California Bar Exam Predictions: February 2012

Okay here are my thoughts:

Evidence. Like most people would predict, I am leaning towards an Evidence exam. Transcript style has not been tested in some time so I would not be surprised if you see that. Usually (last July was a rare exception) there are about 8 topics tested on each bar round – six essays of course and at least two cross over exams. So, like many people I think you should expect to see cross over exams. In the past (July of 1994 was one round, but, there have been many since) the bar examiners have tested as many as three subjects on one essay exam. I know that at first this sounds kind of horrific. But, in reality it is often a pretty easy exam. For example on the 1994 exam that I am referring to it was a Wills, Community Property and Evidence essay. There were separate calls each identifying the specific issue that was being tested – the Evidence call was whether a communication between a husband and wife was “privileged” – that can only lead to one thing: evidence – spousal/marital privilege. I would not be surprised to see a return of Community Property in a very light way as a cross-over like the examiners did in 1994 and have repeated this same type of exam multiple times since. Still, I believe Evidence is worthy of being an entire essay question this round (since it has been absent). I would also not be surprised if you saw it as  full exam on one day and then a cross over on day three (this has been done many, many times). It would not be surprised if the examiners were to retest community property or property as a cross-over exam. Community Property could easily be crossed with wills and/or trusts or as been done in the past – crossed over with Evidence.

Trusts or Wills and Trusts. Trusts has been absent for some time. It is clearly due. And most are predicting it. I would be ready for it, but, clearly you need to be ready for everything. Here is the thing about the California bar examiners – they love to test duties (Trusts and Corporations can easily become very much like a Professional Responsibility essay – I do not believe that the focus on Trusts is as likely to be in the area of trustee duties – at least not the whole essay. Instead, I think the examiners would be more likely to test a specific type of trust and issues that come up with respect to that trust type (like, for example: spendthrift trust, discretionary trust and support trust – since all three often need to be discussed in relationship to one another and have differing results in terms of what a creditor can reach). The other type of trust that generates a nice discussion is a charitable trust, which then requires a discussion of the doctrine of Cy Pres and Equitable Deviation. These are common areas of testing in Trusts when Trusts is tested alone. If it is tested as a cross over with Wills then you testamentary trusts and issues relating to secret trusts, semi-secret trusts or pour over wills/trusts are obviously possible.

Torts. While I am not specifically predicting Torts, If (IF) Torts were tested I would lean towards products liability since it too has not been tested in a while (the trouble with that one is that it is kind of an obvious one – so it may be more likely that if Torts is tested that you will see miscellaneous torts like abuse of process and malicious prosecution crossed over with PR or something else, or Tort Remedies – although that was tested more recently than products liability).

Constitutional Law (specifically something that requires you to address the constitutionality of a statute (state or federal) which can then require you to address substantive due process, commerce clause, dormant commerce clause (if it is a state statute regulating interstate activity) (I provided a free downloadable approach for determining the constitutionality of a state or federal statute – scroll down to the post below this one and get it – it will tell you when you should and should not address 11 Amendment immunity and give you a checklist of the order of things to go through in writing an exam like this – often students do not understand how a constitutional law question can bring up many different issues – 11th Amendment Immunity, Procedural and Substantive Due Process, Equal Protection and Commerce Clause OR Dormant Commerce Clause can all very easily be tested on the same essay exam. So it is often not a matter of which you discuss but, how quickly you can manage to discuss all of these topics. Review the handout, if you have questions about it, email me and I will do my best to answer your questions.

Civil Procedure – IF civil procedure is tested then I would predict that jurisdiction would be tested. I know many are predicting “California Civil Procedure” – Okay, well that sounds fine, except that there is NOT enough California Civil Procedure to actually make up an entire one hour essay exam. But, could the examiners test some of the California Civil Procedure distinctions? Sure. Be ready for those. One area (not that I am predicting this) could be Slap/Anti-slap lawsuits (a California only area – there is nothing equivalent under the federal rules). If they were to test you on this it would involve the right to petition or speak (first amendment areas – so some day – this is not my first pick for this for this exam – but some day – I see this as a nice cross over between Civ Pro (CA specific) and Conlaw).

