Tag Archives: Evidence

Performance Test: Last Minute Tips!

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Hello All,

Congratulations, you are three essays and one performance test away from being done with the California Bar Exam!

Please refer to my two earlier “predictions” posts for advice on tomorrow’s essays. If you have been following my blog, you will know that I do not claim to be able to predict the essays. I did have some very good predictions for day one (as in it was pretty close to what showed up). But, obviously the bar examiners can test anything tomorrow. So please do not assume that since the predictions were very close on day one’s essays, that tomorrow’s essays will prove to be as much of a match up. I would take a look at my predictions for examples of essay scenarios that could come up and I would also review any area of law that feels uncomfortable for you or that you think you might not remember (regardless of whether it is something I have “predicted” or not).

I want to wish you all the very best of luck on tomorrow’s exam. If you are new to my blog, I suggest reviewing the “predictions” posts from February 17th and 18th as well as yesterday’s post.

And now some last minute tips for the performance test:

1. Follow the instructions carefully! Exam pressure can lead to missing things and to misreading instructions – so slow it down enough to make sure you are not missing something in the instructions. You are going to base your whole answer on your interpretation of the senior partner memo (the letter to you from your would be boss) –so make certain you read it very carefully and more than once! (See more on following instructions, and evidencing that you have followed instructions, in # 2 below).

With respect to following instructions, do so to a T. If the senior partner memo tells you not to write a statement of facts, then do not write a statement of facts. Pay close attention to the instructions you are provided. Failure to adhere closely to these instructions will cost you dearly – so be careful!  Examinees are often in a rush to get through the materials quickly and end up missing something in the instructions, failing to pick up some of the easier points. So make sure you read through the senior partner memo a few times and be certain about what you are being asked to do.

2. Make your answer look like it is an answer to that particular performance test. Whatever you are asked to do on the performance test, make sure that you create a document that looks like what you were asked to produce. There will typically be two places from which to obtain your format and instructions for the document you are asked to prepare. The first source is the from the senior partner memo (the letter to you from your would be boss). The second source is also in the case file portion of your performance test and it is a firm wide memo (usually with the title: “To all associates . . .”) that provides instructions on how to write an appellate brief or a memorandum (or whatever it is that you are being asked to write). It is critical that you refer to both of these sources to make certain that you include all sections that you are supposed to include (assuming there are sections, i.e., statement of facts, or point headings, etc.) in your document.

These two sources will also help you to format and organize your document – for example, if you are asked to write a memorandum about the the Constitutionality of a proposed ordinance, then a) you need to make sure that your document is identified as a “memorandum” and b) you need to make certain that your document visually makes it clear that you are in fact addressing the constitutionality of a proposed ordinance. This may seem obvious and it may seem less important than figuring out what the cases mean, but the reality is that many examinees simply fail to do some of these very basic things and end up losing points. So, make certain that you do not forget to make your performance test answer look like it is the very document that you have been asked to produce.

3. How do I know which cases to use? Use them all if you can. Seriously. Really. Do not be afraid. Try to find a use for each case. That is it.

4. What part of the statutes should I include? Assuming you have statutes (not all performance tests do) then look to see which parts of the statutes are referred to in the cases. It is a pretty safe bet that you should also use the sections that the cases refer to as well.

5. Use headings. (first make sure you follow any format that you are instructed to follow). Always err on the side of following instructions. Some of your formatting will likely come from the instructions (either from the senior partner memo and/or potentially from a firm wide, memo to “all associates” in the case file). Remember that your performance test answer (whether it is a memorandum, a points and authorities, an appellate brief, a letter to a client, a closing or opening argument) it is still an exam answer. It will be graded by a human being and you need to be cognizant of that – make it easy to read and easy to follow. Use headings.

6. What if I don’t finish my answer? This is not an option. You need to make certain that you do finish your answer. Just do it. I take my job very seriously and I work hard, I go the distance, I do whatever it takes to get whatever I need done. Why am I telling you this? Because you should too – you should work your butt off and I don’t just mean in your preparation for the bar exam – but I mean right now, right now on this test, today. Suck it up and get through it. I know that sounds a bit harsh, but if you want to pass this thing then go after it, especially in these last hours. Insist on finishing today’s performance test – because you can and because you need to.

