Sunday, August 3, 2008

Jane, Let's Show the Studio Audience What's Behind Bar Exam Number Three!

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.....

Tuesday Essays:

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. (;-)>

Thursday Essays

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.


Anonymous said...

Everyone says they don't want to talk about it, but I think secretly everyone does want to talk about it. I do. I don't know why, it just makes me feel better to get it off my chest. Now that it is 3 days old though some of the memories of issues and facts are gone, but I still remember some stuff...

The Con Law Essay: I was clueless at first but somehow remembered the Youngstown Steelmill test for Executive action and used that. The fact about Congress denying the bill tied into the Steelmill test nicely and made for an easy answer. But, there was probably a valid alternative, (or maybe I am wrong!) my friend said he just discussed legislative vs executive action and powers, etc. etc. I think I mentioned that very briefly, but mainly used the Steelmill test. Hope that works!

The 4th amendment part was kind of strange, because it asked if it violates it "on it's face." I basically said that "on its face" the 4th amendment doesn't actually require a warrant, it requires reasonableness, so no it doesn't violate it on it's face. Then I thought that is kind of a short answer so I made up a bunch of BS counter-arguments about warrantless exceptions and exigent circumstances yada yada yada, and I think I threw in reasonable expectation of privacy somewhere. (I.e. who could claim it, business or person, etc. etc.) Maybe the whole counter argument section (arguing against the assertion that it does not violate the amendment on its face) was not needed, I just hope the graders don't think I am wasting their time with all that! I could have gone on forever with that essay.

The Contracts essay... definitely went at this as common law and not UCC. Talked alot about offers and acceptance for each separate back and forth they had. The "estimate," the phone call, (I brought up silence not being acceptance without prior dealing but that may have been a UCC rule, oops) and the last deal they made, which was the only place I found any actual agreement. At the last second I remembered accord and satisfaction and just spit out one sentence on it, but I discussed the last transaction as it's own K so I at least used those facts and came up with something to analyze them under, I hope that is what matters. The call kind of threw me on a remedies course at first, I believe I discussed restitution as his primary remedy, with damages for the last transaction that I said she could not revoke because he accepted before she revoked.

PR- messed up the rule for not splitting fees with non-lawyers. In general my PR rules were not very well remembered but I think I still used all the facts. The whole "he told the bar" thing was weird, I just said it doesn't mnatter that he told them, even though attorneys can get ethics advice he still couldn't have the non lawyer do legal work. I discussed his duty of competence and the reasonableness of his fee, I brought up conflicts (between the clients, they were partners so I talked briefly about partner liability because that could be a potential conflict), unauthorized practice of law... and some other stuff I can't remember.

PT-A: I took a civil litigation class my last semester of law school that was this exact fact pattern. I didn't write a statement of facts... I did discuss the facts pretty heavily but I tried to just stick to exactly the numbered calls they gave me- I think the first one was elements and the second one was likelihood of proving the elements. That was when I got fact heavy but I wasted alot of time trying to figure out which case's False Imprisonment rules to use. I think I ended up using the rules from the one that had the facts similar to ours.

I didn't discuss NIED- I couldnt decide if the damages call was asking me for additional claims, but I was low on time anyway so I just took it to mean that they wanted me to discuss all the things he could be compensated for under false imprisonment, like the groceries, his medical bills, whatever.

Third day- felt very good the third day. I felt pretty confident about the remedies essay- like you said, preliminary injunction, TRO, specific performance, B.O.B., the "I put five bucks down" and "I'm doing fine mom and dad" mnemonics from Barbri worked beautifully there! Argued back and forth about "uniqueness" of the car and whether money damages would be adequate because he could tell how much advertising or revenue he would lose, blah blah blah. Although I kind of forgot the rules for replevin but I figure that wont kill me. Made up something there.

Property- seemed straightforward. I didn't talk about agency, missed that one. Was that as to the two ladies, when the one lady held on to her deed and recorded it for her or something?
Only thing I got hung up on here was that B was using 2/3 of the condo even though she had a 1/3 interest; I thought the rule was that they all own the entire property together and absent an ouster or dividing up of the property they cannot charge each other rent for using the property. (But she had to share rent profits... I also got hung up there because I couldn't remember if only out of possession co-tenants could get reimbursed for rent.)

CP- ugh. Everyone said this confused them afterwards. I caught myself before I completely missed the issue of the holographic codicil, phew! Took about 10 minutes to reorganize things when I noticed that. I did a crapload of CP essays during my studies and I consistently remembered the right rules and spotted the issues but came to the wrong conclusions as to who got what. Probably did the same here. The only thing I remember is saying that the Joint tenancy in the stock extinguished her right to transfer her interest in it after her death because it just passed to the survivor, so the Museum couldn't get it. The Husband got his half of it as CP because it was QCP as it was purchased with wages during marriage. Or that's what I remember saying at least!

