California Bar Exam: Free Workshop!

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Hello all,

Thank you for following the Bar Exam Guru blog! We have now had over 960,000 views of the Bar Exam Guru Blog! I am humbled and grateful for your following!

If you are taking the February 2018 bar exam, you will not want to miss out on our upcoming free, “How to Pass the California Bar Exam” Workshop on November 20, 2017 from 7:00 pm to 9:30 pm. This session will be held in Los Angeles.

Class fills up quickly, so be sure to reserve your space as soon as possible.

Students will receive a free copy of our Guide to Passing the California Bar Exam as well as free bar exam writing templates. The workshop will provide substantive coverage on how to successfully write for the California bar examiners. Get answers to when and where you should include California distinctions, how long is a typical passing essay answer, learn the proper form and structure of a solidly passing essay.  And, as time allows, we will discuss strategies for the new, 90 Minute Performance Test and the MBEs.

Come and learn how to develop a plan for succeeding on the February 2018 bar exam. Space is limited. Reserve your spot today!

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California Bar Exam Predictions – The Detail

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***Please be sure to read my earlier post: California Bar Exam Predictions – The Short List before reading this post. Also, please understand that my enrolled students who have paid for our courses, expect to receive this information early and as a result, I do not post until closer to the bar exam.

Remember, I do not claim to be able to predict what will be tested on the bar exam. Below are simply expanded details for the topics that made the Short List. These essay scenarios are worth thinking about as it is likely that some of it will be tested. In particular, it can be useful, just from a confidence/psychological standpoint to review possible essay scenarios as a way to get your brain thinking in the right mode and being open to possible areas of testing.

So here you go:

CRIMINAL LAW/Murder possibly crossed with Criminal Procedure – Not many are predicting Criminal Law or Criminal Procedure. This is likely because Criminal Law and Criminal Procedure were both just tested on the February 2017 bar. However, Criminal Law was tested only lightly (an entrapment issue) and there was no testing of the 6th or 8th Amendments.

It has been several years since the bar examiners have tested murder. Criminal Law has been tested fairly heavily over the years. But, murder has been absent from the essays for nearly ten years now. Typically murder is tested in conjunction with Criminal Procedure, but can also be tested with other topics or alone.

Note: the most recent testing of Criminal Procedure and Criminal Law on the February 2017 exam tested 4th and 5th Amendment in conjunction with a criminal law entrapment issue. The last time Criminal Procedure was tested prior to the February 2017 bar exam, was the July 2015 bar exam and it was virtually all 4th Amendment (again, leaving 6th and 8th Amendments untested). So, while Criminal Procedure has been tested recently, we have not seen much testing of the 6th amendment in some time and it has been even longer since we have seen testing of the 8th Amendment (death penalty issues, right to bail, cruel and unusual punishment, sentencing as a separate penalty phase). As a result, I do think that if you were to see Criminal Law Murder, that there is a good likelihood that it could be paired up with the 6th and/or 8th Amendments. Of course, you may not see Criminal Law or Criminal Procedure. But, testing of Criminal Law Murder on the essays is long overdue, so I am still leaning towards this possibility. Be prepared for it!

More on Criminal Procedure . . . should it show up at all on the essays . . .

One of the areas that has not been tested in a very long time are 6th Amendment jury issues (for example, peremptory challenges, race based challenges, Batson v. Kentucky challenge, challenges based upon belief against or opposition to the death penalty and 8th Amendment bail and cruel and unusual punishment issues). Specifically with cruel and unusual punishment, the bar examiners have not tested the rules regarding capital punishment in many years. This is an easy area, but if and when tested, students are often unprepared because it is such a small part of most examinees’ outlines. So be aware! Be sure to review these areas.
A few additional areas where I would put a bit more effort are: the four tests for insanity defense (see below), and accomplice liability and how it relates to the imposition of the death penalty in felony murder cases (imposition of the death penalty is limited to defendants who were “major contributors”). Obviously, the latter will only come up in the context of a felony murder exam with the death penalty – but just keep this in mind. You will want to be able to point out this limit on the imposition of the death penalty should it come up.

Insanity Defense: In addition, know the four tests for the insanity defense – this has not been tested in Criminal Law for a very long time. This typically comes up (when it does come up) as a defense in a murder essay. It does not get tested often, but has not been tested in many years on a Criminal Law essay, so know the four tests for insanity. By the way, if you do get tested on insanity defenses – just knowing that there are four tests is important. You will get credit for telling the bar grader that: “there are four tests for insanity.” Also, you don’t have to be perfect with respect to these rules (although you should certainly try to be, it is not what we see (perfect rules) in the released answers. Instead the focus is on issue spotting and resolving the issues. Of course the rules are important. But, my point is that they do not have to be perfect. Just write, just explain and show that you understand what is going on, why something is or isn’t an issue and do your best to resolve it.

Or Criminal Law alone:

Criminal Law alone is just as likely as a cross over with Criminal Procedure or another topic. If you were to get a Criminal Law essay alone (no cross-over with Criminal Procedure or anything else) then you want to recognize that there will be more to it than what you see in Criminal Law exams that are cross-overs. For example, you are more likely to see issues with respect to inchoate liability (solicitation, attempt and conspiracy). As a result, you need to be very clear on these rules and clear as to which merge into the large offense (solicitation and attempt) and which does not merge (conspiracy). In addition, with respect to conspiracy, be sure to know the minority and majority views – this is key and it is addressed in the Bar Exam Cram Sheet. You may also be more likely to have to discuss criminal law defenses in more detail if you are being tested on Criminal Law alone.

