***Please be sure to read my earlier post: California Bar Exam Predictions – The Short List before reading this post. Also, please understand that my enrolled students who have paid for our courses, expect to receive this information early and as a result, I do not post until closer to the bar exam.
Remember, I do not claim to be able to predict what will be tested on the bar exam. Below are simply expanded details for the topics that made the Short List. These essay scenarios are worth thinking about as it is likely that some of it will be tested. In particular, it can be useful, just from a confidence/psychological standpoint to review possible essay scenarios as a way to get your brain thinking in the right mode and being open to possible areas of testing.
So here you go:
CRIMINAL LAW/Murder possibly crossed with Criminal Procedure – Not many are predicting Criminal Law or Criminal Procedure. This is likely because Criminal Law and Criminal Procedure were both just tested on the February 2017 bar. However, Criminal Law was tested only lightly (an entrapment issue) and there was no testing of the 6th or 8th Amendments.
It has been several years since the bar examiners have tested murder. Criminal Law has been tested fairly heavily over the years. But, murder has been absent from the essays for nearly ten years now. Typically murder is tested in conjunction with Criminal Procedure, but can also be tested with other topics or alone.
Note: the most recent testing of Criminal Procedure and Criminal Law on the February 2017 exam tested 4th and 5th Amendment in conjunction with a criminal law entrapment issue. The last time Criminal Procedure was tested prior to the February 2017 bar exam, was the July 2015 bar exam and it was virtually all 4th Amendment (again, leaving 6th and 8th Amendments untested). So, while Criminal Procedure has been tested recently, we have not seen much testing of the 6th amendment in some time and it has been even longer since we have seen testing of the 8th Amendment (death penalty issues, right to bail, cruel and unusual punishment, sentencing as a separate penalty phase). As a result, I do think that if you were to see Criminal Law Murder, that there is a good likelihood that it could be paired up with the 6th and/or 8th Amendments. Of course, you may not see Criminal Law or Criminal Procedure. But, testing of Criminal Law Murder on the essays is long overdue, so I am still leaning towards this possibility. Be prepared for it!
More on Criminal Procedure . . . should it show up at all on the essays . . .
One of the areas that has not been tested in a very long time are 6th Amendment jury issues (for example, peremptory challenges, race based challenges, Batson v. Kentucky challenge, challenges based upon belief against or opposition to the death penalty and 8th Amendment bail and cruel and unusual punishment issues). Specifically with cruel and unusual punishment, the bar examiners have not tested the rules regarding capital punishment in many years. This is an easy area, but if and when tested, students are often unprepared because it is such a small part of most examinees’ outlines. So be aware! Be sure to review these areas.
A few additional areas where I would put a bit more effort are: the four tests for insanity defense (see below), and accomplice liability and how it relates to the imposition of the death penalty in felony murder cases (imposition of the death penalty is limited to defendants who were “major contributors”). Obviously, the latter will only come up in the context of a felony murder exam with the death penalty – but just keep this in mind. You will want to be able to point out this limit on the imposition of the death penalty should it come up.
Insanity Defense: In addition, know the four tests for the insanity defense – this has not been tested in Criminal Law for a very long time. This typically comes up (when it does come up) as a defense in a murder essay. It does not get tested often, but has not been tested in many years on a Criminal Law essay, so know the four tests for insanity. By the way, if you do get tested on insanity defenses – just knowing that there are four tests is important. You will get credit for telling the bar grader that: “there are four tests for insanity.” Also, you don’t have to be perfect with respect to these rules (although you should certainly try to be, it is not what we see (perfect rules) in the released answers. Instead the focus is on issue spotting and resolving the issues. Of course the rules are important. But, my point is that they do not have to be perfect. Just write, just explain and show that you understand what is going on, why something is or isn’t an issue and do your best to resolve it.