Could be 100% wrong, hopefully I still get something like a 60-65 for using the right facts and having an analysis (albeit wrong!) and remembering rules.

PT-B: I did a lot of motions to suppress when I interned for the Public Defenders so this was kind of fun actually. Basically persuasive P+A. I kind of pretended I was answering a motion to suppress, because I remember the memo asking me to anticipate the arguments the defense would use in their motion(by using the affidavit mainly). From there I think I had two main points - No Custody because it was voluntary (with two sub points, a) and b), can't remember what I did with those) and part II was that interrogation doesn't matter without custody, and I basically tried to deflect the last case.

I didn't recite all 8 factors for custody but I just used the court's rule that some factors are more important than others, and listed those factors that were in our favor while comparing the case to the first supreme court case that was good for us. It was a persuasive memo so I didn't want to use factors helpful to the other side. I argued for the voluntariness of his coming to the station and consenting to the whole thing, including his statement at the end when they ask him if they can continue, and he says he wants to continue and then admits it. Basically they needed custody and interrogation before Miranda and there was no custody, because it was voluntary and that was more important than the length of time. (And the length of time was shorter than the interrogation in the second case, with the FBI agents.) There was also all the stuff about him getting up and walking around the station and what not. And I tried to contrast against the last case that was supposed to be the bad case for us, because in that case the kid was a minor. There were some other things to.

I don't know. Probably a zillion things I am forgetting (or just flat out missed). I also think two people can come to completely different conclusions as long as the analysis is sound and the facts are used.

It feels good to spit all that out. I am really really hoping I pass because I studied my ass off and worked as hard as I could to pass this damn thing. Good luck to you all.

Laura said...

And forgot re conlaw on day 1, I also mentioned that feds cldn't hijack states to do their dirty work. Can't quite remember what the name of that case was, but hope that was right. Not sure if my original post made it, so if this goes up w/o it, I will repost it as I am curious to see if anyone saw the same things I did. I admit this is a dangerous invitation since pretty much most of what I overheard ppl talking about or writing about afterwards has just made me paranoid about my own efforts.


Anonymous said...

The UCC defines "goods" as all things "which are movable at the time of identification to the contract for sale." Goods "must be both existing and identified before any interest in them can pass.

Therefore a fence is not a good but wood is a good. I did not take the exam but it sounds like both were tested and there were separate contracts with one being the builder for the wood and a second contract for the fence. Wood purchase is UCC, Fence Purchase is common law.

Anonymous said...

I argued that it was a "mixed" contract and did do some talk about UCC and CL. The thing was that the service was to build a fence but there was some facts regarding picking out the type of wood and she wanted redwood. So, that's why I think an argument can be made that it was a mixed contract.

But what do I know.

Anonymous said...

I thought it was contract to build a fence, so it was a construction contract, and those are under common law.

On the remedies question I totally missed the UUC7 replevin remedy (goods specificly mentioned in the contract). Oh well.

I too was happy about the property question. The delivery was interesting. I discussed the agency, and said the delivery was an ultravirus activity, since it exceed the scope defined on the envelope. But I still found delivery based on the recording and the need to keep the property records correct. I couldn't remember if the non-possessary cotenants liability was capped by property income, so just made up a rule.

The MBE's were hard for me.

I expect to have failed, and am thinking about what to do better for february.

Good luck all.

Laura said...

My first attempt to add comments didn't make it so here goes for what it's worth...

Essay 1 PR/I noted potential conflict with any jt representation and said fact that one C was a friend shld be disclosed. Said he followed CA rules by reporting work done by disbarred L to Bar and Cs, but then things went south. Said he was violating duty of competence by taking on the pship work with no knowledge and either shld have declined or gotten up to speed. Said that it's fine to hire disbarred L as paralegal, but the fact he was paying him 250/hr made it look like he was acting as a L, which is not ok. Said this smelled like fee sharing with a non-L which is not ok. Said he didn't do enough supervision of a non-L since he just read the pship agreement to learn about pships. Said he was facilitating the unauthorized practice of law, another no-no. Finally noted that fee agreements over 1k have to be in writing except in certain circs not met here and talked about a reasonable fee and an unconscionable fee given 6 hrs total work for 5k. This was the only essay I felt really good about.

Essay 2 --Conlaw/I absolutely freaked out when I saw this one and skipped it and went on to no. 3. When I got back, I just started writing whatever I could think of. I said fed gov is one of enumerated powers so this exec order had to be grounded on an exec power and said it didn't fall under the only likely ones such as treaty power or commander in chief. So, said it was unconstitutional. Re preemption, I noted that there was no direct supremacy clause issue and no showing that Congress/Pres meant to preempt the field since this really fell into police powers which is inherently a state function. Then, as noted in prior comment, I also talked briefly about hijacking state government to do fed work -- but cldn't remember the sct case on point. I had no clue on 4th A and rambled. I basically said it was facially unconstitutional by borrowing 1st A rationale and said it was overbroad bec 4th A requires warrants for searches except for enumerated searches and then said that no warrant here and this wld allow gov to go after all sorts of things where there's an expectation of privacy (even tho this is really a standing arg) such as your medical records or attorney records as well as non-privacy interest things like car repair records. I have no clue what the bar examiners want here.

