Friday, July 27, 2007

Thursday's Review

Let me say up front that if I end up with a score of less than 1440, it will be because of my performance on the PTs. On PT-A, I had no trouble finding the issues but I only left myself 75 or 80 minutes to write and I failed to control my tendency to elaborate on my reasoning. I’ve been so conditioned to not be conclusionary that I struggle to find a point past which further explanation is redundant, and therefore damaging to my cause.

Anyway, I decided that I wasn’t going to make the same mistake on PT-B so I went through it, determined to develop my attack plan in just over an hour. And I succeeded. I had two hours to write. Good Idea? We'll see. The challenge I found in that problem was that, at first glance, everything seemed to be material. I refocused my efforts after I started writing but I still wasted time on making my case for every claim I brought. I could/should have been more concise. But I think I did the right thing by attacking the capacity/marriage/annulment issue first. The other two items; the codicil and the rest of the estate, were handled by statute and didn’t require much discussion beyond recitation of the code and an explanation as to what result would occur.

Or, at least, that’s the way I handled it. I really have no clue as to what kind of score I’ll get on those. I hope it’s at least a 60, but if it’s that low on both then I’m sure I’ll be taking it again.

Can I get a “Blah?”


And now, on to the essays…

I went into the morning session with then intent to kick Major Bar Butt. But I couldn't find a Major so I settled for the closest 2nd Lieutenant I could sneak up behind. (;-)> I knew I needed to score some big points. Obviously, intent has nothing to do with reality but it speaks to my state of mind.

When I opened up the first essay I was surprised to see a Crim Law fact pattern in essay 4, with a murder call to boot! Everyone, and I mean “Everyone!” thought Crim Law had been hit hard in February so they wouldn’t have to bring it up in July in order to make room for the new stuff. Well… so much for conventional wisdom. I then looked at essay 5 and 6 and decided that I was going to rock this thing. Hey, sometimes it’s easier to be delusional than it is to be realistic.

Essay 1 – Criminal Law (murder)/Con Law (1st Am., free speech)

I started the first one by describing CL murder as an unlawful homicide with malice. I skipped the in-depth homicide explanation because it didn’t seem appropriate there so I just included it in the definition of murder. I went through the malice stuff and explained why I didn’t think it was present in any form. Then I defined 1st degree murder and said that P’s representative would claim that felony murder applied because of the “arson”. I then had D rebutting with the lack of malice, or even recklessness, not to mention the rest of the prima facie elements of arson, both at CL and ML. Next I had P’s rep claiming liability per se because of the statute violation, which D defeated by noting that this was not the harm the statute was designed to prevent.

I talked about voluntary manslaughter and dismissed it, then involuntary manslaughter and said maybe.

I forget exactly which way I went on the statute violation itself but I think I said he could be found liable because mistake of fact is no defense. Even if he only actually burned the Declaration of Independence, he thought it was the Constitution, and it would have been a crime but for that mistake so “guilty”.

Regarding the Con Law calls, I went through content related restrictions, protected and unprotected speech, and said the state needed a reason that was substantially related to a compelling state interest, and that wasn’t present. I then talked about conduct related, reasonable time, place, manner, restrictions and mentioned rational relationship to a legitimate state interest. And I forget on whose side I came down there. Probably the state’s. It didn’t appear that the state legislature was in session because there were only a few passersby and the steps of the capital building (or whatever it was) are a traditional public forum and despite the fact that he might have been more effective protesting federal spending in DC, he was within his rights to do it here.

Or something to that effect.

Essay 2 – Agency/Contracts

I opened this one up and immediately saw Agency. I know there have been different descriptions of what this was, but that’s what I saw.

I started by defining Specific Performance. At least, I started that way. I think my shaky definition started to veer towards sounding like an injunction so I stopped and hoped I’d remember it later, and that if I didn’t remember any more of it later, that what I had put down was sufficient.

