Tuesday, February 24, 2009

Hey! Where did that Civil Procedure essay come from?

And that California Evidence essay too? I thought they retired those subjects!

Okay, well, maybe not Evidence, but Civ Pro?!? Not that I wasn't ready for it, you understand. Not really. But I might have been just a little put off by the fact that they were in Federal District Court, with all parties being residents of the same state, under diversity jurisdiction (!), and the defendant wanting to change venue to another District Court in the same state?

Odd, that is. I don't think I've ever seen that fact pattern anywhere before. Ever.

Oh well... Onwards and upwards, as they say.

They do still say that, don't they?

57 comments:

Jonathan L. Kramer, Esq. said...

This is the time; this is the place; this is the end.

Jonathan

Anonymous said...

If you used the incorporation state,then there is diversity. But if you used the principal place of business, then you don't. For corporations, it is either or.

But yea, essay 2 and 3 screwed me.

Anonymous said...

What does it matter what the diversity is based on? That wasn't an issue. The issue was change in venue (analyze personal jurisdiction, then public and private factors).

Anonymous said...

And question 3 was quite easy. All you had to do was recognize the difference between spousal testimonial privilege (owned by the testifying spouse and applicable only for current marriages) and spousal confidential communication privilege (owned by the non-testifying spouse and applicable for communications during marriage). The rest of the question was straight forward hearsay, with a Confrontation Clause issue thrown in.

Anonymous said...

Civ Pro, huh? Well, you knew it was coming at some point and all those folks who predicted Civ Pro this time are going to claim their crystal ball was better than others--but really, it was just a matter of time. You knew it was fair game so I'm sure you did fine. Did they limit the answer to Fed or CA or both?

Re Q3--Was it a full blown Crawford/6th Amend analysis or was that a minor issue?

Good luck on the remaining two days.

Anonymous said...

Q3 had only a very small Confrontation Clause issue, secondary to a double hearsay analysis. The out-of-court statement was non-testimonial, so the CC didn't limit it anyway.

Anonymous said...

It could have been worse! They could have come up with a Civ Pro and Evidence Crossover Essay with Fed and CA distinctions for both. LOL.

Torts tomorrow?!?

Good luck GP and all!

Anonymous said...

I think I spotted you in the front today. It's hard to tell because I was only looking at the back of your head.

If I get a chance, I'll try to catch you tomorrow.

Anonymous said...

Hey, to the guy who asked to the previous guy why he talked about diversity in the Civ pro question...we must have all smoked some crack because I talked about it too. But I did cover the PJx and factors.

I guess the reason I did was because I finished the essay pretty fast, about 40 minutes or so, and I thought I was missing something.

Anonymous said...

The question clearly said, the court properly concluded it had diversity jurisdiction. Couldn't have been more clear not to address it.

Anonymous said...

Since we have a limited amount of time to quickly review for 3 essays - does anyone have suggestions on which subjects to focus on for tomorrow?

WC law mom said...

I'm hoping for torts or contracts for the third biggie... that's all I'm saying.

And please no CP or con law. I suck at those.

The Grand Poobah said...

Yeah, that's me up towards the front. Feel free.

The reason I bring up diversity in a question that asks for whether a motion for change of venue should be granted is because of the requirements involved. Citizenship of the parties is one of the things we look at when judging where venue is proper. I couldn't make myself discuss venue without discussing who was a resident of what state. Then along with everything else is whether the defendant is subject to personal jurisdiction in the requested district.

I see irrelevant issues!

Perhaps that's why I seem to find myself back here twice a year.

Anonymous said...

I'm guessing Torts, Crew law/Crim pro cross over, Trusts/Wills cross over.

Good luck everyone.

Jonathan L. Kramer, Esq. said...

So, how was Multistate day?

Blogger said...

Wow, at the front again? I hope your current neighbor is as supportive as I was in July. Maybe they put you at the head of the class again so that it could now be associated with a positive memory.

