Monday, March 3, 2008

Now that everyone's beat this thing to death ...

... I suppose I'll spend a few words on it.

Don't worry, I'll try to be brief.

In the Torts essay I talked about Strict Liability in Tort with its defenses. Then Negligence and its defenses. Then Attractive Nuisance, Public Nuisance, Private Nuisance, and Injunction. I went 5 minutes over but I made a serious effort to manage my time and I took a few extra minutes to make sure I put a little meat on the bones of my analysis. I didn't want to repeat my mistakes of July when I often simply wrote rules with conclusions. That was bad. This was better. I hope.

On the PR essay I started with duty of confidentiality then went to loyalty and the conflict of interest stuff. I talked about atty/client privilege and the options regarding past and future crimes of the client. The duty of candor to the court and responsibility to peers got stuck in there somewhere too. And about the only place where I could find differences between the CA & ABA rules was in the crimes of the client stuff. Looking back, I don't feel very confident about this one. I know the Bar likes to see clear rules with accurate analysis in which the wayward attorney has his license liquidated by the evil disciplinary arm of the State Bar. (;-)> I don't know if I was sufficiently punitive for the Bar's tastes.

I only had about 53 minutes for the CrimPro/CrimLaw essay but I felt like I know those subjects pretty well so I took just a few minutes to read the fact pattern a couple of times then went straight to writing. I spent 10 minutes each on the 5th and 6th Amendment issues then took 25 minutes to run through the whole homicide analysis from common law murder through involuntary manslaughter, and closed with self-defense (imperfect) and mistake. Again, in hindsight, my analysis looks thin.

I liked the first performance test. It seemed pretty straightforward to me and I felt like I had time to finish properly. However, because feeling good about any part of the exam is usually a bad sign, I now feel even worse about my chances.

The MBEs seemed pretty average compared to the ones I remember from July. All of my anxiety about how the NCBE has changed everything up was some seriously wasted energy. But append my feel-good/bad-sign admonition here and all seems lost.

Thursday essays seemed to be a little too ... common-sensical, if you will. I usually don't take a break in the essay sessions because there's so little time to waste. But I took a few minutes that morning to get a drink so I could get some perspective. I hope it worked.

The CP essay with the putative spouse was fairly simple. I only spent a few moments pondering what purpose the first wife served before I determined that she existed only as a means to create the putative spouse situation. I hope I was not wrong on that one. I didn't remember about quasi-marital property until later when I talked with a classmate from my writing class. Anyway, I spent most of my time talking about the different distributions of the property as quasi-community property, which it was not, and as the subject matter of a contractual relationship, which I decided was the proper result.

The Wills/Trusts essay would have been easy to write if I had an extra 30 minutes to think through all of the little plot twists they worked in there. I wrote about the formation of the trust and where it might be weak. Sis wasn't able to unilaterally revoke the trust. Sis may have exerted undue influence in the creation of the will. I included a bit about will formation and formal/holographic wills because they talked about witnesses. The precatory language in the note was not a valid codicil; acts of independent significance; incorporation by reference. But now I see that I could have worked in a line or two about dependent relative revocation if the note had been considered a valid holographic will. I think that I closed with a reference to Dora getting everything but I forgot to call her an omitted child. Blah.

The Corporations/Non-Partnership/Agency/Professional Responsibility fact pattern in the last essay was indeed full. Talked about invalid formation, de jure/de facto, estoppel/pre-incorporation contracts and the agency liability of both of the dudes. I worked in a full express/implied/apparent authority analysis for them as officers on each of the purchases, including novation/adoption, and talked about who would be left holding the bag. For the PR part I discussed working with a non-lawyer in a company that performs legal services, unauthorized practice of law, attorney supervision of non-attorneys, improper revenue sharing, the proper means of fee splitting; then wrote about what they did wrong and what they should have done to get it right. I hope I got the CA & ABA distinctions sorted properly.

Then, again, I risked incurring the wrath of the bar exam gods by feeling, at that particular moment in time, a wee bit of satisfaction about the product I had created up to that point. I know. Silly me. Insert good-feeling/bad-results warning here.

Not to worry though... PT-B kicked my butt. I didn't start typing until the one-hour mark and that was only to start my outline. I took a "lounge" break at that moment and started to freak out when I stole glances at everyone else's laptops and saw how much all y'all had already written. When I returned to my seat I scrambled to finish the outline then tried to get as much "on paper" as I could. When they called time, I felt confident that I had just written a solid 55 PT.

Blah3!

67 comments:

Anonymous said...

You "stole glances at everyone else's laptops"? Sounds like cheating to me.

thecalbaristhebaneofmyexistence said...

this entry struck fear in my heart.

could ya elaborate on PT A because i was so confused! i didn't understand what they wanted from the information given.

The Grand Poobah said...

Yeah, well, it's like this, see ...

It wasn't the glancing, per se, that was the best part of it. As you know, the rules specifically listed the things we could carry into the exam room. The rules didn't mention the things that "came with us" as we entered the room.

I had an accident back in ought-two ('02) that took my right eye. And it just so happens that I was in New Mexico when it happened. And because I was on my motorcycle out in the middle of nowhere (or so I thought) I was very surprised when a fully equipped medical team, including mobile surgical unit, rolled up and started triage.

It turns out that it was an Air Force emergency crash response unit that had just completed an investigation of a nearby UFO "landing". They were on their way back to the base when they saw my cloud of dust. They came to investigate just in case it was another Grey trying to get outside the perimeter.

Because they had been picking up the pieces from the UFO crash, they sorted through the stuff to see if there was anything they could insert in my eye socket to protect the tissue that became exposed when the eye that my parents gave me as a birthday present was compelled to leave the protective confines of my skull where it had resided happily, if not perfectly functionally, for the past 50+ years.

