Tuesday, July 24, 2007

Can't get 'em back now!

The exam files, I'm talkin' about. I just received the e-mails from Examsoft that acknowledge the receipt of today's exams. Day one is in the books, campers. Let's go make some S'mores.

I wasn't going to post about the subjects we had today because I heard that the folks with accommodations, the ones who are getting more time to answer these darn things, might hit the net tonight in a search for clues as to what was tested. But then it was explained to me that the Bar schedules them such that there is no advantage.

Okay then. Here I go....

btw: I know I missed issues and didn't have enough time to fully discuss others that I saw. So feel free to chime in here with your thoughts.

Essay 1 - Real Property

Landlord tenant, commercial lease, periodic tenancy of the month-to-month nature. Apparently valid and written even though I didn't have time to bring up the Statute of Frauds (but I don't feel too bad because it wasn't a formation issue. I really only thought about when the tenant bailed without a written 30-day notice.) Tenant rents four offices on the 12th-floor of a new 20-floor building, $500/mo. There's a clause in the lease that obligates landlord to provide the "basic utilities", or "bare necessities", or some other Disney song. Anyway, I believe that clause was intended to make him contractually liable for the same stuff that that he would have been liable for if this was a residential lease. In other words, I figured that the clause was a legal substitute for the "implied warranty of habitability" because that warranty only applies to residential leases, and through this clause we have a way to hold him liable for the heating, plumbing, and electrical breaches in this fact pattern. Of course, that left me having to mention the same stuff under the implied warranty of quiet enjoyment that IS present in all leases, commercial or otherwise.

Anyway, all goes well for a few months until the "necessities" start failing, including the elevator. I think the elevator is more of a quiet enjoyment issue, being a common area and all. Anyway, she's on the 12th floor, so a working elevator for a commercial office building where people are trying to make a living is a serious matter.

So I went through the constructive eviction analysis as though it was a residential habitability issue and said she was justified in bailing out even though she probably should have provided written 30-day notice, but it was nice of her to provide the 2 1/2 month oral notice (should have mentioned SoF here). And I used that to mitigate his damages because he should have by looking for a new tenant.

I threw some other rules and duties in along the way but that's pretty much it. Now that I think about it, tenant could probably have hit him up for some sort of damages based on his constructive eviction of her business. But, again, I ran out of time. Anyway, this is probably all wrong. It would probably not be a bad idea to have them keep my room warm for my February stay.

Essay 2 - Torts (w/Secret-Civ-Pro xover)

This was a freakin' racehorse for me. Strict products liability based on design defect and inadequate labeling. I got into the whole "reasonable to expect a variety of uses, misuses, and un-freakin-believable uses of a blender in a average everyday ordinary household kitchen", including kids blending frogs and houseplants and their sister's science project. So because someone put hot liquid in your "Cold Drink" blender is not misuse such that you have any defense you silly manufacturer you. Then I went through their (lack of) defenses and found them liable via strict liability in tort.

At this time I realized I should have left more time for the negligence issue so I blitzed through that with less analysis than it deserved. And I was positively conclusory with Retailer's liability on both strict product liability (none, but contribution if held so) and negligence (only if he made it dangerous, and he didn't).

And I didn't even give the whole "Manufacturer's motion to dismiss" stuff a second thought. Not until much, much, much too late to do anything about it. But in my defense, I don't think I've ever seen a Torts / Civil Procedure crossover before. Ever. So, to the degree that the Civ Pro thing was important, I hosed that essay

Essay 3 - Plain old FRE-style Evidence

The Bastards.

They gave us an Evidence essay with no CA call. A civil trial, too. Can't even mention Prop 8. Blah. I did manage to mention CA's "item in dispute" relevance difference even though it felt odd because, again, they didn't even mention California evidence ONCE! They didn't even tell us the events took place in California! Not even a state bordering California or one that has laws just like the California Evidence Code!

The bastards!

Double Blah!

So, I just ripped through it like any other FRE Evidence question. I probably missed a whole ton of stuff because I was so shocked at HAVING NO CA STUFF TO TALK ABOUT!!! And now I'm thinking they did this back-to-back racehorse with the funny Torts call and the Evidence with no CEC just to freak us out. Well, it freaked me out.