7. Okay, but what if I don’t finish my answer? Sigh. Okay, if you see that you are not going to finish what you had planned on writing, then adapt and do so quickly. The clock may not be your friend, but it does not have to be your enemy either. Watch it, keep track of your time. Don’t wait for the proctor to provide a time warning for you to know how much time you have left to finish. Keep track of your time and speed things up as you need to in order to finish your answer. And, if you are really up against the wall, then make it look like you have finished. If it is appropriate for the document that you are writing, then add a heading for “conclusion” and have a few sentences or a paragraph summarizing as best you can what you have written. And, you can even pre-write a conclusion if you think it will help (this is really only helpful to laptop examinees).

8. Be POSITIVE! (I know, how nice of me to yell at you to be positive :)) Seriously though, please do not be miserable – it will only hurt your performance. No one forced you to go to law school (well, I hope not). You presumedly wanted to do this, you want to be a lawyer. Therefore, today is about doing what you want to be doing – taking and passing the bar exam. Be proud of all the hard work you put in to get to where you are right now. So many people say things like: “I was going to go to law school” or “I always wanted to go to law school” . . . well you did go to law school. Be proud of that and don’t let the struggle of the bar exam take any of that away from you. Now go kick the bar exam’s butt!

All the best of luck tomorrow!

Please let me know if this blog helped you, I would love to hear from you: barexamguru@yahoo.com

Lisa Duncanson

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

Bar Exam Predictions: Part One

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Hello All,

Thank you for following the blog and for your patience this February regarding the expected Bar Exam Predictions. We had a record turn out in our class sessions and this “guru” has been very busy. Also, please understand that my enrolled students expect me to provide the predictions to them first. I hope that you find the materials available on thisblog helpful (see some of the “freestuff” if you haven’t already, for downloads).

Also, be sure to join our Bar Exam Tips List for additional tips and handouts, sign up here.

About my “predictions” I do not claim to be able to predict what will be tested on the California bar exam. Nor do I recommend that you study based upon anyone’s predictions. However, I do think it can be helpful to know of some possible essay scenarios when going into the bar exam. I base the essay scenarios that I come up with upon the following: 1) historically favorite areas of testing by the California Bar Examiners, 2) areas that have not been tested on the bar exam for some time (Criminal Law MURDER, for example) and 3) just my gut and my experience with the exam over the past twenty plus years.

This is PART ONE of my “predictions” – PART TWO will be a separate post tomorrow.

What I think is very possible to show up on the exam: First of all, you should know (if you do not already) that any topic can be tested on the essays AND that generally at least two topics (and I don’t just mean Professional Responsibility) will repeat from one bar exam round to the very next. And, some topics repeat three or more times back to back. My point: you should not dismiss any topic because it was already tested on the past two or even three bar exams.

Constitutional Law as a possible repeat topic – Constitutional Law was on the July 2015 bar exam. However, I think that Constitutional Law may be more likely to repeat since the testing of this subject last bar round was so narrow (regulatory takings) leaving most all areas untested. If Constitutional Law were to repeat, possible tested areas could include the Dormant Commerce Clause (as this has not been tested in years) or possibly the First Amendment (as this is one of the more heavily tested areas within Constitutional Law and is tested frequently).

What scenario generates a Dormant Commerce Clause issue? When you see a fact pattern with a state law that as applied treats out-of-staters differently than in-staters or taxes an activity that affects interstate commerce. The main issue will be whether or not the state law places an undue burden on interstate commerce. Remember that you will need to address the state’s power to act (under the powers reserved to the state via the 10th Amendment – that the state may regulate on behalf of Safety, Health, Welfare, Education and Morals of their citizens).

If you were to see an essay that tests the Dormant Commerce Clause you should be aware that this same essay could also generate issues in the following areas: 1) State action, 2) 11th Amendment Immunity (this would be a very brief discussion/mention on your exam), 3) Article III Case or Controversy requirements, 4) Substantive and Procedural Due Process 3) Privileges and Immunities (this is usually a brief discussion, if it comes up at all) and 5) a potential Contracts Clause violation. If you would like to see an example of a Dormant Commerce Clause exam testing some of these issues, be sure to join our bar exam tips list.

Professional Responsibility (areas that have not been tested in some time include: advertising rules, sexual relations with client, rules on perjury and rules for turning over evidence – for example a gun, or the whereabouts of a gun, given to attorney by client. Be sure to be able to note the ABA Rules and California distinction here. In addition, if you see an issue with respect to an a client giving their attorney evidence from a crime or telling the attorney the whereabouts of evidence of a crime – you should also address the tension between the duty of candor owed to the tribunal and the duty to keep client confidences and explain how this is resolved.

