Bar Exam Tips: 10b5 and 16b

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Hello All,

One of the areas we spent a little extra time on in our Two Day Cram Sessions was Corporations – and in particular – 10b5 (tipper and tippee liability, corporate pronouncements and misappropriaters) and 16b (short swing profits). This (federal securities law) is an area that has not been tested in several years. As a result, in our class sessions we gave it a little extra treatment just in case. There are past exams as examples of this area, but I do not believe there are any on the bar website (as the exams on the bar website do not go back far enough). So, here is an example of one of the past exams testing federal securities (this essay also tests Professional Responsibility – it works out to be a nice cross-over essay). You can download the sample Corporations essay here: Corporations SEC & PR Essay – it can’t hurt to take a look – do not test yourself on this – just review it. I personally prefer Answer B.

I recommend reviewing this essay (spend 15 to 20 minutes on it) and spend a few minutes to review Sarbanes-Oxley. It can’t hurt. You can do this over breakfast if you wish. And, if you would rather read something for comic relief – I recommend this blog post by a bar taker – it is quite funny: “A Strongly Worded Letter to the Bar Exam”

Okay, I really am calling it a night.

All the best to all who are taking the exam tomorrow!  You can do it!

Best,

Lisa Duncanson
Program Director/Founder
Bar None Review & Bar Exam Cram Session
www.BarExamCramSession.com

If you have found this blog helpful and wish to make a donation, you may do so through the following link: 

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Bar Exam Tips: Final Thoughts Before Day Three . . .

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Hello all,

Thank you for following the blog and thank you so much for the kind words and messages. It really means a lot to me. I am honored to be able to reach so many people and to provide (apparently) a little sanity and calm to this process. Thank you for taking the time to write in, I really appreciate it.

I wanted to take a moment to address one more thing before tomorrow’s big day. I was asked if Torts was going to be tested “again” tomorrow. Of course, no one knows the answer to that . . . but, if Torts is tested tomorrow there are some areas that I think are a bit more likely than others. First of all – Torts was tested two essays on the February 2013 bar exam. If you will recall – products liability was tested on one essay (essay four) and Torts and Tort Remedies was tested on a separate essay. This is actually not unusual. On past bar exams, Contracts has shown up on day one and then Contract Remedies on a separate essay on day three.

So it definitely happens. What is significant about all of this is that Torts showed up twice on the last bar exam and yes, it could show up again – but it is not what I am leaning towards. HOWEVER, IF it were tested, I think that some of the miscellaneous torts like misrepresentation or nuisance could come up.

Also, just like contracts could cross over with agency or partnership – torts could also cross over with agency or partnership. I already mentioned in an earlier post that there could be a crossover with California Civil Procedure and Defamation (see my prior post from today about the yet to be tested scenario in California Civil Procedure involving an “anti-slapp” motion).

Another area to be mindful of is the possibility of Professional Responsibility crossing over with Torts. The the bar examiners have tested this combination in the past is as follows – an attorney files a lawsuit that is barred by the statute of limitations – this generates a few potential issues – 1) the obvious PR problems with regard to the lawyer filing a suit he/she knows is time barred, 2) malicious prosecution and abuse of process, and 3) the client may have a claim for negligence if they can prove that they would have prevailed under the underlying claim (which is often negligence). Other scenarios have included facts where the client asks the lawyer to “teach the opposing party a lesson” by filing a lawsuit. This also potentially generates the above issues (1 through 3).  Keep in mind too that duty breaches in the above scenario would include breach of duty of candor to the court (by filing a frivolous, time barred action), breach of the duty to give candid advice (by filing a claim that is time barred) as well as a breach of the duty of competence (a competent attorney would not miss the statute of limitations nor would a competent attorney file a claim after the statute has run).

We will continue to take requests for the Evidence Handout. However, the guru is going to call it a night at some point, and so should you. Therefore, if you send a request for the handout after 10:30, it may not get a response until tomorrow. Yes, we actually respond to each email (and there have been hundreds). I greatly appreciate your comments and feedback and wish you much success tomorrow!

Best of luck to you all!

Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

Bar Exam “Predictions” – Part Three

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Hello All,

By now you have completed day two of the California bar exam! Congratulations on all of your hard work! You are nearly done!

I promised to write more about what to expect for tomorrow and to provide some advice on how to prepare this evening.

First, any topic can be tested. That being said, there are some subjects that seem to be more likely than others. I still stand by the predictions I have released to date – so I please review my previous posts (links to my earlier “predictions” are below). You will see that so far three of the areas that I have suggested were tested on day one.  Review my earlier posts below (“predictions – part one” and “predictions – part two”).  Also, bear in mind that often the bar examiners will test a full blown Professional Responsibility essay on day one and then repeat it again as a cross-over on one of the essays on day three. This is not unusual at all.

Predictions – Part One

Predictions – Part Two

When you go back and read the two earlier posts (links to each above) you will see that I have suggested Evidence and Property (I belive there is almost an equal likelihood that either could show up – with just a slightly higher preference towards Evidence being more likely) AND that either Civil Procedure or Criminal Law (specifically murder + Criminal Procedure or Criminal Procedure alone) could show up tomorrow. The bar examiners have tested the same subject on three bar rounds, back to back. Civil Procedure has been tested three times back to back in the past and so has Criminal Law. Either could show up tomorrow – so be ready for it. For a free approach handout for Evidence, see my earlier post below – fill out the form and we will send you the approach and additional tips via email 🙂

With respect to Criminal Law – murder has not shown up in a while. The last two bar exams both tested Criminal Law (but focused on possession crimes like larceny, embezzlement on the July 2012 exam and accomplice liability on the February 2013 bar exam). Neither exam tested any Criminal Procedure and neither tested murder. Therefore, I would most definitely review the murder approach (for a 10 minute coverage of a basic murder approach, click here and scroll down the page just a little and you will see a video of yours truly). Bear in mind this is a brief approach – but it does give you something to work with. We also have released portions of our Criminal Procedure Exam Writing Template on the Bar None Review website – you can download the exam writing templates for the 4th and 5th Amendments here and you can download our 8th Amendment Exam Writing Template here

I could absolutely envision and essay that tested both murder and either the 4th and 5th Amendments (this is one of the most common ways to see a cross over in Criminal Law and Criminal Procedure. However, another option – that has not shown up in some time – is the following scenario:

A murder exam (where you have to develop a murder discussion – this includes common law murder, which is a killing committed with malice aforethought, malice aforethought is proven four ways – you need to list all four and apply one or two, then address the statutory degrees of murder – first or second, address whether there is a basis for manslaughter – voluntary or involuntary and of course apply any available defenses – ALSO – be sure to follow the call(s) of the question as this may change your order or organization) plus 6th Amendment peremptory challenges or other jury issues and 8th Amendment capital punishment (review the 8th Amendment Exam Writing Template – see link above – for how to address this issue). These areas have been tested together on multiple occasions – but not in some time. As a result, I think it is due – at some point.

Other things to consider: Regardless of what anyone thinks is going to be on the exam, you need to be prepared for essentially any topic. It never hurts to spend a little extra time on areas that seem to be more likely than others. BUT, be sure to spend time on any area(s) that you feel are your weak areas. This is critical. The last thing you want to see is the subject you are least prepared for showing up tomorrow. Therefore, spend some time reviewing whatever subject you would consider being your “worst nightmare” and that way, if it does show up on the essays – you will be better prepared for it.