What the Air Force medics found was a small round metal ball that was just about the same size as the orifice previously occupied my my right ocular unit. So, sensing my immediate need, they popped the little orb right in there. "Perfect fit!" I heard them exclaim.

I was a bit concerned about having something unnatural, and unearthly, in my head, as you might imagine, but not overly so, because having something in that little pocket felt very much better that having it exposed to the dry desert air. But after a few minutes, I started to have second thoughts.

It seems the little "metal" orb was an alien intelligence gathering device. It was designed to fly around undetected and gather sensitive electronic and organic data on the Earth and its inhabitants for transmission back to the mother ship.

So now, lacking a functional base of operations as the mother ship was now scattered across the desert because of the "controlled landing" initiated by the Sidewinder from the Air Force F-15, the orb* started to integrate with my brain.

*(I call it Roy now because it feels like a son (Get it? Roy Orb Son?))

Over the next few weeks I began to see how lucky I was to have Roy in there. The Air Force people swore me to secrecy (but they said it was okay if I wrote about it on my blog), and turned me loose. The only catch is that I have to report back to them occasionally on Roy's ever-increasing capabilities.

As I mentioned, Roy and I have bonded and he has become very observant. It turns out that he's very competent in the observation department. Not only can he read 10-pt Arial text from the screen of a laptop at 50 feet, but he can tap into the wireless connection (if the adapter is disabled he can remotely enable it) and download the contents of the drive. He has 500-exabytes of non-volatile storage (Don't ask. Microsoft has already offered billions for the technology but Roy and I are bonded now. And whatever you do don't call Microsoft or you'll have a swarm of guys in black Suburbans in your front yard in about 5 minutes.)

And now, because the Exam is over, it can be revealed that my "nature trips" during the PTs were actually intelligence gathering missions.

After I returned to my seat, Roy compiled the data, sorted the great analysis from the merely good, and I began the process of assimilation.

Roy presented the processed info to my senses as fast as the human neurological system could handle it. If you saw me typing fast, it was because Roy has a hard time going so slow.

The point to this story is that you are only half right when you remarked that my "stealing glances" at the laptops of others is "cheating". I prefer to call it "last-minute studying" with my study group, which consists of all of you who were in that room on Tuesday and Thursday afternoon. Thanks for your input!

I instructed Roy erase most of what he downloaded from your hard drives, but he's going to need a few more days to erase the memory of some of the stuff he saw. Apparently aliens, and even their technology, has taste. (;-)>

(The account of the story you have just read is fictional. Any resemblance to actual persons is purely unintentional. Any law-student work-product referenced above is solely the work of the author. Do not fold, spindle, or mutilate. Federal law provides for strict and severe penalties for non-compliance.)

Have a nice day.

(;-)>

stella said...

GP, I began reading this and then had that feeling of doom come over me again. I'm trying to refrain from doing things that may cause shock and heart attack. From what I briefly saw though, it looks like you did great! :)

RACHEL said...

GP, I think you and I came to the bar in the same boat. If you passed, I passed! I think I discussed pretty much everything like you did (I too forgot the pretermitted child argument in the Wills/Trusts question and realized it five minutes after I closed my exam), except I felt the exact opposite about PT-A and PT-B. I thought the first PT was positively wretched and I struggled to figure out what they were looking for, but PT-B came pretty easily to me. Then again, I started typing my outline 35 minutes in and was writing by the one hour mark. I used every bit of those remaining two hours to cram information in there. If nothing else, that second PT was certainly an endurance test. It was, however, the best I've ever felt about a performance test (and I've taken two other state bars prior to coming to CA). Then again, as you said, that may not be a good sign.

I could have organized my time a bit better as I ran myself short on both the crim and corporations questions. I had all the salient points on the page, but I know I could have garnered some more affection from the bar gods if I'd had a few more minutes to analyze and throw in some more facts.

The CP question is the one that is still giving me nightmares. I'm a family law attorney so I strolled into Essay #5 very confidently, only to be struck with fear over the whole putative spouse bit (which, in my three+ years of practice, has never once come up in any case I've ever heard of). I remembered the QMP distinction but couldn't decide exactly how to apply it. I have woken up in a cold sweat more than once since the exam with thoughts of ways I could have improved that answer. It's making me crazy!

The Grand Poobah said...

cbitbome: I wish I could elaborate. Like the traumatic experience that it was, I've put it out of my mind. Seriously! All I can remember now is that I felt okay about it.

Thanks Stella, I hope you're right! I hope we're both done with this thing now.

The Grand Poobah said...

Rachel: Yep, it sounds like we're on the same page. It's tough to see all of the issues and then it's even tougher to get a complete analysis down for all of the issues we see. I just hope my presentation is better this time than it was in July.

It's funny that I had no Bar Nightmares before the exam, but I'm having them now. The good thing about having them after is that they can't increase our stress!

Anonymous said...

I too called it QCP, do you think that the examiners will really hound us for that? Especially when it has the same principles as QMP, it does change the analysis it just changes the word. What are your thoughts?

Anonymous said...

i know noone knows for sure, but i'd appreciate your take.

in Q#1, i didnt mention the nuisances.

in Q#6, i ran out of time because of the wills question, so i could only get in--unauthorized practice of law.

based off this alone, should i start studying for july?

Richard R said...

I'm a member of two bars and this was my first attempt at the CA Bar - which would be my third bar membership. I have one piece of advice. Everyone chill. The goal is only a 70. That means, we can all miss at least a couple of sizable chunks of a few answers and still easily pass as long as we had solid answers elsewhere. Did you miss nuisance? So what, you get a 65 or 70 on this essay. As long as you get a 75 or 80 on another, no problem. Throw in a few extra points for scaling and if you made it.