PROPERTY – Possibly Landlord/Tenant

If property is tested you should be aware that LandLord/Tenant is one of the most common areas for testing. Other favorite areas for testing in Property are the areas of joint tenancy and tenancy in common (when there is a severance of the joint tenancy) and the rights among co-tenants with respect to recovering rents, profits and as well as who has to pay taxes and “carrying costs” with respect to the property.

Finally, something that has been a trend in recent years is to test some of the more minutia based areas of property that were traditionally mostly reserved for the MBEs. Examples of this are: fee simple absolute (easy, just know the language here and what it means), future interests (yes, it is showing up on the essays – three times now in the past few years) and another favorite has been restraints on alienation. See the first page of the Property Bar Exam Cram Sheet for this coverage. And, as always, one of the best ways to prepare for any subject is to see and review past bar essays in that topic.

CONSTITUTIONAL LAW – Dormant Commerce Clause or 1st Amendment and 

Alert: ALWAYS know Article III Case or Controversy Requirements of: State Action, Standing, issue must be Ripe, not Moot and not involve a Political Question.

If you were to see Constitutional Law, the following areas are my favorites for this round:

1) Dormant Commerce Clause or

2) Possibly the First Amendment – speech, religion or association (speech is one of the more heavily tested areas. If you were to get association, it is typically part of a Constitutional Law exam that tests other areas as well as association is a pretty short issue typically. Be aware that Freedom of Association can also be crossed over with other First Amendment issues).

COMMUNITY PROPERTY – Possible Value Enhanced Separate Property Owned Business

Look out for Van Camp and Pereira accounting methods. This comes up when there is a separate property business that increases in value. Also be on the look out for testable areas of: personal injury award, time rule for determining community property interest of pension, retirement or reimbursement for education or license. Always be on the look out for transmutation issues. Community Property was last tested on the July 2016 bar exam. The best way to prepare for Community Property is to review past exams. Beware of how the bar examiners test transmutations in Community Property. Most often, when the California bar examiners expect you to discuss transmutations, it is when there really isn’t a valid transmutation – but, they want you to bring it up and dismiss it.

PROFESSIONAL RESPONSIBILITY

This is tested on the essays virtually every bar round. Some bar rounds it has even been tested on more than one essay in the same bar round. In past bar rounds (where the bar examiners tested Professional Responsibility twice on the same bar round) it was split over day one and day three. Obviously, there is no day three now. So, could the bar examiners test a topic more than once all in day one? Yes, they could. Professional Responsibility, Contracts, Remedies and Evidence are all topics that have shown up on multiple essays within the same bar round. So be aware of this. It is not necessarily what I am leaning towards, but be aware that they can truly test anything and in fact, have tested even the same subject (especially professional responsibility) more than once on the same bar exam.

While anything in Professional Responsibility is fair game, the areas that have not been tested in some time include: the attorney advertising 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. Be sure to be able to note the ABA Rules and California distinction here. All of this being said, do not overlook the most commonly tested areas of Professional Responsibility (the duties, in particular duty to avoid conflicts and the duty of loyalty).

What else could come up in Professional Responsibility?

Professional Responsibility in the context of a corporation was tested not long ago (July 2016). This could come up again (because truly, the bar examiners can test anything). But, what might be more likely is an essay that deals with an attorney assisting a non-attorney in the unlicensed practice of law. This has been a favorite area of testing. If you have something like this it will be in the context of a lawyer going into business with a non-lawyer in a way that provides legal services OR a lawyer who is sharing profits with a non-lawyer. If you see either of these situations, you should call it out as a problem. It would not only create an issue with respect to a lawyer assisting a non-lawyer in the unlicensed practice of law, it would also potentially be a breach of the duty to provide candid advice. Understand that it will not be what the entire essay is about, but that you will get some points for noting that the lawyer is likely subject to discipline for assisting a non-lawyer in the unlicensed practice of law. Another area to be thinking of in general is Professional Responsibility in the Criminal Law context.

Other things to keep in mind with Professional Responsibility:

Always in Professional Responsibility you should be prepared to discuss 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 or must withdraw in the first place).

In addition, always be sure to address any potential and actual conflicts of interest on your exam. An example that has not been tested in some time that would generate a discussion of potential and actual conflicts is the scenario where a third party pays the attorney’s fees for the client. 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 (mother starts telling attorney how to handle son’s case) you should discuss the actual conflict. These are the points that passing bar exams are made of – when you are able to show the grader that you understand the difference between a situation that is, or could be, a potential conflict of interest and when it becomes an actual conflict of interest – you have just informed the grader that you are savvy and ready. This is more important than your ability to regurgitate precise rules. Just wanted to make that point.

And all of this on Professional Responsibility could be much a do about nothing – as some bar rounds the bar examiners leave it off of the essay portion. But, this is not the usual. So I would be prepared for Professional Responsibility.

CIVIL PROCEDURE

If you get Civil Procedure: Bear in mind that the most common areas for testing in Civil Procedure are jurisdictional issues (personal jurisdiction, subject matter jurisdiction and venue). Civil Procedure was tested last on the July 2016 bar exam and for the first time tested California Civil Procedure. The prior time Civil Procedure was tested was on the July 2015 bar exam, and like many Civil Procedure essays, jurisdiction was tested. Don’t concern yourself with when a subject was last tested (that is my job). I mention it only to give you some background and to let you know where/why I might be coming from in terms of my “predictions.”