Always in Professional Responsibility you should be prepared to discuss the issue of an attorney’s withdrawal- when must an attorney withdraw, when may an attorney withdraw and how must an attorney withdraw properly (assuming the attorney may withdraw in the first place). In addition, always be sure to address any potential and actual conflicts on your exam (an example that has not been tested in some time is where a third party pays the attorney’s fees – for example: Mother pays for son’s legal fees – first this is generally discussed as a potential conflict. When and if it becomes an actual conflict – you should discuss the actual conflict).

Evidence – Evidence was not tested on the July 2015 bar exam. As a result, many are predicting this subject. Evidence could be tested as a full essay or as a cross-over or both. Be prepared for the possibility of a transcript style Evidence essay. Remember if you see this type of Evidence exam that you need to look to discuss form objections (For example: leading, non-responsive, etc.) and also, since it is a racehorse exam, you will likely need to discuss relevance in a somewhat truncated way.

While transcript style essays are not as common, this format has not been tested in some time and is therefore due. Be prepared to address form objections and all areas of Evidence, know your approach. Hearsay is of course the most commonly tested essay area of evidence. Other commonly tested areas within Evidence: Spousal and Marital Communications Privilege. Know all hearsay exceptions. Judicial Notice has not been tested in some time. This could show up as a short call or issue on your exam.

Evidence as a cross-over topic – Evidence is also possible as a cross-over with with any essay subject – including community property, wills (if so, then it would likely be marital and spousal privilege with the CA distinctions) or even a hearsay issue.

Criminal Law/Murder – It has been some time since the bar examiners have tested murder. Typically murder is tested in conjunction with Criminal Procedure, but can also be tested with other topics. I believe Criminal Procedure is a likely repeat topic from the July 2015 bar exam as it would be a good cross-over topic in the event you were to be tested on Criminal Law Murder. Be prepared for a repeat of a 4th Amendment issue (because the examiners certainly could repeat this) but more likely you may see a 5th, 6th and/or 8th Amendment issue crossed over with a murder exam. Evidence can also be tested in the Criminal Law context. If you do see this, be sure to mention Proposition 8, that it applies in California Criminal cases (this is typically just a mention on your exam – but only in the criminal context and only if you are being tested in evidence).

Wills/Trusts – Wills and Trusts could show up as a cross-over or you could see either topic tested separately. Understand there is no guarantee that these topics will show up. Things to remember about Wills and Trusts: both topics have a formation component as part of the approach. One area that is a favorite for testing within the area of Trusts are issues with respect to Trustee duties. In Wills issues with respect to omitted heirs, pretermitted heirs are very commonly tested. Wills formation issues come up and often require a discussion of dependent relative revocation – be prepared to discuss this issue when you see more than one will on your fact pattern.

Remedies – Either in Contracts or Torts. More on these topics tomorrow, but be on the look out for Torts Strict Liability (products liability or abnormally dangerous activities – again, more on this tomorrow). I think either Contracts or Torts could be tested and feel each is equally likely. Remedies is very likely to show up as it is tested frequently and could easily come up in conjunction with Torts or Contracts.

Stay tuned for PART TWO of my “predictions” tomorrow.

Remember, anything can be tested.

I love helping people pass the California bar exam. Be sure to sign up for the tips list.

All the best in your studies and on the exam!

Sincerely,

Lisa Duncanson
Bar Exam Guru
213-529-0990
barexamguru@yahoo.com

 

 

Bar Exam Predictions: July 2014 Bar Exam Part One

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Hello Everyone,

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. It is quite humbling and is truly an honor to have this reach into bar examinees’s lives and to be able offer some support and advice for free. It is one of my favorite things to do.

WHAT TO EXPECT FROM ME: I will post predictions here today and additional thoughts about predictions through the weekend. I will also post an update after day one of the bar exam, but this will be limited to thoughts about what might be on day three’s essays based upon day one’s essays. My “predictions” are really just possible essay scenarios that I think are a bit more likely on this bar round. Always, my enrolled students needs must come first. But, I will continue to post here as often as I can up through the bar exam.

WHAT SHOULD YOU DO WITH THIS INFORMATION? The point of making predictions is not to tell you that you should study these areas exclusively. It is simply intended as some guidance for what might show up and should it show up, the fact that you have given these areas a little bit of extra thought will feel very good on exam day. If you are weak in any of these areas, then it especially deserves some extra treatment. If you are weak in an area that is not on my list – you NEED to give that area extra attention. Do not assume something will not be on the bar exam. ANYTHING can be tested on the essays and you should have prepared with that in mind. Anyone who tells you something is not going to be tested is ignorant of what the bar exam in California is like – topics repeat back to back on multiple bar rounds – so do not discount any topic.

