California Bar Exam Predictions – The Short List

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Hello all,

First of all I want to wish you all the very best of luck in your studies and I want to thank you for following my blog. I am truly humbled by the responses from examinees who have sent emails – thank you so much. If you would like to reach me directly, please feel free to send me an email at: barexamguru@yahoo.com

If you have been following my blog you will know that I do not really like to call my “predictions” predictions. I do not claim to be able to predict the bar exam. I have simply come up with what I call essay scenarios that I think might be worth considering.

Please understand that my students who pay to take my course do not appreciate it if I release our “predictions” weeks in advance to the world. They pay for the privilege of our insights – at least they see it that way. So it simply isn’t fair to give away part of what they pay for to everyone else for free. In past rounds I have not made this available outside of our course.

A bit about the “Predictions”

First of all, I do not claim (nor would I ever claim) that I could predict what is going to be tested on the bar exam. However, I do think it is worthwhile to think about some possible essay scenarios when studying in the coming days. I also think that it makes sense to spend some time on topics that we have not seen on the exam in some time. However, any topic could show up on the bar exam. And, you should expect to see some of the topics that were tested on the February 2017 bar exam, to repeat on the July 2017 bar exam. Typically two or even three subjects will repeat from one bar exam to the very next bar exam. Also, in the past, out of six essays you would expect to see testing of about 8 topics (this allowed for cross-over essays). With only five essays, I would still expect to see at least one or two (maybe even more) cross-over essays.

Note: if a topic does not make my list, that does NOT mean it is not going to show up on the bar exam. You need to be prepared for EVERY topic. My coverage below is simply a suggested emphasis and by no means should you interpret this to mean that something should be excluded from your studies. ALL subjects are testable and all subjects can repeat, back to back, from one bar round to the next. You can almost bet that if you decide to leave a subject alone, that it will appear on the exam.

Why should I review past exams today? Reviewing past exams – right before the actual exam – will improve your chances of spotting the correct issues. Anytime you review an essay (and study the answer) it is really is a substantive review. By reviewing 3 or 4 Civil Procedure essays in a row, you will have a much better understanding of how to approach the subject if it shows up on the exam.

By the way, I believe Civil Procedure is likely (see “Short List” below). Of course, it may or may not be there. But, if it is, it would probably be nice to know that this may be the beginning (finally) of a trend toward California Civil Procedure. If it is, Notice and Code Pleading create a nice federal and California distinction point. The issue of additur (where a judge increases a jury award) also creates a nice federal and California distinction point. In cases of additur, it is available in California but NOT in federal courts as it violates the 7th Amendment right to a jury trial.  Many things are “due” or “up”. All of this being said – no one can predict this exam. Nor should you direct your studies away from a topic because it isn’t on someone’s list of predicted topics. That would be very, very foolish.

So all of that being said, here are a few thoughts on what I think could be tested:

The old, 3-day exam versus the new, 2-day exam and what it potentially means in term of subject coverage: In the past, when there were 6 essays, the Bar Examiners historically tested 8 or 9 topics (spread out over the 6 essays). Now that there are only 5 essays, I think you can still expect to see 7 to 9 topics tested as the examiners frequently test cross-over exams.

SHORT LIST of possibles (see detail in next post):

Criminal Law (Murder) or Torts (If Criminal Law Murder – possibly alone or crossed with Criminal Procedure or Evidence. If Torts – most any area if possible – but longest ago in terms of testing are Negligence and Products Liability.

Constitutional Law (Possibly First Amendment or Dormant Commerce Clause)

Professional Responsibility (look out for attorney advertising or assisting a non-lawyer in the unlicensed practice of law, and ALWAYS duty to avoid conflict of interests and duty of loyalty, more details in the “Detail” post)

Civil Procedure (jurisdictional issues are most commonly tested, but Res Judicata and Collateral Estoppel are a bit due. Also look out for: issues of remittitur/additur, pleading issues (like notice and code pleading), 7th Amendment right to a jury trial as these issues can come up as short answer, tack-on issues. The last time Civ Prop was tested (July 2016) California Civil Procedure came up for the very first time. This may be the beginning (finally) of a trend toward California Civil Procedure. If it is, Notice and Code Pleading create a nice federal and California distinction point. The issue of additur (where a judge increases a jury award) also creates a nice federal and California distinction point. In cases of additur, it is available in California but NOT in federal courts as it violates the 7th Amendment right to a jury trial.

Community Property (Possibly valuation of separate property business, personal injury award, time rule for determining community property interest of pension, retirement or reimbursement for education or license. Always be on look out for transmutation issue).

