Bar Exam Predictions: Part One

legs-window-car-dirt-road-51397Hello 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. Also, please understand that my enrolled students expect me to provide the predictions to them first. I hope that you find the materials available on thisblog helpful (see some of the “freestuff” if you haven’t already, for downloads).

Also, be sure to join our Bar Exam Tips List for additional tips and handouts, sign up here.

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 upon the following: 1) historically favorite areas of 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.

This is PART ONE of my “predictions” – PART TWO will be a separate post tomorrow.

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. My point: you should not dismiss any topic because it was already tested on the past two or even three bar exams.

Constitutional Law as a possible repeat topic – Constitutional Law was on the July 2015 bar exam. However, I think that Constitutional Law may be more likely to repeat since the testing of this subject last bar round was so narrow (regulatory takings) leaving most all areas untested. If Constitutional Law were to repeat, possible tested areas could include the Dormant Commerce Clause (as this has not been tested in years) or possibly the First Amendment (as this is one of the more heavily tested areas within Constitutional Law and is tested frequently).

What scenario generates a Dormant Commerce Clause issue? When you see a fact pattern with a state law that as applied treats out-of-staters differently than in-staters or taxes an activity that affects interstate commerce. The main issue will be whether or not the state law places an undue burden on interstate commerce. Remember that you will need to address the state’s power to act (under the powers reserved to the state via the 10th Amendment – that the state may regulate on behalf of Safety, Health, Welfare, Education and Morals of their citizens).

If you were to see an essay that tests the Dormant Commerce Clause you should be aware that this same essay could also generate issues in the following areas: 1) State action, 2) 11th Amendment Immunity (this would be a very brief discussion/mention on your exam), 3) Article III Case or Controversy requirements, 4) Substantive and Procedural Due Process 3) Privileges and Immunities (this is usually a brief discussion, if it comes up at all) and 5) a potential Contracts Clause violation. If you would like to see an example of a Dormant Commerce Clause exam testing some of these issues, be sure to join our bar exam tips list.

Professional Responsibility (areas that have not been tested in some time include: advertising rules, sexual relations with client, rules on perjury and rules for turning over evidence – for example a gun, or the whereabouts of a gun, given to attorney by client. Be sure to be able to note the ABA Rules and California distinction here. In addition, if you see an issue with respect to an a client giving their attorney evidence from a crime or telling the attorney the whereabouts of evidence of a crime – you should also address the tension between the duty of candor owed to the tribunal and the duty to keep client confidences and explain how this is resolved.

Always in Professional Responsibility you should be prepared to discuss the issue of an attorney’s withdrawal- when must an attorney withdraw, when may an attorney withdraw and how must an attorney withdraw properly (assuming the attorney may withdraw in the first place). In addition, always be sure to address any potential and actual conflicts on your exam (an example that has not been tested in some time is where a third party pays the attorney’s fees – for example: Mother pays for son’s legal fees – first this is generally discussed as a potential conflict. When and if it becomes an actual conflict – you should discuss the actual conflict).

Evidence – Evidence was not tested on the July 2015 bar exam. As a result, many are predicting this subject. Evidence could be tested as a full essay or as a cross-over or both. Be prepared for the possibility of a transcript style Evidence essay. Remember if you see this type of Evidence exam that you need to look to discuss form objections (For example: leading, non-responsive, etc.) and also, since it is a racehorse exam, you will likely need to discuss relevance in a somewhat truncated way.

While transcript style essays are not as common, this format has not been tested in some time and is therefore due. Be prepared to address form objections and all areas of Evidence, know your approach. Hearsay is of course the most commonly tested essay area of evidence. Other commonly tested areas within Evidence: Spousal and Marital Communications Privilege. Know all hearsay exceptions. Judicial Notice has not been tested in some time. This could show up as a short call or issue on your exam.

Evidence as a cross-over topic – Evidence is also possible as a cross-over with with any essay subject – including community property, wills (if so, then it would likely be marital and spousal privilege with the CA distinctions) or even a hearsay issue.

Criminal Law/Murder – It has been some time since the bar examiners have tested murder. Typically murder is tested in conjunction with Criminal Procedure, but can also be tested with other topics. I believe Criminal Procedure is a likely repeat topic from the July 2015 bar exam as it would be a good cross-over topic in the event you were to be tested on Criminal Law Murder. Be prepared for a repeat of a 4th Amendment issue (because the examiners certainly could repeat this) but more likely you may see a 5th, 6th and/or 8th Amendment issue crossed over with a murder exam. Evidence can also be tested in the Criminal Law context. If you do see this, be sure to mention Proposition 8, that it applies in California Criminal cases (this is typically just a mention on your exam – but only in the criminal context and only if you are being tested in evidence).

Wills/Trusts – Wills and Trusts could show up as a cross-over or you could see either topic tested separately. Understand there is no guarantee that these topics will show up. Things to remember about Wills and Trusts: both topics have a formation component as part of the approach. One area that is a favorite for testing within the area of Trusts are issues with respect to Trustee duties. In Wills issues with respect to omitted heirs, pretermitted heirs are very commonly tested. Wills formation issues come up and often require a discussion of dependent relative revocation – be prepared to discuss this issue when you see more than one will on your fact pattern.

Remedies – Either in Contracts or Torts. More on these topics tomorrow, but be on the look out for Torts Strict Liability (products liability or abnormally dangerous activities – again, more on this tomorrow). I think either Contracts or Torts could be tested and feel each is equally likely. Remedies is very likely to show up as it is tested frequently and could easily come up in conjunction with Torts or Contracts.

Stay tuned for PART TWO of my “predictions” tomorrow.

Remember, anything can be tested.

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All the best in your studies and on the exam!


Lisa Duncanson
Bar Exam Guru