Areas that have not been tested in some time include: Class Actions (although this was tested in the context of the Performance Test on the July 2016 bar exam, so it is perhaps not as likely now), Notice and Code pleading distinctions (if tested this would be a tack on issue, not the whole essay. Remember that Federal courts follow Notice pleading and CA follows Code or Fact Pleading). Be sure to know the rules for Notice and Code Pleading as this includes a California and Federal Rules distinction.

As mentioned above in the “short list” of possibles, other testable tack on issues include: remittitur and addittur and the 7th Amendment right to a jury trial. Be sure to know the rules for remittur and addittur as this also presents a nice area of testing distinctions between California Civil Procedure and the Federal Rules. There is no guarantee you will or will not get Civil Procedure. But, be prepared for it (and yes, be prepared for the CA distinctions too)!

I know, this is a lot. But, this is the bar exam, and far better for you to be prepared for the possibilities – even if it is to simply know that these ARE the possibilities – than to walk into the exam and freak out because you have an Wills/CommunityProperty/Evidence cross-over exam.

POSSIBLE REPEATERS:  

What might repeat from the February 2017 bar exam and show up again on the July 2017 bar exam?

First – some topics WILL likely repeat from the February 2017 bar exam and show up again on the July 2017 bar exam.

Obviously, you would typically expect to see Professional Responsibility repeat – as it usually does – from one bar round to the next. However, you should not be surprised to see any of the topics that were tested on the February 2017 bar exam show up on the July 2017 bar exam.

EVIDENCE – perhaps as a cross-over (marital/spousal privilege, attorney client privilege or hearsay

Evidence makes for a great cross-over subject and can be tested with many different subjects (including – the fairly obvious cross-over with Criminal Procedure, but can also be tested as a cross over with Community Property and Wills – think about Marital and Spousal Communications Privileges as well as the California distinction with respect to these privileges. The area of Marital and Spousal Privilege is a highly testable areaand comes up frequently on the California bar essay section of the bar exam). So, by now you might quite possibly be getting very anxious about this idea of seeing Evidence with Community Property or Wills or whatever they decide to throw your way. Don’t be. When the bar examiners combine multiple subjects like this, they rarely do so by sneaking it in or hiding this from you. In fact, the examiners will typically provide separate calls asking asking about whether or not the communication between Hal and Wilma (husband and wife) is privileged. This would make it pretty clear that you are to discuss Marital and Spousal Privileges.

Evidence as a transcript style essay – not as likely, but just in case, take a look:

While Evidence is not on my main list in terms of being an entire essay, anything can repeat. While transcript style essays are not as common, this format has not been tested in some time and is therefore due. If Evidence were to repeat as a full essay, then you should be prepared for the possibility of a transcript style Evidence essay. Remember if you see this type of Evidence exam that you need to look to discuss form objections (like: leading, non-responsive, etc.) and also, since it is a racehorse exam, you will likely need to discuss relevance in a very truncated way (in other words, get in, get out).

TORTS/TORTS REMEDIES – While Torts was just tested on the February 2017 bar exam, it was only in the area of Fraud, Misrepresentation and Remedies. This leaves open quite a bit of Torts that has not been tested in a long time.

The most common area of testing in Torts is negligence. Areas of Torts that have not been tested in some time include: products liability and strict liability. Torts remedies is also possible. The bar examiners could also test one of the miscellaneous Tort areas like Abuse of Process and Malicious Prosecution, Interference with Contract/Prospective Advantage or Nuisance. If you were to see Nuisance, then you would likely also have coverage of Remedies. Be sure to know your basic approach for Tort Remedies (1. Damages, 2. Restitution and 3. Injunctive relief, know the specific types of Tort Damages, the specific types of Restitutionary Remedies and the elements of Injunction). Also, the tracing rules have not been tested in some time. I have included a handout for this area as well in case it is unfamiliar to you.

ALWAYS know your negligence approach very well as this is one of the more heavily tested areas of Torts. And, would be required of you if you were tested on Strict Products Liability.

The difficulty in “predicting” Torts for this bar round is that most everything has been tested in Torts and if you were to simply go with what was longest ago – well then Tort Remedies (with Nuisance, Trespass to Land and Chattels, Conversion and Remedies with heavy emphasis on the balancing of the hardships in Injunction). The next most likely in terms of how long ago it was tested, would be Products Liability. But, then when you look at the last time Defamation was tested, it was tested in an oddball way. So it wasn’t really a true Defamation exam. So what does all of this mean? Be ready (like you should be with any topic) for anything. The fact that when defamation was last tested it was an oddball type of question doesn’t mean that you will now see a defamation exam. I realize this is a bit of a kitchen sink in terms of what could come up in Torts. But, understand – they can test anything. You may not see Torts at all. But, if you do, keep some  of these things in mind.

If BIZ ORGS were to repeat (not saying it is, but, here is what might be more likely if it does repeat):

If you were to get Business Organizations (even though it was just tested):

A favorite of the California bar examiners of late has been partnerships and or corporations that are formed for the purpose of providing legal services. The issue that seems to be a hot topic on these exams is: a lawyer assisting a non-lawyer in the unlicensed practice of law.