I am absolutely pulling for you, praying for you, and sending you positive energy. I believe in you, and I hope this is something that will forever be over with for you. You are so smart and so capable. Hopefully this time they'll see it too.

You're going to kill it!

Anonymous said...

If you didn't discuss PJ, but just said it was assumed since the call didn't ask for it, did you fail the question? My answered focused on diversity (brief discussion of the possibility of no diversity b/c of principal place of business of the corporation) and proper venue. Damn. I guess I failed the Civ Pro question because I glossed over PJ. Can you flunk one essay and still pass?

Anonymous said...

PJ is a big part of diversity venue. It's the 3rd prone, after all D residing in state or COA located. If you didn't discuss it but put down the private/public factors (not even labeling that, but at least discuss like where they were located, where she was injured, etc), and then answered the rest of the discovery questions by at least half bs'ing them, I think you will still pass...barely.

Anonymous said...

I meant, you can even still pass the essay. There's an array of ways to pass, you can flunk several essays but make it up by doing better in others or on a PT. Or even score high on the MBE. The reason people say you should try to pass everything at least with 65s because it's hard to get a high score. But it's no impossible. Like if you got two 55's on the essay, but scored a 75 (PT = 2 essay) on the PT, then that averages to 65, so you should be cool.

Anonymous said...

Yeah, I just looked over my notes on Venue. I completely forgot about PJ. I did talk about where all the defendants reside and where a substantial part of the claim arose. But I completely brain farted on PJ. I briefly discussed it, but shot it down. What sucks is, I thought about discussing the factors of PJ, but didn't. Damnit! Oh well. July 2009 here I come.

Anonymous said...

Thanks for the encouragement. I just hate that I missed that gimme. I didn't feel good about the MBEs, especially the AM session. Oh well, I'll just have to wait and see. Good luck tomorrow and thanks again.

Anonymous said...

Yea, good luck to you too. I was the opposite on the MBE. I thought the first half was easier and the last half harder. Not sure why, maybe the subjects and it was getting later in the day.

I personally had problems on the evidence question. The format, the questions and answers between prosecutor and Wendy (I think?). Man, that threw me for a loop.

Anonymous said...

When I took the bar in July 2007 they had two versions of the MBE where the am and pm sessions were switched. That's probably the case today as well, which would explain why some thought the am was harder and vice versa.

Anonymous said...

Any comments on how you handled the pt? Foreign law but no interrogatory for it?

Anonymous said...

I left all that out. The resume, the foreign law, the expert. I assumed it was meant to throw us off. I know there was an element of showing fraud for an irreparable injury, but I interpreted that as fraud as defined by the Columbia statute. I assumed fraud as detined by foreign law would be a nonissue. I may be wrong..... It threw me off, too. But I got the feeling something had to be thrown out because otherwise there was JUST SO MUCH INFO.

Anonymous said...

The foreign law and the expert was part of the first part, the fraud part. It was one of the ways to show fraud, and the first business code, I forgot what the # was, it was how the court is allowed liberal use of foreign scholars, etc. So, you tie in the expert with the memo he wrote about how foreign companies not keeping records, etc was a form of fraud.

But that was just one part of the fraud. I also talked about the other stuff from the 2nd case, about transferring assets to an "insider", no consideration, etc.

I could have been off though...

The Grand Poobah said...

Jonathan, I feel like I did well on the MBEs. But then, I always feel like I picked the right answer after I've pondered the options for a minute or so. I wouldn't pick an answer if I didn't think it was the correct one, so, as of this moment, I got 'em all right!

Re: the PT, blah. I couldn't figure out where to put the foreign law and our local expert so I plugged in some blather about him and his specialty at the front. Then I proceeded to talk about how the fact that while legal damages would indeed be adequate, if the judge doesn't issue the injunction all of the defendant's assets will likely be moved out of the country and the plaintiff will get zip.

And a little bit more... but likely not enough. So when I check out tomorrow I'm going to reserve the same room for the last week in July.

Anonymous said...

