California Bar Exam Predictions: February 2013 – Part One

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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: pass@barnonereview.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. 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. Incidentally, it is worth taking a look at my “predictions” from the July 2012 bar exam for some of the areas that I addressed that did not come up as these may be more likely now – you can find these by scrolling way down on the right for our postings by month – click on July 2012 and you should be able to to look back through that month’s postings and find the predictions from last time).

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 tested on the July 2012 bar exam. Since Constitutional Law did not show up – I am leaning towards your seeing it this time. I will write about this more in upcoming posts.

As far as subjects that could repeat from the July 2012 bar exam round – this time, I feel that of the subjects that could repeat, that Civil Procedure is a very good possibility as is Community Property.

Wills could also repeat (as could any subject from the last bar exam – be very careful not to presume that simply because something was not tested last time that it will not be tested again this time). And – as usual – a Professional Responsibility essay is typically likely (no surprise there).

Possible Essay Scenarios:

If Civil Procedure were to repeat: The most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. Last bar round, personal jurisdiction was tested (along with subject matter jurisdiction and supplemental jurisdiction). The essay was primarily about personal jurisdiction (and had a full discussion of minimum contacts). Prior to July 2012, the last time in personam jurisdiction was tested was in 2006. As a result, it would certainly not be unusual if you were tested on Civil Procedure again and in fact personal jurisdiction again. This happens. So – be prepared for it. Most would not be expecting it. However, if Civil Procedure were to repeat then I would expect an essay exam that possibly tested either some of the California specific areas (the California bar examiners have yet to test anything California specific in Civil Procedure – take a look at demurrer and SLAPP Suits and the responsive motion to a SLAPP Suit called an “Anti-SLAPP” motion – incidentally the area of SLAPP suits would be a great cross over with the First Amendment – I am not saying you will get this on this bar round – but some day it is coming) and/or some of the other issues that were not tested on the last bar administration. For example – collateral estoppel and res judicata. I thought both were a good possibility for testing (along with personal jurisdiction) on the last bar exam.

One of the last times collateral estoppel and res judicata were tested was in the context of in personam jurisdiction. I have a past essay exam from the bar exam that tests both together. 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.

If you would like to see this exam, I will be happy to put you on our email list for tips – simply send me an email to: pass@barnonereview.com and indicate: “Send me bar exam tips” in the subject line and I will add you to our list.

Another area within Civil Procedure that I would suggest you take a look is the area of “interlocutory appeals” – this is usually tested briefly as a fairly short “tack on issue” in a Civil Procedure exam. The issue is usually tested in this way – one of the parties is appealing prior to there being a final judgment (could even be on the basis of the court’s denial of one of the parties wish to use collateral estoppel or res judicata to bar the re-litigation of an issue or a claim). Since the party is attempting to appeal prior to a final judgment in the instant case – this generates an issue with respect to interlocutory appeals. It is a short discussion, but one that must be had and one that has certainly come up many times on the bar exam in the past.

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 Collateral Estoppel and Res Judicata. Since jurisdiction is such a heavily tested area, it would not be unusual to see an exam on this bar administration that tested (in a more emphasized way) subject matter jurisdiction. This could easily be done and tested with other typical issues like: Venue, Remand and/or Removal.

Incidentally – with respect to issue and claim preclusion – 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 (Res Judicata). If you need further explanation of the “primary rights” view – please let me know and I will add more about this area in a future posting.

If Criminal Law/Procedure were to repeat: Criminal Law was tested last on the July 2012 bar exam. While Criminal Law was also tested on the July 2011 bar exam, prior to this past bar exam round Criminal Procedure had not been tested since 2010. Also, Murder has not been tested since 2010. That is quite a long time for the bar exam to skip an area that is historically heavily tested. So – there are two things that I am thinking of in terms of Criminal Law/Procedure repeating on this bar round: 1) Murder seems like a likely area for testing since it has not shown up on the exam in a very long time and 2) Criminal Procedure makes for a good repeat area as well since it has not been tested incredibly heavily in the last several bar rounds. I am not saying it is a definite – I am suggesting that you should be prepared for it. Areas within Criminal Procedure that have not been tested in a long time are: some of the 6th Amendment “tack on issues” like peremptory challenges (perhaps based upon a juror’s “lack of belief” in the death penalty or “opposition to the death penalty” and the 8th Amendment (capital punishment) – both of these areas have been absent for some time on the essay portion of the bar exam. For an approach to writing a murder essay exam click here for a shorthand approach to writing a murder essay.

Torts (Products Liability or Tort Remedies): Most are predicting Torts. I would have to agree that this is a very likely subject for testing. And, most are predicting a products liability essay. While I think this is entirely possible – there are some other areas that are also possible. The longer it has been since a subject has been tested – the more likely (in my opinion) that it could be in any area within that subject. Therefore, simply be ready for Torts. Last bar round I was suggesting that if you were to be tested in Torts that Products Liability was a possibility or perhaps an exam that tests Malicious Prosecution and Abuse of Process crossed over with Professional Responsibility. As I look at it again – another area that has not been tested in some time is the area of Tort Remedies. Now – here is the thing – in past bar exam administrations we have seen bar rounds where Contracts was tested on day one of the bar exam and then on day three Contract/Remedies was tested. So . . . am I suggesting that Torts could be tested on day one or day three and then on the other day a Torts/Remedies exam? Well . . . it could  happen. It is not my first pick of scenarios (that you will see both a Torts essay on one of the days of the bar exam and then a Torts/Remedies exam on the other essay day – BUT – it has happened previously with Contracts and Contracts/Remedies – so simply be prepared for that slight possibility. And, since Torts is so heavily predicted by so many this bar round – then you clearly would want to be ready for anything within this subject and that would include a Tort Remedies exam.

Incidentally – a nice area for testing with Torts and Tort Remedies is an essay that tests Nuisance (and then a Nuisance that becomes a Trespass to Land, causes perhaps a Trespass to Chattel (maybe items on a person’s property are damaged and then this results in Conversion as well) and then the remedies of Damages for the intentional torts and injunctive relief are tested. Know the elements of an injunction and know that when injunction is being tested – one of the areas you are typically expected to discuss in a bit more length is the area of “balancing of the hardships”.

Okay, so that is it for now.

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 posts 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
barnonereview.com

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