CAVEAT: NO ONE CAN PREDICT WHAT WILL BE TESTED ON THE BAR EXAM. 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.  I do not recommend that someone conduct their studies around predictions. However, I do think it is helpful to focus a little extra time on some of the areas that might be a bit more likely to show up on the bar exam – especially if any of these topics are areas that are weaker areas for you. So with that in mind here are some of my thoughts on what could be tested on the July 2014 bar exam . . .

Criminal Law – Murder, crossed with Criminal Procedure: Make sure you know your essay approach for murder – murder has not been tested in a very long time and it would make for a nice cross over with Criminal Procedure. Criminal Law and Criminal Procedure were not on the February 2014 bar exam. And prior to that, testing of Criminal Law has focused on the theft crimes and it has been an unusually long time since the bar examiners have tested murder. It is due for testing.

Business Organizations – I think Business Organizations is fairly likely. One possible scenario could include a cross-over with Professional Responsibility. Other potential ares include federal securities law (10b5 and 16b) as this area has not been tested in a very long time. However, more typical for testing in Business Organizations are: the areas of duties (duty of care owed by officers and directors and the defense of the business judgment rule and duty of loyalty), usurping corporate opportunity, ultra vires acts and what is required to bring a shareholder derivative suit. Be sure to know rules regarding “fundamental corporate changes” and what types of things amount to a fundamental corporate change requiring shareholder approval. What has yet to be tested is the area of “winding up” (or dissolution) of a partnership, be sure to know these rules as well.

Evidence (perhaps – finally – a transcript style essay). Evidence was tested heavily on the Performance Test in February 2014. However, it was not tested on the essay section of the bar exam and appears to be “due” . . . that being said, no one can predict the bar exam. I would, however, make sure that you know your form objections so that you are prepared for writing an Evidence Transcript style essay should you see one of these on the exam next week. Evidence is usually a race horse exam and requires you to move through many issues quickly. Equally likely, in my opinion, would be a Criminal Law/Procedure essay that is crossed with an Evidence issue. In past bar rounds the bar examiners have combined Wills/Community Property, and Evidence all into one essay exam. This sounds like a nightmare, but in actuality it is not bad at all. When an essay exam tests multiple subjects like this, the calls are usually made very clear for you. For example, in the Wills context, the bar examiners have tested Spousal and Marital Communications Privilege and when they did, the call of the question for the Evidence issue went like this: “Is the communication between Hal and Wilma privileged?” So, you see, that isn’t that bad – a call like this clearly directs you to address the only kind of privilege that Hal and Wilma could have (as a married couple).

Property – Covenants & Equitable Servitudes (I will write more on this soon).

Professional Responsibility (as you know Professional Responsibility is generally always tested on the essay section every bar round). Take a look at my predictions from February 2014 bar exam – you will note that I suggested that you could see a professional responsibility fact pattern that straddles corporations or in the criminal law context (it was tested in the criminal law context last time and could repeat that way again this time or may show up in the context of business organizations – for example, a lawyer who is representing a corporation and the specific issues that come up in that context. This did not show up on the last bar exam and as a result I feel it is a bit more likely).

Wills/Trusts I think is just about as likely for testing as Business Organizations. I am leaning towards perhaps a Trust formation issue somewhere on the exam. Again, these are my thoughts based upon my studies of the test over many years. This is not a sure thing at all – you should assume that anything could be tested.

Constitutional Law could repeat and if it does: be on the look out for a fact pattern involving state taxation of interstate commerce. First Amendment was tested last time (mostly religion, but also speech). The First Amendment is heavily tested on the bar exam, this could repeat, so be sure to know your First Amendment Speech approach.

Continue reading below this form for more predictions . . . 

For more insights, join our Bar Exam Tips and Predictions Email List and receive a free copy of our Evidence Handout, complete the form below:

Be sure to select “yes” or “no” in the drop down menus below and click on the “submit” button at the bottom of the form to be added to our list.

Note: This handout will be available until July 31, 2014.

Your contact information is safe – we do not share, or sell your information. Okay, back to possible areas of testing . . .

Civil Procedure could repeat: This topic was on the last bar exam and I think it could repeat. Remember, any topic can show up back to back on consecutive bar exams. You need to expect that – better yet – be prepared for any topic. So, if Civil Procedure were to repeat, what is perhaps the most likely? Well, the most commonly tested issues in civil procedure are jurisdictional issues (Personal Jurisdiction, Subject Matter Jurisdiction) as well as venue (generally always a very short issue in terms of how much time you should spend on it), removal (also a very short issue coverage) and collateral estoppel and res judicata. The last bar exam tested subject matter jurisdiction as well as final judgment rule and interlocutory appeals.