Or Criminal Law alone:
Criminal Law alone is just as likely as a cross over with Criminal Procedure or another topic. If you were to get a Criminal Law essay alone (no cross-over with Criminal Procedure or anything else) then you want to recognize that there will be more to it than what you see in Criminal Law exams that are cross-overs. For example, you are more likely to see issues with respect to inchoate liability (solicitation, attempt and conspiracy). As a result, you need to be very clear on these rules and clear as to which merge into the large offense (solicitation and attempt) and which does not merge (conspiracy). In addition, with respect to conspiracy, be sure to know the minority and majority views – this is key and it is addressed in the Bar Exam Cram Sheet. You may also be more likely to have to discuss criminal law defenses in more detail if you are being tested on Criminal Law alone.
PROPERTY – Possibly Landlord/Tenant
If property is tested you should be aware that LandLord/Tenant is one of the most common areas for testing. Other favorite areas for testing in Property are the areas of joint tenancy and tenancy in common (when there is a severance of the joint tenancy) and the rights among co-tenants with respect to recovering rents, profits and as well as who has to pay taxes and “carrying costs” with respect to the property.
Finally, something that has been a trend in recent years is to test some of the more minutia based areas of property that were traditionally mostly reserved for the MBEs. Examples of this are: fee simple absolute (easy, just know the language here and what it means), future interests (yes, it is showing up on the essays – three times now in the past few years) and another favorite has been restraints on alienation. See the first page of the Property Bar Exam Cram Sheet for this coverage. And, as always, one of the best ways to prepare for any subject is to see and review past bar essays in that topic.
CONSTITUTIONAL LAW – Dormant Commerce Clause or 1st Amendment and
Alert: ALWAYS know Article III Case or Controversy Requirements of: State Action, Standing, issue must be Ripe, not Moot and not involve a Political Question.
If you were to see Constitutional Law, the following areas are my favorites for this round:
1) Dormant Commerce Clause or
2) Possibly the First Amendment – speech, religion or association (speech is one of the more heavily tested areas. If you were to get association, it is typically part of a Constitutional Law exam that tests other areas as well as association is a pretty short issue typically. Be aware that Freedom of Association can also be crossed over with other First Amendment issues).
COMMUNITY PROPERTY – Possible Value Enhanced Separate Property Owned Business
Look out for Van Camp and Pereira accounting methods. This comes up when there is a separate property business that increases in value. Also be on the look out for testable areas of: personal injury award, time rule for determining community property interest of pension, retirement or reimbursement for education or license. Always be on the look out for transmutation issues. Community Property was last tested on the July 2016 bar exam. The best way to prepare for Community Property is to review past exams. Beware of how the bar examiners test transmutations in Community Property. Most often, when the California bar examiners expect you to discuss transmutations, it is when there really isn’t a valid transmutation – but, they want you to bring it up and dismiss it.
This is tested on the essays virtually every bar round. Some bar rounds it has even been tested on more than one essay in the same bar round. In past bar rounds (where the bar examiners tested Professional Responsibility twice on the same bar round) it was split over day one and day three. Obviously, there is no day three now. So, could the bar examiners test a topic more than once all in day one? Yes, they could. Professional Responsibility, Contracts, Remedies and Evidence are all topics that have shown up on multiple essays within the same bar round. So be aware of this. It is not necessarily what I am leaning towards, but be aware that they can truly test anything and in fact, have tested even the same subject (especially professional responsibility) more than once on the same bar exam.
While anything in Professional Responsibility is fair game, the areas that have not been tested in some time include: the attorney advertising rules, 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. All of this being said, do not overlook the most commonly tested areas of Professional Responsibility (the duties, in particular duty to avoid conflicts and the duty of loyalty).
What else could come up in Professional Responsibility?
Professional Responsibility in the context of a corporation was tested not long ago (July 2016). This could come up again (because truly, the bar examiners can test anything). But, what might be more likely is an essay that deals with an attorney assisting a non-attorney in the unlicensed practice of law. This has been a favorite area of testing. If you have something like this it will be in the context of a lawyer going into business with a non-lawyer in a way that provides legal services OR a lawyer who is sharing profits with a non-lawyer. If you see either of these situations, you should call it out as a problem. It would not only create an issue with respect to a lawyer assisting a non-lawyer in the unlicensed practice of law, it would also potentially be a breach of the duty to provide candid advice. Understand that it will not be what the entire essay is about, but that you will get some points for noting that the lawyer is likely subject to discipline for assisting a non-lawyer in the unlicensed practice of law. Another area to be thinking of in general is Professional Responsibility in the Criminal Law context.