I remember coming out of the New Mexico bar in 2001 and a friend mentioned how the K was voidable because the kid was only 17. I utterly forgot to put that, I panicked, I stressed, it ate me alive for ~3 months. Then, when I received my scores, it turns out I smoked the bar exam, no problem. While California does leave less room for error, if you feel strong about your performance, you probably did fine. The majority of those who failed, already know who they are. I noticed this on the last day. Several people around me were on the verge of tears and admitting out loud that the sword of Damocles had just dropped. This is probably around 25-30% of the test takers. That leaves great odds for the rest of us. And if were marginal and only just slightly missed the mark, you're in one hell of a good position to pass the next time.

I noticed several issues that GP mentions that I missed, I also see a few he missed that I got (I won't mention them). But it sounds like he did a solid job and should probably easily pass.

The Grand Poobah said...

Richard's exactly right. The issues I saw are not the only ones, nor are they necessarily the correct ones, and some of them could have been figments of my imagination. (I blame Roy for those imaginary ones!) (;-)>

I posted my interpretations because I'm one of those odd people who likes to talk about the exam with his friends. The one thing that we all have in common is that we know that each of us is going to find and write about different things on a test. We did that all through law school. And we all passed. It's part of the game and it's why I have immense respect for the brave souls who volunteer to grade these things. That's gotta' be one tough job.

If your essays looked different than mine, don't let it torment you until May 16th. A couple of my buddies who took the Feb '07 exam had completely different approaches and conclusions on the CrimLaw essay. They were sure they had failed. Both passed.

We don't need to find all of the correct issues to pass. But we do need to find the big ones; not waste time on every one of the minor issues; and most importantly, we need to present our analysis properly.

And THAT is the secret to passing the California Bar Exam. Welcome, you are. Please send cash or money orders. No personal checks please. Small denomination, unmarked, non-sequential bills are preferred.

(;-)>

RACHEL said...

Richard's comment was the first thing I've read that really gave me that actually shook my self-doubt and gave me some confidence back. Having perused the blogs of several other exam takers where answers are being disected, I realized I was falling into a dangerous tailspin of second guessing myself and comparing my answers to everyone else's. Instead of focusing on that which I know and trust (that I missed it in July by a small margin, that I studied my a$$ off this time around, and that I had the BarBri/California method down cold this time), I begin to focus on such worthless topics as the pass rate and the issues I could have elaborated upon better in my essays.

Like you, GP, I take some solace in hearing what other people wrote and how they generally felt (and also in writing about it...I finally posted a recap on my own blog), but I think we all have to be careful to keep that in check. There is only so much that can be derived from comparing yourself to others. And with the exception of hearing about total morons (like the girl at my test site who thought the CP question was a Civ Pro question), it's a slippery slope to self-doubt if you compare too much.

At this point I wish I had a better gauge for knowing how I did. I wish I knew what percentage of essays get 65 points, 75 points, 80 points. I wish I knew what the hell they were looking for on PT-A. I wish I knew how much my minor errors on the CP essay will cost me. I wish I had something other than that wretched pass rate to use as a guidepost to assure myself that I might just be okay.

But alas, as one of my esteemed coworkers keeps reminding me, I might as well close my eyes and try to make it rain because that's no more in my control than the bar exam at this point.

worriedrepeater said...

Hi Grand Poobah! Like you, I am also a repeater. I tried so hard to improve this time, and I thought I was better prepared. I think waiting for the results is the most anxious and excruciating process. I read what you wrote for the essays. It sounds like you did really well! I am worried about the Torts essay, though. You mentioned that you wrote about about nuisance and an injunction. I totally omitted that from my issues! I know I should have talked about attractive nuisance, (doh!) but I totally did not address public or private nuisance or the injunction argument. I'm really worried about the Torts essay now.... :( I wonder if missing those issues will break me on that essay. Were they really obvious to everyone else, or am I just totally dumb? As for the other essays, I thought the Wills/Trusts one was a bit difficult, especially that 2nd question about "answering according to CA law." I was like, ?!?! I talked about facts of independent significance and incorporation by reference too, but in retrospect, I should have talked about revocation of the trust in the interrogatory involving the sister, rather than putting that issue under the church's argument. AHHHH!!! The waiting will be the hardest part. I don't know if i will be able to do this again.

Anonymous said...

For the record, I think the cheating accusation is way out of line.

My approach was very much like yours, GP. As a repeater, I now waffle between certainty that I hit the right issues and passed and absolute dread that the bar graders will ping me for the things I missed or got wrong.
The PTs? Who knows. I wrote very organized answers, but they are likely short on analysis because I was time-crunched.

May God bless us all, and the bar graders give us a break. We have worked way too hard for this!

Anonymous said...

worried repeater--

I did discuss attractive nuisance, but nothing else about "nuisance" per se, or injunction. Don't think it is do or die. (Hoping!)

Richard R said...

Rachel is right. There is no guidepost but the miserable pass rate. The problem is that those who pass tend to immediately jettison all accoutrements of the bar, essays included, and jump into the overcrowded job market with out looking back. Once I saw my bar scores and that I had passed the New Mexico bar, I didn't even bother taking the individual essays out of the envelope to look at them, I just threw them smugly in the garbage. And I still have no idea about my patent bar score. And why would I care, I have the bar memberships framed and all the wall, no need to give the exams themselves a second thought.

Like you guys, I've found the time after the bar to be almost as mentally stressful as before it. However, from my experience, if you wrote the entire time with an reasonably organized and informed purpose, you probably did well (enough) on the essays.

Omitted child, the argument that the bird was an independent supervening event, would a 12 year know what "high voltage" meant: these are all extra point grabbers, not the core of the essays. Catching them is what distinguishes the model answers from the barely passed. At 7:00 I was driving to Oakland on Wednesday morning and realized that I should have included that if a child is doing an adult activity, he isn't held to standard of a 12 year-old but is treated as an adult. I didn't put that in my comparative negligence analysis. But I did you a comparative negligence analysis - and thus probably got most of the points. Its a law of diminishing returns. I submit that there are more ancillary issues worth a limited amount of points on the bar than can possibly be answered in the time alloted. Not knowing the formation requirements for a trust, missing the duty of loyalty and confidentiality, failing to know the different types of murder, was the informant a state actor: these are the basics that you had to know. And if you knew the legal elements while integrating specific facts into your analysis - you probably did fine.

