July 2016 Bar Exam Predictions: Part Two

pexels-photo-226576Hello All,

The bar exam is less than two days away now. I wish all of you who are taking the exam, the very best of luck!

If you have read my prior posts, you know that Constitutional Law is one of the subjects that I am leaning towards your seeing on the July 2016 bar exam. I also think that Criminal Law Murder (possibly crossed with Criminal Procedure or Evidence) could show up on the the July 2016 bar exam. Of course, you may not see either Constitutional Law or Criminal Law on the July 2016 bar exam. But, if you were to see either subject on the essay portion of the exam, would you know how to handle it?

This might not seem like a question that you would want to ask yourself right before the bar exam  – but why not? If you do not know how to handle a Constitutional Law essay or a Criminal Law Murder essay today, two days before the test, is it too late?  Should you give up?  Of course not.

So, if Constitutional Law is something you are fearing – then I would take a look over the subject again (preferably by relying on a condensed outline of some kind). In addition, I would recommend that you take a look at a few essays in Constitutional Law. I would do the same for Criminal Law & Procedure. Both subjects can be race-horse exams. So, keep this in mind when you are writing your answers. Get to writing as quickly as you can.

Another race-horse type of exam, perhaps the hardest to finish within time, is the Evidence Transcript Style exam. The California bar examiners have not tested an Evidence Transcript Style essay in a very long time. While I do not think this is the most likely essay to appear on the July 2016 bar exam, it is one that would be pretty challenging to write if you have not seen an example of how it is tested and how it is answered. Any topic can repeat from the February 2016 bar exam (and usually two or three repeat from one bar round to the next). If Evidence were to repeat on the July 2016 bar exam, I still think it would be more likely to see it repeat as just a cross-over with another topic. (See my earlier post, Part One of the Bar Exam Predictions – that Marital and Spousal Privilege or Hearsay make for great cross-over testing with other subjects). Still, I think it can not hurt to review a Transcript Style Evidence essay.

I have attached as downloads, a past Constitutional Law Essay and a past Evidence Essay that I think are worth reviewing (yes – even the day before the exam – why not)? Incidentally, if you would like to see an example of a Criminal Law Murder essay, sign up for our July 2016 Bar Exam Tips List here.

The reason I think it makes good sense to review this exam the day before is because of this simple fact – a very similar essay exam could appear on day one or day three of the California Bar Exam. Therefore, it just makes sense to read through both essays. You can download the Constitutional Law Essay here: ConLaw Handout 2 F-05 and the Evidence Essay here: Evidence Transcript Style Essay

With respect to the Evidence Transcript Style Essay – This is included here not because I think it is incredibly likely to appear, but instead so that you can take a look at it to see how you could handle this on the off chance it shows up on the bar exam this coming week. It is one of those essays that the examiners test from time to time and if you do not have experience with it, well, it is quite difficult to handle and to finish within time.

The Constitutional Law essay is from the February 2005 bar exam. I think it is definitely worth a read. DO NOT test yourself on either of these exams. Instead, simply read through it (stay calm while you do so) and read and study the answer. Spend about 25 – 30 minutes on it (a few more minutes if you think you will benefit from it). The key here is to be able to glean some insights into both the approach for Constitutional Law (the approach that is embraced by the California Bar Examiners) and also how to handle an essay that is similar to this Constitutional Law exam. I think it is quite possible that you could see something like this tested (especially since this area has not been tested on the essays in a very long time). Given the possibility – it can not hurt you to read through it. And, remember, it is really important that you simply “read through it” – DO NOT TEST yourself on this – just read it and do your best to connect the dots between the fact pattern and what was generated in the answers. Focus on this: “If I were to get this particular essay exam on the actual bar exam, how would I write my answer?”

Hopefully, you would stick to the issues that are addressed in both answers and even better, if you do see something similar to this particular essay exam, you will remember how to handle it on exam day.

