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 Predictions: The February 2011 Bar Exam – Expect Some Cross-Over Essays and Repeat Topics from July

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Hello All,

First of all, good luck to all of those who are taking the February 2011 bar exam.

While it is not realistic to think that one could predict the topics on the bar exam, there are subjects that seem to each round seem more likely to appear than others.

Here is our list of topics that might show up this round:

Property (Two of the most common areas of testing in property are: 1)  landlord tenant issues and 2) easement issues (which can include recording statutes – the application of which will determine whether a successor in interest takes land subject to an easement). For landlord tenant issues the typical scenario is a leasehold with a non-assignments clause in the lease, tenant subleases to a new tenant in spite of the non-assignment provision, new tenant fails to pay rent, and there are arguments for non-payment of rent – constructive eviction (as long as the tenant actually moves out), partial eviction (if tenant stays) or breach of warranty of habitability (so long as it is a residential lease, but, discuss even if it is in a commercial lease setting and explain that generally the warranty of habitability is not extended to commercial leases. Less common areas of testing are: equitable servitudes and covenants real, takings (regulatory takings are the most likely as this gives you more to discuss than a simple taking) and land sale contracts. Covenants and Equitable Servitudes have been absent from the test for a spell, so if property were tested, I would not be surprised if it were in this area or another area that has not been seen on the exam recently which is land sale contract issues (which can include mortgages, whether there is good title, recording statutes)
Wills (but, expect it to be an oddball question – the reason for that is that since it has not been tested as recently as some of the subjects, it is likely to be a topic that most people will expect or predict. Therefore, in my opinion, the bar examiners, if they test Wills this round, would likely test it in a less than straightforward way).
Constitutional Law (First Amendment Religion has not been tested in some time now. Also, constitutionality of a statute is a likely option for testing – this is always very common. If Con Law is tested and it is not a First Amendment issue, then Standing/Case or Controversy Requirements are likely)
Professional Responsibility (This is an obvious prediction since it is on nearly every bar exam. In 1994, the California bar examiners announced that Professional Responsibility will be tested on the written portion of each bar exam. Of course this could mean the essays or the performance test or both. On most bar rounds, Professional Responsibility shows up on at least one day of the essay portion of the bar exam. However, on a few occasions the bar examiners have tested Professional Responsibility only on the performance test section. This is more rare, but, is a possibility).

Civil Procedure (The California bar examiners have yet to test any California specific rules of civil procedure since the addition of this area to the test in July of 2007. As a result, it would be expected that something from the California specific areas of Civil Procedure would show up soon – even if it is to simply address a demurrer (which is motion that is only available under the California Rules – while there is a similar mechanism under the Federal Rules of Civil Procedure (motion for summary judgment, for example) it is something that could come up on the exam.

The most commonly tested areas of Civil Procedure are jurisdictional issues – specifically 1) subject matter jurisdiction and 2) personal jurisdiction (requiring a minimum contacts analysis).

Federal subject matter jurisdiction involves either Federal Question or Diversity based jurisdiction. Diversity Jurisdiction questions require you to address the amount in controversy and diversity of citizenship – this often brings up the following sub-issues: 1) with respect to amount in controversy: aggregation of claims to meet the amount in controversy requirement, combining the value of equitable relief (injunctive relief for example) plus a lower damages amount to meet the amount in controversy requirement. 2) diversity of citizenship: corporate citizenship often becomes an issue, requiring a discussion of principle place of business, the muscle test and the nerve center test to determine citizenship. Also, a person’s domicile can be at issue for purposes of diversity – college student moves away for college, or person moves out of state to care for a family member – these are typical scenarios.

Diversity Jurisdiction questions lend to testing of the following issues: joinder of claims and parties and removal or venue.

Of all the areas of civil procedure that have not been tested in a while – class actions is an area that has not been seen on the exam for some time. At some point, it will be on the exam again).

If one were simply to “predict” the subtopic of Civil Procedure by what has been tested most recently and least recently, then Class Actions (which has been absent for some time now), then Collateral Estoppel/Res Judicata and finally jurisdictional issues. That would be the order of what is likely simply based upon what has not been on the test in some time (and recognizing that jurisdictional issues were tested fairly recently. Still, this is not how the bar always tests – reaching back to the subtopic that has not been tested in a long time. Like I said above, it isn’t a good idea to think you can predict this test. However, there are areas that you want to perhaps give a little extra attention to).