IN GENERAL – ALWAYS be mindful of REMEDIES! Remedies is tested frequently. In general, you should always be prepared to address Remedies – even if it is just a minor issue on an exam that is mostly testing something else. The bar examiners expect you to think like a lawyer and to resolve legal problems and issues. Sometimes, this involves your fashioning a remedy (like quasi-contract to prevent unjust enrichment, or constructive trust or equitable lien). You need to be aware that you can not, and should not, think of each subject in a vacuum. If you are in Community Property – you may very well need to discuss the remedy of constructive trust (if even only briefly in a sentence or two to simply explain to the grader that one spouse may be able to actually get property back from the other or even a third party).

Always be aware of the use of constructive trusts and equitable liens – these come up frequently on bar exams and should be discussed together (if you see an issue with respect to constructive trust, then endeavor to also discuss equitable lien and visa versa).

Remember, anything could be tested and you need to be prepared for that. Each bar round subjects repeat. As a result, you should be prepared for some of the topics that were tested on the February 2017 bar round to repeat on the July 2017 bar round.

The purpose of these “predictions” is to have you thinking about possible essay scenarios, close in time to the exam so that if you see any of these topics, you will have given these areas a bit of extra thought (even if all you did was read through the “Short List” and “Detail” posts.

I wish all who are studying for the July 2017 Bar Exam the very best of luck! Stay positive and believe in yourself!

All the best,

Lisa Duncanson
Bar Exam Guru
Founder/Program Director
Bar None Review and Bar Exam Cram Session
barexamguru@yahoo.com

 

California Bar Exam Predictions – The Short List

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Hello all,

First of all I want to wish you all the very best of luck in your studies 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: barexamguru@yahoo.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.

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.

A bit about the “Predictions”

First of all, I do not claim (nor would I ever claim) that I could predict what is going to be tested on the bar exam. However, I do think it is worthwhile to think about some possible essay scenarios when studying in the coming days. I also think that it makes sense to spend some time on topics that we have not seen on the exam in some time. However, any topic could show up on the bar exam. And, you should expect to see some of the topics that were tested on the February 2017 bar exam, to repeat on the July 2017 bar exam. Typically two or even three subjects will repeat from one bar exam to the very next bar exam. Also, in the past, out of six essays you would expect to see testing of about 8 topics (this allowed for cross-over essays). With only five essays, I would still expect to see at least one or two (maybe even more) cross-over essays.

Note: if a topic does not make my list, that does NOT mean it is not going to show up on the bar exam. You need to be prepared for EVERY topic. My coverage below is simply a suggested emphasis and by no means should you interpret this to mean that something should be excluded from your studies. ALL subjects are testable and all subjects can repeat, back to back, from one bar round to the next. You can almost bet that if you decide to leave a subject alone, that it will appear on the exam.

Why should I review past exams today? Reviewing past exams – right before the actual exam – will improve your chances of spotting the correct issues. Anytime you review an essay (and study the answer) it is really is a substantive review. By reviewing 3 or 4 Civil Procedure essays in a row, you will have a much better understanding of how to approach the subject if it shows up on the exam.

By the way, I believe Civil Procedure is likely (see “Short List” below). Of course, it may or may not be there. But, if it is, it would probably be nice to know that this may be the beginning (finally) of a trend toward California Civil Procedure. If it is, Notice and Code Pleading create a nice federal and California distinction point. The issue of additur (where a judge increases a jury award) also creates a nice federal and California distinction point. In cases of additur, it is available in California but NOT in federal courts as it violates the 7th Amendment right to a jury trial.  Many things are “due” or “up”. All of this being said – no one can predict this exam. Nor should you direct your studies away from a topic because it isn’t on someone’s list of predicted topics. That would be very, very foolish.

So all of that being said, here are a few thoughts on what I think could be tested:

The old, 3-day exam versus the new, 2-day exam and what it potentially means in term of subject coverage: In the past, when there were 6 essays, the Bar Examiners historically tested 8 or 9 topics (spread out over the 6 essays). Now that there are only 5 essays, I think you can still expect to see 7 to 9 topics tested as the examiners frequently test cross-over exams.

SHORT LIST of possibles (see detail in next post):

Criminal Law (Murder) or Torts (If Criminal Law Murder – possibly alone or crossed with Criminal Procedure or Evidence. If Torts – most any area if possible – but longest ago in terms of testing are Negligence and Products Liability.

Constitutional Law (Possibly First Amendment or Dormant Commerce Clause)

Professional Responsibility (look out for attorney advertising or assisting a non-lawyer in the unlicensed practice of law, and ALWAYS duty to avoid conflict of interests and duty of loyalty, more details in the “Detail” post)

Civil Procedure (jurisdictional issues are most commonly tested, but Res Judicata and Collateral Estoppel are a bit due. Also look out for: issues of remittitur/additur, pleading issues (like notice and code pleading), 7th Amendment right to a jury trial as these issues can come up as short answer, tack-on issues. The last time Civ Prop was tested (July 2016) California Civil Procedure came up for the very first time. This may be the beginning (finally) of a trend toward California Civil Procedure. If it is, Notice and Code Pleading create a nice federal and California distinction point. The issue of additur (where a judge increases a jury award) also creates a nice federal and California distinction point. In cases of additur, it is available in California but NOT in federal courts as it violates the 7th Amendment right to a jury trial.

Community Property (Possibly valuation of separate property business, personal injury award, time rule for determining community property interest of pension, retirement or reimbursement for education or license. Always be on look out for transmutation issue).