Re: the comment about leaving out foreign law, resume, etc. on the PT. That was a mistake, I'm sorry to say. There is no irrelevant information in these essays. No such thing as a red herring, nothing meant to "throw you off."

Why? Because these essays must only have one legally correct answer. Therefore, everything that is in them is there to test a specific area of law. You can't ignore them.

Is there a lot of information on the PT? You bet, but that's what they're testing: your ability to digest, frame, and utilize massive amounts of information. That's what lawyers do, and they want to see if you can do it too before they give you a law license.

If you left stuff out, the best you can hope for was that it was a minor issue and you can scrape by on the quality of the rest of your answer.

Keep that in mind for your essays tomorrow. Remember: every person, every object, and every document represents an issue, and must appear in your answer. Good luck.

Anonymous said...

Sorry but I disagree. I have done a few PTs where they threw in irrelevant info. They want your ability to discern what is relevant and what is irrelevant, as well. I stand by my answer. We shall see, soon enough.

Anonymous said...

http://www.passlaw.com/whatarepts.htm
Cntl+F "irrelevant information"

Anonymous said...

You saying the foreign expert, the first columbia business code, the implication of fraud for not keeping business records was irrelevant??? The not keeping good records was part of Pannine's complaint in that he couldn't get any bank statements, records, etc.

Anonymous said...

My job was to argue why he should get his injunction. I did that. I argued irreparable harm. I included fraud in that argument. I defined fraud by Columbia statute, as was done in the case law. I saw no case law that stated that Foreign law was even applicable to that argument, so I left it out.
He may have a claim for that, but that was irrelevant (I thought) to his injunctive relief.
Who cares? It does not good to argue/worry about it now. My argument is NOT that I am right, only that:

They are tricky and DO put in irrelevant info, so best not to confuse people with false assertions.

Anonymous said...

wow, those california bar people are tricky. I can't believe they do this to people. Good luck tomorrow. Congradulations on picking yourself up and going at it again! :)

Anonymous said...

Ug, yes. They have to find a way to keep the passage rate below 50%! Or 35% in Feb.... It's ridiculous.

Anonymous said...

Personal Jurisdiction is satisfied if it was consented to (an alternative to long arm statutes/constitutional minimum contacts), and there were no issues raised in the facts re: any motions by defendant to the ct about whether it had personal jurisdiction on the D.

Generally [28 U.S.C. §§ 1391(a)-(d), 1446(a)]
If all defendants "reside" in the same State, where any defendant "resides" [§ 1391(a)]; or
Where substantial part of events/omissions creating the case occurred, or substantial part of property that is subject of case is located [§ 1391(b)]; or
If neither (1) nor (2) exists in the U.S. [§ 1391(c)]:
In diversity cases, any district with PJ over any defendant
In federal question or "other" cases, any district where any defendant is "found".
An alien may be sued in any district. [§ 1391(d)]
For removed actions, federal court in district and division embracing state court case came from. [§ 1446(a)]

Good luck tomorrow.

kris said...

wow. a world-wide freezing (of assets) injunction? The test here (England & Wales) is called American Cynamide.

This is a 3 day test? That is a LOT of post mortem material! I'd be a zombie on the beach after all that.

Crack on and onward and upward!

Anonymous said...

Good luck, GP.

Anonymous said...

So, Mr. Anonymous:

What r u suggesting were the issues to be discussed on the civpro essay (Question 1)... simply the public and private factors for transfering to another venue that is proper?

i assumed that since there was diversity and PJ hadn't been discussed in the call... that it was simply a discussion of transferring to another proper venue. thinking now... i was STUPID not to have just discussed venue and in personam jurisdiction since venue was the call of the question. but, i cant seem to figure out why i think the way i do when i am under those conditions. would have racked up points talking about PJ and Venue... know them well. (if they were relevant) and such big discussions... i feel like im going to get screwed on this one. just hope the grader is easy on me! or you tell me that they weren't supposed to be included!

then, anyoe want to tell me... how they dealt with like 13 questions about wife/spouse and confidential communications in the 3rd question... i didn't know where the objections differentiated and when the questions were permissible. i knew the simple rules... but application was lost on me.

one last question... anyone know if they do give out 40s or even 45s? i feel like i am definitely going to be there if they do... and thats going to be difficult to overcome. the test seems very doable in hindsight... but i totally blew it on day 1!

