February 2012 Bar Exam: Examinee’s Rehash

Hello All,

As you probably know, the California Bar Examiners have not yet posted the past bar exam essays or performance tests on their site. As a result, I have yet to see any of the essay questions. I have, however, seen Performance Test A as I received an advance copy so that I can write a model answer for PTA in time for the Los Angeles Daily Jounal’s Bar Exam Results Issue (where they publish model answers) and I have received many recounts of what was tested on the February 2012 bar exam.

Since the essay exams have yet to be posted on the California State Bar Exam site, it is anyone’s guess as to what was actually tested. However, I think most would agree about the general topics that were tested.

So, here is one of the recounts/analysis that was provide by a February 2012 examinee. I think that her coverage of which topics were tested on the essays is pretty comprehensive and evidences a good perspective on the last bar exam. I am also choosing to share this examinee’s account because I appreciate her humility and her approach to her “re-hash”. I also think that if you are waiting for results, it is helpful to hear that others have some of the same fears that you have about having potentially missed an issue here or there. Most people who pass the exam have missed a few issues.

Also, PLEASE understand that while I agree with most of the examinees’ accounts as to which subjects were tested – the actual issues can vary – in other words, you might answer something differently or fail to discuss an issue and yet still do a very good job and receive a good score on that particular essay. So, don’t be disturbed if you saw things differently. And, don’t assume that if I did not choose to share your recount/rehash of the last bar exam that I do not agree with you.

All of that being said, here is the first examinee written account/rehash that I am sharing. I will post more soon, but, due to the length, I will provide these in separate posts. You can see my comments at the end in bold, burgundy text.

Examinee’s Account of the February 2012 Bar Exam:

From A (I have kept all email addresses and names private):

“Dear Ms Duncansan,

Thank you in advance for your response to my inquiry.  I sat for the February 2012 exam- and just discovered your blog as a wave of terror slash panic overwhelmed my being today thinking that after ALL that work- I might not pass!  

Realizing this is now two months post-exam- I wanted to give you the following thoughts to add to the collection: 

Day One:
Essay 1- Wills and Trusts crossover with intervivos trust, pour over will, a pretermitted child, dead father and california exception where I think the son could have a share in the estate because of the CA exception, but because of the trust – he gets locked out .  I blew this essay- I had a plan, but I blew it because I don’t think I ever actually answered question 1- regarding the pretermitted child. I went around the issue- and of course- think I was correct that he would have a stake- but the a) question actually asked what his ACTUAL share would be (and the daughters who had been in the trust)- which I think is nothing because of the trust/will.
The c) question was trustee duties but for the life of me now I don’t remember the b).  I did nail the c) question- but only if the gods were smiling upon me- can I pull off a 55- which I am VERY hopeful was the worst I did on that question!

As for Essay Two: 100% Pure CON LAW! 
You first had to know that there was standing and that an org could bring a suit. I neglected the org/suit- and literally stubbed my own toe kicking myself later, addressing the standing issue on the injury in fact/concrete and individuated pov- I might have also said it was ripe- I then addressed the public function law making ability of cities (as opposed to states) and then one had to address the whole 9 yards- Equal Protection analysis; and then the First Amd- Speech issues. I addressed them all in neat paragraphs from Commercial Speech on down- Time and Place, sign restrictions, prior restraint, overbreadth and vagueness (addressing the criminal distinction that applied to one and not the other that I now don’t remember), I also said it could be a force the person to speak kind of thing- you know – force someone to speak in Spanish language they don’t know or don’t want to know/speak- and even touched on right of association- even though it was a bit tenuous. and then a conclusion. I addressed both points of view- Govt and Org for each paragraph plus conclusion. I think I did ok on this- but have no idea what totally missing the “org-standing” issue will do to my score.