*Property or Contracts

If Property: (possibly landlord/tenant or landlord/tenant crossed with covenants and equitable servitudes). Property was last tested on the July 2016 bar exam. At that time, I was predicting either Easements (specifically in the land sale contract area) or Landlord/Tenant. Since the bar tested easements in the land-sale context that round, I am leaning more towards a Landlord/Tenant exam (if you see property at all on the essays) and possibly crossed over a non-assignment or non-sublease clause and covenants (for example, a covenant restricting what can be done on the land, a sublessee takes possession and starts breaching the covenant. Can the covenant be enforced against the sublessee? Is there another remedy available – perhaps enforcing the restriction as an equitable servitude? Don’t freak out. Just know that if there is a covenant on your exam that you should discuss both covenants and equitable servitudes as these most always go together. This is a scenario, in the landlord/tenant context that we have not seen tested in a while and as a result, it may be due.

If Contracts: While both of these topics are possible, I am leaning towards a possible: “either Property or Contracts” on this upcoming exam. Property and Contracts are a bit hard to predict for this bar round given the testing on the February 2017 exam. While neither Property or Contracts was really tested outright on the February 2017 exam essays, the bar examiners sort of tip-toed in the areas of both Property and Contracts (I am talking about the Tort/Remedies exam that tested Fraud and Misrep and Remedies).

Possible Repeat topics: (Remember – historically the California bar examiners repeat two or three topics from one bar round to the next. This includes the expected Professional Responsibility essay, which is rarely skipped).

Remedies as a possible repeat topic: Say what? Yes, it could repeat, anything can repeat. Remedies is on many bar exams back to back. What was not tested last bar round in Remedies: Injunction or Contract Remedies

Evidence as a possible repeat topic/crossover topic: Possibly as a cross-over with another topic – for example: Marital/Spousal Privilege, Attorney-Client Privilege or Hearsay issue crossed over with another subject. Be sure to know these privileges and rules and especially know the California/Federal distinctions in Marital and Spousal Privilege.

Professional Responsibility usually repeats (as listed above) Note: Per the California  State Bar Examiners own rules, PR will be on either the essay portion or on the performance test every bar round).

Criminal Law and Criminal Procedure possible repeat topic. Even though this subject made the main list of possibles, it really would be (if tested) a repeat. But, it has been so long since murder has been tested that I believe it is highly likely it will come up within the next year. It may be more likely to be on the February 2018 bar exam. BUT, if it were me taking the exam this July, I would most definitely be prepared for Criminal Law Murder or Criminal Law Murder with Criminal Procedure.

Keep in mind that anything can be tested. Do not dismiss any topic. First Amendment Speech was once tested three times back to back. Many other subjects have been tested three times in a row. Anything is possible. However, the above “predictions” are what I believe may be more probable essay scenarios for the July 2017 bar exam.

Remember that you can accomplish so much in these final hours. Tomorrow, you will be relying in part on short term memory, so make certain that you study well and review writing approaches. I am always stunned at how some examinees will say: “If I don’t already know it now, it is too late”. That could not be more untrue. It is NOT too late. Study essay approaches and read essays!

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

Sincerely,

Lisa Duncanson
Bar Exam Guru
Founder/Program Director
Bar None Review and Bar Exam Cram Session

Bar Exam Cram Session Live Streamed!

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Hello All,

With fewer than three weeks remaining to study for the bar exam, time is critical. What will you do to ensure success on the exam?

One of the main reasons examinees fail is not for lack of studying, but for lack of studying the right material. In order to navigate 6 1/2 hours of testing on day one and 6 hours of testing on day two, you need to have a strategy. For success on the essays it requires far more than rote memorization. Approaches (for the essays, the MBEs and for the performance test) are critical.  I will be writing more in the coming days about how to memorize and prepare in these final weeks leading up to the bar exam.

We still have a few spots left in the July 8 and 9 Bar Exam Cram Session (this weekend) in Los Angeles. If you can not attend in person, but do not want to miss out on this bar passing weekend, you can sign up for our live stream!

Students who attend this session receive our Digging Deeper into the Bar Exam Series (a weekly email support series) containing additional predictions, study advice and strategy as well as our method and strategies for improving your MBE score, sample essays and answers based upon the predictions and on the most commonly tested essay scenarios. Students will also receive (as part of the Digging Deeper into the Bar Exam Series) approaches and advice for the new, 90 minute Performance Test and selected videos covering study tips, exam predictions and approaches). In addition, Students will learn how to adapt (their studies, timing and strategy) to the new two-day format.

Past students have taken our Bar Exam Cram Session and improved their scaled score by over 200 points by utilizing the techniques and step-by-step essay approaches that are taught not only over the course of this weekend, but leading up through the bar exam. Each student receives a Ten Day Study Plan to utilize in the final days leading up to the bar exam as well as instruction on how to study over the few weeks. Don’t miss out, sign up today!

If you are not ready for this:

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Then sign up for this: The Bar Exam Cram Session 

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Note: Live streaming must be purchased by Thursday, July 6 to ensure your “seat” in the online program. For a limited time, use promotional code: BAREXAMGURU and receive $100.00 off the course fee.

For more information, contact Bar None Review at: 213-529-0990.

All the best in your studies!

Sincerely,

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

How to Pass the California Bar Exam: Part Two

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Hello All,

First, I want to thank you for following this blog. To date, we have had over 935, 000 views! I take great pleasure in being able to offer assistance to those who are struggling through the grind of bar studies. It is truly humbling to have your readership.

