I have decided to share some of my thoughts about what could be tested within the subject areas that the California State Bar “inadvertently” released. I am still stunned that this happened. I have much to say on this issue, but for now the most important thing for me to do is to give you the best advice that I can given the release of the tested topics.
So here goes . . .
First, here is what was released:
Question 1: Civil Procedure
Question 2: Remedies/Constitutional Law
Question 3: Criminal Law and Procedure
Question 4: Professional Responsibility
Question 5: Contracts
PT: Objective Memo – Evidence
Let’s tackle each . . .
Question 1: Civil Procedure: This was on my list of predicted topics. So it is not a surprise. Civil Procedure was lightly tested on the February 2019 bar exam – just a very short issue having to do with federal subject matter jurisdiction. It was barely a couple of paragraphs in the answers. So where should you focus?
Jurisdiction is the most commonly tested area of Civil Procedure (personal jurisdiction, subject matter jurisdiction, and if federal then supplemental jurisdiction often becomes an issue along with venue). California Civil Procedure is certainly a possibility. You should be prepared to address collateral estoppel and res judicata. Remember that collateral estoppel is issue preclusion and that res judicata is claim preclusion. Also, if this area is tested, be aware of the distinctions between federal and California with regard to claim preclusion and the Primary Rights rule (followed by a minority of jurisdictions and by California). You could easily see personal jurisdiction, subject matter jurisdiction and be required to discuss federal SMJ – possibly an essay that really poses and issue with regard to diversity of citizenship and amount in controversy. Remember that when amount in controversy is tested it often requires you to discuss aggregation of claims. One of the favorite areas is aggregation of claims against multiple defendants. This is how it is frequently tested: the plaintiff might sue Defendant A $60,000 dollars and also sue Defendant B for some type of injunctive relief. You will need to address that courts will afford a dollar value to the injunctive relief and that this could enable the amount of controversy to be met. However, it is limited to situations where Defendants are found to be joint tortfeasors. On past bar exam essays, the facts typically do not support finding that the defendants are joint tortfeasors but, it must be addressed.
Clearly anything is fair game at this point. But, I wanted to remind you of some of these highly testable areas.
Question 2: Remedies/Constitutional LawI know, you are probably saying: YIKES! But, let’s take this step by step. What is possible. First, it should be noted that to my knowledge there are no previous exams that the bar examiners have said were cross-overs with Remedies and Constitutional Law. While we have not seen this listed before (at least I haven’t) I do think it has been tested previously. For example, when there is a Fifth Amendment Taking, the claims are about damages in the sense that you are forced to address whether or not there has been a taking (almost always a regulatory taking) that would require just compensation which is fair market value at the time of the taking.
No, this is not a Remedies discussion per se, but it does address whether someone would be able to recover damages. So it could be what they are testing. I have a feeling there will be a bit more to it than that. Still, just respond to the question and do not be afraid. When the bar examiners tested cross over topics on one essay, they almost always break up the calls in a way that makes it clear what they are testing.
First Amendment Speech? In our June 2019 Bar Exam Cram Session I spent some time on “preliminary predictions.” One of the areas that I thought could come up was something in the area of speech. I thought possibly it could come on a Torts essay (defamation) or a Professional Responsibility essay testing attorney advertising/solicitation. This does not mean that it will be First Amendment Speech, but, you should be prepared for the possibility.
So, if it is First Amendment Speech, how would it cross-over with Remedies? This is something that has not been tested previously to my knowledge. But, both the fact pattern and the calls of the question will direct you. You will know from the calls what they want from you. It is interesting to me that Remedies was first (Remedies/Constitutional Law and not Constitutional Law/Remedies). If there is a prior restraint on speech and someone had damages as a result (not able to advertise, lost business). But, like you I am not sure how this will be tested. It could be a straight forward remedies discussion (and I would guess it would be torts) and then possibly a taking or speech issue.
Above all, do not freak out. It will be do-able.