3rd Essay -- contract/remedies. I have no idea how well I did here since I never studied that stuff on when UCC applies versus not. I'm just happy I noted it was an issue. So, I noted the issue, said I wld apply CL as it was really a construction k, but said I wld then discuss UCC distinctions as they appeared. Then, due to time and memory constraints I only discussed UCC once in terms of no mirror image rule. I decided 1st agreement (vm saying I'll start if I don't hear back from you) was not a k bec can't validly accept a k with silence unless there is a prior course of dealing, but said it was a close call. I said the 2nd agreement to compromise for 5500 was an enforceable k bec they both had a good faith belief that the matter was at issue. Then, I very briefly discussed damages and said he could get 7k if silence was acceptance, 5500 otherwise or restitution if no k. I'm sure I left out all sorts of things there.

PTA--though it was very straightforward, just a marathon to try to finish it. I didn't discuss NIED or any other torts in any detail. Just noted in my conclusion that although it was beyond scope of memo, P could raise other tort claims along with false imprisonment if he proceeded to sue.

Essay 4 -- Remedies/Contracts. I think I did ok on this one, but who knows. I discussed TRO and PI, but couldn't remember all the elements so fudged it. Did discuss likelihood of prevailing on the merits. I added a one liner about claim and deliver (or whatever that replevin like thing is called) and said it was a long shot as the car was not technically his at the time since this was anticipatory repudiation. I put down the usual re specific performance and uniqueness of car and was not sure about replevin. Just said that it would depend on whether the car was really his or not by the time the judge decided it since I think you can only seek replevin if someone is in wrongful possession of your chattel and that doesn't really apply to a breach of k case where the chattel is not technically yours yet. Then, I discussed usual damages issues of forseeabilty and certainty and said that perhaps he could get back entry fee if he had discussed that with the P or if a reasonable seller of a unique car would realize this was a possibiilty, but said that lost ad revenue was too uncertain and unforseeable.

Essay 5 -- Property and whatever else crossover. I totally missed any agency or adverse possession issues, so oh well. I talked about jt tenancy to TIC with life tenants and future reversions. I talked about delivery of deeds and rather than going the agency route, I talked briefly about that one sister being a trustee and the deed being the res. Since she was to return the deed on demand or at death, I decided there was automatic delivery at death. Who knows if that's right. Then, I remembered that a T in possession has no duty to pay rent and needs to give other T a share of 3rd party rents, but I had no clue about contribution for repairs. So, I'm pretty sure I was totally wrong when I said that there was no contribution unless Ed or whoever he was moved for partition.

Essay 6 -- CP/Wills. I still don't know what the answer is re the QCP stock. I noted a valid holographic codicil. Then, since the exam said that the transfer of stock into a jt tenancy with rt of survivorship between W and Carl was a "valid gift" I said if it's valid and because its QCP, not CP, then its a valid gift and it goes to carl outside of probate since he survived W. But, noted that if a ct were to treat it like CP and if it was given without H's consent, then he could void this gift and get a half share on W's death. I noted that although the codicil which was executed after the alleged valied gift cld be read to be inconsistent with this gift, it was consistent with her wanting to make provision for the stock shld she survive Carl and take all of the stock at that point. It wld have been much simpler if it had been true CP. Hopefully, we were all confused and that will help.

PT-B -- another writing fest. I thought it was pretty straightforward, but hard to cover everything -- or impossible to cover everything. I used 6 of the factors as bullet points -- the ones most helpful. Then, I did a catchall bullet for the others and basically said that not all should be weighed equally per whichever case said that. I missed a bunch of the factual nuances that others have pointed out in my rush to put pen to paper, so have no clue if I will rack up enough points.

Anonymous said...

Grand Poobah, can I ask what your limiters in the previous exams were? Was it the essays, PT, or MBE or a combination of both? I'm just curious as to how you did on the first one, what you adjusted, if it worked.

Laura said...

Also, wanted to say a big thank you to the Grand Poobah and the others with California bar blogs. Reading the blogs was a great stress reliever when I needed studying breaks -- especially in the last couple of weeks.

Anonymous said...

First, I just want to say, GP, thank you for this blog. Your attitude is refreshing and it's really insightful, interesting, and well written. I've really enjoyed reading it.

Now, on to my comments about the exam.