So, what specifically do I think could come up in Civil Procedure? Always Personal Jurisdiction and Subject Matter Jurisdiction are likely – since these areas are historical favorites for testing on the California bar exam. I think it is perhaps a bit more likely you might see personal jurisdiction over subject matter jurisdiction, but truly anything is fair game. Make sure you know personal jurisdiction (minimum contacts analysis) in case this is tested.

If Civil Procedure is tested again, what about California Civil Procedure?

There are some areas that we just have not seen tested in a while (and many of these areas actually have a Federal/CA distinction).  These areas – that have been tested heavily historically – but have not been tested recently – are where I am leaning a bit more heavily for this bar round in the event that Civil Procedure repeats in July.

The areas that I feel are particularly due include: Collateral Estoppel and Res Judicata (one of my first picks if you were to have Civil Procedure on this bar exam) and the possible tack on type issues of: Notice and Code Pleading and/or Remittitur and Additur. See more detail below:

Pleading issues – like Notice and Code Pleading – would not require a long discussion, but it is tested often and does include a Federal/CA distinction. Federal Courts utilize Notice Pleading and California follows Code (or what is also referred to as “Fact” pleading). Another tack on area (by tack on – I mean it is typically a shorter issue on your essay exam, not something that can make a full one hour essay) that I could imagine might be on this next bar exam is the concept of remitittur and additur. But, recognize that these “tack on” type issues of Notice/Code Pleading and Remittitur/Additur are typically short issues.

What about Supplemental Jurisdiction? Sure, it can always be tested. BUT, 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.

What about Class Actions? 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, Supplemental Jurisdiction) and Collateral Estoppel and Res Judicata the absence of Class Actions does not necessarily mean it is coming. So while class actions has been absent for many bar rounds, it is still no more likely in my mind, as jurisdiction or Collateral Estoppel and Res Judicata. But, if you were to see a class actions issue, it is easy. Simply know the requirements, state each and address each separately (using separate headings for each requirement).

Incidentally – 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 claim preclusion.

Okay, enough said about Civil Procedure! It may or may not show up, but if it does, I hope this post helps you.

I will post more thoughts on possible areas for testing very soon.

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.

All the best,

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

July Bar Exam Predictions: Possibly Civil Procedure, Evidence

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Hello all,

If you are studying for the July 2014 bar exam, you have just under 40 days to prepare. This may not seem like a lot of time to study, but it really is – especially if you commit right now to make the very best use of the time remaining.

How will you ensure that you are ready for the bar exam this July? That is a question that many examinees fail to ask themselves. One of the most important things you can do right now is to take control over your studying. Think about what you will have to do on day one of the bar exam and think about what you need to do to be ready to do it. Are you ready to handle any essay topic that comes your way? Will you know what to write and how to start your essay if you were tested on say products liability or what if you see an Evidence Transcript Style essay – would you know how to approach it? These are questions you should be asking yourself right now and not waiting until a week before the bar exam to think about.

Incidentally, the odds of your seeing an Evidence essay on this bar exam are pretty high in my opinion. That being the case, what are you doing right now to prepare for that possibility? Most examinees are reviewing outlines and watching video tapes about now. I don’t recommend this as a sound approach. While reading outlines should have a place in your studies, far too many examinees never leave their outlines and end up completely at a loss when it comes to writing their essays on exam day. It is critical that you get out of your outlines, turn off the videos, and review past California bar exam essays and answers. One of the very best ways to prepare for an Evidence essay (or any essay) is to simply study past essays. Learning the material in the context of the test will not only be a valuable substantive review, it will also enable you to see how the issues come up so that on exam day you will have a better likelihood of addressing the correct issues.

A bit about the predictions and what to expect:

I will be posting more predictions as it gets closer to the bar exam (I know, it is close already, but I do promise this material to my enrolled students first). Until then, read this post and then take a look at last February’s predictions – anything that did not show up on the last bar exam that I was leaning towards as possibilities for February, are even more likely now (at least that is my opinion). And, remember, it never makes sense to study around what is being predicted. Anything could be tested – so your goal is to be ready for whatever comes your way.