Question 3: Criminal Law/Procedure: This was on our list of predictions. The California bar examiners have not tested Criminal Law Murder since February 2008. This was crossed with Criminal Procedure. Please review the essays I have provided on Criminal Law/Murder/CrimPro. Know your approach for murder and make sure that you are very familiar with 6th Amendment issues – especially peremptory challenges. Review the 8th Amendment, in particular the issue of whether imposition of the death penalty is constitutional. These two areas have not been tested in some time.
You should be aware that the most common combination with Criminal Law Murder is the 4th and 5th Amendments. The 6th Amendment and 8th Amendment have not been tested in a long time.
So how might the 6th and 8th Amendments be tested if crossed over with Criminal Law murder? Be on the look out for jury issues: peremptory strikes, Batson v. Kentucky issues, belief or opposition to the death penalty (juror is opposed to the death penalty may be dismissed if they can not convict because of the possible death sentence). Other areas tested: pro se representation and requests for standby counsel. There is no right to have stand by counsel, there is only a right to counsel. So, if a defendant want to proceed pro se, he or she can ask for standby counsel, but denial to provide standby counsel is not a violation of the defendant’s 6th Amendment rights.
The 8th Amendment: Right to bail (remember that if the defendant is indigent and makes a request for a lower bail amount, that there is no constitutional right to “cheaper” bail.
Eighth Amendment: whether or not the imposition of the death penalty is constitutional (you need to know the rules for this, guidelines, judge or jury must have the discretion to impose death sentence, NO automatic death sentence, separate penalty phase is required).
Also, just because we know that Criminal Law and Criminal Procedure are going to be on the July 2019 bar exam, it does not mean that it will be murder. I think it is extremely likely that murder will show up. But, make sure you review all of criminal law carefully.
Question 4: Professional Responsibility
This is no surprise. As you should be doing, review all of Professional Responsibility. Be cognizant of the bar examiners frequency of testing “potential” and “actual conflicts” as well as duty breaches of loyalty, candor, confidentiality and the areas of fees. These are highly tested. Initially, I was leaning towards either solicitation/attorney advertising (because of the absence of speech from the bar exam in recent administrations). However, it could be any area of Professional Responsibility. I would look out for testing of PR in the context of Business Organizations.
Question 5: Contracts
No surprise here either. Also, just because the State Bar only listed Contracts, does not mean that it would not also lead you into a discussion of Contract Remedies. But, when you see the bar examiners call it Contracts and not Contract/Remedies then you can expect that if Remedies is expected, that it will be fairly light.
UCC or Common Law?
My guess is that it will be a Common Law Contracts essay. This is simply because the last time Contracts was tested it was a UCC exam. But, obvious prepare for both.
What do I think will be likely if it is a Common Law Contracts essay?
Formation (offer, acceptance, consideration)
Defenses to formation – ALWAYS address Statute of Frauds whether it is is a bar or not (and it won’t be a defense to formation because if it is there is no more discussion. But, you need to discuss it).
Modification/ Attempted modification – typically an attempt to add a “time of the essence” clause into the contract. But, under the Common Law this requires NEW consideration. If it is a UCC exam, then you would likely have something like non-conforming goods with a confirmatory memo that potentially allows the new term or terms to become part of the Contract, since no new consideration is required under the UCC).
Breach – material breach – determined by by whether there was substantial performance
Excuse for non-performance – Impossibility, Commercial Impracticability and Frustration of Purpose – bring up ALL three and dismiss the defenses that are not met. Usually the strongest defense will be Commercial Impracticability.
Damages if appropriate.
PT: Objective Memo – Evidence
This is no surprise either. Evidence was likely to repeat and it is easily tested on the PT. I would be on the look out for excerpts of depositions or trial transcripts. The bar likes to test these areas and has not done so in a while. Of course, be ready for the usual suspects – hearsay, privileges, legal relevance objections, character objections. Even though this is a closed book exam, your knowledge of Evidence will help you in your organization. So keep that in mind.
I hope this helps ease your mind a bit.
Like I said above, I have a lot to say about the completely unprecedented and inappropriate release of the topics in advance to “some” California law school deans. But, your focus should be on what to do next.
Above all, be positive!
All the best to everyone who is studying for the the July 2019 California Bar Exam!
Lisa Duncanson Bar Exam Guru Founder Bar None Review, established 1999 email: firstname.lastname@example.org