California Bar Exam Predictions: Feb 2013 – Part One

First of all I want to wish you all the very best of luck in your studies this week and I want to thank you for following my blog. I am truly humbled by the responses from examinees who have sent emails – thank you so much. If you would like to reach me directly, please feel free to send me an email at:

If you have been following my blog you will know that I do not really like to call my “predictions” predictions. I do not claim to be able to predict the bar exam. I have simply come up with what I call essay scenarios that I think might be worth considering. In the coming days (today included) I will be releasing these essay scenarios.

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

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

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

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

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

Civil Procedure: This topic is being predicted by many and is sort of an obvious possibility. Most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. The last time in personam jurisdiction was tested was in 2006. This exam is no longer on the California bar website. Incidentally, that administration tested Personal Jurisdiction (specifically: IPJ with a full minimum contacts analysis) and Collateral Estoppel and Res Judicata. This is a very possible combination. Another area that has not been tested all that recently is supplemental jurisdiction (bear in mind that if supplemental jurisdiction is tested, it will likely be what I refer to as a “tack on” issue or call because it would not be a large part of the question, but rather a shorter call within an essay exam). Typically you would expect supplemental jurisdiction to come up in the context of a Federal Diversity Jurisdiction essay. I am leaning more towards an essay that has personal jurisdiction – since it has been since 2006 that the California bar examiners have tested In Personam Jurisdiction. But, anything is possible so be prepared for everything. Class actions has not been tested in a very long time – I keep thinking that is due, but, If you look at what is most often tested in Civil Procedure it is jurisdiction (PJ and SMJ and Venue) and Collateral Estoppel and Res Judicata. So while class actions has been absent for many bar rounds, it is still no more likely in my mind, as jurisdiction or Collateral Estoppel and Res Judicata.

Incidentally – be sure not to mix up Res Judicata and Collateral Estoppel – make sure you know which one is issue preclusion and which one is claim preclusion. Here is one way to keep the two straight: the “C”s do not go together – in other words: Collateral Estoppel is Issue Preclusion and Res Judicata is Claim Preclusion. Should you get tested on this area – be certain to make note of the California (and minority) “primary rights” view with respect to claims. If you need further explanation of the “primary rights” view – please let me know and I will add a bit more here.

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

Okay, so that is it for now. Okay, well maybe not . . . make sure you know the California tests for value enhanced separate property businesses (Van Camp and Pereira) . . . more on this (Community Property) soon.

In the meantime, keep at it. Believe in yourself and stay positive. Maintaining a positive attitude in the days leading up to the exam is key. There is still a lot of time – use it well. You should expect any topic and be ready for any topic. To that end – please read my prior post about the importance of reading and studying past bar essays.

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

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

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


    • Hello Leigh,

      Thank you for following the blog and thank you for your comment.

      You should always be prepared to make any relevant California distinctions. Just as a clarification, the reason I mentioned California Civil Procedure last time is because many were predicting a “California Civil Procedure Essay”. So I was responding to that “prediction” that had been made by others. I am not saying California Civil Procedure is not going to be tested. However, California’s rules are largely based on the Federal Rules of Civil Procedure. As a result, while there are some definite distinctions and California unique concepts (like demurrer or SLAPP suits, among other things), there is not a lot to make an entire California only essay out of – that is what I was responding to in the essay scenarios that I released last February. So, you should be prepared to address the California distinctions, just as you would need to be on any bar round. I do not think it is any more or less likely this round than any other round (the California specific material) as it is simply always “up”. However, I do think that being tested on Civil Procedure this bar round is pretty likely.

      It is good to keep in mind anything that I predicted on the February bar (or said might be likely) that did not come up on February. Please understand that last year was the first year I ever released my “essay predictions” outside of our course. And I only released it the day before the bar exam – out of respect for my enrolled students. However, I have decided to make it available earlier this year. I will post more this evening. I do think that Products Liability is possible (take a look at last February’s predictions where I indicated that I was not at that time predicting Torts, but, that IF Torts were tested that Products or Malicious Prosecution/Abuse of Process might come up (there is more to it in the post, so go back to that and read that – I am predicting this for July as it is “due”).

      I hope this helps.

      Thank you again for following the blog. I wish you the very best of luck on this upcoming exam. Please feel free to contact me directly via email at:

      And feel free to make comments here as well – I will do my best to respond as quickly as possible.

      Best of luck in your studies!


      Lisa Duncanson

    • Hello Jillian,
      Thank you for following the blog and for your comment. I will do my best to explain the primary rights view. When dealing with Res Judicata (claim preclusion) you are essentially dealing with the concept of whether res judicata will bar the re-litigation of a claim. So here is the example in which the minority (also followed by California) “primary rights” view is tested: Pat is involved in an automobile accident with Dan. Dan is at fault (he ran a red light). Pat suffers both personal injuries and property damage to her vehicle. Pat brings a claim against Dan for personal injuries, but, fails to bring a claim for the property damage to her vehicle. Under a majority of jurisdictions, if Pat later decides to bring a suit against Dan for the property damage, she would be barred by res judicata because the property damage arose out of the same transaction and occurrence as the personal injury case that has already been litigated. However, in a minority of jurisdictions (including California) Pat would not be barred from bringing her claim for property damage because under the “primary rights” view the claims stem from different primary rights (one claim stems from a personal injury and the other from property damage) and therefore may be brought as separate claims, separate law suits.

      It is an odd concept because no one would practice law this way (bring two separate cases – one for personal injury and one for property damage). But, it is the rule, that under a primary rights view (minority and CA) a court will view each action as stemming from a separate primary right and therefore allow the second claim (that under a majority of jurisdictions should have been brought in the first claim) to go forward.

      You should note that the “primary rights” view will not change any applicable statutes of limitations.

      There are past bar exams that have tested this concept, and one fairly recently (it should be on the state bar website). I know that I went over one of these essays (that tested the primary rights view) with my class. So, I will see if I can locate the sample essay that I used to go over his concept. If I can, I would be happy to post it on the blog or to email it to you.

      I hope this helps. I am sorry that your course did not cover the concept. Don’t panic, you are not alone in not having heard of it . . . and as long as you are able to address it on exam day (and you should be able to after simply seeing a sample answer deal with it) you will be fine.

      Let me know if this was helpful. I will do my best to see if I can locate the essay I am referring to (although there are many examples of the primary rights view being tested on the California bar exam – you ought to be able to find a sample essay in civil procedure on this issue within the past four or five years on the bar web site. Still, I will see if I can find a sample for you.