Side note: In February the bar examiners tested in the area of subjacent and lateral support. Prior to the February 2014 bar exam, one of the last times the bar examiners had tested subjacent and lateral support was in 1989. We provided this 1989 essay to our students. Every bar round I look the exam and think about areas that have not come up in many years and look for examples of those issues in past exams and I provide these exams to my students. As you can imagine, it is quite something to be on exam day and see an exam that you have just read and studied because someone drew it to your attention. It provides a huge boost of confidence. And, more importantly, you actually know how to handle the answer because you have actually seen it before.

Predictions:

Evidence: I have already mentioned Evidence as a possibility for this bar round. Remember that anything could come up on the essays and so you need to be prepared for anything. That being said, Evidence has not been tested on the essay portion for the past two bar rounds. It did show up heavily on Performance Test B on the February 2014 bar exam. However, I do think it is likely to show up on the essay this July. See my earlier post to join our email tips list and to receive a free Evidence handout. This hand out is a simple overview type of approach for writing Evidence Essays. If you are struggling with Evidence, or any topic, we have two more Bar Exam Cram Sessions prior to the July 2014 bar exam. For more information on our upcoming dates, click here.  I will provide more about Evidence and what I think is likely to be tested in the coming days.

Civil Procedure is a likely repeat. You may not want to hear this, but I think Civil Procedure will be on July bar exam. I know, it was just tested. But, you should know that the bar exam repeats essay topics every bar round and sometimes topics are repeated back to back three times in a row. If Civil Procedure is tested, I think that Collateral Estoppel and Res Judicata are likely to show up. If so, this provides a nice opportunity for testing in California Civil Procedure because you would likely need to address the California (and minority) Primary Rights view. If you do not know what this is, look it up (and/or stay tuned, I will provide a sample essay to those who join our tips list). It is not that hard, but if you have never seen it, well, it might as well be a foreign language. It is important to see and to know how these areas are tested, how these issues come up on an essay exam. The best way to do that it to review past exams. Reading an outline will not help much when it comes to figuring out how issues arise on a fact pattern. It is critical that you read past exams and answers so that you can start making these connections in time for exam day!

The bar examiners are fair.

You may disagree, but I truly believe that the bar exam is very fair. This is not to say that the bar exam is not hard. It is a very difficult test. But, it is also very doable. The problem is that far too many examinees do not actually do anything more than read and memorize the law. This is simply not enough. The bar exam requires you to think and to apply the law to factual situations. This is something that you need to practice. One of the best ways to prepare is to review past essay exams and to work through MBE questions. This will provide the best connection between how particular facts and issues are connected. And, it one of the best ways to learn and truly understand the law.

I will post more in the coming days and weeks.

If you find this blog helpful, please spread the word. And, don’t forget to join our bar exam tips list, see preceding post to join.

Remember to stay positive and to believe in yourself. You CAN do this! Stay tuned for more predictions. Wishing you all the very best in your studies!

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

Bar Exam “Predictions” – Part Three

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Hello All,

By now you have completed day two of the California bar exam! Congratulations on all of your hard work! You are nearly done!

I promised to write more about what to expect for tomorrow and to provide some advice on how to prepare this evening.

First, any topic can be tested. That being said, there are some subjects that seem to be more likely than others. I still stand by the predictions I have released to date – so I please review my previous posts (links to my earlier “predictions” are below). You will see that so far three of the areas that I have suggested were tested on day one.  Review my earlier posts below (“predictions – part one” and “predictions – part two”).  Also, bear in mind that often the bar examiners will test a full blown Professional Responsibility essay on day one and then repeat it again as a cross-over on one of the essays on day three. This is not unusual at all.

Predictions – Part One

Predictions – Part Two

When you go back and read the two earlier posts (links to each above) you will see that I have suggested Evidence and Property (I belive there is almost an equal likelihood that either could show up – with just a slightly higher preference towards Evidence being more likely) AND that either Civil Procedure or Criminal Law (specifically murder + Criminal Procedure or Criminal Procedure alone) could show up tomorrow. The bar examiners have tested the same subject on three bar rounds, back to back. Civil Procedure has been tested three times back to back in the past and so has Criminal Law. Either could show up tomorrow – so be ready for it. For a free approach handout for Evidence, see my earlier post below – fill out the form and we will send you the approach and additional tips via email 🙂

With respect to Criminal Law – murder has not shown up in a while. The last two bar exams both tested Criminal Law (but focused on possession crimes like larceny, embezzlement on the July 2012 exam and accomplice liability on the February 2013 bar exam). Neither exam tested any Criminal Procedure and neither tested murder. Therefore, I would most definitely review the murder approach (for a 10 minute coverage of a basic murder approach, click here and scroll down the page just a little and you will see a video of yours truly). Bear in mind this is a brief approach – but it does give you something to work with. We also have released portions of our Criminal Procedure Exam Writing Template on the Bar None Review website – you can download the exam writing templates for the 4th and 5th Amendments here and you can download our 8th Amendment Exam Writing Template here

