Thank you for following my blog. We have had thousands of views each day this week. I am grateful for the following and glad that I can be of service. As it comes down to these final days before the bar exam, examinees feel more and more anxious about the test. This is normal. One of the ways that can help with easing up on that anxiety is to have a few areas to focus on in terms of the essays.
About the “Predictions”
While it is not possible to be able to predict what will be tested on the bar exam, I think it can not hurt to be made aware of certain essay scenarios that may be more likely to appear on this upcoming exam simply because these areas either have not been tested in a very long time, or because these areas/topics happen to be frequent flyers (favorite areas for testing) on the California bar exam.
So it is with that in mind, that I will be sharing some of my predictions. While there is no guarantee that these topics will appear on the July bar exam, it can not hurt to review these areas. Also, it gives you something else to focus on other than the constant memorization of long outlines (not something I think is especially productive) and should any of these topics appear on your bar exam, you will feel great for having studied these areas a little extra in the days leading up to the exam.
Another note about the “predictions” and release times
I write this blog to provide help to bar examinees who are all too often struggling and without guidance from their own bar prep providers. I do however, owe my first loyalty to my enrolled students who pay for the privilege of my predictions and other insights. As a result, my students get this information first. So please understand, that while I do release predictions on my blog, out of respect for my enrolled students, I release these only after I have provided this information to my enrolled students.
Professional Responsibility – Professional Responsibility is almost always tested on the essay portion of the California bar exam. As of 1994 the California bar examiners committed to tested Professional Responsibility on every bar exam on the written portion. This means that it it is on ever bar round on either the essays (most typical) or on the performance test or on both the essays and the performance test. Professional Responsibility was not tested on the essay portion of the February 2015 bar exam. Since it was skipped last bar round, my thoughts are that it is coming back. It is rare for Professional Responsibility not to show up on the essays. Assuming it is tested, what areas might come up? Generally you can always expect to discuss breach of the duty of loyalty – as this is the most common duty breach on a professional responsibility essay. The bar examiners can test anything and in Professional Responsibility since there are only so many areas for testing, these areas tend to repeat and are harder to predict. That being said, there are a few areas that have not been tested in a while – the area of attorney advertising has not shown up in a while. In addition, you always want to look at favorite areas of testing when trying to prepare for what is most likely. Favorite testing areas for Professional Responsibility are: when an attorney has a sexual relationship with their client, fee agreements and a fact pattern where you have a corporation as a client. These are favorite areas for testing. Above all, be ready for Professional Responsibility.
Constitutional Law – If Constitutional Law were to be tested (and I think there is a very good possibility it could show up on the July 2015 bar exam) then I would be prepared for this scenario – where the state is regulating in such a way that it potentially places an undue burden on interstate commerce. This requires you to evaluate the constitutionality of a state statute. You will need to address whether the state has the power to act (SHWEM – the states per the 10th Amendment can act for the Safety, Health, Welfare, Education or Morals of its citizens. In addition you will need to balance the state interest that is at stake against the burden that is placed on interstate commerce. One of the best ways to prepare for this type of essay is to review past California bar essays that test this exact area. Of course anything can be tested, including any area of Constitutional Law. I am leaning toward a commerce clause/dormant commerce clause issue because it has been several years since the examiners have tested this on the California bar exam. However, be mindful that favorite areas of testing for Constitutional Law are First Amendment Speech and Equal Protection. If you were to see an essay involving a state statute that treats out of staters differently than instaters – then this would also pose a minor Equal Protection issue.
Murder has not been tested in quite some time. This could be tested either on its own as a straight Criminal Law essay or possibly crossed over with criminal procedure. Typically when murder exams are crossed over with Criminal Procedure it involves the 4th and 5th Amendments. However, 6th Amend void dire and peremptory challenges based upon race and/or belief or opposition to the death penalty have not shown up in a very long time. This lends itself to an easy cross over with 8th Amendment capital punishment. Watch out also for 8th Amendment bail issues and 6th Amendment issues regarding pro se counsel and request for standby counsel. These areas are not favorites for testing, but since we have not seen these issues tested in some time you should be prepared.
Since Community Property was not tested on the last bar exam, most are predicting that it will show up on this next bar exam. I agree it could come up and I think it could come up potentially as a crossover, it could even show up with Evidence – for example testing a Marital and Spousal Privilege issue.
Many are also predicting Evidence. If you were to see Evidence you know that you will need to be prepared for Hearsay issues and the exceptions. Be very well prepared for this area as it always shows up when Evidence is tested. Also be prepared for the potential of seeing a transcript style exam, look out for marital and spousal privilege (as I mentioned above) and any privileges. Always expect Hearsay, follow the approach. Know your form objections in case you see a transcript style exam. Remember that there are form objections for answers (for example: “non-responsive”) that are different than form objections that area available for questions.
POSSIBLY REPEATING TOPICS – CAVEAT: ANYTHING CAN REPEAT!
Each bar round we usually see two or even three topics repeat back to back. So you need to be prepared for anything and everything. I personally think that the following topics might be a little more likely to repeat: Civil Procedure and Property and Business Associations (which was really only barely tested on the last bar exam in the area of Agency). Here is what I think you should consider for these possible repeater topics:
Watch out for res judicata and collateral estoppel as it has not been tested in quite some time. Also, remember that res judicata would allow the examiners to test the California (and minority) “primary rights view”. Also look out for notice and code pleading issues. And, of course be prepared for the most heavily tested area of Civil Procedure – jurisdiction.
Look out for Easements, warranty deed issue in a land sale contracts context, also always consider landlord tenant as it is the most common tested area of property.
Agency and Partnership were tested on the last bar round, but could always come up again. However, be on the look out for a straight Corporations essay. Securities law has not been tested in years so you should be prepared for this possibility. But you could also see common law fraud, ultra vires. How? The call of the question could ask you to only address the common law and not to address federal securities law. This has been done in the past. It is not my first pick, I just want to make you aware of it as a possibility. Commonly tested areas include pre-incorporation contracts, formation of a corporation (demure, defacto and by estoppel would need to be discussed) and what I refer to as “tack on issues” where you have to answer short answer calls like: “whether stockholders who own a particular class of stock can force the corporation to pay a dividend.” These are typical short answer questions that you need to be prepared to handle in Business Organization. Another example of a short answer/tack on type issue is whether it was proper for the corporation to deny access to the books (the shareholder’s right to inspect records) to a shareholder. This is one of the challenges of Business Organizations – there are several tack on issues that the bar examiners can test. The best way to prepare for this is to review past essays and to know these tack on issues.
Obviously, anything could be tested this bar round. I never claim to be able to predict the bar exam. I think it is just as likely that you would see Wills repeat on the July bar exam as you would see a Community Property essay – so be prepared for it all.
I wish you all the best in these final days and on the actual bar exam!