Here’s an alternatively brief then long-winded recounting of the exam from my point of view. I know the post-traumatic stress (PT-A?) from the earthquake has yet to subside in some people, so this might be of use to someone.
I’m aware of the arguments against doing a debrief like this, but I started this tradition, albeit in a more timely manner, last year, and I think I’ll do it just this one last time.
And, yes, I'm as shocked as anyone that they didn't test Civ Pro. I check the stats going back 20+ years and in that time, they're never gone four administrations of the exam in a row without testing Civ Pro.
Alrighty then. Without further ado.....
Essay 1: Professional Responsibility - A guy who just passed the bar opens his own solo practice and is approached by a buddy from college about writing up the partnership papers for the business he wants to start with another person. The attorney has no experience in that field of practice but he takes the job for $5k and brings in help in the form of an expert in the field who happens to be a disbarred attorney. The disbarred guy is hired as a paralegal and does four hours of work at $250 per hour then counsels the clients on his work product.
The attorney does two hours of work, one hour of which is the client interview, and calls the job done. During the process the attorney also notified the State Bar and advised the client about the disbarred guy's status.
I think that's close enough to what I saw to give you the picture. Anyway, I forget exactly what I wrote about but I probably hit at least half of the issues presented. A score of 60 would be a gift. I’ll likely get a 55.
Yep, at least half the issues. (:-(> For some reason, I don’t do well on PR questions. I think it’s because I don’t want to think about somebody intentionally doing something wrong (I know, I know). As a result, my subconscious rejects the whole premise. I’m like a hunting dog trying to find a crack in an Armadillo’s cover when the Armadillo’s all defensive and curled up. I'm mentally unsure so I pick and poke and fiddle around until I find a crease to dig at, but by that time I only have 30 minutes left to write so I end up rushing through.
Essay 2: Constitutional Law - The President is concerned about terrorist activity in the United States and he wants Congress to pass legislation that allows the FBI to order the state and local police agencies to release private and financial information of their citizens upon request, without a warrant. When Congress won't do it, the President issues an Executive Order to get it done.
By this time, State-X has passed an Act that does largely the same thing. The questions were about whether the President can do what he did; whether the Executive Order preempts the State-X Act; and whether either one violates the Fourth Amendment.
I think I was with everyone else on this one. Somewhere between "lost" and "oh yeah, I remember something about Executive Powers". I think I did what most of you did and went into full BS mode. When I look back at that essay it’s like trying to see through a dense fog. I’ll be lucky if they give me a 60.
Essay 3: Contracts – It was primarily a formation issue where the parties never seemed to agree on anything. The date is May 1st and the homeowner wants a fence built around her back yard in time for her charity social event scheduled for June 1st. She and the builder enter into preliminary negotiations on the phone but don’t come to an agreement. Time is of the essence because of the fixed date for her event.
A big challenge for me is determining what law governs, UCC or common law. Historically, I’ve chosen incorrectly on enough of these to make this an anxiety producing choice. On this one, I was thinking that because contract was for the construction of a fence, the predominant factor test was called for. Here, based on total cost, if the builder could get cedar then the labor was the predominant factor but if the builder could get redwood then the lumber was the predominant factor. So I decided that because the “goods” part of the deal was variable it was common law. But the parties still haven’t agreed on anything so I’m not sure that decision had a major effect on anything.
The builder discovers that redwood is available, but not for long, so he buys it. He calls the lady to tell her that redwood’s available but gets her answering machine, which contains the announcement that she’s out of town until the end of May. He leaves a detailed message about the wood. She listens to the message because she hasn’t left yet, and then decides not to call him back because her event was cancelled.
He decides to build the fence anyway because he knows that time is of the essence. She comes back into town and finds that the fence has been built. She writes him a letter acknowledging the basic terms of their non-agreement and offers to pay him $5,500 for the work he did, knowing that his cost was $7,000.
He accepts. She revokes/breaches. Complaints are going to be filed. What are the parties’ rights and remedies? I think the actual call was more detailed than that but I don’t remember exactly what it was.
I worked my way through the events, top to bottom, trying to cover all the bases. I might get as high as a 65 on this one. But then again, with my luck on Contracts questions, a 60 is more likely.