I could absolutely envision and essay that tested both murder and either the 4th and 5th Amendments (this is one of the most common ways to see a cross over in Criminal Law and Criminal Procedure. However, another option – that has not shown up in some time – is the following scenario:

A murder exam (where you have to develop a murder discussion – this includes common law murder, which is a killing committed with malice aforethought, malice aforethought is proven four ways – you need to list all four and apply one or two, then address the statutory degrees of murder – first or second, address whether there is a basis for manslaughter – voluntary or involuntary and of course apply any available defenses – ALSO – be sure to follow the call(s) of the question as this may change your order or organization) plus 6th Amendment peremptory challenges or other jury issues and 8th Amendment capital punishment (review the 8th Amendment Exam Writing Template – see link above – for how to address this issue). These areas have been tested together on multiple occasions – but not in some time. As a result, I think it is due – at some point.

Other things to consider: Regardless of what anyone thinks is going to be on the exam, you need to be prepared for essentially any topic. It never hurts to spend a little extra time on areas that seem to be more likely than others. BUT, be sure to spend time on any area(s) that you feel are your weak areas. This is critical. The last thing you want to see is the subject you are least prepared for showing up tomorrow. Therefore, spend some time reviewing whatever subject you would consider being your “worst nightmare” and that way, if it does show up on the essays – you will be better prepared for it.

IF CIVIL PROCEDURE shows up tomorrow . . . I mentioned above, and in earlier posts, that Civil Procedure was a possibility. Civil Procedure has been a three-peater in the past – so it certainly could show up tomorrow. If it does, Collateral Estoppel and Res Judicata are areas that I think are likely. I say this for a couple of reasons: 1) Collateral Estoppel and Res Judicata have not been tested in a while, and 2) there is a California distinction that is testable – the Minority, Primary Rights Rule – it is worth a mention if you get an exam in this area. And, the Primary Rights Rule has been tested for years – well before the California bar examiners added California Civil Procedure. Class actions has also not been tested in some time. And, to date, the bar examiners have yet to test the concept of a “demurrer” or the responsive pleading available in California known as an “anti-slap suit” (note: an “anti-slap suit” is not a suit – it is a special motion that a party can file in response to a claim that is viewed as a SLAP Suit – an example of this would be something like this: plaintiff files a law suit against defendant for defamation and seeks (and obtains) a preliminary injunction to stop the plaintiff from publishing a newspaper (the subject of which Plaintiff claims contains defamatory material). In California the defendant can answer the complaint, can demurrer to the complaint or could file what is called an anti-slapp motion (or suit). This latter option would be on the basis that the original law suit was intended to harass the defendant and to prevent the defendant from doing something they were legally allowed to do (for example, exercise their right to speech).

Okay, I think this is enough for now . . . 🙂

I wish you all the very, very best of luck tomorrow. Trust your instincts and write, write, write!

If you have found this blog helpful and wish to make a donation, you can do so here:

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Remember to stay positive and to believe in yourself!

Best of luck to you all!

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

July 2013 Bar Exam: Some Final Thoughts and a Few Handouts . . .

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Hello All,

The bar exam is now just a day away. I wish all of you who are taking the exam tomorrow, the very best of luck!

If you would like to be added to our July 2013 Bar Exam Tips Email List and receive a Constitutional Law Handout, see my earlier post.

If you have read my prior posts, you know that Evidence is one of the subjects that I am leaning towards your seeing on the July 2013 bar exam. I also feel that Constitutional Law is a very likely possibility. Of course, you may not see either Constitutional Law or Evidence on the July 2013 bar exam. But if you were to see either subject on the essay portion of the exam, would you know how to handle it?

This might not seem like a question that you would want to ask yourself the afternoon before the bar exam  – but why not? If you do not know how to handle a Constitutional Law essay or an Evidence essay today, the day before you take the test, is it too late?  Should you give up?  Of course not.

So, if Constitutional Law is something you are fearing – then I would take a look over the subject again (preferably by relying on a condensed outline of some kind). In addition, I would recommend that you take a look at a few essays in Constitutional Law. I would do the same for Evidence. Both subjects can be race-horse exams. So, keep this in mind when you are writing your answers. Get to writing as quickly as you can.