Not to mention that the performance tests are 40% to the essays 60% of the non-MBE score. One could do well on both of these, and utterly bomb an entire essay and still pass!

Anonymous said...

GP--

Don't worry about PTB and seeing others typing. I had the same experience in July (I passed)--while I tended to spend less time reading than BarBri recommened (60 vs. 90 min, I would scribble notes and an outline, then type. I saw others typing about 0.5 hours into it and almost freaked. I later realized these people were taking notes on their computer. But it did freak me out a bit.

Anonymous said...

Feb Takers:

I failed July 2006 and February 2007 only to pass last July. As a result, I can honestly say that I've been there and done that.

I hate to burst your collective bubbles but Richard's statement that you can bomb such and such an area and still pass is just not applicable to California.

As you all know, California's pass rate for February is absolutely miserable and the odds are that most of you (about 1 out of 3 pass in February) did not pass it this time around. I say this not to be a jerk but only because, unfortunately, its the truth.

I know its tough taking the bar and even worse taking it a second (or in my case, a third) time. But all you can do is your best. If you did your best, pass or fail you have absolutely nothing to hang your head about. Don't let May 16th define the rest of your year.

Good luck to all but remember to keep it in perspective.

nylaesq08 said...

hey, grand poobah... just wanted to give you props on a great blog... i chanced upon it while killing time in my hotel in ontario during the bar last week... good luck to you, and i hope many of us pass!

on pt-B, am i the only one who almost put my real name instead of "applicant" when setting up the memo to the partner... just thought it was so funny because the proctor kept saying during the essays not to identify yourself anywhere in the answers... however, sometimes the pt really makes you feel like your in a law firm working with a crazy deadline.

Anonymous said...

For PTA, I'm not sure if I oversimplified, but am curious to know whether anybody agrees and/or wrote something similar for the Jordache case.

I'll begin with a few of my preliminary observations/conclusions.

First, because Jordache interpretted the "non-fraud" statute, I believe it was only applicable to the 3rd COA.

Second, Jordache interpretted only one of the four "tolling" subsections of the statute that could have been used.

Third, in the opposing party's demurrer motion, they contend that Jordache stands for the proposition that the non-fraud statute "invariably" commences when there is an actual injury (don't remember the exact language, but I do remember the use of "invariably").

Fourth, there was another subsection in the "non-fraud" statute that allows the SOL to toll where the client relies on the attorneys advice.

And Fifth, we were asked to argue against the demurrer, which means we only had to show that we originally alleged facts in the complaint that would make a demurrer improper.

Conclusion: I argued that opposing counsel's reading of Jordache too narrowly interprets the "non-fraud" statute since it erroneously suggests that actual injury "invariably" commences the SOL period, whereas any of the other 3 subsections may also be used. Therefore, notwithstanding whether or not the subsection cited by Jordache actually tolls the SOL here, because the complaint already alleges that Plaintiff relied on Defendant's legal advice, there were sufficient facts to make demurrer improper on other grounds (i.e., b/c another tolling subsection could have applied).

Anybody agree? Did I overlook/misread something?

Anonymous said...

You mention you wrote about public/private nuisance on the Torts essay. I still don't see it. Please tell me how it fits.

nylaesq08 said...

Perhaps to impress graders and get more points, he wrote about public/private nuisance simply by defining each and stating that they don't apply.

Anonymous said...

Just wondering if anyone else out there wrote about an injunction on the Torts essay? I did not, but was wondering if anyone else thought that was a clear issue? Thanks!

RACHEL said...

I mentioned above that I answered everything pretty much just like GP did, but there are caveats to that, I guess. I spotted a lot of the same issues he did, but public/private nuisance and injunction weren't among them. I'm not sure those would have applied, but I may just not be remembering the facts clearly enough. Regardless, I found enough other issues to discuss to take up well more than the one hour I was alotted for that question.

The Grand Poobah said...

Perhaps that's why I went over by 5 minutes. I didn't take long on those two nuisance issues because they came at the end of my time.

One of my tutors said that if I saw an issue, and I had time, I should write about it, even if it's just a couple of lines to dismiss it. Every little point counts. I just hope I didn't miss a big issue in the process.

And as part of my Torts remedies I always consider equitable issues, especially if property is involved. I suppose that was the trigger. We'll have to wait until May to see if it hurt me, because we might never know if it didn't, (knocking on my wooden head again).

Anonymous said...

ok....now I'm really freaking out...did anyone else NOT mention negligence on the torts essay....I really did not see the power plant being negligent...with all the signs and the fence...i did talk about strit liability and attractve nuisance and duty owed to trespasser v. invitee v. licensee but I also mentioned a battery I mean there was a harmful and offensive touching...and intent was arguable...they intended to electrictue anyone who trepassed...then i also mentioned defense of prperty and how deadly force is not allowed for the protection of property...really neglgence??? There is no way I passed :( I am now crying!

Anonymous said...

Unfortunately, I don't think there's much of a chance that negligence WASN'T one of the major issues. It was definitely one of the first things I put in my outline. The power plant clearly had a duty (to warn of the danger) and that duty was breached (arguably, with insufficient warnings, etc.) Causation and damages are obvious. I would be SHOCKED if negligence wasn't one of the primary issues they were looking for.

But, DON'T CRY! You can absolutely still pass even if you didn't get a negligence argument in there. It sounds like you included quite a few smaller point getters (many that I didn't even consider) and that has to count for something. Plus, missing one issue on one essay can't tank your whole exam if you were pretty strong throughout.