The Bastards!

But I digress....

I barely finished it but I use the word "finish" like I wrote the whole thing properly. The previous Torts/Secret-Civ-Pro question took me 10 minutes longer than it should have so I had to get in and out of what would have been a racehorse Evidence essay on a good day. And I had to do it in 50 minutes. I started off strong but realized that I was going to have to get very conclusory if I wanted to finish. So I finished. But my last items went like this (read this very fast!):


This is relevant because it shows that Dave's car hit Polly's truck


Helper heard it personally, so it's reliable.


This is hearsay because it's offered for its truth.

Excited Utterance

Because the shriek about the car accident was made contemporaneous with the declarant's observation, it's not hearsay.

And now, because I barely ate all day, I'm going to get dinner then do 2,000 mBEs.

Okay, maybe only 1,000. (;-)>

btw: feel free to opine on my essay commentary. It's mostly what I wrote. I think. Anyway, it's what I remember.


Okay, Calbar Blondie, I'll throw in a P.S. here on PT-A.

I haven't written a complete PT under timed conditions yet. I had written what I thought was about 2/3 of my outline when she made the 5-minute call. So I hurried up and made a conclusion/recommendation that encompassed all of about two sentences. Then when she called 5-seconds I quickly decided to bold and center the conclusion header. Good Ideeea?!? Not. In my haste I ended up deleting it (the header only, thank God) and didn't even have enough time to do a CTRL/Z before she said "Time's up"!

It felt like a solid 60. I'm pretty sure it wasn't a 55 because I think I found the issues. But my time management skills are sorely lacking.

I was encouraged by the fact that it seemed straightforward enough and if I had given myself another 30 minutes, or managed my time a little better, I would have done a bang-up job. I have high hopes for Thursday!


Richard said...

hehehe - yay someone else did pretty much the same as me! (although i'm sure you did better! lol) That evidence one fuckin sucked - how fuckin long did I spend lookin at the evidence distinctions for them to test on basic FRE?! Like i said in my entry - I refused to anwer THEIR exam and stuck in odd bits of Cali evidence e.g. fact must be in dispute re: that end guy going through the red light... Whatever.... Onwards!!!

Richard said...

Oh and just noticed - the clock is dead!!! Seems so final... s-s-so coooold :(

Anonymous said...

Here's to hoping that's the last we'll see of property, evidence, and PR on essays!

Anonymous said...

call 1 - logical relevance, hearsay, present sense impression, state of mind of mechanic(?), expert opinion

call 2 - logical relevance, hearsay, business records, present recollection refreshed, past recollection recorded, learned treatise(yeah right), state of mind of mechanic (?), best evidence, opinion

call 3 - logical relevance, hearsay, effect on listener, state of mind, opinion

call 4 - logical relevance, hearsay, admission (exemption), admission (california?), not a declaration against interest due to availibility, present sense impression(?), state of mind of declarant

call 5 - logical relevance, legal relevance, hearsay, excited utterance (anonymous declarant ok), present sense impression

Now we don't have to do a full essay on Professional Responsibility since we had a performance on it yippie!

andrew said...

Bar Exam Brother,

My name is Andrew Leventhal - just another jew tryn to be a lawyer. I took in San Diego (home of the super bowl 42 champs).

Everything you mentioned about today's exam was EXACT far as as I am concerned. I raised everything you did. You are not wrong. The secret Civ Pro - but all you had to do is mention the standard (assuming all the allegations are true etc.)

But note, the calls were pointed and direct. They did it on purpose because they were sick and tired of people raising BOLIERPLATE products liability. Thus, they asked questions that went directly to specific elements and/or defenses of a SPL or negligence action.

Therefore, a general boilerplate exam without analyzing each interrogatory was IMPROPER.

L-T was fucking annoying; I prayed to hashem not have this. But they fucking love landlord tenant. At least there wasnt multiple assignments on both sides (i..e none at all).

The evidence question was weak - they thought they could confuse us at the end by saying "oh by the way, HELPER testified to the events above."

Fuck you dumb ass examiners for not testing Cal distinctions (EXCPET FOR relevance, and of course party admissions, and present sense impressions).