Essay 1
I totally blanked on this. I feel good that I spotted 90% of the issues (I missed fee splitting with a non lawyer, though I did call him on the $250/hr to a paralegal), but words like "duty of care" and "duty of loyalty" just didn't come to me. Instead I had awkward phrases. And, I didn't really study the I made a couple up and mostly just ignored it. Ugh, not good.

Essay 2
Another trainwreck. Totally made stuff up for the first two parts. I feel good about the 4th Amendment analysis though...talked about how a facial challenge is almost impossible because you have to show no set of facts exist where the law would be allowed, then went into the warrantless wiretapping exceptions to show that there might be scenarios where it would be ok, so a better challenge would be an "as applied." Hopefully I'll get some points for that.

Essay 3
Another mess for me. I hate contracts, it's my worst subject. I said it was CL immediately and moved on...didn't mention the UCC again. I don't remember much of what I wrote, other than some BS about accord and satisfaction and the mailbox rule. I HATED this question.

Probably my best answer of the whole exam. I wrote until the last 30 seconds, but I finished and I feel good about it. If I pass, it will be because this question saved me.

MBEs - oh my god, I hate Blackacre and all those jerks who sell it to 8 different people.

Essay 4
OK, first, I hate contracts. Hate them and I suck at it. Now, CA is my second state bar. On state bar exam #1, I had TWO contracts questions. So when I saw that the gods had given me two again, I nearly flipped out.

But this one was OK for me. A little fuzzy on replevin, but I just knew it wasn't an option here, so I think I put down a semi-competent analysis. I got the TRO, and prelim injunction, and for good measure, I threw in the CA/fed TRO rule distinction (I learned those freakin rules backwards and forwards and I was so mad I couldn't use them).

Essay 5
This one was OK for me. I gave her 2/3 of the property because I said the delivery of one of the deeds failed, and I gave him 1/3 as tenants in common. I missed the agency issue, and I couldn't remember if joint tenants got a share of the profits from her business or if they just got a share of the rent, so I didn't touch the profits thing. But I think the rest of it was pretty decent.

Essay 6
Oh my god, what a nightmare. I did what the first poster did with the stock transfer, so I am relieved to see another person who had my lines of thought. I think I gave the apartment proceeds to the museum. I used the word ademption a lot. I was just glad it was over.

PT -2
This was HARD. PTs are my strong suit and this was a nightmare. I didn't organize by the 8 factors, but by more generic headings about not being in custody and reasonableness. I think it was OK, but not great.

Good luck to everyone!!!

calbar blondie said...

To Anonymous re: the confusion on the CP essay; I had the same take and like you, had to reorganize after realizing I"d missed an issue or two when I thought I was done. After reading your recount I feel soooo much better. Maybe it'll be good for a 60 or 65.
We all did just fine, and need to stay positive, start new projects and get on with our lives!!!
Yay it's summer!

last call at the bar said...

Comment from a person who delightfully sat this one out:

Wow. No Civ Pro. Again. Bastardos!

Those essays sounded rather heinous for a July exam. At least they did a decent property question, I'm a little jealous (?!).

Definitely can't predict much at this point. Except that they will always test PR and now, Con law (eye roll).

Good luck everybody! Welcome back to life, there are cocktails waiting in the greeting lounge...

Anonymous said...

I still don't see the Agency in the property question. I don't think that was an issue.

The Grand Poobah said...

Re: the agency issue, if P1 hands P2 a deed saying to deliver it under certain circumstances to P3, the act by P1 of having P2 act for her makes P2 an agent of P1.

Check out Q5 from Feb '05 for an example. It has a similar transaction and both released answers address the agency issue.

For what its worth, all of the essays from Thursday were racehorses with many issues. I saw that issue but I'm sure I missed others.


Anonymous said...

Did you see the "set-off" issue in Essay 4? I believe the parties both owe each other something so set-off may apply?

Anonymous said...

In Essay 4, feasibility of enforcement of injunction was an issue. If the car had already been shipped to Italy, then it would not be feasible to enforce a TRO or PI.

Anonymous said...

Car hadn't been shipped yet.. not until "next week" that is why you get a 10 day TRO and then a Preliminary Injuction.

Anonymous said...

Essay 3- Ks- The builder was not a seller of the wood therefore straight services K.. UCC does not apply.

Anonymous said...

thanks for your analysis all... I haven't had the desire to look but, today got the best of me. Feel pretty good over all.

As for prop Q5 - didn't see agency I wrote about inter-vivos trust where Beth was both the Settlor and life estate beneficiary - Trustee was Ed and other ben. But who knows. Either way there was a breach of fiduciaty duty etc.

Also, didn't know about con law on Tues. Saw Youngstown test mentioned and freaded but, apparently I knew it or reasoned threw it because applied same rules and analysis... Also, heard tons of people talking about EP and strict scrutiny for 3rd call but, like you all discussed search and seizure etc. I have gone over this one in my head far too many times and can't find a class for EP or if SDB wonder who would be the plaintiff - the businesses? Unless you're it's a corp (not a partnership etc) you wouldn't have 14th amendment rights. I mentioned 'fundamental rights' briefly, addressed and disregarded. Again, who knows but, that analysis didn't seem to answer the call or address the main issue. Only concern is that if it were SDP then the answer would be different for states and fed and that was part of the call....