Criminal law and Procedure – Criminal Law was on the last two bar exams. But, the examiners often test subjects back to back three times in a row. So my thinking is that since murder has not been tested in some time (the past two bar exams tested criminal law but, did not test murder) that a Criminal law/Procedure exam with a murder call and a criminal procedure call or two could be very likely. Here is the thing – the 4th and 5th amendments are historically tested over and over again. However, 8th amendment death penalty (whether the imposition of the death penalty is constitutional) has not been tested in a very long time (there is a free download on my blog for the 8th amendment) and this can work in nicely with a felony murder exam (testing whether the death penalty can be imposed on co-felons – this will depend upon whether the defendant was a minor or major participant in the crime, or showed a reckless disregard for life – i.e. watched the person die and failed to get help).

Corporations – if corporations is tested, here is what I would expect – either a securities exam (10b5/16b and or common law – ultra vires and misrepresentation). Both areas have been absent from the bar exam for some time.

Professional Responsibility – This is the obvious one (except that one of these days they will decide to skip it again from the essay portion, this is why I always want to hear what is tested on day one – if PR is not on the essay portion but, is heavily tested on the PT on day one, then it is a suggestion that this might be one of the few bar rounds that PR is skipped on the essay). The bar examiners made a decision in 1994 to include Professional Responsibility on the written portion of the bar exam (either the essays or performance tests or both) on every bar exam administration – prior to 1994 it was not always tested). Since 1994 the California bar examiners have skipped Professional Responsibility on the essay portion only two times. On those two administrations it was tested very heavily on the performance test. It is often tested on both essay days (look at February 2008 where Professional Responsibility was tested alone and then on the second day as a cross over. This is not unusual. So assuming that Professional Responsibility is tested (which is a pretty fair assumption – duh) here is what has NOT been tested most recently: client gives attorney a gun or tells attorney where a gun (or other weapon) is located. There are, as you all know, specific rules regarding this area. It i has not been tested in some time. Another area that has not been tested in some time is where the attorney has a sexual relationship with his/her client. Also, not tested very recently is when attorney represents a group of clients and does not communicate a settlement offer to all of the clients before agreeing to the settlement offer (perhaps two clients are told, but, a third is not etc.) Duty of loyalty and the area of conflicts of interests are the most commonly tested area within professional responsibility – so you need to always be ready for these areas. But, it seems like it is time to see something that has not been tested in a while.

Other areas in general that have been absent from the bar exam – jury selection and jury issues (was it appropriate to dismiss a juror, etc). Other 6th amendment issues, like right to a speedy trial (this would, if it were to come up, be a tack on type of question – a short call. Incidentally there are four factors for determining whether a defendant’s rights to a speed trial have been violated). Within Corporations (as I already mentioned above) ultra vires and common law fraud have not been tested in some time and securities issues (10b5 and 16b) have also been absent for some time. Duties has been tested over and over, but, it is a favorite for the California bar examiners, so it is hard to imagine duties not showing up somewhere (PR, Trusts, Corporations). Just remember that if duty of care is tested within the area of Corporations that you must discuss the business judgment rule (even if you know that the director of officer etc. has breached their duty, you still must discuss the business judgement rule after duty of care – the examiners expect it). Okay, that is it for now, something similar/essentially the same will be posted on my blog. 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. After being asked over and over again, and after discussing it with my paying students (how they feel about it) I decided to release “predictions’ this round again. Clearly, no one should try to rely on predictions to guide their studies. You simply need to know everything as well as you can.

Still, I think it can be helpful to have some possible essay scenarios to keep in mind especially in the few days leading up to the bar exam, just to have something new to focus on. Then in the event that you see any of it, you will feel good. And the odds that some of the above will be on the exam is pretty high (and that is not because I have some crystal ball, it is simply because there are only so many subjects, a person could throw a dart and get at least some right.

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

Please feel free to direct any questions to me at: I may share these questions and my answers her on my blog – however, I will NOT reveal your name or contact information. But, if I feel that your question and my answer might be helpful to others, I might publish it here. But, of course, your name and information will not be shared.

Also, I will make additional “predictions” here after day one of the essays (once I know what was actually tested on day one of the exam). I will do this as quickly as I can – I am meeting with a group of my enrolled students in Ontario and so they will come first. But, I will do my best to get further thoughts and “predictions” on the blog as soon as possible.

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