I have attached as downloads, a past Constitutional Law Essay and a past Evidence Essay that I think are worth reviewing (yes – the day before the exam – why not)?

The reason I think it makes good sense to review this exam the day before is because of this simple fact – a very similar essay exam could appear on day one or day three of the California Bar Exam. Therefore, it just makes sense to read through both essays. You can download the Constitutional Law Essay here: ConLaw Handout 2 F-05 and the Evidence Essay here: Evidence Transcript Style Essay

A couple of thoughts about Evidence: If you were to see Evidence on the exam (as you know) Hearsay is likely. It is hard to imagine an Evidence exam without hearsay showing up. And, the most commonly tested exceptions are Present Sense Impression and Excited Utterance (and both exceptions should be discussed if you think either is colorable). I would review Judicial Notice and Subsequent Remedial Measures as I think either could come up if you have Evidence (or even as a cross-over on another topic). Also, I think Best Evidence Rule and perhaps a double hearsay issue are possible.

This Constitutional Law essay is from the February 2005 bar exam. I think it is worth a read. DO NOT test yourself on this. Instead, simply read through it (stay calm while you do so) and read and study the answer. Spend about 25 – 30 minutes on it (a few more minutes if you think you will benefit from it). The key here is to be able to glean some insights into both the approach for Constitutional Law (the approach that is embraced by the California Bar Examiners) and also how to handle an essay that is similar to this Constitutional Law exam. I think it is quite likely that you would see something like this tested. It is certainly possible. Given that possibility – it can not hurt you to read through it. And, remember, it is really important that you simply “read through it” – DO NOT TEST yourself on this – just read it and do your best to connect the dots between the fact pattern and what was generated in the answers. Focus on this: “If I were to get this particular essay exam on the actual bar exam, how would I write my answer?”

Hopefully, you would stick to the issues that are addressed in both answers and even better, if you do see something similar to this particular essay exam, you will remember how to handle it on exam day.

With respect to the Evidence Essay – note the style of writing (what I call a “shot-gun” type of approach) that is used in the exam answers. Both are brief where needed and get through all of the calls in a pretty efficient manner. Also note that in a transcript exam you need to be prepared to write on form objections (examples of form objections include: leading, compound, assumes facts not in evidence, non-responsive, etc.).

Help me help you . . . 

I will be posting again on Tuesday right after the essay portion of the bar exam – I will be counting on my students and blog followers to send me what was tested on the essay section of the bar exam so that I can update my predictions with respect to what I think might be more likely to show up on day three of the essay exam. So, if you have a moment, please email me after the essay portion of the bar exam on Tuesday. This will help me, help you – it is always good to have a sense of where to focus in these final days and even on the days of bar exam. Of course, no one can predict this exam. But, it can not hurt to put some extra time into an area that might be more likely to show up.

I will be hearing from my enrolled students on the break after the essays on Day One. But, the more people I hear from, the better I will have a fix on what was actually tested on Tuesday (essay wise) so that I can work up my next set of predictions for day three. Just a note – because there are some examinees with accommodations who will be taking the bar exam over a six day period (examinees with six day testing conditions, take the performance test on Wednesday), I will limit my discussion of PTA to the end of day two of the bar exam.

Thank you again for following the blog.

I wish you all the very best of luck tomorrow. Remember to stay positive and to believe in yourself!

Best of luck to you all!

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

California Bar Exam: Evidence Outline With California Distinctions

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Hello All,

We have had many requests for our Evidence Outline. As a result, we are now making our Evidence Outline available for sale outside of our bar review program. Bar None Review’s Evidence outline is the only outline available for the California bar exam that combines both the Federal Rules of Evidence and California Evidence Code into one, comprehensive outline including color coded distinctions (all California distinctions are in red and highlighted in yellow (see excerpt below).

We have done all of the work for you. The outline is easy to follow and is printed in color so that the California distinctions are easy to review. This outline is excellent both for the MBE as well as the Essay portion of the California bar exam (for the MBE portion, simply ignore the red California distinctions, for the essay portion, the California distinctions are incorporated into the body of the FRE outline where ever there is a distinction to be made).

BNR’s Evidence Outline with California Distinctions. We’ve done the work for you and incorporated all of the CEC distinctions into the Federal Rules, including Calif Prop 8.

Evidence Outline Excerpt: All California distinctions are noted in red and highlighted in yellow to make for easy review.

To order your outline, call 949-891-8831 or send an email to pass@barnonereview.com

The Evidence Outline with California Distinctions is available for $129.95 plus shipping.