*Property or Contracts

If Property: (possibly landlord/tenant or landlord/tenant crossed with covenants and equitable servitudes). Property was last tested on the July 2016 bar exam. At that time, I was predicting either Easements (specifically in the land sale contract area) or Landlord/Tenant. Since the bar tested easements in the land-sale context that round, I am leaning more towards a Landlord/Tenant exam (if you see property at all on the essays) and possibly crossed over a non-assignment or non-sublease clause and covenants (for example, a covenant restricting what can be done on the land, a sublessee takes possession and starts breaching the covenant. Can the covenant be enforced against the sublessee? Is there another remedy available – perhaps enforcing the restriction as an equitable servitude? Don’t freak out. Just know that if there is a covenant on your exam that you should discuss both covenants and equitable servitudes as these most always go together. This is a scenario, in the landlord/tenant context that we have not seen tested in a while and as a result, it may be due.

If Contracts: While both of these topics are possible, I am leaning towards a possible: “either Property or Contracts” on this upcoming exam. Property and Contracts are a bit hard to predict for this bar round given the testing on the February 2017 exam. While neither Property or Contracts was really tested outright on the February 2017 exam essays, the bar examiners sort of tip-toed in the areas of both Property and Contracts (I am talking about the Tort/Remedies exam that tested Fraud and Misrep and Remedies).

Possible Repeat topics: (Remember – historically the California bar examiners repeat two or three topics from one bar round to the next. This includes the expected Professional Responsibility essay, which is rarely skipped).

Remedies as a possible repeat topic: Say what? Yes, it could repeat, anything can repeat. Remedies is on many bar exams back to back. What was not tested last bar round in Remedies: Injunction or Contract Remedies

Evidence as a possible repeat topic/crossover topic: Possibly as a cross-over with another topic – for example: Marital/Spousal Privilege, Attorney-Client Privilege or Hearsay issue crossed over with another subject. Be sure to know these privileges and rules and especially know the California/Federal distinctions in Marital and Spousal Privilege.

Professional Responsibility usually repeats (as listed above) Note: Per the California  State Bar Examiners own rules, PR will be on either the essay portion or on the performance test every bar round).

Criminal Law and Criminal Procedure possible repeat topic. Even though this subject made the main list of possibles, it really would be (if tested) a repeat. But, it has been so long since murder has been tested that I believe it is highly likely it will come up within the next year. It may be more likely to be on the February 2018 bar exam. BUT, if it were me taking the exam this July, I would most definitely be prepared for Criminal Law Murder or Criminal Law Murder with Criminal Procedure.

Keep in mind that anything can be tested. Do not dismiss any topic. First Amendment Speech was once tested three times back to back. Many other subjects have been tested three times in a row. Anything is possible. However, the above “predictions” are what I believe may be more probable essay scenarios for the July 2017 bar exam.

Remember that you can accomplish so much in these final hours. Tomorrow, you will be relying in part on short term memory, so make certain that you study well and review writing approaches. I am always stunned at how some examinees will say: “If I don’t already know it now, it is too late”. That could not be more untrue. It is NOT too late. Study essay approaches and read essays!

I wish all who are studying for this exam the very best of luck!

Sincerely,

Lisa Duncanson
Bar Exam Guru
Founder/Program Director
Bar None Review and Bar Exam Cram Session

California Bar Exam: Day 1 Essays

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Hello All,

By now, those of you who are taking the California bar exam have either finished or are about to finish day one’s essays! As soon as I hear from students as to what was tested on today’s essays, I will start working on updated predictions for Thursday’s essays.

I will not address or write about the performance test until after everyone has completed the entire bar exam. There are examinees who have accommodations that will be taking the bar exam over a six day period. Some examinees with accommodations will be taking the performance test next weekend. As a result, I will not discuss this portion of the test, or write about it, until after everyone has taken it.

However, the essays are fair game as everyone takes these on the same days. So, if you have a moment to send an email with what was tested on the essays today, please do so at: barexamguru@yahoo.com

Obviously, do what YOU need to do on your lunch break. I put no onus on my students to report in. But, some will, as will many of my blog followers. I greatly appreciate this as I am able to then provide some additional tips. Of course, there is no way to predict what will be tested on the essays or PTs. But, considering some possible essay scenarios is never a bad thing and simply gets you thinking.

Wishing you all the best,

Lisa Duncanson

Free How to Pass the CA Bar Exam Workshop!

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Hello all,

 

It is that time of year again and we are offering our free “How to Pass the California Bar Exam Workshop” to be held on November 22, 2016 from 7:00 pm to 9:30 pm.

This free workshop covers how to write for the California bar examiners as well as strategies and techniques for the MBE portion of the exam. Attendees receive a free copy of our Guide to Passing the California Bar Exam as well as bar exam writing templates for selected topics, free MBE handouts, and will have the opportunity to meet with the Bar Exam Guru (that’s me)! I will be teaching this workshop. As time permits, I will also address the Performance Test portion of the bar exam as well as a preview of some of my predictions for the February 2017 bar exam!

