First of all I want to wish you all the very best of luck in your studies this week 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: pass@barnonereview.com

Today, this blog will likely reach over 400,000 views. I am deeply humbled by the following. It truly gives me great satisfaction to be able to reach so many and to provide assistance to those who are in the midst of their bar studies.

A few caveats about my “predictions” . . . 

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. In the coming days (today included) I will be releasing these essay scenarios. Know that no one can predict what will be tested on the bar exam. And, anyone directing their studies completely around what someone has “predicted” is not making a sound bar exam prep decision. That being said, it cannot hurt to entertain potential essay scenarios – especially if this causes you to seek out examples and to improve the focus and intensity of your review. You should, of course, be prepared for any subject as any subject can be tested.

My commitment to my enrolled students: 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. However, last year, after being asked over and over again, and after discussing it with my paying students (how they felt about it) I decided to release “predictions” – or – possible essay scenarios.

So here is the plan, As I have done in the past year, I will release the essay scenarios I have come up with over the coming days (one or two topics a day). To do anything else would really not be fair to my enrolled students. I hope you understand.

So here are a few thoughts on what I think could be tested:

Constitutional Law: Note: this was on my list of possible repeat topics for the last bar exam. It did not repeat and therefore, now that it has been skipped for an entire bar round, it is a subject that many are predicting. I also think that Constitutional Law is a very likely subject for testing. Possible areas of testing within Constitutional Law: I think an essay that requires you to address the constitutionality of a statute (state or federal) which can then require you to address due process (both substantive due process and procedural due process), commerce clause, dormant commerce clause (if it is a state statute regulating an interstate activity). While this is not the only area that could be tested, it is an area that the bar examiners have not tested as recently as some of the other testable areas. Free Handout: I provide a free downloadable approach for determining the constitutionality of a state or federal statute –  this approach will tell you when you should and should not address 11 Amendment immunity and provides a checklist of the order of things to go through in writing an exam like this – often students do not understand how a constitutional law question can bring up many different issues – 11th Amendment Immunity, Due Process, Equal Protection and Commerce Clause OR Dormant Commerce Clause can all very easily be tested on the same essay exam. So it is often not a matter of which you discuss but, how quickly you can manage to discuss all of these topics. I will be making this handout available again through this blog later today.

Evidence (or as I like to call it: Off to the races):  Like most people would predict, I am leaning towards an Evidence exam. Transcript style has not been tested in some time so I would not be surprised if you see that. Bear in mind, most are predicting this topic. As a result, most have given this area a bit of extra treatment in their review. Evidence essays are typically racehorse exams. This is important to keep in mind because you will need to work quickly and begin writing your answer as soon as possible to allow for enough time to address as many relevant (sorry for the bad pun) issues as possible. Be sure to know your form objections (for example: leading, non-responsive, assumes facts not in evidence, etc.). A great way to prepare for any essay tested subject is to review past essay exams. This is particularly true of Constitutional Law and Evidence. By reviewing past exams you can develop an efficient approach (which is necessary for both of these topics as both typically involve many issues on just one fact pattern).

POSSIBLE REPEAT SUBJECTS APPEARING ON THE JULY 2013 BAR EXAM (third time could be a charm):

Every bar round, the bar examiners repeat subjects from the prior bar round. Therefore, you should not eliminate any topic or presume that a subject will not be tested this July simply because it showed up on the last bar round or, showed up on the last two consecutive bar rounds. That’s right – subjects repeat sometimes back to back – three times. Civil Procedure has appeared back to back three times as have many other subjects. Therefore, I would not be surprised – nor should you be surprised – if you were to see either Civil Procedure OR Criminal Law – tested again (for a third time in a row) on the this next bar exam. Below are a few scenarios to consider should you see either Civil Procedure repeat or Criminal Law repeat:

Civil Procedure could come up again:  Some of the most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. Another area that has not been tested all that recently is supplemental jurisdiction (bear in mind that if supplemental jurisdiction is tested, it will likely be what I refer to as a “tack on” issue or call because it would not be a large part of the question, but rather a shorter call within an essay exam). Typically you would expect supplemental jurisdiction to come up in the context of a Federal Diversity Jurisdiction essay. Class actions has not been tested in a very long time – I keep thinking that is due, but, If you look at what is most often tested in Civil Procedure it is jurisdiction (PJ and SMJ and Venue) and Collateral Estoppel and Res Judicata, it is not all that unusual that it has not come up in a while. Still, it is an area (Class Actions) that I would be certain to be familiar with in the event that it is tested. Even though class actions has been absent for many bar rounds, it is still no more likely in my mind, than jurisdiction or Collateral Estoppel and Res Judicata. What about California Civil Procedure? Well, one area that has yet to be tested on the California bar exam is the area of SLAPP Suits and Anti-Slapp Motions. I will write more about this possible area of testing in the coming days. In the meantime, I would give it a quick review.

Civil Procedure Tip: Be sure not to mix up Res Judicata and Collateral Estoppel – make sure you know which one is issue preclusion and which one is claim preclusion. Here is one way to keep the two straight: the “C”s do not go together – in other words: Collateral Estoppel is Issue Preclusion and Res Judicata is Claim Preclusion. Should you get tested on this area – be certain to make note of the California (and minority) “primary rights” view with respect to claims. If you need further explanation of the “primary rights” view – please let me know and I will add a bit more here.

Criminal Law – especially – crossed with Criminal Procedure could come up again: Criminal Law was tested last on the February 2013 bar exam and on the July 2012 bar exam. However, Criminal Procedure has not been tested recently and neither has a murder exam. (The  February 2013 exam tested accomplice liability heavily and did not include any criminal procedure and the July 2011 exam tested larceny and other possession crimes but, no murder). As a result, I think that a Criminal Law murder exam, crossed with a significant amount of Criminal Procedure is a good possibility. I also think that an exam with only Criminal Procedure is possible as well.

NOTE: I do not think it is incredibly likely that you will see both Criminal Law/Procedure and Civil Procedure on the July 2013 bar exam. However, I do think that each is as likely to show up – so be sure to review both topics – do not dismiss either subject.

Okay, so that is it for now. Okay, well maybe not . . . make sure you know the California tests for value enhanced separate property businesses (Van Camp and Pereira) . . . more on this (Community Property) soon (this should serve as a hint to one of the next topics on my “predictions” list).

In the meantime, keep at it. Believe in yourself and stay positive. Maintaining a positive attitude in the days leading up to the exam is key. There is still a lot of time – use it well. You should expect any topic and be ready for any topic. To that end – please read my prior posts about the importance of reading and studying past bar essays.

Clearly, no one should try to rely on predictions to guide their studies. You simply need to know everything as well as you can. Still, I think it can be helpful to have some possible essay scenarios to keep in mind especially in the few days leading up to the bar exam, just to have something new to focus on. Then in the event that you see any of it, you will feel good. And the odds that some of the above will be on the exam is fairly high (and that is not because I have some crystal ball, it is simply because there are only so many subjects, a person could throw a dart and get at least some right).

I hope this is helpful. Please, please understand that I give this out at this time as a way to be helpful and also to respect my enrolled students who are, after all, entitled to receive this information first. I wish you all the very best of luck. Best of luck to you all!

Lisa Duncanson
Program Director/Founder
Bar None Review
(213) 529-0990
barnonereview.com