Hang in there. I'm sure you're fine!

Anonymous said...

But the facts said that there were 12 freaking signs UGH!!!!!! Gonna shoot myself!

Anonymous said...

Negligence was a major issue. Attractive nuisance and trespass would be discussed under standard of care and breach of duty of negligence so Im not quite sure how you answered that. Secondly there couldnt have been a battery because that is an intentional tort. With that said you cant beat yourself up about it. Remember you need a 62.5 and 128 raw and you will pass. Now thats not an easy mark but you can afford to do poorly on an essay or two and do well on two others to balance it out. If you continue to think about what you should and should not have put it will drive you crazy. Im sure there are many issues that were missed by us all. Its not possible for most people to hit all the issues, sub issues, and sub sub issues, but if you feel you did your best just cross your fingers and hope you have a nice bar grader.

Anonymous said...

I disucssed all of that but under a strict liability analysis (same elements) duty, breach, causation and damages and i included attractive nuisance and duty owed to each under strict liability duty...does that make sense??? I dunno....I'm feeling really really really bad right now....

Anonymous said...

Does anyone have a good sense of the grading scale? For example, how many points are the sample answers released by the bar worth? 80 points? 90?

I heard that only 20% get a 75 or above on any one essay. So does that mean a lot of people get 70s or are we all fighting for a finite amount of those, too?

Anonymous said...

my understanding is that the mean is generally 60. which makes sense since the general passing rate is about 50% considering that you need a 62.5 to pass.

negligence was a big issue. i dont this nuisance was a big issue. some people have been saying on other blogs that attractive nuisance was an issue but it did not apply. i think it totally applied:

the power company owned the land. they should have known that children may be in the area if it were a residential area. they should have known that children would not understand the hazards of high voltage. and the remedy was cheap because they could have put higher fences, pictoral signs, inform the community....

i spent alot of time on the AN analysis because i thought that was the big issue...not sure.

Anonymous said...

no clue on the sample answers. i would like to think that the samples would earn a perfect score. and if not, why wouldnt the bar show us what a perfect answer looks like?

Anonymous said...

Well...I dunno.....I'm just hoping that because I did not put a negligence heading does not mean that I necessarily failed that essay....makes me soo angry....my analysis made sense to me UGH!

Jenevieve said...

Thanks for the recap GP! Yikes...Corporations and Wills & Trusts are not my thing. I was lucky I got the subjects I was decent at in July. (Well, minus property...)

Anyway, lots of good luck coming your way!!

Anonymous said...

While attractive nuisance was an issue, if you talked about public nuisance, private nuisance, or injunctions anywhere in that essay you will likely lose points, atleast you should lose points if I were grading the essays. And since I have graded essays in other states and took this past bar I will say that likely the grader will ding you for talking about things that have absolutely ZERO relevance to the facts. Can you post your injunction argument on here, I would like to read what you actually said on the bar exam so I can get a god laugh. Also, the ommitted child issue is not a big deal, since in an intestate situation, there is no issue with an ommitted child if you found the will invalid.

Jack said...

Hmmm. I had a bit of a different approach than some of you. And I definitely missed some significant issues. I'll organize around what I did talk about and what I didn't.

First, GP, sounds to me like you almost certainly passed. Good luck!

Torts: ON PAPER:I discussed negligence, using the attractive nuisance doctrine as the duty/breach elements. This was a child trespasser, so attractive nuisance is directly on point. I then went into causation, with an extended discussion of legal cause given the ridiculous way in wihch the kid was injured, and damages (which were obvious). I then talked about S/L for inherently dangerous activities. I did talk about battery in a sentence or two, because the intent can be to cause an indirect touching, not just a direct one. I talked about comp neg, contrib neg, and assumption of the risk as defenses. MISSED: I did not talk about private or public nuisance - - with the greatest of respect to GP, I simply don't think they apply. There was no substantial and unreasonable interference with another's land. An injunction? Ennnnh - - I guess you could have talked about that, with the idea being that the dad would bring an injunction to have the power substation shut down, but I really, really don't think this was anything but a bonus point issue. (GP probably did get bonus ppints for mentioning an injunction, though.) I also did not talk about how the kid could be held to an adult activities standard, although I mentioned that he was clearly acting with greater carelessness than you would expect from a child of 12, so I guess I addressed it without really hitting it head on.

On this essay, I figure I got about a 70-75. It was by far my strongest.

PR: ON PAPER: I talked about all of the breaches that "June" committed, and am pretty confident I hit them all. I mentioned that, if she wasn't candid to the court about her reasons for W/Ding, then she violated the duty of candor to the tribunal. I was pretty strogn in saying she should have dropped out when the conflict became obvious, and that she should be thrown off the case if she actually told the court why she was withdrawing, but I added that she probably did not tell them the real reasons. MISSED: Not too much, thankfully, that I can think of. I needed this and the first (Torts) essay to offset some foolishness on Essay #3 and Essay #6.

On this one, I'd guess again that I got a 70 or 75, probably no better.

CRIMINAL: ON PAPER: I talked verrrry briefly about how the informant was a state actor, and concluded that the 6A rights attached, which was correct. I talked about testimonial privilege (unnecessary). I talked about Miranda and got the wrong answer, which was really stupid. I mean, I actually put down that a CI can't use statements if someone hasn't been Mirandized, which, since I know that CIs in cells can be used to elicit testimony, was a blitheringly stupid answer. On the actual crimes part, my organization could have been tighter, but I did list all four kinds of murder and did discuss the elements of vol MS with pretty much prefect recall (I got lucky). I called common law murder a general intent crime (duh) but cited the standard correctly, and I managed to call imperfect self-defense involuntary manslaughter instead of voluntary (duh #2). MISSED: Well, everything I put above, which basically amounts to calling the intent standard the wrong name for common law murder, calling imperfect S-D invol instead of vol, and reaching the wrong conclusion on Miranda.