Other things to keep in mind with Professional Responsibility:
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 or must withdraw in the first place).
In addition, always be sure to address any potential and actual conflicts of interest on your exam. An example that has not been tested in some time that would generate a discussion of potential and actual conflicts is the scenario where a third party pays the attorney’s fees for the client. 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 (mother starts telling attorney how to handle son’s case) you should discuss the actual conflict. These are the points that passing bar exams are made of – when you are able to show the grader that you understand the difference between a situation that is, or could be, a potential conflict of interest and when it becomes an actual conflict of interest – you have just informed the grader that you are savvy and ready. This is more important than your ability to regurgitate precise rules. Just wanted to make that point.
And all of this on Professional Responsibility could be much a do about nothing – as some bar rounds the bar examiners leave it off of the essay portion. But, this is not the usual. So I would be prepared for Professional Responsibility.
If you get Civil Procedure: Bear in mind that the most common areas for testing in Civil Procedure are jurisdictional issues (personal jurisdiction, subject matter jurisdiction and venue). Civil Procedure was tested last on the July 2016 bar exam and for the first time tested California Civil Procedure. The prior time Civil Procedure was tested was on the July 2015 bar exam, and like many Civil Procedure essays, jurisdiction was tested. Don’t concern yourself with when a subject was last tested (that is my job). I mention it only to give you some background and to let you know where/why I might be coming from in terms of my “predictions.”
Areas that have not been tested in some time include: Class Actions (although this was tested in the context of the Performance Test on the July 2016 bar exam, so it is perhaps not as likely now), Notice and Code pleading distinctions (if tested this would be a tack on issue, not the whole essay. Remember that Federal courts follow Notice pleading and CA follows Code or Fact Pleading). Be sure to know the rules for Notice and Code Pleading as this includes a California and Federal Rules distinction.
As mentioned above in the “short list” of possibles, other testable tack on issues include: remittitur and addittur and the 7th Amendment right to a jury trial. Be sure to know the rules for remittur and addittur as this also presents a nice area of testing distinctions between California Civil Procedure and the Federal Rules. There is no guarantee you will or will not get Civil Procedure. But, be prepared for it (and yes, be prepared for the CA distinctions too)!
I know, this is a lot. But, this is the bar exam, and far better for you to be prepared for the possibilities – even if it is to simply know that these ARE the possibilities – than to walk into the exam and freak out because you have an Wills/CommunityProperty/Evidence cross-over exam.
What might repeat from the February 2017 bar exam and show up again on the July 2017 bar exam?
First – some topics WILL likely repeat from the February 2017 bar exam and show up again on the July 2017 bar exam.
Obviously, you would typically expect to see Professional Responsibility repeat – as it usually does – from one bar round to the next. However, you should not be surprised to see any of the topics that were tested on the February 2017 bar exam show up on the July 2017 bar exam.
EVIDENCE – perhaps as a cross-over (marital/spousal privilege, attorney client privilege or hearsay
Evidence makes for a great cross-over subject and can be tested with many different subjects (including – the fairly obvious cross-over with Criminal Procedure, but can also be tested as a cross over with Community Property and Wills – think about Marital and Spousal Communications Privileges as well as the California distinction with respect to these privileges. The area of Marital and Spousal Privilege is a highly testable areaand comes up frequently on the California bar essay section of the bar exam). So, by now you might quite possibly be getting very anxious about this idea of seeing Evidence with Community Property or Wills or whatever they decide to throw your way. Don’t be. When the bar examiners combine multiple subjects like this, they rarely do so by sneaking it in or hiding this from you. In fact, the examiners will typically provide separate calls asking asking about whether or not the communication between Hal and Wilma (husband and wife) is privileged. This would make it pretty clear that you are to discuss Marital and Spousal Privileges.