Then I described how an Agency is formed and went into the fact pattern. I had a hard time deciding which way to go with this but I recognized the importance of talking about the contract through the filter of the Agency. My answer looked more like some of the old style (70’s and 80’s) answers in that it wasn’t the typical Contracts rule/element driven answer but more of an event driven answer with the pertinent rules woven in for emphasis.

I just went with my gut on this one. I truly adopted the attitude of, “Screw it. You know what you’re talking about. Just tell the grader what you see here.” I’ll probably read it in January and say, “What the hell was I thinking?!?”

But I talked about elements of the agency relationship and the fraud and misrep of the, what I thought was material, issue of Sally’s desire that the painting remain in private hands. And at the end, I tried to prove a writing enforceable by the statute of frauds through the check. But in the end I think Sally kept the painting.

Essay 3 – Community Property/Partnership/(Professional Responsibility?)

The CP fact pattern was easy to spot. I didn’t see the partnership element until after time was called but I did talk about the Firm’s fraud and H’s attempted improper gift of CP and W’s ability to get it back. I hope that was enough of a peripheral nod to the issue that the graders will give me partial credit for seeing it. Then I think that I should probably have mentioned PR in there because it was a law firm and they were acting badly. But, I had no time and, again, I hope what I did discuss was enough to tip the graders that I was going there. We’ll see,

The child support was basic. I talked about it being an SP debt that the CP could get reimbursement for and that the act of putting CP money into the account in H’s name only was not a valid transmutation because it was post-‘84 and a writing was needed.

Tuition was reimbursable to the CP at 50% because 5 years had passed since graduation. I think I said that the court would reimburse based on the entire balance because it was paid using CP funds. I'm not sure that my reasoning was clear on this but I think I came to the correct disposition. And while some subjects don't require a correct conclusion, I believe it's important in CP to get that right.

The law degree is obviously H’s SP. But W’s spousal support would be increased because of the imbalance. Again, a little fuzzy now. I know it was only 24 hours ago that I was writing the darn thing, but it seems like it was so very long ago. And it wasn’t the tequila because I had to drive home and the last thing I need is to get a DUI on the way home from the Bar exam, although I’m sure it’s happened.

And then I closed with the bad faith of H and the firm. That’s where I see that some PR could have been discussed, but I didn’t tumble to that until later.


And so ends the journey of The Grand Poobah, "To and through the July 2007 California Bar Exam."

I've enjoyed this blogging experience and I'll keep posting until ... I stop, I suppose. But that's likely to be down the road a ways. I've still got to find a job. If anyone out there knows of someone who's looking for a 1st career IT guy/2nd career attorney (soon to be, knock on my pine noggin'), please point them in my direction. I'll work for peanuts. Solid gold peanuts. Or silver if there's enough of 'em. Of course, cash is good too.

Thank God the Bar Exam is over. Now we can get on with the rest of our lives. And let's hope "the rest of our lives" doesn't include the Feb '08 exam (knocking.)

Again, please feel free to opine on my hazy recollections, and remember to "Mind the Gap". I mean, mind the prohibition against salty language and defamation.

Take care.


Anonymous said...

In the Crim/Con law essay, I also discussed the fact that the statute was a prior restraint, that it was vague and overbroad, and that it gave officials unfettered discretion.

What did you all write for the goodwill issue on the CP essay?

Anonymous said...

goodwill of a professional biz does not require Van Camp/Periera--i just mentioned that those dont apply. i said that courts allow expert witnesses. so W could get a financial accountant to assess the true good will.