My guess is that this, my most poorly written of the six essays, adds up to a 65 if I'm lucky, and could be a 60.

PT-A: I ignored the Jordache case, apart from citing it once, because I thought it was irrelevant. I'm probably wrong, but I thought it was there as a red herring to get you to talk about actual injury and get bogged down in that discussion. Further bolstering my guess that it was a red herring was that it was the only one of the three cases to discuss legal MP. In any event, I didn't think you needed Jordache, because some segment of the statute said that it was tolled if the plaintiff was under a disability. And it was - - it couldn't sue because it was not in good standing (due to the actions of the atty, Reeves). So I think this was all you needed - - this wasn't an objective memo like PT-B, but a subjective one, so I felt that as long as you got to a place where you were arguing (successfully) for your client, you were writing a good piece of advocacy. Plus, if you argued Jordache and actual injury, it didn't help you - - the holding of the case was directly on point and our client was going to have been held to have suffered injury before he sued. So, the disability tolling was the way to go, IMHO. The second interrogatory was the fraud statute and the third one was the equitable estoppel test from the third case.

All in all, I think I pulled about a 75 or higher on this, but I'm sure those of who felt Jordache was absolutely necessary to discuss will disagree, and if you're right, then I did not pass the exam, because I need the 75+ on PT-A to pass. :)

WILLS I did okay here, but not great. ON PAPER: I talked about all three forms of undue influence, and all of the requirements of trust formation, concluded that the court could appoint a trustee, and stated that Sis violated her fiduciary duties by revoking the trust. I concluded that the trust was valid and that the revocation was not. I mentioned that Dora would take as the intestate heir if the will was invalid. I concluded that it was, because the disposition was not unnatural (Sis was a blood relative, they hung out, the note was evidence of that, and Dora and Wilma, the testator, were estranged). MISSED: I think - - I'm not sure - - that I forgot to discuss delivery of the trust res to Church. Maybe I did, in a sentence, but I concluded that it was no problem. I did not discuss charitable trusts; I saw the issue, but concluded it was not relevant and didn't have time. I also did not discuss Dora as an omitted child, because she didn't fit the pattern of a pretermitted child. She was expressly not provided for in the will, not because Wilma didn't know she existed, but because Wilma deliberately cut her out. Now, should I have mentioned this? Probably yes. And that will cut my score.

On this essay, I figure I pulled a 65 to a 70 because of missing the delivery issue and the omitted kid issue, but since I got the rest, maybe a 70 is more probable. Not sure.

CP Again, I did okay here, but not great. ON PAPER: I did get putative spouse and QMP. I went through all the characterizations and presumptions and (amazingly) got the right answers except that I got the wrong answer on the reimbursement of medical expenses. This will be a big ding, because there was no trick to the issue spotting, since they directly asked you about it. BZZZZZT. Missed: I didn't talk about their "contract" at all, which will be another ding. I also didn't talk about Harvey being meretricious.

I think all that adds up to about a 65, but maybe lower if the "contract" was something they really wanted you to discuss.

Corps/PR Not too bad, with one glaring omission and one lesser omission. ON PAPER: The corp's liabilities, except that I didn't talk about it ratifying/adopting the first, pre-incorporation contract. I did talk about A & B's liability as promoters pre-incorp., and how they were able to bind Lawco under agency principles. I talked about de jure and de facto, and estoppel. I talked about all of the multiple breaches that Albert committed. I was fairly confident I discussed all of these, EXCEPT - - and this is enormous and I may have failed the exam right here - - I talked about fee-splitting, failure to supervise, non-lawyers, the librarian's abilities, but I did **not** call it UPL. This was one of the worst mistakes I've made on any bar exam, and I've taken and passed three (I'm admitted in four states). MISSED: UPL, egregiously, and then the ratification of the first, pre-incorp. contract by Lawco.

On this essay, it depends how much they want to kill me for not mentioning UPL and, to a lesser extent, the adoption of the benefits of the first K by Lawco. I'd guess that they will not be very happy with me. Accordingly, I'm figuring I pulled a 65 here, maybe maybe maybe a 70 because I think it was well-written.

On PT-B, despite the fact that I was running what had to be a 102-degree fever, I typed 18,750 characters and did get all elements and sub-elements of the test in. Judging by the comments around me, I think I probably did well on this, maybe a 70 or even a 75.

So there you go. Essays 3 and 6 were problems, I missed issues in 4 and 5, I did pretty well and 1 ans 2 without missing much, and I think I did well on both PTs, but I could be wrong, especially about PT-A.

If 62.5 is really the raw passing score, I feel okay, probably about 50/50. If it's not really the raw passing score, then I did not pass and will be back in lovely Ontario in July.

All comments extremely welcome, positive or negative. Thanks for the opportunity to vent on your blog, GP. Congrats to everyone on having it over and good luck!

Anonymous said...

jack,

looks like you hit most of the issues. i screwed up #3 and #6 too, but am hoping the other 4 got me through.

on #1, i did a contrib negligence anal on the kid...but, i also did one on the father, that dad has a duty to take care of kid, and if dad knew that kid plays in the field near the power plant, we should have stopped him.

i know contrib neg of kid is big, but is contrib neg of dad big too or just bonus points...?

Anonymous said...

I absolutely did contributory negligence of the father. I thought that was maybe even bigger than contributory negligence of the kid. I did comparative negligence and assumption of risk for the kid, but focused most of my contributory negligence argument on dad.

Anonymous said...

The father was NOT the plaintiff. The case was brought by father ON BEHALF of the son. Son is the pltf/injured party, and I believe only his negligence is in issue.

Anonymous said...

Jack--what WAS the answer on the reimbursement for the medical expenses, pray tell? :)

Anonymous @10:05

Note that your sanctimonious post with its misspellings provided *me* with a good laugh.

