I sent my students an email last night with some final thoughts and recommendations. I am copying and pasting some of it here for you as I think it will be helpful. This is from our Digging Deeper into the Bar Exam Series. Here you go!
First of all, congratulations on nearing the finish line for the February 2019 bar exam. It is almost here and you are ready! No one ever really feels ready. But, please take stock in all you have accomplished so far and know that you can do this! I want to provide some tips and recommendations for Sunday and Monday.
Things to look over on Sunday or Monday
There are a couple of areas that we have not seen tested for some years. Most of this has already been addressed in the Predictions Email. But, I wanted to draw your attention to the possibility of seeing abuse of process and malicious prosecution. This area is simple and very easy to address. It often comes up as a cross over with negligence. If you should see this area tested, handle it this way: address both abuse of process and malicious prosecution. Since abuse of process requires fewer elements, address it first and them move onto malicious prosecution. This area is worth a few minutes of review – make sure you know the definitions of each. It really is easy to write.
One of our predictions was Civil Procedure. I am sticking with that. While the most common areas of testing for Civil Procedure are jurisdictional issues (personal jurisdiction, subject matter jurisdiction) another area to give some attention to is collateral estoppel and res judicator. I know, no one likes this area. But, it makes for a nice cross over with California civil procedure – specifically, the primary rights view. Here is reminder about collateral estoppel and res judicata: “the Cs do not go together” – Collateral Estoppel is ISSUE preclusion and Res Judicator is CLAIM preclusion. Here is an excerpt from our Bar Exam Cram Sheets for Civil Procedure, just for ease of reference:
Binding Decisions – Remember the “Cs” don’t go together
Res Judicata (Claim Preclusion): If judgment is rendered in favor of a plaintiff in a particular suit, the plaintiff is precluded from raising claims (in any future litigation) that were raised in (or could have been raised) in that lawsuit.
Requirements: same parties, same claim; final judgment on the merits. Prevents reassertion of claimant’s cause of action since it was already decided on the merits.
Exception: Primary Rights View: Minority & California follow the primary rights view – where claims that stem from different primary rights may be brought separately and at different times (for example: car accident occurs. Plaintiff suffers personal injuries and property damage to her car. The personal injury claim is a primary right that is different than the property damage to her vehicle. Therefore, under jurisdictions following the primary rights view, if plaintiff only brings a claim for property damage and then later brings a claim for personal injury, her claim for personal injury would not be barred by Res Judicata because each claim stems from a different primary right.
Collateral Estoppel (Issue Preclusion): Issues of fact actually litigated and essential to prior case; judgment on the merits. Asserted against party to prior suit, by party (mutual) or non-party (non-mutual).
Another area to consider in civil procedure is the area of final judgments and interlocutory appeals. This is an easy area, again an excerpt from our Bar Exam Cram Sheets below.
Final Judgment Rule and Interlocutory Appeals: Final judgment required for appeal. Exceptions to Final Judgment Rule: Denial of motion for summary judgment or denial of motion for a new trial; judge certifies for appeal; pretrial orders involving temporary remedies, final judgments on collateral matters, interlocutory orders of great importance (eg, in a murder trial where defendant is denied bringing forth a defense during trial – the defendant may file an interlocutory appeal to the appellate court seeking review of the trial court’s denial of his bringing in his murder defense. Here it is allowed because it is a matter of great importance where much is at stake – potentially defendant’s life).
Now after all of this, you may not even see Civil Procedure on Tuesday. But, I think the above areas are worth a quick review, just so it is fresh in your mind should it come up.
Other areas to take a look at are the four tests for insanity (might come up) and also the area of licensee, invitee, trespassers (adult and child). I mention these not so much because I expect you to be tested in these areas, but because these are difficult areas to remember. So it is worth looking at close in time to the exam.
How Should I Spend My Time Sunday and Monday?
1. First, do your best to relax. It is completely appropriate to not spend a lot of time studying on Sunday or Monday. But, most examinees want to study. The key is to not over do it, to remain calm and to be positive.
2. Make sure you have everything you need packed and ready to go. Double check as you do not want to have to go shopping on Monday.
3. Review anything you want to review on Sunday – the Cram Sheets, a few essays, flash cards you may have made – anything. There is no right or wrong here – just work on or review whatever makes you comfortable. For me, I was terrified of getting Civil Procedure on the essays. So, I reviewed it for about thirty minutes over breakfast on day one of the bar exam. Essay number one was Civil Procedure. I had two ways to approach getting Civil Procedure. One was to be upset that Civil Procedure showed up and the other was to think how great it was that I just reviewed it an hour ago. I chose the latter. This is a really important thing to do – always turn things into a positive, always tell yourself that you can do it, that you are prepared and that you will do well.
4. Be confident. Know that you have prepared well. Believe that no matter what shows up on the exam, you can handle it.
5. Write, write, write or should I say: type, type, type. When you get to day one of the bar exam, write as much as possible. Claw your way through every exam and the PT. What I mean is that you need to fight for this, just do it and keep going and do not stop until time. Writing the five essays and PT should not feel like a walk in the park – no matter how prepared you are. You should work at a pace that allows you to produce a lot of material. You will not be graded on what you thought about and dismissed – you will get no points for that – unless you bring it up and dismiss it in your answer. That gets you points.
6. USE HEADINGS! Do not forget to use headings. Consider what your headings will be in advance – the approaches/cram sheets provide you with the order of things and is a great resource for headings. If possible, make time on the exam to go back and insert headings if you need to.
I hope this excerpt is helpful to you. Thank you for following the Bar Exam Guru Blog! Please share this with anyone you think could benefit,
I wish everyone the best of luck on the California bar exam!
Bar Exam Guru
Bar None Review, Established in 1998