The bar exam is now less than a month away. This week is often one of the most critical weeks in a July bar examinee’s review period. Many are starting to realize the sheer weight of what has to be done and fear starts to creep in and even take over. Anxiety starts to run high, and if allowed to go unchecked, can be any bar examinee’s demise.

It is normal to experience some anxiety and fear during this time – especially when you think about how much you might still need to learn, let alone memorize. However, it is important that you put things into perspective. The bar exam, while now less than a month away, is not tomorrow. You have time to improve and to work on memorization. One of the best ways to eliminate anxiety is to start memorizing the material.

One of the most common questions I field every bar round is:

“How the heck am I going to memorize all of this material? There is so much to memorize!”

One of the challenges of the bar exam is that students often suffer from information overload. Sometimes, the more diligent a student is, the more they read outlines and the more they try to memorize volumes and volumes of material, t.he more anxiety, and the less sure an examinee is of anything – let alone successfully taking the exam on July 25 and 26.

While it may seem like the right thing to do, I caution students against getting into the rut of reading extensive and lengthy outlines to the exclusion of other things that should be done (like reviewing and studying past essay exams and answers, practicing and studying past MBEs, writing practice exams under non-timed and timed conditions).

Reading outlines that are 1oo to 150 pages for each subject and trying to commit these to memory for 15 subjects is not only very difficult, but it is counter-productive. Instead, start carving out time to review past exams and answers. By reviewing and learning from the actual past exams, you will help bridge the gap between being able to recite an outline and being able to write an actual essay answer.

SPEND TIME LEARNING BY STUDYING THE TEST (as in the ACTUAL TEST)

This is true for all aspects of the exam (essay portion, performance test and MBE section). The only way to really know and understand the material, is to see it in the context of the exam. Will reading essays and completing MBEs alone be enough? Not likely, but without this kind of review, failure is almost certain. You need to not only put your knowledge to the test and practice the test, you need to learn from the test.

Here are some suggestions of what I think you should consider doing in the coming days leading up to the bar exam. If you do these things, it will make the job of memorizing the law much easier.

  1. It is imperative that you understand the law you are memorizing.

One of the biggest mistakes that examinees make is to fail to truly learn and understand the material. There is sometimes such a focus on memorization that examinees delay reviewing the actual test. This can prove to be disastrous. You do not want to wait until the bar exam to figure out if you actually understand how the issues arise. Rule statements are important, but being able to determine when something is at issue or not, will require that you understand the law and how it is tested. Being able to write rule statements from memory does not necessarily mean that you understand (when faced with a fact pattern) what the issues turn upon.

It is key that you are able to understand the material, and not just being able to recite the rules. So when you think about memorizing the material – think about first “understanding the law.”  This means: understanding what the terms mean, how the issues are generated and how the issues are tested. Once you understand the material, memorizing it will be much easier.

2. You need to see (and learn) the material in the context of the exam.

Again, being able to recite rule statements is something that most examinees strive to do and do so fairly effectively. The problem is that your job on exam day is not going to be to simply write out a Contracts outline or to write out a Torts outline. Yet, if you think about it, examinees often spend their time preparing for the exam as though the exam consists of simply reciting rules. While it is certainly a help, it is only part of what is needed to pass the exam. Successful examinees not only are able to recite rules, they know how the material is tested and understand the material in the context of the actual exam.

To do this, you should review past essays and answers. When reviewing essays, really study the answers and pay close attention to which issues were addressed in the answers and how these issues arose from the facts. Reading essays and studying the answers is critical to passing the California bar exam. There are simply ways that the material is tested that are not intuitive and will be lost on you unless you actually see it in the context of the actual exam.

For the MBEs (as well as for the essays) it is critical that you learn how each subject is tested. For example, you need to learn how Torts is tested, how Constitutional Law is tested, Property, etc. This is key. The best way to accomplish this is to study past MBEs (I recommend that you work on NCBE drafted MBES ONLY). Three sources for NCBE released questions are: 1) The Strategies and Tactics for the MBE by Walton and Emanuel 6th edition (and no, it is not too late to take advantage of this excellent book), 2) Adaptibar and 3) the National Conference of Bar Examiners.

The reason you want to focus your attention and energy on the NCBE released MBEs is because it will be important for you to align yourself with what the National Conference of Bar Examiners is testing and how they are testing, as this is will be the closest approximation to the actual test. Think of it this way: you need to know what the NCBE think amounts to a taking by force such that a robbery occurred rather than what you think factually amounts to a taking by force or what your law professor thought was a taking by force. Focus on completing NCBE MBEs. It is important to work on MBEs under both timed as well as completing non-timed review of MBEs.

3. Work on memorizing a condensed version of the subjects after you have spent time reviewing past exams.

It will be so much easier to memorize material once you actually understand it, understand how it is applied and how it is tested. As I suggest above, one of the best ways to gain an understanding of the material is to see how it is tested. Once you have studied how products liability is tested, you will have a much easier time memorizing what you need to know for Products Liability. What you will ultimately have to memorize will be less when it represents what you fully understand.