Anonymous said...

Just because the father wasn't the plaintiff doesn't mean the electric company can't use his negligence as a defense to liability. I maintain that it's a solid argument.

The Grand Poobah said...

Okay, Anon:10:05, here's a response...

I brought up the public and private nuisance issues because it occurred to me that the kid's dad would want to give them a shot. Same with the injunction.

I guess I reacted like any parent would when his kid gets injured. You want to throw the kitchen sink at the dastardly defendant. Especially if it's a public utility. Deep pockets there. Even if some of it is your own tax dollars.

And the omitted child issue was one that should have been brought up even if you thought it wasn't a winner. It tells the Bar that you saw it and weren't misled.

It's my understanding that the graders don't take points away if you write about non-issues because you've already damaged your score by spending time on worthless issues. That's time that could have been spent writing on issues that increased your point total.

You must have been a wonderful grader with an attitude like that.

Anonymous said...

contrib neg of dad was big. despite the kid being the plaintiff. the question was, what would the power company's defenses be. they would argue that dad was negligent in letting kid play near power company with a pigeon.

special duty for parents to take care of kids. yada yada. this was a way bigger issue than public nuisance.

also, on the pub and priv nuisance--there was no interference with others land. thus, no case. i wouldnt even bring this up as a knock out considering there was so much more to throw in.

The Grand Poobah said...

Hmmm... good point, that. And it's just one more reason why I'll be taking this thing again in July.

Re: contributory/comparative negligence, I argued the kid, not the father, based on a typical kid his age of like experience, education, intelligence, yada, yada...

Anonymous said...

GP, if you do have to retake it, I doubt it will be about that. It doesn't make any sense to me that a non-injured party's negligence could be used to reduce the injured party's recovery. But even if it could, I highly doubt it's a major points driver....From what I have seen, the "issues" they want ya to spot are pretty obvious. I.e., son's negligence, which you seem to have covered pretty well.

But time will tell! One week down, 10 to go!

Anonymous said...

I agree with above anon. Negligence of the father is irrelevant. It was all about spotting and arguing the duty of a child and that standard.

Anonymous said...

Hey, don't get me wrong. Obviously the kid's own negligence and the child standard of care was an issue. It was a huge issue. But that doesn't make dad's negligence any less of an issue. It is clearly a defense the electric company would raise and it is clearly something to argue. Don't assume everyone who mentioned it (and got the extra points for it) is wrong just because you failed to talk about it.

Anonymous said...

No one is assuming anything. Show me any source whatsoever that says that the negligence of a third party is relevant as a DEFENSE (not, say, as a cause of action agst a parent based on the kid's tort), and I will agree with you and bemoan my point loss.

I've been practicing for 6 years, and uh, it is not "clearly" anything.

Richard said...

Heyy! Glad to hear it's all over... always can't believe how long it takes to get the results though but good luck for May! :) I'm sure you got it! :)

Anonymous said...

Hi kettle . . its pot . . . youre black!

My argument that it does not exist has nothing to do with my "failure" to talk about it. It has everything to do with it not being an issue. Aren't you saying that because you mentioned it, it HAS to be right?

Father is bringing the suit on behalf of the son, as his guardian ad litem. Accordingly, the child would be the plaintiff if he had the legal right to bring a cause of action. He is a minor, thus his father brings it for him. Thus, his negligence is not relevant. The child's guardian could have been another family member or one appointed by the court. It just happened to be his father.

While you wont get dinged for writing it, it does not hold a candle to the comparative negligence of the child.

RACHEL said...

GP, I know that you're in the same position as I am (i.e. back for round two) so you, too, have had a chance to see your answers and scores from your first attempt.

Given how you scored in July, do you have any sense of how you think you scored on each essay and PT this time around?

thecalbaristhebaneofmyexistence said...

as if we haven't all obsessed enough... they've already posted the questions online.

Anonymous said...

Yo anon @ 6:52, this is anon @ 1:18--question. Did you have any discussion of "standing"? I.e., father's ability to sue on behalf of son? It's drilled into your head in CON LAW barbri, but was never discussed in torts. Think it was necessary, or, on the other hand, a waste of time?

Anonymous said...

I missed it completely. However, at the very least, it showed the grader you knew what you were talking about. I imagine it could have been done in a minute or two so it couldnt have been a waste of time. Although, I ran 5 minutes over without it.

Jack said...

To Anon 3/8/08 at 11:51, sorry about the delayed response. I've actually been managing to watch lots of college basketball for the past week and have not been thinking about hotel reservations (ooh - - laptops in Century City!) for the forthcoming July exam, ERRRR, I mean, the one that I just "took."

The correct answer on the medical expenses on Essay Five was that the spouse who contributed SP for them should not get reimbursement if something is a "necessity of life." Since I recorded a clean miss on this, I don't think I garnered many points.

In other news, people on the Yahoo California bar takers group really delved into the criminal procedure elements of Essay Three (at least in hindsight), further making me feel like quite the fool. I kinda dislike criminal procedure for some reason (I'm a commercial litigator) and just can't get into it; plus, I spent way too much time on the kid & his pigeon and Attorney June's ethical dilemmas, leaving only 40 minutes or less to cough up some inadequate garbage for the third AM entry.

GP, from your issue summary, I don't think there's any way you didn't pass, dude. It doesn't look like you missed anything. If you want, talk about PT-B; I have a weirdly intermittent near-photographic memory (which doesn't help me remember shit I can't stand, like mortgage priority) and I would be happy to share with you almost exactly what I wrote. Or we could just wait for May 16.

On the torts debate, I think GP got bonus credit, but certainly no penalty, for discussing nuisance. Anyone who declares otherwise under the cloak of some nebulous authority is not to be heeded. We're all guessing. I just don't believe, since this was a racehorse question, that nuisance was a major issue, but props to anyone who spotted it.