Expect topics from the last bar administration to repeat on this bar exam – From the last bar exam administration, I would expect three topics to repeat (that would mean three from the following: Torts, Criminal Law/Procedure, Evidence, Professional Responsibility, Community Property, and Business Organizations). My pick for the repeats are: Evidence, Professional Responsibility and either Crim Law/Pro or Corporations.

I am not leaning towards Corporations, but, if it were to show up, I would think that the securities area (10b5 & 16b) could come up OR a fact pattern that lends itself to Securities but, you are told to apply on the common law – this would limit you to fraud, misrep and ultra vires issues.

While Torts is not my first pick for topics to show up on this exam administration, topics repeat back to back all of the time. (Torts was tested on the last bar exam and has been a frequent topic for testing in the past several years). However, if Torts were to be tested on this bar exam, I would predict either Tort Remedies or defamation. Also, I would not be surprised to see a Torts/Contracts/Remedies cross over. This is not unusual and is due at some point in the relatively near future.

Cross-overs – Expect to get a few (Cross-over essays were absent from the last bar exam administration. As a result, I would expect a couple of essays to test multiple topics on this bar round. An easy crossover topic is always professional responsibility. Other good candidates for crossovers are: Evidence, Community Property, Wills&Trusts and Criminal Procedure. These are very commonly tested as cross over exams).

Evidence always lends itself to a great cross over exam since it can come up in nearly any context – a property essay for example, “At trial, Hal attempted to admit the statement of Wilma . . . ” The upside of a cross-over exam is that typically the bar examiners provide separate calls that identify the different topics (for example: Can Hal prevent Wilma from testifying in the probate case? This is an example of how a marital/spousal issue can come up as a cross over exam in Wills). The key thing to remember is that it will not be harder to write an essay that is a cross over. In fact, it may be easier since the calls on a cross-over essay generally make the issues pretty clear.

“Frequent Flyers” Any topic can repeat from one bar round to the next . . . and, in fact, it is not unusual to see one topic three times back to back. Yep, that’s right, the same subject on a February bar round, again on the following July bar round and then again on the following February bar round. Most people are surprised by this and make the mistake of thinking that if something was tested on the last bar administration that it is not likely to show up on the next bar exam. This could not be further from the truth. Typically you will see three subjects repeat from one bar round to the next (either as a whole essay or as part of an essay on a cross-over essay). Of these repeating topics, there have been a few over the years that have appeared back to back a little more frequently than other topics. Evidence has appeared three times back to back, Civil Procedure has appeared three times back to back, Community Property, Constitutional Law and Criminal La/Procedure have all repeated back to back on three successive bar rounds.

I know, not what you were expecting, right? Well, it just goes to show that you need to be equally prepared for every topic.

So, these are my thoughts on this upcoming test. I have been providing my students with sample tests in these areas through out our course. I do not like to “predict’ the test as I think that is a very foolish way to study for the exam. However, there ARE some topics that have not been on the exam in some time and as a result, I make certain that my students see essays in these areas as well as the commonly tested areas. Our students begin every class day by writing a past California bar essay. I use these practice essays as a way to ensure that our students get the the actual bar examination and don’t see anything on the essays that they have not already seen, studied and written before. It makes taking the bar exam a much, much easier experience.

Okay, one more thought – the 8th Amendment has not been tested on the California bar exam in some time. This typically includes either 8th Amendment bail issues (common past areas of testing included: right against excessive bail, that the purpose of bail is to ensure the Defendant’s appearance at trial and NOT to punish the Defendant, also that there is not a constitutional right to lower bail for indigents. Another past common area for the 8th Amendment is Cruel and Unusual Punishment with respect to the imposition of the death penalty – here the examiners are testing the adherence to the guidelines for imposition of the death penalty. If this is tested, it is often tested along with peremptory challenges – based upon belief or not believing in the death penalty).

And, as I think of it, 6th Amendment issues are always a favorite. See the Criminal Procedure Exam Writing Template (found on the Bar None Review website under “Exam Templates” at http://www.barnonereview.com

Good luck to all who are taking the February 2011 bar exam!!!

Sincerely,

Lisa Duncanson
Program Director/Founder
Bar None Review
(949) 891-8831
barnonereview.com