IF CIVIL PROCEDURE shows up tomorrow . . . I mentioned above, and in earlier posts, that Civil Procedure was a possibility. Civil Procedure has been a three-peater in the past – so it certainly could show up tomorrow. If it does, Collateral Estoppel and Res Judicata are areas that I think are likely. I say this for a couple of reasons: 1) Collateral Estoppel and Res Judicata have not been tested in a while, and 2) there is a California distinction that is testable – the Minority, Primary Rights Rule – it is worth a mention if you get an exam in this area. And, the Primary Rights Rule has been tested for years – well before the California bar examiners added California Civil Procedure. Class actions has also not been tested in some time. And, to date, the bar examiners have yet to test the concept of a “demurrer” or the responsive pleading available in California known as an “anti-slap suit” (note: an “anti-slap suit” is not a suit – it is a special motion that a party can file in response to a claim that is viewed as a SLAP Suit – an example of this would be something like this: plaintiff files a law suit against defendant for defamation and seeks (and obtains) a preliminary injunction to stop the plaintiff from publishing a newspaper (the subject of which Plaintiff claims contains defamatory material). In California the defendant can answer the complaint, can demurrer to the complaint or could file what is called an anti-slapp motion (or suit). This latter option would be on the basis that the original law suit was intended to harass the defendant and to prevent the defendant from doing something they were legally allowed to do (for example, exercise their right to speech).

Okay, I think this is enough for now . . . 🙂

I wish you all the very, very best of luck tomorrow. Trust your instincts and write, write, write!

If you have found this blog helpful and wish to make a donation, you can do so here:

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Remember to stay positive and to believe in yourself!

Best of luck to you all!

Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

California Bar Exam: Evidence Handout & Tips

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Hello All,

We had a tremendous amount of traffic on the blog last night (thank you for following)!  However, as a result, there was a glitch in the form for requesting the Evidence Handout – it is now fixed. However, for some that signed up, the glitch resulted in our not receiving an email address. We are sending out the Evidence Approach Handout and Tips to everyone who has signed up for it.

If you do not receive it by 6:00 pm this evening, then that means that we did not receive your email address. If you do not receive an email from me by 6:00 pm, please go ahead and fill out the form again and we will be sure to send it out to you right away.

And, if you are new to this blog – and want to be added to our list – please complete the form below and we will send you the Evidence Approach Handout and Exam Tips.

Also, be sure to come back to this blog for more on how to prepare for tomorrow’s essays and performance test!

All the best,

Lisa Duncanson

July 2013 Bar Exam – What the heck was that?

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Hello all,

First of all – congratulations to all who completed day one of the California bar exam – you are one third of the way done!

If you just took day one of the California bar exam you might feel a bit like it took you . . . the consensus from those who took the time to write in was that PTA was “horrible”, even “traumatic” . . . and the list goes on from there.

I am not saying that everyone who took the exam today left feeling badly. But, if you did, you should know that you are in good company.

So, what should you do this evening? You could study. You could watch America’s Got Talent (I think it is on tonight). You could do what some in the lobby of the hotel are doing right now – and that is shoot pool and drink. I would go easy on the drink part. But, the rest of the options are all acceptable. It is completely reasonable to not study tonight and it is completely reasonable to have spent some time reviewing. Either is a completely acceptable option.

But, whatever you do, you need to put today’s test behind you. Let it go. It is over.  And, no matter how you might feel about your performance today, you can still pass this exam. You need to believe that for it to happen. Don’t get in your own way by allowing the test to get to you. (Even though that might be hard, you can still turn it around – no matter what happened today). Think about it this way – if you thought it was hard it is because it was hard.

I have heard a lot about today’s test now. So I have a pretty good sense of what was tested on both the essays and the Performance Test. I still stand by my earlier predictions (for the most part). I absolutely thought that Corporations was a possibility, but it was not my first pick for essay testing . . . it showed up on the Performance Test today. Now most would reason that since it was on the Performance Test that it will not show up on the essays on Thursday. While I would tend to agree . . . it is not wise to discount anything. Anything can be tested on Thursday’s essays. That being said, if you are fearful of Corporations, don’t feel you have a good handle on it, then it simply makes sense to give it a quick review tomorrow (after the MBEs).

I do feel that Evidence is still likely (read my earlier posts about “predictions”) and that Property is a possibility as well. I recommend reading through my posts from the past several days (go back about a week or so) for a review of what I have suggested as possible essay scenarios.

Remember, no one can predict what is going to be on the exam. So far, we are three for three (including issue specific areas – Community Property involved a separate property business with an enhanced value – so as was suggested in an earlier post – the accounting methods were relevant – you could have discussed both Van Camp and Pereira or just one of the accounting methods – depending upon how you interpreted the fact pattern. Either route would likely be acceptable.