Essay 3 – Evidence- 
This was your typical racehorse…I can’t remember at all now- I’m sure more timely responses to you will address which jurisdiction- I feel like it was one or the other- Fed?  Anyhow- I used a memory method that taught me to address each and every Evidence issue in order- the method works like a dream for Evidence-type questions… 

Relevance- Logical, Legal, Reliability- I feel like I spoke a bit about reliable based on the dead-quality of Mary the witness- Double Hearsay; spoke about Witness testimony; spoke about Unavailable Witnesses; Extrinsic Policies- I definitely addressed the Offers to compromise/settle claims- I think I may have slipped here- I know thinking afterwards- I was on autopilot- may have spoken about BOTH Fed and Cal distinctions- even thought I strongly remember the question asking only for one… anyhow- or was if offer to pay med expenses- anyhow- you probably had better clarification closer to the time of the test. 

Character Evidence- I know there was something about character evidence in this question- I can’t remember which distinction

Impeachment- I KNOW there should have been an IMpeachment discussion- this is the one thing I missed- don’t ask me how- I was racing and my brain failed me. I hope it will not kill me. 

Hearsay- Of course the intro paragraph and then I literally took each statement for A and B and went down the line- Declaration against interest, addresed dying declaration ( I feel like I remember it was not because she didn’t know she was dying at the time), etc. I think there was probably Biz and official declarations- I think I talked about equivalency /catch all if it was the fed question- no if it was CAL- I just can’t remember-. Of course the sense impressions- I know I knew the difference at the time but because I can’t remember if they tested Fed or Cal… but again-  consistent/inconsistent stmts….I think the kitchen sink approach worked- I concluded each one with a decision- so even if something didn’t quite apply- I didn’t skip it… My essay was well organized and headed properly. H0pefully this will count for something?

I thought the evidence question was reasonable- if not a lot of work- but what I expected having practiced MANY exams. I was racing for the finish-  I am not happy about skipping Impeachment… I guess to me- the mystery is whether that violent omission will overshadow what I think was a very comprehensively written everything else!? 

This was a total nightmare.  The problem for me was a (somewhat wasted) hecka long time organizing with my ruler and so on- and this was a racehorse- pure and simple- with a zillion little niggling sub questions- I copied the format EXACTLY and created an outline with subheadings- but I found myself really pressed for time and while I think I wrote total BS at the end- I did try to conclude no matter what. I thought it was difficult because when you first started, you thought it would be easy and easy to organize- but realized you really had to address paragraph (part B) first in order to create the proper outline. 

I dunno about this one!

Day Three:
Essay 4: Corporations with Remedies– Certainement… My memory castle had me writing a fully formed contract/remedies essay- with time to address the secondary analysis- whether they were actually a Partnership. I did the same analysis for both- with Remedies and the differences between the two. I am 100% certain it was appropriate to address the Partnership distinctions… How Formed; Characteristics/Rights and Liabilities of Dir/SH/Partners and Fiduciary Duties Limited liability issues- why they weren’t executed properly, (no filings), etc. and then of course the Corporations questions- validly created/ veil piercing ( I think I talked about  fraud, undercapitalization. alterego) I think there was a dividends analysis- or was it repurchase/limitations/ can’t remember- but the analysis was there- power to issue- surplus etc. liability for unlawful issuance, etc. no SEC issues/public company issues- Duties and Rights of SH/DIR/OFF… controlling sh fiduciary duty- etc. Duty of Loyalty, care, biz judgment rule/ and termination? I think?  Anyhow- I felt confident about this essay- I am 120% sure the partnership analysis was warranted. 

Oh and the remedies- that was pretty straightforward- wrote the essay in a neat format, and followed instructions- I think you did the analysis within the body of the remedy response? NOt sure, can’t exactly remember how worded- but the actual ANSWER was a remedies answer, but fueled by the Partnership/Corps analysis… 

Essay 5 – Real Property- Landlord Tenant… 
I 100% remember that this was a LL/T question- again- pretty straightforward legal analysis- but the conclusion they wanted was kind of wonky- I feel like it almost had a remedies vibe-  To be sure- I am drawing a total blank as to the Professional Responsibility portion of that question-  I can’t truthfully remember… at all…but don’t feel like it was there? I know there was something else about that LL/T question…hmm…I think it was remedies- tort remedies (NO TORTS)? I’m not sure- but I know people were chatty that it was a “TORTS” question- it was not. 

