February 2015 California Bar Exam Predictions – Part One

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Hello All,

Thank you for following the blog and for your patience this February regarding the expected Bar Exam Predictions. We had a record turn out in our class sessions and this “guru” has been very busy. I hope that the materials available on this blog are helpful (see some of the “freestuff” if you haven’t already for downloads). Also, I will make additional handouts and a few recommended essays for your review (based upon my “predictions”) available. Please understand that my enrolled students expect me to provide this information to them first.

About my “predictions” I do not claim to be able to predict what will be tested on the California bar exam. Nor do I recommend that you study based upon anyone’s predictions. However, I do think it can be helpful to know of some possible essay scenarios when going into the bar exam. I base the essay scenarios that I come up with based upon the following: 1) historically favorite areas for testing by the California Bar Examiners, 2) areas that have not been tested on the bar exam for some time (Criminal Law MURDER, for example) and 3) just my gut and my experience with the exam over the past twenty plus years.

What I think is very possible to show up on the exam: First of all, you should know (if you do not already) that any topic can be tested on the essays AND that generally at least two topics (and I don’t just mean Professional Responsibility) will repeat from one bar exam round to the very next. And, some topics repeat three or more times back to back. For example, Community Property was just tested three times in a row and is still fair game on this upcoming bar exam.

But, what am I leaning towards? I think you could see a Property essay. If you were to see Property on the essay I would be prepared for a few different scenarios: Covenants (either of the promise type that generally is tested in conjunction with Equitable Servitudes) or in the General Warranty Deed context. These are both completely different areas, but neither have shown up in some time on the California bar exams. So, how could these be tested? First of all, you should be mindful of the fact that one of the most popular areas of testing on the essay in Property is the area of Landlord/Tenant. This area allows for a nice cross-over with Covenants and Equitable Servitudes. Remember that one of the key distinctions between Covenants and Equitable Servitudes is that Covenants are enforceable at law (meaning you can get money damages) while Equitable Servitudes are enforceable at equity and therefore your likely remedy would be an injunction. I do think that Remedies will show up somewhere on your bar exam and this type of essay would satisfy that as well (the injunction as a remedy).

If you were to see the covenants that go along with a General Warranty Deed then you would need to see something on your essay exam that deals with a landsale contract. One possible scenario would be a situation where there is an Easement (or purported easement) and the issue becomes whether or not the Easement is valid, and if so, is it valid against a subsequent purchaser (in other words, does “buyer” take the land subject to the easement)? This would likely take you into a discussion of the present and future covenants, notice (actual notice, constructive/record notice and inquiry notice) and possibly recording statutes (I know, everyone’s favorite). But, if it were me taking this next bar exam, I would review these areas and make sure that you have it down. It is also helpful to see examples in past essays for how these areas come up. I will make essays available to anyone who would like to sign up for our Bar Exam Tips List.

Criminal Law: Criminal Law has certainly been tested quite a bit over the years. However, what has not been tested in many years is a Criminal Law Murder exam. See earlier posts with our approach for writing a murder essay. Of course I do not know if murder will show up on this bar exam. But, it is certainly a topic that I think is overdue. So make sure you are comfortable with it and be clear on your defenses. We have not seen the insanity tests tested in a very long time either.

Other possible topics: Wills or Business Organizations or both. If you were to see Wills, I think the area of pretermitted heirs (child or spouse) is highly testable as are the concepts of integration, incorporation by reference and acts of legal significance and dependent relative revocation. Of course the rules are very important. But, in my experience, the difficulty for students is not in knowing the rules, but in knowing when these issues arms (how these issue show up on an essay) and knowing that you are expected to discuss many things rather than approaching the essay from the standpoint of discussing only provable, definite issues. You should include in your answer those things that you are dismissing – and – showing the bar exam grader your thought process and why you are dismissing that particular issue. You will see from a review of past bar exam essays and released answers that the bar examiners embrace answers that discuss many options, many issues per area, not just the ball park issues.

I will add more about what I think could come up if Business Organizations were to be tested. But, always consider that Professional Responsibility is a common cross over with anything in Partnerships or Corporations. And, a recent favorite of the bar examiners has been the area of: a lawyer assisting a non-lawyer in the unlicensed practice of law.

If Torts were to repeat: If you were to see a Torts exam, I would expect to possibly see a Tort Remedies essay or perhaps Defamation. Other areas we have not seen in a very long time in Torts include: Nuisance (which makes a great gateway for a Tort Remedies exam) and the process torts (Abuse of Process and Malicious Prosecution – which can make for a great cross-over with Negligence – yes, negligence could repeat again – or Professional Responsibility). The point is that you should not dismiss any topic and you especially should not dismiss topics that were just tested in July thinking that you will not see these topics repeat on the February bar exam.

More tomorrow: I will post more tomorrow about what I think could show up on Tuesday or Thursday’s essays.

As always, I wish everyone who is taking the bar exam the best of luck. There is still time to resolve problem areas in your favor. Stay calm, be confident and recognize that it is absolutely normal to feel anxious in these days leading up to the exam. I will be posting daily from here on out and will add to these predictions by tomorrow.

I will be sending out tips as usual on our Bar Exam Tips List that we will make sign ups available tomorrow or you can send us your name and email address to us at: barexamguru@yahoo.com. You will also be able to sign up here on the blog tomorrow.

All the best,

Lisa Duncanson

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