Anonymous said...

they indeed give 40s. i was under the assumption that you get 45 for writing about anything relevant... however, on a july 2008 contracts essay that i had very little time to complete i received a 40 even though i quickly wrote down some issues and other stuff...

doesn't really make sense... so, i would have also gotten a 40 if i had left the question blank? clearly on a 40-100 scale, you can't get a zero.

Anonymous said...

Um, the lowest score I've ever heard of was a 50 for writing BS. Never heard of lower than that.

Anonymous said...

For the person asking about question 3, the spousal and communications part only needed to be addressed once , for question 1. The rest of the parts were form and, towards the end, hearsay stuff. There aren't many distinctions between FRE and CA, so if you stuck with FRE, you got most of it. Only distinctions I could think of off the top of my head are, no present sense impression, it's spontaneous instead of excitted utterance, no vicarious admission, only respondeat superior type admissions...um, that's all I remember distinguishing...

Don't think I got all of them and probably missed a bit.

Anonymous said...

Venue in tort is the place of the tort or the principle place of business or a location where the business is found. All should be addressed but the better view (from doing this sort of stuff from a couple of decades and not bar law) is the place of the tort is the predominate factor. There was no basis for the transfer to the southern district in the same state. Discuss, diss, dismiss and move on. It was a weird essay question. Sort of a knuckle ball. Nice work to the lawyer who dug up and posted:

Generally [28 U.S.C. §§ 1391(a)-(d), 1446(a)]
If all defendants "reside" in the same State, where any defendant "resides" [§ 1391(a)]; or
Where substantial part of events/omissions creating the case occurred, or substantial part of property that is subject of case is located [§ 1391(b)]; or
If neither (1) nor (2) exists in the U.S. [§ 1391(c)]:
In diversity cases, any district with PJ over any defendant
In federal question or "other" cases, any district where any defendant is "found".
An alien may be sued in any district. [§ 1391(d)]
For removed actions, federal court in district and division embracing state court case came from. [§ 1446(a)]

As far as the scores, I looked at the Ca system and thought that it's basically a 1000 point system (I know they say 2K, but bear with me). MBE is 35% or 350 points, Essays are 390 points possible at 39% and the wonderful PT's are 260 points possible. So if you wanted 642 points (a 1284 raw) then it would mean that you could get a 140 on the MBE which is 70% of the 200 points, thus it would be 245 points on the california scale, and average 62's on the essays are 241 points and average 60's on the PT's are 156 points. Add those up and you have 642 points times two equals 1284 raw. I think that will curve up past 1440. Anyone agree?

Anonymous said...

PJ was a minor issue that could be talked about. PJ was inferred because a motion for lack of PJ had to be filed either with the Motion for Change of Venue or before; otherewise it is waived and PJ is deemed to be consented. Because they did not mention anything about PJ, all one needed to do was to mention it and say that it was inferred for reasons stated above.

Anonymous said...

To answer the user who was asking about if you got a 140 raw MBE score, you would need the below essay average and PT average to pass with a 1440:

56/68
58/64
60/62
62/58
64/56
66/54

last call at the bar said...

I find it fascinating people who are so matter-of-fact, confident, or even arrogant in their tone of what the bar examiners are testing and what's important - oh, the irony! as you all seem to mysteriously post as 'anonymous'. It would be much easier if everything were so black and white. I'm sure you all would be surprised if you saw your actual scores.

To any non-arrogant anonymous commenters or lurkers out there who are looking to these blogs (or as it seems, the comments to blogs) for some validation or measure of how you performed: please tack on a maybe to every person's assertion of what was tested or "what they were looking for". You probably did fine and if you do not pass, you will likely be surprised that an essay you thought you bombed, you actually got a 70 on.