Let’s look at an example in Torts, specifically Products Liability. Products liability is a big topic with a lot of detail. When tested on the essay portion, it is a “race-horse” style exam. When tested on the MBE, you will need to have a solid understanding of all of the aspects of Products Liability in order to make successful distinctions between strict products liability, warranty theories, negligence and all of the defenses that may or may not be available. To successfully navigate a products liability essay exam you will need to have an approach for, and a condensed version of, products liability memorized (and, of course, understood). For example, the following would be a good approach for Products Liability:

  1. Introductory statement: The plaintiff may recover under products liability for the following torts: 1) intentional tort (usually battery), 2) negligence, 3) strict products liability (for defective product) and 4) under the warranty theories (implied warranty and express
  2. Intentional Tort (here plaintiff may be able to prove the tort of battery if they can show the defendant knew with substantial certainty that a harmful or offensive result would occur – look for facts that state percentage rates of failure – this suggests the defendant knew with substantial certainty that _% of the time the product would cause a harmful or offensive result. This is always a quick discussion, but worth points by addressing it quickly – this is generally addressed in every released answer for products liability essays, yet many examinees miss this point).
  3. Negligence – all in the commercial chain owe a duty to plaintiff – reasonable manufacturer, reasonable retailer etc. Write a normal negligence discussion, but focus on drawing attention to the breach as being a failure to warn or negligent design as these will be easily referred to once you are in your strict products liability discussion.
  4. Strict Liability for Defective Product (unreasonably dangerous) – strict liability attaches by placing an unreasonably dangerous product in the market place. Your focus will be to prove that the product is a defective product. There are three ways to prove this: 1) manufacturing defect (rarely tested on the essays), 2) design defect (often tested) and 3) warning defect (often tested). Prove up one or more ways the product is defective (usually both #2 and #3 above), then briefly discuss causation (you can refer back to your discussion of causation under your Negligence call – if you have already discussed negligence) and then conclude. Of course discuss any appropriate defenses (i.e., assumption of the risk, learned intermediary, etc.).
  5. Warranty Theories 
    1. Implied Warranty of Merchantability – implied into every sale that goods are of fair and average quality and fit for the ordinary purpose. This is something you will typically address on EVERY products liability essay as it is always present.
    2. Implied Warranty of Fitness for Particular purpose – you may or may not need to discuss this warranty – it must be generated by the facts.
    3. Express Warranty – you may or may not need to discuss this type of warranty – it must be generated by the facts.

Note that you can condense this even further and ultimately turn it into a checklist/shorthand approach for products liability.

We still have room in our upcoming Bar Exam Cram Session on July 8th and 9th. This will be offered both in person and via live stream. Click here for more information and to register.

Getting a handle on how the substantive material plays out on the essay exams (as well as how it is tested on the MBEs) is critical to your success. The above shorthand coverage of Products Liability is an example of how you should be viewing the material.

How much easier would it be to write a products liability exam if you actually knew, going into the exam, what areas to write on and for how long? Studying past bar exam essays and answers will help you not only with your understanding of the law, but also with your memorization. Memorizing a step-by-step approach for each area will enable you to get to writing your answer more quickly because you will know how to start your exam. Your answer will look more organized, your issue coverage will be better and it will look like you know what you are doing because . . . you do.

This also will help you master the MBEs as well. Often examinees struggle with their MBEs because they do not have an approach for topics within a subject. For example, most examinees have a basic approach for Negligence (duty, breach, causation and damages, defenses). But, few realize that the California bar examiners actually expect quite a bit more than this in terms of what is discussed, head-noted and identified as an issue on essay exam. Having a clear approach for all topics will not only help you to navigate an essay exam, but will also help you to select the correct answer choice on the MBEs.

Our next topic for the blog will include:

How do I get started on each essay – what do I write? How do I start each essay topic? What should my first sentence be? What should my headings be? How do I know how to interpret the call of the question(s)?

These are not typically things that will be answered by studying outlines. And, you must know how to start each topic, you must know what to write and what your approach is going to be for each area. This is key to success on both the essays and the MBEs because you can not afford to burn up valuable test taking time with trying to synthesize or sort these things out on exam day! And, all too often, this is what examinees do – find themselves trying to figure all of this out on exam day. I believe this is one of the most common reasons examinees fail the exam. It isn’t as often about not knowing enough law, it is more about not knowing how to apply it, how to organize it and how to write it. There is a form, and order and an embraced approach for every topic. You need to get to this point, and not simply be a machine that spouts out definitions. You are more than that, much more, you need to be able to show the examiners that you are able to (and do) think like a lawyer. That is the topic of my next post.

Until then, happy studies!

All the best,

Lisa Duncanson
Bar Exam Guru
Founder/Program Director
Bar None Review & Bar Exam Cram Session & MBEcram.com
213-529-0990
barexamguru@yahoo.com

 

How to Pass the California Bar Exam: Part One

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This is Part One of a “How to Pass the California Bar Exam” Series. In each part of this series I will focus on things that you can do in your studies to achieve a passing score on the California bar exam.

What is a bar examinee to do when bar exam pass rates are seemingly at an all-time low in California? It is true that the pass rate for the last few administrations of the California bar exam have declined. This is something that is occurring nationally as well (Uniform Bar Exam States have pass rates in the low 40%). To solve a problem it often helps to figure out the root cause. Declining pass rates are a problem – for those taking the exam and for law schools. There is a lot of blame going on out there. Not only of students, bar prep courses, but law schools, the ABA and the California State Bar. So who’s fault is it?

I have some thoughts. First of all, these low pass rates have been seen in California before. This is not shocking. I have found that those who are relatively new to this industry of bar prep – are writing about the “abysmal” California bar pass rates as if it is a brand new phenomenon. It is not. Pass rates on the February bar administrations have been in the mid thirty percentile many times. It is not unusual. Still, we are seeing an overall decline (if you look at the past couple of years). But, if you look at a twenty or thirty year window (and not just a smaller snapshot of three or four bar rounds) you will see something different. In the past, when we have seen these low dipping pass rates, it has ultimately been followed (eventually) by higher pass rates. This up and down has not been unusual. I say this, because it is important for you as either an examinee or a law student, to know that all is not lost. Failing is devastating. But, passing is within reach.