Space is limited. Click here to register now. I look forward to meeting you!

All the best to those of you who are waiting for July 2016 bar results! Good luck on November 18th!

Sincerely,

Lisa Duncanson
Bar Exam Guru and Founder/Program Director
Bar None Review and Bar Exam Cram Session

February 2015 California Bar Exam: What to Study for Day Three?

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Hello all,

Congratulations, you only have one more day! You are the very first group of bar examinees to ever take Civil Procedure MBEs. And, this time tomorrow night you will be done with the bar exam!  I know that many of you are anxious about what might show up on tomorrow’s essays and performance test. Hopefully this post will help ease some anxiety. That is my hope. If you feel you need more, be sure to sign up for our tips list (you can sign up below).

I promised I would provide an additional update to the “predictions” that I made earlier. So here we go:

If you have been following my blog  you may know that I will not discuss the performance test until next week as there will still be examinees taking the Performance Test this Saturday and Sunday (those examinees that are on a six day exam due to accommodations).  However, knowing what I do know about Performance Test A from day one, does not change any of my predictions that I made prior to the exam.

So, here is what I recommend you do this evening. Study . . . some. I really do think it makes a difference to do some studying the night before. Of course, this is up to you. But, I do believe that reviewing material the night before is helpful and I do think that you can still learn new material (although I hope you do not need to learn new material tonight).

Now what should you study?

1) Study any area that you fear seeing on the exam tomorrow. You do not want to walk into the exam tomorrow morning hoping that you do not see a particular topic. Also, don’t be so fearful – review that topic for a little bit and then put it away. Be confident that you will be able to figure it out well enough tomorrow should you see it tested on the essays.

2) Review the “predicted” areas (see earlier posts) and remember there is no way to predict what is going to show up tomorrow, I do not claim that I can do that at all nor do I recommend that examinees study around predictions. But, at this point, the night before the bar exam – it can not hurt to entertain some of the possible essay scenarios that could show up and give these a little thought.

Here are some of the areas I would likely consider for tomorrow:

Professional Responsibility could show up tomorrow as either an essay or on the Performance Test or both. My thoughts are it could be absent from the essays – occasionally the bar examiners skip it from the essays altogether. This is generally not the case, however, so I would prepare as though Professional Responsibility is going to be on one of the essays tomorrow.

Constitutional Law (possibly Dormant Commerce Clause) could come up – please read earlier posts for details. Review my earlier posts and  review the handout we provided (through Bar Exam Tips Emails) for approaching the Constitutionality of a state or federal statute. There is a particular approach for this that the bar examiners embrace – and – it is different depending upon whether you are asked to evaluate a state law or a federal law. Keep in mind that in addition to your typically required State Action and Case or Controversy requirements (standing, ripeness, mootness, and must not involve a political question) that when evaluating a state statute you need to address whether the state (or subdivision of the state – county, city, etc.) has the power to act. The power for the state to act would need to stem from those reserved to the state via the Tenth Amendment (states can regulate on behalf of the morals, health, welfare, education or safety of its citizens). There are several remaining steps depending upon the type of regulation that is at issue – assuming you end up facing a Constitutional Law essay tomorrow – it would be a good idea to be prepared for how to approach these areas. If you would like a free copy of our handout for Evaluating the Constitutionality of a State or Federal Law, just add our tips list below and we will send it out. Incidentally, this handout/approach covers how to handle a dormant commerce clause essay – since that IS a state law that is affecting interstate commerce in such a way that might place an undue burden on interstate commerce (that is the issue that comes up in the even that you have a dormant commerce clause exam).

Wills – either alone or crossed over with something else (Trusts, Community Property for example). I think Wills is very possible. Of course, there is NO WAY to predict what will show up on tomorrow’s essays or performance test. If, however, you were to see a Wills essay, the areas of integration, incorporation by reference and acts of independent legal significance are frequently tested (and often – believe it or not – come up together depending upon the essay fact pattern). Also commonly tested in Wills are issues with respect to an omitted or pretermitted heir. Ademption by extinction is also a frequent flyer. Be sure to know these rules so you are comfortable dealing with these areas.

If you do see Wills on the bar exam tomorrow, you may or may not be faced with determining the validity of a will – but if you are – and there is a prior will – then you need to address Dependent Relative Revocation (regardless of whether it will effectively revive a prior will or not – if it is ineffective – then address it and explain why DRR will not work – this is the stuff that passing (and better than passing essays are made of).

