California Bar Exam: Day Two and “Predictions” for Day Three

Hello All,

Right now you are most likely taking the AM section of the MBE . . . unless you are an attorney taker. And, in just an hour or so, you will be half way done with the California bar exam! Congratulations!

So, as promised, I will be posting about what I think might be possible for day three’s essays. I am taking into account what was covered in yesterday’s Performance Test A into my assessments of what I would expect you to possibly see for testing tomorrow.

First, some comments about yesterday’s essays:

1. Day One is over – do not rehash it, replay or worry about it. It is done and you can not go back and re-do it and there is nothing to be gained from going over it and over it again.

2. The above being said – I think there are some things that I can say that might help you put Day One’s essays to bed – so to speak. Aside from simply putting Day One behind you – perhaps this will help: Essay number three had many options as to what could have been discussed. This essay was very similar to Essay #2 from the July 2003 bar exam (something I have brought up on many, many occasions in my bar review course). I have used this essay (from the July 2003 bar exam) as an example of what would be considered an “oddball” essay. On the July 2003 bar exam, the fact pattern was very similar, but the call of the question in 2003 was different. It was different in that examinees were asked to discuss “trust remedies”. This confused many examinees. This bar round it was a different call (and quite frankly, in my opinion, easier to deal with because the calls lead you to certain issues that a call of ‘trust remedies’ might not have). The point of all of this is that I have used this past exam as an example of what I would refer to as an “oddball” essay exam in order to illustrate how various answers (very different responses) would be acceptable. In fact, the story that I relay to my students is this:

“On Day One of the July 2003 bar exam, several of my students called me to discuss essay number two – the essay that tested ‘trust remedies’. I remember two students in particular with whom I spoke to that night. One was a valedictorian from an ABA law school and the other was a repeat taker who had attended a non-accredited law school. Both called me and told me how they handled that ‘oddball’ essay. Each had a very different route to resolving the issues presented and doing their best to answer the call of the question. However, both had some overlap in their coverage. I was confident that both examinees had successfully answered that question. And, both ultimately passed that bar round.”

The reason I even tell this story is to underscore for my students (and now for you) the importance of simply focusing on doing your absolute best to resolve the legal problem(s) presented in the fact pattern. Sometimes we get so caught up in the rules and definitions that we have been attempting to memorize for months that we lose sight of some of our common sense and practical ability to problem solve.

So where does that leave you with yesterday’s essays? Day one is over. What I want to make clear regarding essay number three is that there were variations of answers that will all be correct. Some will have addressed some Contract issues while others perhaps more regarding Torts and specific Tort Remedies – I could give you a list of the two or three issues that I believe a passing answer for that essay absolutely had to have . . . but I will not do that right now – because it will NOT serve you well to think that you missed one or more of those issues. AND regardless of how you did yesterday – you are still in the game – you simply have to take that approach. If you feel badly about yesterday – LET IT GO. That is your choice – to take that approach – and I urge you to make that choice.

You can take on today and tomorrow and no matter what happened yesterday, you can still take this test and make it your last. Be positive and let yesterday go.

One last thing about yesterday’s essays – many have written in indicating that day one was really hard. So, all of you reading this should keep the test in perspective. Yesterday was not likely a walk in the park for anyone. It was simply what it was – and now it is behind you – relish in that. And, resolve and commit to the rest of the exam with as much vigor and confidence as you can possibly muster.

One of the messages I received yesterday was from an examinee who told me of some of the mistakes he felt he had made and asked me if I thought there was “still hope”. I actually receive that same email many times over from many examinees. And, my answer is this: of course there is still hope. You go for it and do not allow this test to get the best of you. Perform at your best today, let yesterday go and tomorrow – do the exact same thing.


I will be posting again today with my “predictions” for tomorrow’s essays and some thoughts about the Performance Test.

Until then, put yesterday and this morning behind you. Stay positive and believe in yourself.

All the best to all who are taking the exam today!

Lisa Duncanson
Program Director/Founder
Bar None Review


  1. Hi! Thanks for all of your posts this week and leading up to the exam. I think it’s great that you share this information with those of us who are not clients. I know you say to not worry about Day 1, but I can’t help it, and I think if I could put to rest some of my concerns about the crimes essay, it would be helpful. With that being said, would you mind sharing your thoughts about it, like you did with the remedies essay?

    Specifically, while I stated Wharton’s rule in my rule statement for my conspiracy, I didn’t even think to address it with regards to the liability of the defendants! I have it drilled in my head that bigamy and dueling require Wharton’s rule, but in the moment of the essay, it didn’t cross my mind to analyze it for receipt of stolen property. Of course, it hit me last night, and now I can’t stop thinking about it!

    Do you think missing Wharton’s Rule will be a deal breaker? My discussion of defenses was also low (I discussed impossibility w/r/t to the attempt crimes, and I mentioned mistake within my conspiracy analysis). I think I did okay on the PR essay and I think I’ll get by on the remedies essay. I’m definitely hoping that I get a chance to shine on the essays tomorrow!

    Any advice you have that can help me stop worrying about that dang Crimes essay for the next 3 months would be appreciated!

    • Doing it right now! The site traffic has been very high and it keeps crashing. We have added bandwidth – never have had to do this before – but we have had thousands of views all at once. Updates will be up very, very soon! Thank you for your patience and for following the blog!

      • Got it. Thanks.

        Could you let us/me know what is the news you’ve heard about PT for day 1? Did people generally think it was difficult or doable? I’m trying to determine if tomorrow PT will be harder or easier.

        Thanks a million

      • I think tomorrow’s PT will be more challenging. Don’t let that stress you out – if it IS more challenging – then it is more challenging for EVERYONE. So, whatever happens, keep it in perspective and try not to sweat it too much. But, if you have multiple documents to write, be certain to move your way through those three hours efficiently (something you should be very cognizant anyway – timing issues).

        All the best to you and thank you SO much for following the blog!