Wait- I remember- it WAS TORTS-esque question- you needed to talk about the Duty to Owner of Land-/Duty to Lessee!  That’s right- a kind-of negligence question- but it was more subtle- no injury talk…you had to address that DUTY in the context of the RP-LL/T issues- which included both the T’s duty to pay rent and exceptions to that duty, etc.  and the landlord’s duty to x, y and z. Too far out to remember exactly- but I think that is why people are saying Professional Responsibility. I can say even with this James Joyce-esque stream of fairly reliable consciousness that there was absolutely no PR in that essay- Duty- of the LL….

Well- this was a great essay- I wrote again, stem to stern- addressed each of the lawyer’s duties to client, (I hit almost all, if I recall) and then he Lawyer’s duty as an advocate- and last, the Layer’s advertising rules. You had to hit almost EVERY single outlineable PR issue- except Prosecutor’s responsibilities and I think it asked for the CAL/ABA distinctions- so two little mini-responses for each section. 

I thought it was a chance to get a lot of points- lots of issues to hit… 

Last but not least- the PTB- 
So- this wasn’t as bad as the first day (in my opinion) BUT it had a LOT of facts to organize. I felt more comfortable with the completing of this PT- but I was racing- it was difficult- and you had to remember to follow the instruction- I think they specifically wanted this to be for the Judge, not the jury- but your language was not supposed to regurgitate law, nevertheless- mostly tell the story. I used a story telling voice- whatever the instructions said- to convince the judge of the facts in issue- and organized by…hmm…I think it was the three possible convictions- each building on the last- with pretty straightforward legal analysis…Mini IRAC like crazy for the elemental parts of the law adding in the supporting facts. 

I liked this one- but was very glad the test was over. 

I hope this is somewhat helpful. 


Lisa’s Comments:

Hello “A”, thank you for your detailed, from the best of your memory, recount. First of all, no one writes 8 perfect exams. All you can do is your very best and it sounds like you did just that. You have addressed some issues that many miss – for example, on your constitutional law essay you state that you addressed over breadth, vagueness and prior restraint (granted, I have yet to see this essay question, but, the California bar examiners definitely embrace First Amendment Speech exams to address these points – so good for you for seeing these as issues – so many forget or fail to see it as important).

In addition, you addressed the right not to speak (which to me is something I thought of after hearing about the fact pattern from students after the end of day one – and it is something that most examinees would not catch). Now, I am not saying that a person would have to address all of these things to achieve a good score, but, over breadth, vagueness and prior restraint are part of what should  be on everyone’s First Amendment Speech checklist/approach. (Your addressing the right not to be forced to speak is what I would consider a bonus coverage on this essay – again though – remember I have NOT yet seen the essays .  .  . so I can only interpret the interpretations :))

I know it is stressful waiting, but, it really sounds like you did well – given your report. Everyone makes mistakes on exam day (whether they realize it or not). Your other coverage sounds like it was right on as far as the major topics that were tested.

Regarding your comment about PTA, I agree with you 100 percent about it being a tough one – that is a question I have actually seen as I received an advance copy of it in order to write a model answer for the Los Angeles Daily Journal. I will post PTA here (yes, the actual question) in a separate post. To everyone, please feel free to add comments here. (I will moderate these to to maintain a positive blog – no negative comments about fellow examinees will be allowed – so if you want your comment to be approved, please be respectful of fellow examinees).

All the best to those of you waiting for bar results! May 18th will be here soon! Best regards,

Lisa Duncanson

Program Director/Founder
Bar None Review