What if Criminal Law Murder shows up on an essay tomorrow? If it were me taking the exam tomorrow, I would make sure I reviewed the tests for Insanity Defenses – past bar exam answers instruct us that perfection with respect to the rule statements is not the most important thing and that your ability instead it is 1) your ability to correctly identify the issues and 2) your ability to have a thorough discussion and detailed analysis that is paramount. But, obviously, you will be most comfortable writing in any area if you have a really good grasp of the rules. The tests for insanity have not been tested in several years – so I would give that a quick review and do your best to make sure that you can discuss all four should it be presented on tomorrow’s exam.

What if you were to be tested on Torts again (it was on the July bar exam) – then I would not be surprise if Torts came up as either a cross over with Remedies or if you were to see Defamation or perhaps some of the miscellaneous tort issues (again – review my prior posts from this week – and understand – Torts is not on my list of “most likelies” – just understand that you should be prepared for anything).

Don’t forget that subjects repeat – so far Contract Remedies repeated from July 2014 to February 2015 – anything else from July 2014 can still repeat (read my prior posts about this – even Contract Remedies from day one could repeat). Torts from the last bar round (which was Negligence) could repeat – take a look at Torts, do not dismiss it or assume it can not be tested.

For other possible topic areas for testing, review my prior posts from earlier this week.

3) if you haven’t already, sign up for our tips list and I will send out our predictions and revised predictions to you via email. We will continue to send this out through this evening as long as possible).

You can sign up for our revised predictions and tips list here:

What else should I do?

Do your best to relax. You have just been through two very long and intense days. You need to have your wits about you for tomorrow. Focus on things that will help you and avoid things that will be counterproductive. What would be counterproductive? Dwelling on how you did (or did not do) on day one’s essays or performance test, talking about what you wrote on day one . . . this will not help, and it generally only leads to more anxiety which is not helpful.

Try to get some decent sleep.

If you can get a decent night’s sleep tonight that would obviously be great. But, recognize it may not be possible and simply be okay with that. Don’t dwell on the fact that you can’t sleep, just try your best to rest. At all times, be positive and keep a good frame of mind. You will do better for it tomorrow.

Don’t give up.

Absolutely do not give up. This test is often as much about perseverance as it is about your studies. And, let’s face it, to study well over a protracted period of time definitely requires perseverance. You graduated from law school For some, perhaps a few, that is relatively easy. But, for most, it takes a lot of dedication and perseverance. So you have this skill, use it tomorrow. Don’t let the test get to you.

Be positive.

This is so important. Tell yourself you are going to succeed. Actively work at being positive. Choose to be positive. Only you can make this choice, I highly recommend it.

Use Headings!

Your exam answer should be attractive and look organized. This should not be news to you, but if it is, be sure to use headings on your exams tomorrow. Let your headings to the heavy lifting for you! Make your exam answer easy to follow.

Write your heart out tomorrow!

The exam graders can not grade or give you points for what never makes it to the page. Whether you are using a laptop or handwriting, be sure to write as much as possible. Be sure to explain your reasoning. If you are dismissing an issue, I recommend that you dismiss it on your answer rather than leaving it off of your exam because you dismissed it in your head. Remember, the grader won’t know if you left an issue off because you chose to dismiss it or because you simply forgot.

I will continue to update this blog tomorrow, so stay tuned if you wish.

All the best of luck tomorrow!

Lisa Duncanson

Program Director/Founder
Bar None Review
(213) 529-0990
http://www.barexamcramsession.com and http://www.barnonereview.com

February 2012 Bar Exam Predictions, Tips and Essay Scenarios

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Hello All,

First of all I want to wish you all the very best of luck on the exam tomorrow. If you have been following my blog you will know that I do not really like to call my “predictions” predictions. I do not claim to be able to predict the bar exam. I have simply come up with some essay scenarios that I think might be worth considering. So, please review my “predictions” with that in mind.

There have been over 9,000 views of our blog in the past several days. Thank you for your interest . . . it definitely encourages me to continue providing free advice and handouts. I also want thank those of you who have expressed your appreciation via private emails – I truly appreciate it. And, I also appreciate your suggestions of things to include in the future. Please keep your suggestions coming after the bar exam. And, if you have any questions, I am still accepting questions via email at: pass@barnonereview.com at no charge. I will answer any and every question that I can.

After I learn what is tested on day one of the essays, I will post what I think may be more likely to show up on day three’s essays. I will be in Ontario, meeting with my student’s immediately after day one of the bar exam. I will put together my initial ideas about what I think might be tested on Thursday sometime tomorrow afternoon (while you are all taking the performance test). I will likely make some additional comments once I find out what was tested on the performance test. So . . . stay tuned.

Above all, stay positive, believe in yourself, trust your instincts and recognize that the bar examiners are not expecting perfection. At this point, believing in yourself is key, choose to believe that passing IS within your reach, it can only help you.

Best of luck to all who are taking the exam tomorrow!

Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com