Constitutional Law was tested – and from what I heard it required you – as expected – to address the constitutionality of a state statute along with equal protection and due process. Professional Responsibility is always likely on the essays – and this bar round was no exception). So far there were no real surprises. I know that the 13th Amendment issue on the Constitutional Law essay was not expected – but as I said in my earlier post – this is what the California bar examiners have been doing – adding in a narrow call that is usually only tested on the MBEs. So, if you were a bit thrown by that call – don’t worry about it. A) there is no point in worrying about it – it is over, and B) it will all even out – the test is scaled (meaning it is on a curve). So, let it go, don’t let it get to you, move forward and take control over the exam tomorrow and on Thursday. No matter what happened today – you can still prevail.

The performance test has generated the most traffic (in terms of emails from blog followers). It has been described as “the worst PT ever” and so on. I mention this mostly because I want you to be able to put this into perspective. It was not anyone’s dream come true – that is for certain. For some it may have felt more do-able than for others. But, I think most would agree that it was pretty challenging. Many have written in stating that they did not finish PTA. This is not unusual.

Incidentally, I never release anyone’s private information or relay anything on the blog (or anywhere else) that would reveal a person’s identity (just thought I would let you know that).

I just want you to know that there are other examinees out there (many) that feel today was next to impossible. That is sometimes how this test feels. Sometimes it is as much about continuing to show up and grind your way through this test as it is about the actual preparation and review leading up to the actual exam. Clearly it is critical to study for the exam. But, no amount of studying will make up for a person simply giving up. And, some do. So I urge you not to give up and to recognize that no matter how today went, you can still do it. And, if you are among those who felt good about your performance today, that is great!

But, either way, it is still anyone’s test. Don’t forget that.

Okay, so all of the above being said – here is what you can expect from me – I will continue to write on the blog and provide additional tips here. I will also do my best to answer questions that you send to me by email. My enrolled students of course come first. But, do feel free to send me a question if you have one and I will do my best to answer it.

We will send out additional tips via email to those who have asked for it (you can still sign up for our July 2013 Bar Exam Tips List – those that did – received an approach for evaluating the constitutionality of a state statute as well as other tips and a constitutional law essay). This approach is now moot (sorry for the pun) since it was just tested on today’s exam. I will send out an approach for Evidence (if you want it, fill out the form below and we will send it to you). This will likely go out first thing tomorrow (in time for you to review it tomorrow night or if you are an attorney taker, during the day tomorrow). If you are interested in any meet ups, let us know and we will keep you posted on that as well.

All the best to all who are taking the bar exam. Get some rest tonight. Do your very best to relax.

Best,

Lisa Duncanson

Bar Exam Tip: What To Expect On Day Three . . .

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Hello All,

Congratulations on completing day one of the California bar exam!

See my previous post for today’s round up regarding today’s essays. Once I hear from more examinees about today’s exam I will write more about what to expect on Thursday’s essays.

For now, here is what I would expect:

1) a cross-over or two – this could involve Professional Responsibility crossed with another topic or really any topic – more on this later this evening.

2) I still believe that Civil Procedure or Criminal Law (this includes Criminal Law as a cross-over with Criminal Procedure) could repeat on this bar exam – so be prepared for these topics.

3) I still believe Evidence is very possible (if you will recall, I wrote earlier that I believe Con Law, Evidence and Property all have about an equal chance of showing up on this bar exam – but – I am not sure you will see all three of these topics – I just think all have an equal likelihood of showing up). So be sure to be ready with these topics.

4) I still think business organizations of some type (potentially crossed over with another subject – like PR or if it were Agency or Partnership – then it could show up as a cross over with Contracts or even Remedies). I will elaborate more later on all of these areas.

As I am writing this post I do not yet know what was tested on today’s Performance Test A. This does make a difference to me in terms of what I would “predict” or suggest as likely subject areas for testing on Thursday’s essays. So, once I hear from you (please write into me at: pass@barnonereview.com) I will be able to use this information to zero in a little bit more.

Wishing you all the best. Take pride in the fact that  you have completed day one!