Anonymous said...

i gave the same line about the expert witness. that's what the barbri lecturer said to tell the examiners, but in retrospect, i think it's a bit of a cop-out answer. of course, learning the formula wouldn't have helped much because the examiners didn't give us much info.

on the 1st amend question, i talked about symbolic speech mostly. compared the statute to the flag burning cases.

slk said...

a couple of random points:
re: conlaw/crimes - I went to torts as well, although intent is an issue (but hell, it is with murder too) so, trespass, and certainly strict liabiity offense as superseding intervening cause. an open barrel of flamable material within death-by-explosion range of a pedestrian (read: sidewalk) is strict liability. and because it busts the causal chain to hell, i think it's plenty germain to the interrog. and as far as the comment about overbreadth and vagueness as to the 1st Am question - the statute prohibited burning or mutilating of the US Constitution - how could that possibly be more specific or circumscribed? I think it's just out because of being impermissibly more restrictive in the sacred 1st Am free-speech field (pure supremacy).
on the CP Q - the rule on reimbursement of the community of child support payments from a previous marriage is that the community gets reimbursed only if SP funds had been available and not used to cover the child support. so there's no reimbursement on our facts (they both brought near nother to the community). note to future deadbeat dads: spend it all before you remarry.
kind regards - slk

slk said...

and I agree about the symbolic speech. compare draft card burning (no good because of the functional issue) and flag burning (ok b/c symbolic). and of course mistake of fact doesn't negative attempt.
kind regards - slk

Anonymous said...

As far as the overbroad issu: i would be liable under the statute if i had my copy of the US Constitution lying by the fireplace and a spark hit it and it ignited. Also, if I accidentally ran over a copy with my car, you'd be in violation of the statute.

"Intentionally mutilating or burning" would probably fix the overbreadth problem, but the statute specifically didn't say the word intentional. There was a reason.

I threw in void for vageness because who knows what the word "mutilate" means. If my puppy craps on it or eats part of it, is it mutilated?

Anonymous said...

GP--not that taking another exam sounds attractive right now, but have you thought of patent law? I would think an IT person would be sought out in patent law. If you have a hard science degree, you qualify automatically to take the test; if it's computer science, you have to provide documentation you took enough science/engineering classes. The test isn't that bad--one day, 6 hours--and the preparation wasn't nearly as intense as for the CA bar (I took it last summer). Might want to think about it.

Anonymous said...

regarding the con law question, it was NOT a prior restraint -- how can it be a prior restraint-- he was allowed to do what he did and then got punished for it. A prior restraint only occurs pretty much with a court order forbidding the speech (hence, restraining the speech prior to it being said). think about it, otherwise every law in this area would be a prior restraint requiring SS

the question also had nothing to do with it being a public forum, it rested on the o'brien symbolic speech test. the statute was not limiting the speech b/c it was a public forum or anything like that. You may have been able to say that it was overbroad because it prohibited both burning and mutilating if you found that the burning portion was unrelated to the suppression of the message (which is unlikely) but clearly the mutilation part would not be.

otherwise, the statute was not vague nor was it overbroad.

Anonymous said...

I feel better...I said NOTHING about overbroad and vagueness...and I kept missing that on practice essays so I couldn't believe I missed it again. Maybe I didn't miss it after all.

Karen said...

You cannot be guilty of attempt if what you attempt to do is not a crime. For example, you can't be guilty of attempt to receive stolen property if the property isn't stolen. You CAN be guilty of attempt if you make a mistake of fact but you are still attempt to commit a crime. For example, you can be guilty of murder if the gun is unloaded but you still took a substantial step.

Remember Chemerinsky: you are guilty of attempt if you end up frustrated. You are not guilty of attempt if you succeed in what you are trying to do.

Also, I didn't do anything about agency on Q5. I really don't think it was there because there was no enforcement issue with P. I did however, talk about a partner's ownership interest in a partnerships assets and management of the partnership and the fact that those are inalienable and couldn't be given to W so the court would offset.

Anonymous said...

yeah, i don't think you can be guilty of attempted statutory rape if the "minor" is in fact 20, even if the the defendant thinks the "minor" is 15. at common law, i believe the defense is called legal impossibility. it's a defense to attempt.