Good luck all.

Anonymous said...

Those MBEs were killer. And did you find yourself forgetting the rules that you swore you had memorized the week before? My mind blanked a couple of times during the MBEs.

Is the "agency" issue for the property question related "escrow" agent? That's the term that I used. But my analysis was probably wrong.

Thanks for the postings. But I still feel like crap (as though I had failed). Anyone feel the same way?

Anonymous said...

PR Question: I can see how the fee would be unconscionable. Didn't cross my mind, though; seems OK to charge that much in LA :)

The Grand Poobah said...

Correct, you are. Agency = Escrow in my mind there. Sorry for the confusion.

On the ConLaw question, when I got to the 4th Am. question, my brain, being in full ConLaw mode, came up with DP and didn't tip me off to S&S until it was too late to do anything about it. Blah.

Anonymous said...

That's ok GP, I didn't bring up DP, EP or SDP. And I gave the rule for Executive Agreements and not orders. haha.. live and learn.

Anonymous said...

Builder isn't selling the wood, it is merely a part of a fence he is building. No UCC analysis needed. If builder said something like, "I build fences and also have a lumber yard that I own..." then went into the spill about the 2500 for the wood and 4500 for the building part then you could discuss both UCC and CL and decide from that.

Raising the issue and then explaining it away, as above would probably get you more points than not raising it at all, but that assumes you had time to write everything else on this essay. I find contract essays to be very long and therefore, using up value time on this small issue/non issue may have cost you somewhere else. I for one had plenty of time on this essay b/c I skipped the 2nd one on Con law b/c I was clueless on it. Just went back with about 40 mins left and BS through it. Missed the executive order analysis, but hit the 2 & 3rd questions ok. probably only enough for a 55 or so, but Feel good about 1 & 3.

Anonymous said...

Re Essay No. 1, did you see the issues of unconscionable fee, written fee arrangement, promoting illegal practice of law?

The Grand Poobah said...

Yes, I wrote about the $5k fee being unreasonably high for the two hours of work done by the attorney and the disproportionately high fee paid to the disbarred "paralegal". I also suggested that $2k might be a more reasonable fee, all things considered.

I also mentioned that fee agreements in CA over $1k must be in writing, with certain exceptions, which I didn't bring up because they didn't apply.

And, I talked quite a bit about the illegal practice of law because that seemed to be one of the larger issues.

And, since I'm on the subject, I also mentioned that it was okay to take the case because even if he was not familiar with the subject, he could take it as long as he educated himself. And, of course, he couldn't charge the clients for the hours he spent educating himself, which morphed into the unreasonable fee issue.

I remembered very little about the hiring of disbarred attorneys. I wrote that it was okay as long as he didn't do any "attorney" work and if the client's educated, informed written consent was obtained.

As far as approval from the State Bar, I went the same path and said that the attorney was covered as long as everything was disclosed. Of course, the line was crossed when the disbarred guy counseled the clients about the work he performed. and then again when the licensed attorney adopted it without checking it out.

Anonymous said...

Thanks GP for your response to the unconscionable fee, etc. issues. At least I know someone else saw it my way. Good luck to all of us!

K said...

Wow. Even though I *thankfully* didn't have to take this exam, glancing through your post and all the comments still stressed me out!!!! haha thanks for your comment on my blog re employment. I may give the freelance/contract thing a go, but I don't know that I'm prepared to open up my own firm just yet! I'm keeping my fingers crossed that Nov brings you good news :) Will stay tuned...

Anonymous said...

RE Con Law; My prof told me that the constitutionality of any federal or state action against citizens is based on whether anyone has standing to contest it. Clearly there was a 3rd party standing issue, no?

Anonymous said...

No, I don't think there was a standing issue. The call asked whether it violated the 4th on its face.

Anonymous said...

What was the 2nd question in the 2nd essay going for? I just said some BS about preemption, actually mixing up the rule for executive agreements like I bet a lot of people did. So order would have expressly preempted the state law, but there wasn't any conflict; field preemption is inapplicable. I have looked through the books and I still don't know what they were looking for.

The Grand Poobah said...

I believe we would typically discuss Standing if we had a plaintiff or organization contesting some state action. Here, we had no actual plaintiff and the issue was not yet ripe because there was no present injury or imminent future injury.

Your Prof was right, of course, but a Standing analysis is not mandatory in every ConLaw question. And this question didn't scream out for one. At least, it didn't to me. But if you covered all the main issues and still had time to work it in, you did better than I did.

Anonymous said...

