constitutional Law was on the July 2015 bar exam. It was not tested on the February 2016 bar exam. What I think is significant about the last time Constitutional Law appeared on the California bar exam is that it was a very narrow  area of testing (regulatory takings) leaving most all areas untested. I think that any area of Constitutional Law is possible this bar round. However, there are a few areas that I think you should be on look out for – these include the Dormant Commerce Clause (as this has not been tested in years) or possibly the First Amendment (as this is one of the more heavily tested areas within Constitutional Law and is tested frequently). Other areas that could come up: testing of the fundamental right of privacy. This is a favorite area of the bar examiners. It is often tested in the area of teenage pregnancy (eg. regulation requires female high school students who become pregnant to attend a special school while pregnant – this brings up issues of both privacy – which is a fundamental right and subject to strict scrutiny, as well as gender discrimination – which is subject to intermediate scrutiny. In addition, a fact pattern like this also brings up issues of mootness and the exception to mootness from Roe v. Wade – where an issue that is moot, but capable of repetition yet evading review). While these are a few areas that I think might be more likely, remember, anything could be tested.

What scenario generates a Dormant Commerce Clause issue? When you see a fact pattern with a state law that as applied treats out-of-staters differently than in-staters or taxes an activity that affects interstate commerce. The main issue will be whether or not the state law places an undue burden on interstate commerce. Remember that you will need to address the state’s power to act (under the powers reserved to the state via the 10th Amendment – that the state may regulate on behalf of Safety, Health, Welfare, Education and Morals of their citizens).

If you were to see an essay that tests the Dormant Commerce Clause you should be aware that this same essay could also generate issues in the following areas: 1) State action, 2) 11th Amendment Immunity (this would be a very brief discussion/mention on your exam), 3) Article III Case or Controversy requirements, 4) Substantive and Procedural Due Process 3) Privileges and Immunities (this is usually a brief discussion, if it comes up at all) and 5) a potential Contracts Clause violation. If you would like to see an example of a Dormant Commerce Clause exam testing some of these issues, be sure to join our bar exam tips list.

Professional Responsibility – Of course, you should be prepared for testing in Professional Responsibility. However, it makes sense to also take an extra look at areas that have not been tested in some time in PR. These areas include: the advertising and solicitation rules, rules on perjury and rules for turning over evidence – for example a gun, or the whereabouts of a gun, given to attorney by client. If you see an issue with respect to a client giving their attorney evidence from a crime or telling the attorney the whereabouts of evidence of a crime – you should also address the tension between the duty of candor owed to the tribunal and the duty to keep client confidences and explain how this is resolved.

Always in Professional Responsibility you should be prepared to discuss conflicts of interests (both potential conflicts of interests and actual conflicts of interest) as well as the issue of an attorney’s withdrawal- when must an attorney withdraw, when may an attorney withdraw and how must an attorney withdraw properly (assuming the attorney may withdraw in the first place). Again, always be prepared to discuss any potential and actual conflicts of interest on your exam (an example that has not been tested in some time is where a third party pays the attorney’s fees – for example: Mother pays for son’s legal fees – first this is generally discussed as a potential conflict. When and if it becomes an actual conflict – you should discuss the actual conflict).

I also think that Business Organizations is a good possibility as well as Community Property and/or Wills. But, more on this tomorrow in Part Two of the “predictions.” Remember, anything can be tested.

All the best in your studies and on the exam!

Sincerely,

Lisa Duncanson
Bar Exam Guru

213-529-0990
barexamguru@yahoo.com