Evidence as a transcript style essay – not as likely, but just in case, take a look:
While Evidence is not on my main list in terms of being an entire essay, anything can repeat. While transcript style essays are not as common, this format has not been tested in some time and is therefore due. If Evidence were to repeat as a full essay, then you should 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 (like: leading, non-responsive, etc.) and also, since it is a racehorse exam, you will likely need to discuss relevance in a very truncated way (in other words, get in, get out).
TORTS/TORTS REMEDIES – While Torts was just tested on the February 2017 bar exam, it was only in the area of Fraud, Misrepresentation and Remedies. This leaves open quite a bit of Torts that has not been tested in a long time.
The most common area of testing in Torts is negligence. Areas of Torts that have not been tested in some time include: products liability and strict liability. Torts remedies is also possible. The bar examiners could also test one of the miscellaneous Tort areas like Abuse of Process and Malicious Prosecution, Interference with Contract/Prospective Advantage or Nuisance. If you were to see Nuisance, then you would likely also have coverage of Remedies. Be sure to know your basic approach for Tort Remedies (1. Damages, 2. Restitution and 3. Injunctive relief, know the specific types of Tort Damages, the specific types of Restitutionary Remedies and the elements of Injunction). Also, the tracing rules have not been tested in some time. I have included a handout for this area as well in case it is unfamiliar to you.
ALWAYS know your negligence approach very well as this is one of the more heavily tested areas of Torts. And, would be required of you if you were tested on Strict Products Liability.
The difficulty in “predicting” Torts for this bar round is that most everything has been tested in Torts and if you were to simply go with what was longest ago – well then Tort Remedies (with Nuisance, Trespass to Land and Chattels, Conversion and Remedies with heavy emphasis on the balancing of the hardships in Injunction). The next most likely in terms of how long ago it was tested, would be Products Liability. But, then when you look at the last time Defamation was tested, it was tested in an oddball way. So it wasn’t really a true Defamation exam. So what does all of this mean? Be ready (like you should be with any topic) for anything. The fact that when defamation was last tested it was an oddball type of question doesn’t mean that you will now see a defamation exam. I realize this is a bit of a kitchen sink in terms of what could come up in Torts. But, understand – they can test anything. You may not see Torts at all. But, if you do, keep some of these things in mind.
If BIZ ORGS were to repeat (not saying it is, but, here is what might be more likely if it does repeat):
If you were to get Business Organizations (even though it was just tested):
A favorite of the California bar examiners of late has been partnerships and or corporations that are formed for the purpose of providing legal services. The issue that seems to be a hot topic on these exams is: a lawyer assisting a non-lawyer in the unlicensed practice of law.
IN GENERAL – ALWAYS be mindful of REMEDIES! Remedies is tested frequently. In general, you should always be prepared to address Remedies – even if it is just a minor issue on an exam that is mostly testing something else. The bar examiners expect you to think like a lawyer and to resolve legal problems and issues. Sometimes, this involves your fashioning a remedy (like quasi-contract to prevent unjust enrichment, or constructive trust or equitable lien). You need to be aware that you can not, and should not, think of each subject in a vacuum. If you are in Community Property – you may very well need to discuss the remedy of constructive trust (if even only briefly in a sentence or two to simply explain to the grader that one spouse may be able to actually get property back from the other or even a third party).
Always be aware of the use of constructive trusts and equitable liens – these come up frequently on bar exams and should be discussed together (if you see an issue with respect to constructive trust, then endeavor to also discuss equitable lien and visa versa).
Remember, anything could be tested and you need to be prepared for that. Each bar round subjects repeat. As a result, you should be prepared for some of the topics that were tested on the February 2017 bar round to repeat on the July 2017 bar round.
The purpose of these “predictions” is to have you thinking about possible essay scenarios, close in time to the exam so that if you see any of these topics, you will have given these areas a bit of extra thought (even if all you did was read through the “Short List” and “Detail” posts.
I wish all who are studying for the July 2017 Bar Exam the very best of luck! Stay positive and believe in yourself!
All the best,
Lisa Duncanson Bar Exam Guru Founder/Program Director Bar None Review and Bar Exam Cram Session firstname.lastname@example.org