Essay 5 (Real Property, Etc.): Okay, was Celia's conveyance valid or not? (She put her signed deed in an envelope and gave it to A, I think with instructions to give it to the guy upon Celia's death, but she wanted access to it upon demand. Something like that.) Did this conveyance conform to the deed and delivery formalities? I seem to remember there being a case addressing this exact situation way back in first year Real Property (which for me was like four years ago). I want to say that the fact that the grantor reserves the right to access the deed was pivotal. It either defeated the unconditional intent required to convey an interest, or it was found to be irrelevant. Can't remember which. Any thoughts?

The Grand Poobah said...

If the fact pattern were as you suggest then I would say yes, we have no bananas ... er, delivery.

However, on this question there was an extra step where, after Ann handed the deed to Celia with instructions to deliver it to Ed after her death, Ann went ahead and recorded the transfer.

There was no effective delivery when Ann handed it to Celia because there was no present intent to transfer. However, I wrote that because she recorded it, delivery was implied.

Okay, I just looked it up in the Conviser.... "Delivery - In General: Delivery refers to the grantor's intention to make a deed presently effective even if possession is postponed. Delivery may be satisfied by manual delivery, notarized acknowledgment by the grantor, recording, or anything else showing the grantor's intent to deliver."

And further down the page .... "If a grantee wrongfully acquires the deed from the escrow holder prior to performance of the condition, title does not pass ..." This would argue that the delivery may have been invalid.

And then .... "Title usually passes when the condition occurs, but if justice requires it (e.g., grantor dies or becomes incompetent) and there is an enforceable contract to convey, title may "relate back" to the time when the grantor gave the deed to the third party." This argues that the delivery was valid in the interest of justice.

There's a little more, and I just cherry picked applicable paragraphs, but I think this shows that all you needed to do was to see the issue and argue it. I'll bet the released answers go both ways.

Anonymous said...

With respect to the property question, my approach seems to be different than others (oh,no!). We were not told if Celia and Ann (?) were making a gift to the fella (forgot his name) or if he paid for the property. Therefore, I wrote about this distinction and discussed the impact of his paying valuable consideration and equitable conversion on one hand and the gift on the other. Using this method, in my answer, I was able to make a transition to his taking the 2/3 fee upon Ann and Celia's deaths. Hopefully, this worked.

Anonymous said...


I know for a fact that passing these essays depends not so much on your conclusion or the answer your reached but more so HOW YOU GOT THERE - your analysis.

there can be many different conclusions to the same question (as I am sure there are) what matters though, is if you were able to explain and articulate your reasoning and rationale for arriving at your given conclsion.

No sense in hacking this out and tormenting yourself trying to figure out the 'right' answer - because there really isnt one..

analysis, analysis, analysis!

best of luck to all!

Anonymous said...

It's true that what facts you use and how you analyze them counts a lot, I think (well at least for me personally) just hashing out what I did helps me unload the whole experience. My friends and I all talk about how much we don't want to talk about it, so rather than coop it all up for me it just helps to vomit it all back out ;) Wish I could do the same for the MBE, I am still having nightmares about that damn thing. Ugh.

And it is interesting to see what issues others spotted, or how they used facts. The agency thing in the Property essay totally skipped my mind for instance, but I still used the facts in a delivery/not delivery analysis so I will hopefully still get some points there.

Anonymous said...

In dealing with question 4, the remedies question, did anyone else talk about how replevin would be ineffective bc although the plaintiff would post a bond to get the car, the defendant lady could post a re-delivery bond and retain posession? Did this analysis play much into anyone else's answer?

Anonymous said...

Without consulting any "sources", my off-the-cuff superficial understanding of replevin is that it is usually the preferred remedy where the D has a specific chattel that was held by or originated with the P. For example, where the P-seller has delivered goods to the D-buyer who has subsequently breached by not paying, one remedy for the seller would be to have the goods replevined, i.e., returned. Another replevin situation might arise in a bailment scenario where the bailee has wrongfully withheld possession of a chattel belonging to the bailor.
I may be incorrectly reading into the definition that the chattel sought must originally have belonged to the plaintiff, and on that basis, I stated that replevin would not work in the fact pattern in Essay 4 because the car was not the P's to begin with. Rather, specific performance would be the appropriate remedy. Oh well. Who knows...

ezfilamlegal said...

Replevin is available to one whose property is being unlawfully withheld. Here, buyer was not the owner of the car. Just because he entered into a contract with seller doesn't make him the owner yet. Hence, not being the owner, it cannot be argued that the car was being unlawfully withheld from him. Therefore, replevin is not available. (I think this was a word for word account of what I actually wrote, among others, in Essay 4.)

Anonymous said...

Well said, Mr. ezfil. Your analysis is concise and to the point. If that was how you wrote your essays, you clearly deserve to pass. Oh well! Good luck to us all!

Anonymous said...

