California Bar Exam: Congratulations to all who completed day two!

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Hello Everyone,

Congratulations to all who have completed day two of the California bar exam. I want to make a few comments about yesterday. Number one, regardless of how you think you performed on yesterday’s essays or performance test, the exam is not yet over and all is not lost. I say this because I have received many emails from blog followers who are certain that they failed day one. Number two, do not listen to what anyone has to say about what was supposedly tested on day one’s essays or performance test – and yes, that includes me. I have not seen the essays or performance test. I have heard from many what was tested and believe I have a good idea of what was on the exam. However, it really doesn’t matter now, not really. I do appreciate hearing from examinees about what was on day one as it enables me to better advise my enrolled students – provide some reassurance and it helps me to get an idea of what might be just a little bit more likely to show up on day three’s essays. That being said, there is no way to predict this exam.

I did think that interlocutory appeals could be an issue on a civil procedure essay and that the amount in controversy could also be posed as a particular issue if civil procedure were to be tested – that is why I sent out an example of these very issues to my students and to blog followers who signed up for our February 2014 Bar Exam Tips List. In our last Bar Exam Cram Session just two weeks ago, we discussed how to handle Community Property should it repeat, and, in particular – how to handle a business if this issue were to come up again. Hearing what was tested yesterday, gives me great hopes and confidence for our students.

But, yesterday is over. And, regardless of how you felt you did, tomorrow is another day. I want to encourage anyone who is sitting for the bar exam right now to let go of Tuesday (and, today) and simply focus on what is coming tomorrow. I can not tell you how many examinees I have met over the years who came to me after they took the bar exam having given up after day one, completely certain that they had failed the exam to only get their exams back and learn that day one (despite their fears) was actually not a low scoring day and in fact it was day three that was the reason they had failed the bar exam – because they had simply already given up, thrown in the towel.

It is not over until it is over. Keep your spirits up, keep fighting, keep writing and prevail. You can do it. And, if you think you can not do it . . .well you risk proving yourself right . . . do not make that mistake.

Predictions:

I know that one of the reasons you are visiting the site today is for any possible updates on the
predictions. So here goes . . .

Nothing on day one was a surprise. So far, everything that was tested was absolutely expected. The only thing that was perhaps a little bit less than usual was the fact that there were no full blown MBE topics on day one’s essays. However, all subjects were expected and all three essays tested in the ways I would have expected. So where does this leave you for essay testing tomorrow? As always, anything could be tested. Do I expect you to see a Community Property essay? No, but, they could test it if they choose too. Literally anything can show up tomorrow. What do I think is likely? The same subjects I predicted earlier – Evidence is a likely possibility (despite the heavy appearance of Evidence on the July 2013 Performance Test), Property is very likely. I have also indicated that Criminal Law – specifically a murder essay crossed over with Criminal Procedure could come up (murder has been absent from the California bar exam for years now). But, Criminal Law (sans murder) has been tested quite frequently in the past several years. There simply is no way to know what will be tested tomorrow. Also another way to test Criminal Procedure (that has not been done in some time) is for it to be tested as a cross over with an Evidence issue (like hearsay or a privilege).

But, I will share with you a bit of what I share with my enrolled students about how to prepare tonight for tomorrow. Rather than being able to pin down exactly what is going to show up (and let’s face it, no one can do that) I prefer to provide essay scenarios. So while I think Business Organizations is very possible tomorrow, that you should expect to see some MBE topics on tomorrow’s essays, I really prefer to look over many subjects and provide a run down of what might be mostly likely if you were to see that particular subject tomorrow. So here is some of what I provide to my enrolled students:

If you were to be tested in Constitutional Law – I would expect Commerce Clause/Dormant Commerce Clause 0r First Amendment (I am leaning more towards an essay that involves a state statute that potentially places an undue burden on interstate commerce). Here is an example of this type of essay. I don’t know if it will be tested tomorrow or not. But, this type of essay has not shown up on the California bar exam in some time . . . so it is worth a quick read . . . can’t really hurt.

If you were tested on Property – I would expect something with Covenants (either restrictive covenants and equitable servitudes or the covenants of title – three present, three future). Easements has not been tested in a while and that too could come up. Please see my earlier post regarding my predictions – “part one” of my predictions.

If you were to see Business Organizations – I would be prepared to discuss Duty of CARE along with the Business Judgement Rule and Duty of Loyalty. The area of federal securities has not been tested in many years now (10b5 and 16b). The issue of whether a dividend must be declared (paid out to a stock holder or stock holders) is an area that I feel is now due for testing. This would generally be a tack on type of issue and could come up in the context of a shareholder derivative suit or simply a duties type of exam for Corporations.

Please review my earlier predictions post – “Part One” for more detail.

I wish you all the very best of luck tonight and especially tomorrow.

Lisa Duncanson
Program Director/Founder (213) 529-0990
Bar None Review and The Bar Exam Cram Session (TM)

4 thoughts on “California Bar Exam: Congratulations to all who completed day two!

  1. Lisa – thanks for the good tips. One question: in the second paragraph of predictions for tomorrow, you say “Do I expect you to see a Community Property essay?” Do you mean property? I’m pretty sure we already got a community property question on Day One (Essay #2). Or did I completely and utterly miss the point of that question?

    • Hello, thank you for your comment. No, I did mean Community Property – as in I do not think it is likely given that it was already tested – but – that it absolutely could come up as a cross over. No, I do not think this is likely, but I wanted to make the point that there is always the possibility that a subject can repeat as a partial cross over. I apologize if this was not more clear. And, I DO think that PROPERTY is very possible. I did see a couple of typos on my most recent post – but Community Property was not one of them. Thank you for your comment and thank you for following the blog. Let me know if you have any other questions. All the best to you tonight and tomorrow! Best, Lisa Duncanson

      • Thanks! I assume that the possible very minor property angle to that community property question shouldn’t be considered our allocation of property issues for the exam? I would think not – it wasn’t even clear that they wanted us to address the property interest at all, but the question asked us about the H&W’s interests in a house that the W’s mom gifted to them. This was clearly primarily community property (they were getting divorced), but I thought maybe they wanted us to address how they held title as well. (It was deeded to H&W as joint tenants, with no mention of rights of survivorship.)

  2. Good point and I do agree with you – Property is not ruled out for tomorrow. Yes, the facts on yesterday’s Community Property essay (so I am told) did not mention rights of survivorship – which simply means that you should address this fact (that there was no mention of the rights of survivorship). Generally, the fact that there was some testing of property – that there was a joint tenancy on the fact pattern – would not preclude additional property testing for tomorrow. This is especially true since joint tenancies are a favorite area for testing on the essay portion of the California bar exam. Are you on our tips list? If you are not, you should be. We are still adding people to our list and sending out emails this evening. All the best, Lisa

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