WE WILL SEE ON THURSDAY: PR (of course full blown duty laundry list), CIV PRO, and COMMUNITY PROPERTY/wills cross over, with a CRIME!!!! (unworthy heirs).

you passed pooo bah.

good vibes big guy.

calbar blondie said...

Exactly, Andrew. They threw in that Civpro twist with "motion to dismiss." No real CA law on this morning's exam if you ask me. I'm sure about 1/2 threw out something on the Evidence because we couldn't help ourselves, if only to say it didn't apply because it was civil not crim.
Poobah you said nothing about PT-A.

Anonymous said...

Landlord Tenant:
Tenancy for years (yea right), Tenancy at Will (no), Periodic Tenancy (yes)

Landlord's duty at common law - deliver legal posession of premises

Modern duties, implied warranties of habitability, quiet use and enjoyment (leases construed as contracts)

Inapplicability of habitability to commercial leases

Express warranty of "essential services"

Hit parade of warranty breaches (does lack of water make premises uninhabitable? intefere with quiet use? is it an essential service?)

Is it cold in december, heating doesn't work, mentioning lots of the facts.

Constructive eviction

Landlord cures conditions giving rise to cause for constructive eviction on the same day before tenant gives oral notice of termination of lease

Waiver of right to contend there was a constructive eviction due to failure to give notice prior to curing of the breaches?

Right of either party to terminate a periodic tenancy with adequate notice

Remedies of landlord at common law, let the land sit, collect rent

Remedies of landlord at modern law, duty to mitigate

issue of whether oral notice was adequate

anything else?

Anonymous said...

Strict liability in tort
defective product, stream of commerce, causation, damages

Duty to inspect, duty to warn, breaches, causation, damages

Misuse of product - not a defense to negligence, only to strict liability, no express instructions not to use for hot liquids, not a good defense

Lack of Care - contributory negligence - not a defense to strict liability, failure to exercise due care in following instructions on label, bars negligence claim

Comparative negligence functions to diminish plaintiff's recovery both in strict liability and negligence.

Assumption of Risk was not pleaded by defendant, but could be argued as a defense to either SL in tort or negligence. P disregarded the warning label.

Compliance with saftey commission's prescriptions might establish a rebuttable presumption that product is not defectively designed and that due care was exercised.

"sealed box" defense does not preclude plaintiff's recovery for SL in tort if a dangerous product was placed into stream of commerce, remedy is indemnification.

motion to dismiss for failure to state a claim or because an affirmitive defense applies requires judge to determine if judgment can be granted as a matter of law, he must view evidence in light most favorable to the non-moving party.

Anonymous said...

The weird thing about the property question was that it asked about the theories of recovery. Couldn;t it be a breach of contract and covenant to pay rent?
Also, it seemed to me that you needed to go through the negligence and strict liability in their entirety or otherwise, they're wont be a lot to say.

Anonymous said...

PT-A -
1) did she have access to confidences?
2) presumption she received confidences
3) were the confidences substantially factually similar? would they be of use in the present litigation?
4) her research used by board of trustees in formulating the medical care for indigents policy
5) her research has provided her with knowledge of internal liablity-shielding company policy and may have contributed the board's orchestration of these internal policies
6) must be disqualified
5) presumption that confidences were shared with her firm
5) irrebutable - minority, rebuttable, majority
6) timely and effective?
7) timliness - discuss conflict-checking program, issuance of memorandum
8) effectiveness - discuss 10 person office, 2 attorney project, her supervisory role, the physical proximity of their offices, the judge's belief that she has not disclosed confidences
9) balance - client's interest in choice of representation vs former client's interest in confidentiality, discuss hardships on both sides, contentions regarding availibility of alternate law firms to represent plaintiff, interest the firm has in keeping the case, precautions the firm should have taken (transfer her to other physical location...)
10) conclude that the ethical wall was sufficient given the circumstanes or insufficient under circumstances after all relevant considerations and tell the judge it is within his discretion to decide either way, since the Model Rules of professional conduct are silent

Karen said...

I feel just like you did. I started with question 3, as was my plan, and spent a moment just getting over the fact that it had no Cal call. I was pissed off about that and still mentioned the disputed fact distinction and the present sense impression distinction bc I just couldn't help it. In any case, I spent 70 minutes on the question and still had to be conclusory.