Anonymous said...

regarding the con law statute: it absolutely was a prior restraint. the statute prohibited symbolic speech before it occurred. that is the definition of a prior restraint.

even if you came to the conclusion it was not a prior restraint, the issue needed to be raised and disposed of.

andrew said...

Just glad its done like all.

Every time I read others' reactions/analyses etc. I freak myself out and find out every little way I was wrong.

But, then again, I realize AND WE SHOULD ALL REALIZE that the graders are not going to actually READ our papers like law professors.

They will skim our papers for headings to see if we got the issues they were looking for. Then, they will attach and "appropriate" score.

This means that anyone who studied and was listing plausible issues should pass.

Most saw and raised the same issues - although we interperted them differently, naturally.

Those who talked about Bankruptcy on Question 4, are the only ones who will fail.

Or, those who crossed their arms and took seventeen piss breaks during the exam, probably will fail. Have to atleast write something.

Good luck to all - great blog big guy.

calbar blondie said...

Remember an overall pass for essays is somewhere around 62 or 63. That is not terribly high, and can be offset by even one good PT score.

Anonymous said...

commentator -- it was not a prior restraint. an example of a prior restraint is a gag order, not a statute prohibiting destruction of the us constitution.

otherwise, why do you think there would have been a need to have a symbolic speech doctrine at all? according to the commentators view, the flag burning case could have been tossed out because it was a prior restraint. obviously it was not.

it probably won't hurt your score if you talked about it and decided that it didn't apply -- but it didn't need to be said.

Anonymous said...

alright - i am going to blame my foolishness in engaging in this post-bar analysis on the ridiculously nasty hangover i have been nursing all day.

so now, i am completely freaked out (even though my exam analysis pretty much followed those comments that have been made on this blog). i failed to discuss arson on essay 4 in any meaningful way. i discussed felony murder, of course, but quickly dismissed it.

did you all have an in-depth analysis of arson?

andrew said...

Dont worry about arson at ALL!!!

Please. That wouldnt have been wrong to raise, because there was FIRE on this 4.

But, discussing Arson in depth meant that you couldnt see the wealth of other more more more important issues on 4. These people held onto Felony Murder for dear life.

It was more proper to discuss misdemeanor manslaughter for purpose of Invo mansltghtr, b/c he was charged with just that - an unenumerated misdemeanor.

BTW - no accord and satisfaction on 5 - a refund of money doesnt create an accord, nor does it excuse an existing obligation. We need an agreement after contract (an accord) where the parties agree to a DIFFERENT performance in satisfaction of the prior obligations - to have an A and C.

andrew said...

Oh yea

the legal impossibility issue still trips me out. I said it was a legal, not factual imposs. But, I keep changing my mind and I really dont know the answer -

on 4, he had the specific intent to commit something that was a crime, but what he did was not a crime (at least in the facts, nothing said burning the dec of independce was a crime).

I really dont know now what the answer is.

On all the legal imposs MBE s I did, what would happen is this: D would intend to something that was not a crime, and then he would get charged with attempt to do something else that was in fact a crime.

This I guess, was not what happened here on 5.

I think I was wrong maybe.

This, the more I think about it, was a case of mistake of fact - D intends to commit something that is a crime, and COMPLETES THE ACT, but D is mistaken as so some facts that prevent him from completing the substantive offense ( that the document is not the US const).

I think waS wrong - mistake of fact was the deal i guess. Again, my brain thought it was legal imposs like KAREN SAID.

But I think Karen and I are wrong now.

BUT THEN AGAIN, WHO CARES!!! THEY WONT READ OUR ANALYSES, JUST THE HEADINGS, so was GOOD IDEA TO RAISE LEGAL V. FACTUAL IMPOSS which are defenses to attempt (when mistake of fact is not)? YES HONIE, that was a damn good idea.

lets all get super baked. were done. everyone on this website will pass. You guys all raise sound, intelligent points and clearly saw the issues and didnt dicuss child custody on 4, or leave with AN HOUR AND HALF LEFT TO GO. why do people do that???

calbar blondie said...