On the dad's contrib neg, I don't see it (it never came close to occurring to me while taking the damn thing, and Torts is my "best subject"), but I imagine it's the same thing as the above; you probably got bonus points if you talked about it. However, as GP says, if you really stretched things that far as to discuss the dad's care of his son, then you probably didn't spend enough time on something highly important, like S/L. It's like this, IMHO: the dad claims derivatively through the kid. So the dad's negligence (about which we were given no facts, meaning that I doubt they cared if you discussed it) shouldn't play into things at all. As a practitioner about to hit my ten-year anniversary, I don't even think that I would raise that as a defense in real life if I were representing the power company, but I'm the jerk who thought that informants should be Mirandizing people.

Finally (sorry to go on so), I would love to hear from GP and Rachel as to how they thought they did this time compared to last July. Also, if anyone has any grading/curve info for the attorney's exam (probably a mistake on my part not to take the MBE), I would be really grateful.

Thanks for listening.

Anonymous said...

1. SP of either spouse may be used for necessities and will not be reimbursed unless there was adequate CP or QMP available. There was adequate QMP available in the Wife's out of state account.

2. It is an Escobedo violation for the police to use an informant to deceive the D into giving a statement. D would not have spoken to the informant had he known that the information given was not for the purposes which had been conveyed to him.

RACHEL said...

The fact that it's completely irrational notwithstanding, I'm finding that I am repeatedly trying to go over my answers and scores from July and using it the gauge where I might be this time around. Do I truly know what the graders are looking for? Hell no. But with the July scores in front of me and the advantage of hindsight, I can at least get a glimpse at what a 55 looks like and what a 70 looks like...for me at least.

I'm too scared to actually post what I *think* I might have gotten this time around, but I will say that going through it in my head and trying to gauge my performance is strangely comforting to me at this point. And I'm curious to hear whether anyone else has attempted to estimate their own score as well.

For those who haven't already seen this and are a little OCD like I am about this damn test, this is a nifty little spreadsheet to fuel the fire a bit:
http://www.jdjinx.com/Portals/0/NTForums_Attach/12438107871.xls

Transplant said...

Rachel, that is so awesome! Thanks!!

Anonymous said...

I think it is best said by simply saying - good luck to everyone and may the bar examiners be kind to all!

Gabriel said...

As for the torts question and liability of the father... I mentioned it and thought (hoped) it would be worth points. I practice in personal injury in nyc and its called negligent supervision and is used as a defense to negligence in cases involving minors.

Anonymous said...

What is that link to the "yahoo California bar taker" that was mentioned in one of the posts? I am looking for more feedback regarding answers to the essays. thanks.

Anonymous said...

I think the real trick to the Thursday PT was figuring out the layout of the answer. I remember as I read through the library seeing one four-part test, and then in the other case the five elements of one part of the four-part test. I had a brief whatthef&*&%% moment as I put together the attack plan for going through all these elements. You never know if you nailed it, and the temptation was to argue how your guy was going to win. The question asked for an objective response, so you had to (I think) confess in your answer that Snyder doesn't actually personally suffer damages that require an injunction. I though the more creative argument was that the university will suffer, and that is the public interest that needed protecting.

Anonymous said...

i thought the case law was pretty clear that loss of reputation was an irreparable injury? You're right, too, about the public interest (no chilling of speech), but I thought there was lots of injury in there--his research funding, stature, etc.

Anonymous said...

I am glad I am not the only one worried about the May 16th bar passage list... I hate the feeling of being prepared for the test but not feeling great about the results!!!! Further, having to wait for 3 months... ughhhh

Anonymous said...

Hey GP and everyone else - great posts. I took the 02/08 cal bar for the 4th time. I skipped last July's exam - too burned out. However, on the last exam I manged to pick up a Rule XII violation that still stuns me. On PT-A I was having a tough time finding the date I needed for when the SoL was to start running. I had already wasted enough time trying to find the date, when I decided to start writing. I was writing on the 2nd page of the answer book when I saw what I needed for the date of the SoL. Since I didn't have any room to re-write the heading, to incorporate the SoL date, I took a piece of the scratch paper the bar had given us and re-wrote the 3 line heading on the scratch paper. When I was through with the PT I asked the proctor if she had a paper clip or stapler so I could attach the scratch paper into the answer book. The proctor said she'd look around for something. She didn't even know it was a violation to do that. Anyway, after the AM part of the MBE, the same proctor tells me to go see the bar rep lady in the back of the room because I had just been flagged for a R. XII violation. The bar rep lady tells me she has to flag me for submitting answers on paper that was "not answer book paper." She didn't think it was going to be that big of a deal, but suggested that I write a letter to the bar committe explaining my misunderstanding of the rules, which i did. The bar guy writes back and says that what I did would not negatively impact the grading of either PT-A or anything else. I'm not so sure that I can believe him.
Any other takers out there had any similar experiences? Do I stand a chance or did i shoot myself in the foot real good?

Anonymous said...

Ok, I didn't almost use my real name instead of "applicant" on the Performance Tests. I DID USE MY REAL NAME INSTEAD OF APPLICANT, on BOTH of them.

This was during the July 2008 administration, my first (and hopefully last) time taking it. The proctors said absolutely NOTHING about this point on either essay/PT day. Although in retrospect it is obvious that I should not have done so, they did not instruct us to not use our names and the exam materials made no mention of it either. It was an oversight on my part and the previous "real name" poster made a good point that under the pressures of the moment, it was like writing an actual memo for a supervising attorney.

I put my real name. Dumbass. Hopefully, because we were given no instruction on the matter, others did this as well and the exam administrators will simply delete the names.

Although I readily admit it was a "mistake" to do so, ultimately I don't think such a trivial mistake should be conclusive of whether our performance on the exam merits a "pass" or "no pass" determination.

Just looking for others' thoughts on the issue.