Well, the law is a tad different. Under the UCC:

§ 2-716. Buyer's Right to Specific Performance or Replevin.
(1) Specific performance may be decreed where the goods are unique or in other proper circumstances.

(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.

(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.

Remember the tomato soup case?

Anonymous said...

All interesting comments, and I understand the all-too-typical need of the average law student to pontificate and demonstrate their aptitude, but by this time, isn't discussing bar exam answers an entirely moot point???

My unsolicited advice is to absolutely avoid these kinds of discussions. Otherwise your already interminable wait until November is going to feel even longer and more excruciating.

Good luck to you all.

-junior, esq.

Anonymous said...

Quick question. I didn't take Barbri as this was my second state bar. Is there any where on the web where I could get an explanation of how the essays and PTs are scored? I don't fully understand it. I don't care enough to buy anything, but if there's a good blog entry or something that explains it, I'd love to read it. Thanks!

ashley said...

Generally the PT's and essays are scored starting at a 75 or 80.

Then there are specific issues that the bar is looking for each essay.

ex. Negligence (specific facts they wanted you to talk about regarding negligence)

The bar takes off minus 5 for each issue you missed..

for PT's- looking for specific set up.. and specific cases/facts to be applied. same starting score and minus 5 for each you missed.

Anonymous said...

ezfilamlegal, you are absolutely right about your analysis as it applies to replevin. Buyer could not get replevin; however, he was clearly entitled to SP.

Good luck to all of us!

Anonymous said...

cannot seem to post here - testing

Anonymous said...

Thank you for your comments Grand Poohbah. I am praying that you pass this bar exam (and of course, for me to pass too).

I totally blew the MBEs, but feel I did fairly well on all the essays.

What do you guys think about my chances of squeaking by and passing?

Anonymous said...

Thank you for your comments Grand Poohbah. I am praying that you pass this bar exam (and of course, for me to pass too).

I totally blew the MBEs, but feel I did fairly well on all the essays.

What do you guys think about my chances of squeaking by and passing?

Anonymous said...

Can someone blow the MBEs, yet still pass?

Is this possible?

J said...

If you did well on the essays and the PTs you can still pass despite not doing well on the MBEs.

Armond said...

As to the standing issue for the con law question, it was there, but it was a minor issue. The issue was whether anyone would have standing to make a facial challenge. There is always a standing issue for 4th Am search and seizure, and it involves a reasonable expectation of privacy. The question is whether the banks would have standing to raise the issue on behalf of their clients, or if the clients would have a reasonable expectation of privacy in information given to a bank (or whatever organizations the Pres wanted raided). There is more to the issue, but I forgot the specific details of the question.

But if you missed it, seriously, don't worry. It wasn't a big deal, just that you have to mention that 4th Am claims always involve standing issues.

Anonymous said...

To Grand Poohbah,
I just wanted to know why you felt you failed the first 2 times. Reading your comments, I cannot understand why you did not pass. You seem so very smart. How do you think you did this time around?

To all the bar exam takers:
Anyone studying while waiting for their results? Or do you guys feel it is better to just finally relax and watch Eli Stone (new show on TV - has high ratings about an attorney who has psychic abilities)- set in S.F. bay area. I finally watched it for the very first time last Saturday. It was always impossible to watch TV before (as you guys all know). I really loved the show and definitely got hooked on it.

Jeff Johnston said...

I'm so glad I found this blog! I thought I was the ONLY one that wanted (or needed!?) to talk this stuff through. Thank you BP and all of you for posting great thoughts on the exam questions.

Most of my friends refused to discuss the questions. I wish now that I would have written down as many of the facts as I could after each exam.

Does anyone know of a way to read the encrypted ExamSoft files? I don't want to change them, just read my own answers!

I think I got 90% of the issue spotting based on the comments here, so I'm feeling moderately comfortable. We all hated the MBE's, but thank God for PMBR's 3 day course... saved my butt big time!

I'm a first-timer so have no idea really how difficult they grade these things. Barpassers Tutorial graders gave me an average of 60's on 23 practice essays and 3 PT's. I just hope they were being overly harsh or I did okay on the MBE's.

I brought my scores up on the MBE's from an average of low 50's percent to about mid to upper 60's percent out of PMBR's blue book. Does anybody know if that's good or just okay?

I always hate the PT's the worst due to time constraints. I'm a slow reader with learning disabilities, but the State Bar rejected my doctor's recommendation ONE DAY after the deadline to appeal. What jerks! I figured it was worth taking the test under normal conditions just to learn how I did, and I'm glad I tried it.

I hate the idea that we have to mention Replevin when we know it won't work just to dismiss it. Do you lose points if you just skip it? Well, according to an earlier posting, UCC provides the remedy of Replevin to a buyer of unique goods. Learn something new everyday!