That is completely wrong about "only reading our headings." If that were the case, it would be very very easy to pass this exam or the essay portion at least. You cannot pass just showing you can spot issues. Ask any bar exam grader. Contact Whitney Roberts at the Bar Code, or Adachi himself. You definitely earn points in your analysis. This totally overrides a poorly-stated rule.

Anonymous said...

It was invol ms. That was the issue. Just couldn't quite get the rule. I think the midemeanor has to be criminal negligence.

The speech seemed to be 1st amendment prior restraint but would fall under fighting words or imminent lawlessness, rational basis. Maybe?

andrew said...

Sheesh Blondie,

And you suggested that I attend the JD Underground??? See e.g. "That is completely wrong about 'only reading our headings.'"

I am trying to be repsectful to everyone. We are all in this together; no need to try and constantly defend your position to this length or to scrutinize my responses to you can flatly object.

I appreciate your insight and welcome any diparities of opinion, but you sound pretty gross directing me to "higher authorities" like that.

I am not a dumb ass - I studied my ass off like you. I understand that analysis is important. BUT LET'S GET REAL - IN LAW SCHOOL ANALYSIS IS IMPORTANT - THAT IS HOW WE DID WELL IN SCHOOL. BUT ON THE BAR, WE HAVE TO BE CONCLUSORY TO HIT UP ALL THE ISSUES IN A MERE HOUR.

We get more points for raising issues than for a great analysis to cover up an innacurate rule. In other words, accurate rules + many issues = more points than innacurate rules and less issues.

Of course I wish the bar was like law school - analysis driven. If this were the case, then I wouldn't feel so uncomfortable with the damn test.

Let's be pragmatic here - the graders won't spend more than 2 minutes SKIMMING your 11 page answer. They will be looking to see if your looks like all the rest.

This means that our heated arguments regarding the proper analysis to some of these issues won't really hurt us for this exam. Of course, in law school, an innacurate legal statement and/or analysis is why folks place in the middle/bottom of the class.

And, this is EXACTLY why so many " not too sharp" people from my school passed last February.

People pass the bar for the wrong reasons and people fail the bar for the wrong reasons.

This is what makes the bar the beast that it is.

Did you do well in law school Blondie (serious question, out of respect and no sarcasm)?

andrew said...


no prior restraint, but of course raise it as boilerplate.

a prior restraint comes in two forms: 1) a court order or 2) an administrative licensing scheme (either by itself or pursuant to a larger statute).

But, a straight up statute that says "you can't do this" is not a prior restraint because the government is not either requiring one to seek permission to speak a certain way, or threatening a contempt citation if one speaks a certain way.

The statute's (on 5) ONLY regulatory effect operates to punish conduct (that communicates) after it happens, not prevent it before it occurs AND punish it if and when it does happen.

Does this make sense Anonymous?

Anonymous said...

Arson = malicious burning of *dwelling*--no dwelling here = no mention of arson on my essay. Mentioned FM but said N/A b/c only misdemeanor.

Factual impossibility (as was present in Q4) = no defense to attempt; legal impossibility would have been a defense but not in the facts (unless you argue that law was bad and therefore what D did was not illegal--but call of Q was re the burning of the wrong doc = factual impossibility).

Have to agree with the folks that say there was no prior restraint issue. They are correct.

Anonymous said...

Yeah imminent lawlessness I got that. I thought that the burning was unprotected speech to keep civilty. Rational Basis.

Anonymous said...

torts was not a consideration for the first essay. I looked at it several times posing the idea, but after a careful read of the question, the Q asked what the prosecutors can charge the person with. SO Torts would not be a valid discussion and you would probably loose points on any type of discussion

Anonymous said...

I was reading your blog and its great. You handled the CP question great.

What's funny is that I know someone who got a DUI on the way home from the bar.

Good luck next week!