To everyone, including GP who hosts this interesting discorse - celebrate your freedom and forget this thing until May.

(P.S. My word verification to submit this comment is troplay. That's just far too amusing to me right now...)

kris said...

Hey last call - snap! The post-mortems are bs. These muppets are trying to convince the wirong people - I'm not the Bar examiner and, in any event, the exam's over, dude!

I can highly recommend getting out of town and going on vacation.

Que sera.

Anonymous said...

As far as PT #1 and the foreign law expert....my thinking is that we had to show that our client would be highly likely to succeed on the merits of the case (this is a requirement for injunction).

The foreign law expert has an extensive resume...judging by the standard of Columbia law re: foreign law experts, this guy's testimony will be considered.

The foreign law expert tells us that our adversary has broken laws in at least two countries....not keeping business records as required, blah blah. Lots of inferences of fraud there. Given the non-compliance with relevant laws leading to an inference of fraud, knowing that our client has fully performed his end of the contract, knowing that our adversary has no evidence to counter....

...our client is likely to succeed on the merits, satisfying one requirement of equitable relief.

Thats where I used the foreign expert's testimony and resume.

Anyone????

Anonymous said...

This is probably an easy question to everyone but me, but I was looking at the pass rate stats on the CA bar website- Why is the February pass rate so uniformly low compared with July? Can anyone explain? I feel demoralized.

Anonymous said...

I assume a big number of people taking in Feb are repeat takers and those people probably did not correct whatever issue/flaw they had in July.

Anonymous said...

Thanks for the reply 11:25, that makes sense. I'm a first-timer myself.

Good luck to everyone! Judging by the pale faces and funky hair at my exam location, I think we were all up late studying and I think we all deserve to pass.

Anonymous said...

Can someone explain the scaling please? I don't quite get how the MBE performance impacts the written section.

------------
Anonymous said...

To answer the user who was asking about if you got a 140 raw MBE score, you would need the below essay average and PT average to pass with a 1440:

56/68
58/64
60/62
62/58
64/56
66/54

February 27, 2009 1:01 AM

Anonymous said...

so what turned out to be the total subjects covered in this one?
essay 1,2,3,4,5,6?

Anonymous said...

1: PR
2: Fed Civ Pro
3: CA Evidence
4: Torts
5: Contracts
6: Corporations

Anonymous said...

My calculations on the 140 raw MBE score and the subsequent essay and PE scores are based on the Feb 2008 exam. However, it should be a fairly accurate calculator for years to come. If anyone is interested in the spreadsheet I have, email me at jgomez5710 @ yahoo . com

I would also like to give credit to Brian Moquin, as he was the "inventor" of the calculator.

Anonymous said...

i answered the PR and Civ Pro essays, but didn't finish item 7 on the evid essay. Thus, i didn't mention the Confrontation Cl issue. Do you think a person will pass the evidence essay if he didn't discuss item 7, but discussed items 1 through 6?

The Grand Poobah said...

If your discussion of the rest of the essay was brilliant, or at least very good, then yes, you stand a very good chance of getting at least a 65 on that one. Think back on some of the released answers you've seen in which the writer obviously ran out of time and treated the last call with extreme brevity.

Those answers wouldn't be published if the writer had failed the exam.

Anonymous said...

"My job was to argue why he should get his injunction. I did that. I argued irreparable harm. I included fraud in that argument. I defined fraud by Columbia statute, as was done in the case law. I saw no case law that stated that Foreign law was even applicable to that argument, so I left it out.
He may have a claim for that, but that was irrelevant (I thought) to his injunctive relief.
Who cares? It does not good to argue/worry about it now. My argument is NOT that I am right, only that:

They are tricky and DO put in irrelevant info, so best not to confuse people with false assertions."

This was me. And I passed. Apparently either it was not a fatal flaw, or I was right.