With respect to the Evidence Essay – note the style of writing (what I call a “shot-gun” type of approach) that is used in the exam answers. Both are brief where needed and get through all of the calls in a pretty efficient manner. Also, note that in a transcript exam you need to be prepared to write on form objections (examples of form objections include: leading, compound, assumes facts not in evidence, non-responsive, etc.). Note also, that this “shot-gun” type of approach/style of writing is frequently employed on products liability exams – as it is often required to write in this style to simply be able to finish the exam. I think it is helpful to realize that this style of writing is not only accepted (in certain race-horse style exams) but that is actually often the only way to finish the exam on time. Just recognize that it is not a good style to use on non-racehorse exams (most professional responsibility essays, for example, are not race-horse exams).

Other subjects you should consider . . . 

Business Organizations was not tested on the February 2016 bar exam and as a result, many are predicting this topic. Any area could be tested. But, it makes sense to look at favorite areas of testing. For example, within Corporations – the area of pre-incorporation contracts and promoter liability (which typically requires a discussion of defacto, dejure and corporation by estoppel) is a frequently tested area of Corporations law. Also, it is fairly common for the bar examiners to test Business Organizations crossed-over with Professional Responsibility. One example of how Business Organizations and Professional Responsibility can be tested together is when a lawyer and a non-lawyer go into business together and the business (whole or in part) provides legal services. In this scenario, the examiners can test you not only on partners’ liability for contracts or torts that were entered into on behalf of the partnership, but also in professional responsibility. The Professional Responsibility issues in this scenario include: assisting a non-lawyer in the unlicensed practice of law, and sharing of legal fees with a non-lawyer.

Federal securities law has not been tested in a very long time (10b5 and 16b). If this were to be tested, you will want to make sure that you know the elements as this really becomes your essay approach for these areas. Without a checklist memorized, it might be difficult to write this type of exam. If you have not reviewed this area recently, then review the requirements for 15 or 20 minutes – just to make sure that you have the elements ready to go should it be tested.

Community Property and/or Wills – Either of these topics could show up on the July 2016 bar exam. Community Property was not tested on the February 2016 bar exam. Trusts was tested on the February 2016 bar exam, but Wills was only tested in a very brief way on the February 2016 bar exam. As a result, I think either of these topics is very possible.

What about Civil Procedure? Civil Procedure could absolutely be tested. If you were to see Civil Procedure, it would not be surprising to see jurisdictional issues (personal jurisdiction and subject matter jurisdiction) as this is a favorite area of testing on the California bar exam. Essay exams that test subject matter jurisdiction often test diversity jurisdiction as a basis for subject matter jurisdiction. Remember that the requirements for diversity jurisdiction are: 1) diverse citizenship (no plaintiff and defendant from the same state), and 2) the amount in controversy must exceed $75,000.00. Most will get this right. However, you should note that this often also brings up issues of aggregation (to meet the amount in controversy requirement) and a person or a corporation’s citizenship. Other areas that could come up in this context are: joinder of claims or parties, supplemental jurisdiction, necessary and indispensable parties. Also, be mindful of tack-on type of issues (an issue that does not make for a whole essay, but could be a short call) such as Notice and Code Pleading and remittitur and additur. Additur is not allowed in federal courts.

Help me help you . . . 

I will continue to post more on the “predictions” and will also post again on Tuesday night after the essay portion of the bar exam – I will be counting on my students and blog followers to send me what was tested on the essay section of the bar exam so that I can update my predictions with respect to what I think might be more likely to show up on day three of the essay exam. So, if you have a moment, please email me after the essay portion of the bar exam on Tuesday. This will help me, help you – it is always good to have a sense of where to focus in these final days and even on the days of bar exam. Of course, no one can predict this exam. But, it can not hurt to put some extra time into an area that might be more likely to show up.

Thank you again for following the blog.

I wish you all the very best of luck on Tuesday. Remember to stay positive and to believe in yourself!

Best of luck to you all!

Lisa Duncanson
Program Director/Founder
Bar None Review

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