PT-A – Torts – The kid goes shopping with his buddy and the buddy eats a can of cashews while shopping. They two guys pay for the groceries – except for the cashews – and leave the store. The store detective chases the guys down and grabs them. The buddy who purloined the can-o-nuts takes off, leaving our client to take the heat. The store detective admits she knows that the other guy did the shoplifting but she hauls our client back to the store for grilling anyway. They hold him for more than an hour, then let him leave only after he has signed a release of liability that waives all of his rights against the store for any and everything they’ve done to him. He wants to sue for everything including posttraumatic stress. How do we make the store pay, and pay big?
I forget how I wrote this one but I know I wrote a statement of facts, some arguments, and a conclusion. Probably did no better than a 60 though.
Wednesday MBEs – I answered A, B, C, or D to each one. (;-)>
Essay 4: Contracts / Remedies – The editor of a magazine for antique car collectors wants to buy a lady’s rare car so he can win the big annual car show, which he anticipates will increase his magazine circulation and ad revenue.
He contracts with a lady to buy her pristine antique car, which is only one of two in existence in the world, because he’s sure it will win the car show. They strike a deal then she anticipatorily repudiates. The calls were about specific performance, TRO, injunction, replevin, damages, etc… The only reasonable course of action was to stop her from selling to the Italian guy so she can't ship the car out of the country. I don’t feel horrible about this one. Maybe they’ll give me a 65 or 70.
Essay 5: Real Property – Three girls buy a condo and take title as a joint tenancy with right of survivorship. One girl gets mad at the other two and moves out. The two girls who remain in possession sever the JT by selling a fee simple to Ed but reserve a life estate for themselves. This severs the JT, and the interest is now a tenancy in common – the girls have life estates and Ed gets a fee simple when the two girls die. And sure enough, the girls die in a car accident. The first girl moves back in, rents out a room, and starts a business in one of the spare rooms.
The call is something like, 'What are the rights and liabilities of the girl to Ed and Ed to the girl for rents, profits, utilities, etc.'
This essay raised issues of severance of the unities, agency, delivery of the deed, life estate, future interest, tenancy in common, adverse possession, rights and duties of tenants in possession vs. tenants out of possession to the rents and profits from the property.
If I rocked any of the essays, this was the one.
Question 5 from the Feb ‘05 exam was similar to this one.
Essay: 6 – Community Property / Wills – A couple is married in New York, a non-community property state. Wife has a separate property condo and some stocks purchased with her salary earned during the marriage. She executes a valid will leaving the condo to Sis and the stocks to cousin Carl. The couple moves to California. She executes a valid holographic codicil, which modifies and republishes the will. She changes title of the stock to JTROS with Carl. She sells the condo for $500k and puts the proceeds in the bank.
Now that I read this, I have to question the ability to change the ownership interest of the stock in a will. I'm not sure that's a valid intervivos transmutation. But it wouldn't have made any sense to do it on her death via the will. All she had to do was gift it to him.
The rest of the details are foggy, but I know she dies and, like all Wills questions, we have to figure out who gets what. I forget exactly what I wrote because I went 5 minutes over on the Property question and I was in a hurry, but I know I typed furiously almost the whole time.
PT-B - Criminal Procedure - A kid gets picked up as a "subject" in a murder and get's questioned for 5+ hours at the station before he confesses. He gets an attorney who files a Notice of Motion to Suppress everything recorded during the interview. We work for the DA and get to write a Memorandum of Points and Authorities arguing why the motion to suppress should be denied.
And based on the above info, it should have been a 30-minute task. But I don't want to go into the whole thing.
I found the eight point checklist the U.S. Supreme Court listed for determination of when a person is in custody sufficient for his Miranda rights to attach and wrote about those. There were a couple of other three-point checklists that applied to one or more of the eight points, but I ran out of time before I could apply them. So I just pasted them where I thought they belonged and called it done.
Feel free to fill in the stuff I missed or didn't include in the post above.
That’s it for now. I doubt I’ll edit this monstrous post, but I might chime in with a comment or two.
I appreciate everyone’s indulgence and patience. My family was more stressed out this time, and they required all of my attention after I got home on Thursday.