So, how do you do that? How do you pass this seemingly un-passable (if you focus on the 65.5% fail rate from February 2017) exam?

First, the skill set that is required to pass this exam has not – in my opinion – changed. That is not to say that I blame students for failing the bar exam. I do not. But, I do think that many examinees are simply misinformed about what to do to pass. I know this to be a fact actually. I have worked with thousands of students over the years (since 1996) and this has taught me a thing or two – not only about students, but about what law schools are doing to prepare students and about what examinees are taught (or not taught) to do by the national bar prep courses.

Over the years, bar prep companies have de-emphasized the practice of the exam. Some bar prep companies only grade 3 or 4 essays and 1 or 2 performance tests. Back in my day (yes, I just said that) we were assigned up to 30 or 40 essays – ALL OF WHICH WERE GRADED! That is simply not the case anymore. The problem with only providing feedback on a couple of exams, is that these courses are essentially (in my opinion) telling examinees that practice essay writing (and performance test writing) is not an important part of your bar study and bar preparation. This could not be further from reality. And, it is in my humble opinion, one of the leading reasons for the low bar pass rate. Law schools are to blame as well. An example from one of my students who took a national bar prep course the first time she took the bar. She was a graduate of a tier one, ABA law school. Someone from her law school told her that if she was getting 64% on her practice MBEs on Adaptibar (love their product, by the way) that she “was fine” because that was higher than the national average on Adaptibar.

Well, I can tell you that this is not nearly enough. Her bar prep course told her she was fine and her law school told her she was fine. And, she went to a great law school and achieved high grades (made the dean’s list, law review, etc.) and yet she failed on her first attempt. I truly believe that she failed because she was misguided. Incidentally, she passed on her second time under my tutelage. She was bright before I met her. She simply needed the right information. Being told that getting a “D” on your MBEs is not the right direction or the right information. On her first attempt she spent way too much time memorizing and reading and way too little time on the actual practice of the MBEs and of the written portion of the bar exam.

So what gives? Do I think her bar prep provider and law school intentionally mislead her and lulled her into a false sense of security? Of course not. But, neither of these resources (both of which she paid a lot of money for) had the right answers or the right directions. That is a problem.

Here is what I tell my students regarding the MBEs (which are now even more significant given it is now 50% of the new two-day California bar exam):

You need to reach 85% on your practice MBEs to have a reasonable chance (okay, a really, really good chance) of passing the California bar exam. You CAN do this, you CAN achieve this score and when you do, your odds of passing are much, much greater.

So, how do you achieve this score?

You need to use the NCBE release questions and stick to these only! Sources for these questions are: the NCBE (there website is here at: www.ncbex.org) – You really need to spend some time on their site), Adaptibar, and The Strategies and Tactics Book for the MBE. Of all of these sources, the one that I think no examinee should ever do without is the Strategies and Tactics Book, by Walton and Emanuel (6th Edition, Volume I) Note: I do not personally care too much for their Volume II. Volume I is a goldmine for examinees. It is why I was able to pass the bar exam on my first try (I read every line of it, completed every question and studied every answer) and it is why my students who use it and follow our instructions do well. You can achieve 85% on the practice MBEs. And, in my opinion, you have to do this in order to have a good chance of passing.

Note: I do not have any financial interest in the above resources. Further, these are not the only resources available for the National Conference of Bar Examiner’s questions (other courses have a license to use the NCBE questions). But, these are the sources I trust and know the most about and can, without a doubt, recommend to you.

I will be posting free handouts on how to improve your MBE score this weekend and some additional guidance about how to approach the MBEs (how many do you need to do, how to do them, timing, flash cards etc.).

As space is filling up quickly, you don’t want to miss the first live (or streaming live – if you can’t make it in person) Bar Exam Cram Session geared to helping you begin your preparation for the new 2 day California Bar Exam. For more information, contact us at: 213-529-0990 or use the this link to register.

All the best in your studies!

Lisa Duncanson
Founder/Program Director
Bar None Review and BarExamCramSession.com
213-529-0990

California State Bar Launches New Website at: www.Calbar.ca.gov

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Hi all,

This pertains to you! The State Bar of California just announced the launch of their brand new website: www.calbar.ca.gov.

The California State Bar stated that the “website redesign and overhaul comes at a time of ongoing reforms for the State Bar, and aims to provide greater accessibility for the public, attorneys and applicants.”

I encourage you (whether you are a lawyer, a bar applicant or a law student) to check out the California State Bar’s new website and to navigate the new site and become familiar. So far in my review, it appears to be well organized and much easier to navigate. Bear in mind, that our past links to the California State Bar website (links to past exams, etc.) will not work as their website address has changed. This is a complete overhaul!

We will endeavor to update our links (for example to anything bar exam related). If you have saved any links on your own, these are no longer good (again, because their website address has changed).

Check out the new site! And afterwards, come back here and let us know what you think about the California Bar Exam’s new site. So far, I like it!

Don’t forget that we still have space in the June 3 and 4 Bar Exam Cram Session. We also have “live streaming” for those who can not attend in person. See my post from yesterday (below) for further details and links to register.

All the best in your studies!

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