Best,

Lisa Duncanson

July 2013 Bar Exam: Day One Essays

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Hello Everyone,

By now you are likely getting seated to take the first Performance Test. Thank you to all who contacted me to let me know what was on the exam today. So far we are three for three (not actually that hard to do given that is after all day one). But, I am of course, very happy to learn that so far the “predictions” are pretty on spot.

Today’s essays were in the following topics:

Essay One – Professional Responsibility (no surprise – PR is tested on virtually every bar round on the essays. And, sometimes it is on both day one and day three of the essays. So, you may not be done with PR just yet. This fact pattern sounds interesting – I will write more about it later – once I hear from more examinees – so feel free to write in with your account of the fact patterns).

Essay Two – Constitutional Law (no real surprises here – evaluating a state statute and the typical issues that come along with that along with a more unusual call – a claim under the 13th Amendment – I will write more on this later as well. But, for now, I will say this: the Bar Examiners have been doing this in Constitutional Law – having one call or a short part of the question call out an area that has been historically reserved for MBE testing – the last time this was done in Constitutional Law the “oddball” or unusual aspect of the essay was a short call regarding presidential powers (the executive branch). This is an area typically reserved for the MBEs and not usually tested on the essays. This is a trend we have seen from the bar examiners for the past several years now. If you felt unprepared for the 13th Amendment you should not feel badly. The examiners are looking for your ability to utilized your common sense and common knowledge here – if you wrote about it in a logical way and analyzed this area – you ought to be fine. If it stumped you because you haven’t seen anything like that on an essay before – don’t let that get you down – you are in the same boat as a likely majority of examinees – so let it go and move on – you are still in the game – remember – this exam is scaled. Think of it as a curve – how did you do relative to everyone else AND how WILL you do on the rest of the exam relative to everyone else. What I mean by that is, if you give up after today’s essays, then it IS over for you. BUT, if instead you put today behind you and simply go forward like everything is fine and will be fine – you CAN pass this exam. So, let today go)!

Essay Three -Community Property (Again, no real surprise in seeing Community Property – that was what I was leaning towards – CP all by itself, no cross-over. I will write more about this fact pattern later – after I hear from more examinees).

My pick for today’s PT is either a Memo or an Appellate Brief or even an Opening or Closing Argument. Memos are the most common format for the performance test – so it is pretty likely on any given bar round that you would face a Memorandum as the required document. However, as many of you know, last bar round consisted of two letters. An Opinion Letter (which is a persuasive writing) and a Letter to a Client (which is often objective, but can also be persuasive). So I would not be surprised if you were to see a Memo on one either PTA or PTB. Also, it has been several years since the bar examiners have required examinees to create more than one document in one performance test. As a result, I would not be surprised if either PTA or PTB asked you to prepare more than one document (for example – you might be asked to draft a memo and to write modifications to a contract or a statute or – you could be asked to prepare a “discovery plan” and write a “points and authority” or a “trial brief” (either of the latter two documents would be persuasive documents). Bear in mind that whatever you are asked to do on PTA or PTB – ALL of what you need is there – AND you will not be asked to do something without some explanation of how they want you to do it. So, play close attention to the instructions from your “senior partner”. Also – if you are asked to prepare more than one document (past exams have asked for two memos or a combination of things like – a memo and redrafting provisions of a statute, for example) – be sure to check the boilerplate instructions for a breakdown of how much (percentage wise) each task or document is worth. The boiler plate instructions are the first set of instructions on your PT and they look the same each time – except for when the examiners are asking you to create more than one document. If you are asked to prepare more than one document, then they will typically state in the boilerplate instructions how much each is worth – for example: “task one = 70%, task two = 30%”

All the best to everyone who is taking the exam today!  Stay positive and hang in there, you can do it!

And for those of you who are taking the bar exam in Ontario and would like to join our brief meet up this evening, please complete the form below and we will get back to you. We can only make this available to a limited number of examinees (our enrolled students have first priority, of course). Please understand you must complete the entire form (full name, first and last, or we will not be able to respond to you). We are also considering an open meeting on Thursday after the exam. We will keep you posted on the details.