I messed up the torts question all over the place. I think I was just too nervous to remember how to write the rule statement. In any case, I made up some law and applied the facts to it... Good ideaaaa?

The way the property question was worded was real messed up on the committee's part. I don't think I've ever read such a one sided fact pattern and then seen a question as to what "theories" the other side would have a claim -- and I did all the questions from the last 5 years!

Here's hoping that I made up some points in the afternoon and that I'll do the same on Thursday morning. This morning was a lot harder that I expected as far as time and confusing questions. I'm disappointed about that both in myself and in the committee of examiners.

Holden said...
This comment has been removed by the author.
Holden said...

Predictions above are not great, though I agree that civ pro and community property are likely.

PR unlikely after full performance test on it.

All MBE subjects covered (they usually split three MBE and three non-MBE subjects) probably, though cross over possible still.

Wills has been tested a lot recently, trusts have not.

Remedies was loosely covered today so it may come up as a full or cross over tomorrow. What's left for it to cross over with if not an MBE subject? Maybe trusts, but seems like a stretch.

Likelihood of subjects (not that it's anything to do with reality, but some mildly uneducated guesses in order I'm guessing they'll come up):
(1) Civ pro
(2) community property
(3) remedies
(4) trusts
(5) business associations (corps, agency, partnership)
(6) Wills

Still could be a cross over with an MBE subject with one of the above or professional responsibility, but who knows.

Good job today everybody, see you in San Mateo (1200 people here it seems ... out of the ~8500 people taking it in California).

I love me some wax ear plugs though =)

Favorite roommate quotes:
"I hate the bar"
"Gonads and lighting"
"Filipino prisoners dancing to Thriller"
"Peanut butter jelly time!"

Stop freaking out and checking this shit on line!

please pass me said...

Here's the theory I came up with for relief on the property question. Not sure if it's correct but I gave it a shot.

She gave 2 1/2 months notice on a month to month lease. The notice was not effective because it should have been for the end of the month after she gave notice. Thus when she decided to stay after that time, she renewed the month to month tenancy and thus her notice was ineffective.
In the end I had her winning anyway due to the failure to mitigate for over a month after she actually left.
I just realized how confusing that explaination is and I fear I didn't do to much better on the exam. Oh well, 2 more days to make it up. Good luck to everybody over the next 2 days.

Cutie said...

i am sure you were doing pretty well and will be doing pretty well.

Tomorrow is your very powerful part, MBE... high 5.

Anonymous said...

Hi there. I passed July 2006 but have a friend who did not make it and is taking now. He described essay #2 as a "civ pro" and from reading what y'all wrote it is pretty clear it was a tort(e) with civ pro icing. Am curious exactly what was COQ and why my buddie thought it was a civ pro question. Also, what is your advice -- should I tell him it was torts before Thurs (he'll feel real bad and that might affect his performance) or not tell him (but then if there is a civ pro on Thurs he will have a shockeroo)?

Anonymous said...

It was definately a torts question with a tiny hint of civ pro (ie give the standard for motion to dismiss).
I think that Civ Pro is still on the plate and you should let him know that he can't count it out. If I were him I would want to know.

Karen said...

I have only received one confirmation email even tho both files uploaded yesterday at the same time.

Worried, I went to examsoft's website and found at that they have "problems" sending emails to gmail accounts.

If you in the same situation you can go to www.examsoft.com/calbar and log in to see what files have uploaded and when they did. You id and password should be your "file" number from the bar, not the applicant number.

calbar blondie said...

I got my confirming emails at 9pm Tuesday evening. I think their server got jammed up last night.
I'm waiting till about 8pm Thursday to upload. But will I be sober enough to do so??? Hmmm

slk said...

1st - thanks for the discussion. just a couple of additional points on the L-T Q: first, her 2 1/2 month notice isn't a gift - it was there to contradict the potential constructive eviction claim - const evict has a high threshold, and if it's ok to stick around for another couple of months, it was never that bad - - as demonstrated by the tenant's own conduct. also, I argued that no elevator plus 12th floor effectively equals violation of right to occupancy.

kind regards - slk