I'm so bored out of my skull right now that I'm going stir crazy after studying for 14 hours a day. Now it's hard to even get out of bed. I have nightmares about answering non-existent essay questions and just can't decide between answers C and D. The nightmares are getting better, thankfully.

Thank you for sharing all the details. I feel so much better now after reading all the posts.

Many thanks to GP for your great work on here and in the yahoo group.

Good thoughts to all.


Anonymous said...

Ditto to your comments. I took off work 2 whole months and studied straight 14 hour days. My hurts and were blurry by the end of every day. Even waiting in line at the grocery store, I could not help but feel like I was wasting time, so I used to study.

Now I have nightmares, mostly about having to retake this stressful test! My blood pressure is elevated and I had to get my meds increased. I am almost 50 so it is difficult dealing with all this stress. Not like the rest of you youngsters out there that can put in 14 + hour study days with ease. It has been a real struggle for me.

Now I feel guilty for not studying while waiting for my results. Every day I ponder whether I should continue to review my outlines or flashcards. Just thinking about it drives me crazy.

Thank you for your posts here though. It makes me feel better knowing i am not the only one stressing while waiting for the results.

When I read other posts, I think I did okay.

Like jeff, I regret not writing down what I wrote so I can discuss it in this forum.

Jeff - if i were you - i would not mess with the softest. Just on the slim chance that your upload is not readable, the bar examiners will need to have you bring your laptop to them to re-download. If you have tried to view it, it may get corrupted - then the dreaded news - you will have to re-take the test!!!! Just let do your best to re-collect what you wrote to make a post here.

I really blew the MBEs - there are about 10 that i definitely missed that continue to haunt me.

in fact, i went back and changed the correct answer to the wrong answer, thinking it was some slight nuance bullshit and that the examiners were trying to mess with our minds.

Anonymous said...

jeff- i do not know how to view your answers on softest. maybe a computer programmer would be able to help.

Anonymous said...

On the Constitution question - the off the wall question about the President trying to force businesses to share client info - did anyone cite the "war powers" - that the president has special powers only during times of war?

Was this wrong? I wrote about the fact that unless the govt had "reasonable suspicion", without a warrant, they could not request this info - unless there was a war.

This question completely blew most everyone I spoke to. Even when I went home to review my notes, I could not find the answer. Now that tells you it was definitely in left field.

I wonder whether others fucked up on this one.

Anonymous said...

i didn't cite the war powers but i used the the term "actual hostilities" to give the president the power to go ahead and pursue his objectives under the given situation. based upon the clear threat of terrrorism which was pretty much the given situation i think it wasn't a bad idea after all. plus, i mentioned too the fact that if businesses were defined to include corporations, they wouldn't have protection under amendment IV of the constitution because only persons are protected...

Anonymous said...

was wondering if it was a bad idea that for the joint interest question, i managed to say there was no severance but there was an assignment in effect made to the guy, who just merely stepped into the shoes of the two ladies prior to their death and by reason of such, all the interest was unified to that girl ann, betty or celia, i'm not sure who was the girl that survived.? was just curious, i don't know shit about real property as well as friggin wills/cp problem. not to mention the MBEs, i guessed on ten questions in the morning session when i ran out of time and i managed to just pick C just for kicks. oh well, i guess i just needed to air out the misery of the july bar...

Anonymous said...

For the CP/wills question:
did anyone mention that under SEC rules stock can only have one owner and thus, cannot be held in JT?

david said...

I own stock in a bank in joint title with my son. Are you sure of this rule?
P.S. GP, I've really appreciated this site.

Anonymous said...

I also own lots of stock at Charles Schwab and it is all in joint ownership with my mom.

Where did the person get the rule that you cannot own stock as joint owners?

I never heard of that.

furthermore, how is that Charles Schwabb allowed me to put over $120,000 in stock as joint owners?

Anonymous said...

Waiting for the results of the July 2008 really sucks.

I feel that I am not marketable, to even look for a job now because I do not know whether I passed the exam. And I do not want to become a slave for some large law firm, being paid just barely over min wage. I would rather sip coffee at Starbucks and read the paper.

Anybody out there studying their law notes, just in case you get the bad news of failing?

I study every other day, and feel guilty for not studying every single day.

I am so stressed. It is almost as bad as the final year in law school.

What are you guys doing?

Any thoughts or suggestions?

Anonymous said...

I was bored so I checked out the starting salary for govt jobs - particularly govt work as a "staff counsel" (you are required to have a bar license). The starting salary is $4,000 per fricking month !

Hello, is anyone home out there?

If you want to earn $4,600 per month, you need at least one year of full time experience as an "attorney". Can you believe that?

Is that why attorneys for the State are so dumb? It is as if they had zero options and just needed to feed themselves - not take vacations, just have enough money to buy groceries and cook their own dinners and yes, the occasional eat out night once a week - perhaps splurge at McDonalds?

Unbelievable !