Thursday, July 28, 2011

Well, as far as bar exams go, that one was pleasant enough ...

And I'm not kidding. Seriously. I'm seriously not kidding!

The essays on Tuesday morning were not too bad, even that CivPro/Evidence essay wasn't as hard as they could have made it. And today's essays were very straightforward. I just wish I had written even ONE practice essay on future interests. Blah. Hey, did anyone else write on RAP? There was a little voice inside my head telling me that I should bring it up and give it a couple of sentences. I don't remember if I concluded anything, just writing about it gave me the creeps. I knew I couldn't attempt a comprehensive discussion about it because to do so would reveal the depths of my ignorance. Of course, if there's any rule we don't have to feel bad about not knowing it's the rule against perpetuities.

I'm going to keep this short (Hey Bartender! Mas cervesas, por favor!). Did I say that out loud?

Stay tuned for November 18th. I promise I'll post before then (at least two times, really!)


Anonymous said...

what was the evidence part on the civ pro essay? we were asked issue preclusion, the relation back doctrine, and sanctions/ discovery

Tyrone Wilson said...

Hey man I have been reading your blogs since I took the bar the first time. I passed finally last Feb. If you ever need the motivation, look at the California Bar Journal online. Yes, this is Tyrone if anyone ever needs to chat about the exam hit me on the email.

Anonymous said...

GP, I did not talk about RAP as I thought invalid restraints on alienation was the better issue; in any event, I concluded Andy did not have a reversionary interest in Blackacre. I also mentioned the possibility of Beth and Carl(?) as having a tenancy, but since the facts are silent as to their relationship, I assumed they were not married.

But you're right, Thursday's essays are quite straightforward. And so were the PTs - after untangling some of the dense language in the codes and cases.

I wish you the best. When you pass the exam, I hope you will continue to blog.

Anonymous said...

It was a direct restraint on alienation and void. Angel got nothing. In addition, I said that by conveyancing her interest, Beth severed her joint tenancy and Frank got her interest as as tenancy in common with Chris. Since Frank died and a tenancy in common is descendable (sp) it went to Frank's heir Mona. Mona and Chris had a tenancy in common and Chris attempted to oust Mona by adverse possession but did not satisfy the elements, but Chris could get reimbursements from Mona for the taxes and insurance that he paid because Co-tenants can seek contribution

Anonymous said...

I discussed RAP, but RAP would not apply because RAP does not operate to reversionary interests in a grantor! (It also does not apply to indefeasibly vested remainders, or vested remainders subject to complete divestment.)

Anonymous said...

Anonymous: What element did you think was missing for AP? The only possibility would be if you concluded that the statute had not run, but it's been over 30 years which would satisfy every AP statute I'm aware of. Otherwise your answer is basically right.

Also, not a huge point, but there were no reversionary interests involved. At most the grantor retained (tried to retain) a right of entry.

Anonymous said...

I also think all elements were met for AP/Ousting. As far as future interest of the grantor A, although RAP does not apply to it, a quick discussion of at least a couple words on it was deserved, because deed was "to B and C, but if ...." - that means under the Worthier Title, that it can be read "... and their heirs" and because of that the condition fails.
What was the evidence part on civ-pro question? I didn't catch it.

Anonymous said...

How did folks handle the contracts question? Anyone talk about preexisting duty, lack of a true offer, lack of writing for an interest in land and lack of acceptance, lapse, etc?

Also, civ pro was issue preclusion, discovery/ sanctions, relation back doctrine for adding new claims.

Anyways, best to everyone.

Anonymous said...

I also wrote about evidence issues regarding relevance on the civ pro question. I now see that I was completely wrong. Hopefully I didn't blow my chances of passing

Anonymous said...

Yo did not ruin your chance. think positive my friend. Let's all be positive.

Yeah, on the civ pro essay I saw the issue preclusion/ collateral estoppel and talked about the mutuality doctrine and non parties and offensive use of the pleading from another case, blah blah

Anonymous said...

Hey GP - you seem to consistently score high on the mbe. Do you have any advice for me? What do you use to prepare for that section? I'd already be an attorney if it weren't for those darn multiple choice questions! The highest I've scored on an actual bar exam is a 116/200. I tried adaptibar for the past exam period, so I don't know yet if that will end up helping my score or not

Anonymous said...

Like GP, I discussed evidence on the Civ Pro question because the Dr's response to the first question was relevant to whether or not his conduct fell below the standard of care. Not sure if that was correct or what they were looking for, but that is what I discussed. . .

Anonymous said...

Can someone explain how the RAP issue was involved in the property question (from Day 3)?

Anonymous said...

rap was not involved at all. It was about Invalid restrain on alienation, therefore, the right of re-entry was extinguished. C and Mona are tenants in Common as the JT was severed byt he conveyance from beth to Mona.

Did anybody discuss Joinder on the Civ pro question?

Anonymous said...

The conveyance that severed the JT was from Beth to Frank. Mona took via intestate succession from F upon his death.

On the Civ Pro essay I discussed the following:

1. Disco; Relevance for Disco (with short comparison to narrower evidence std); torts breach and relevance as above; and sanctions;

2. 12b6 std in fed ct post Iqbal; SOL; tolling; relation back doctrine; and very shortly joinder just to establish same T/O; and

3. MSJ std in fed ct; res judicata; issue preclusion + mutuality as applied to these facts

Anonymous said...

I also discussed Erie very briefly in call 2 since this was a SOL issue (definately substantive law) in Fed Ct. Also, SOL was an affirmative defense.

Jonathan L. Kramer, Esq. said...

May all of your bar dreams fade, and more pleasant dreams replace them... until at least mid-November.


Anonymous said...

GP: I hope you passed!

Real Property
RAP not contemplated in the property question, since the right of entry is in the grantor, but the fee simple subject to condition subsequent was a restraint on alienation void from inception.

Adverse possession fully met. Since no statute was mentioned, assume common law period applies, and 33 years is much longer than necessary. While A and M have claims to legal title, C can quiet and take 100%, though he has not done so yet.

Civ Pro
I'm irritated with myself I didn't discuss sanctions with respect to the motion to compel, especially since the question surrounded how the court should rule.

Offer was sketchy, given the likely termination by lapse. Acceptance was fubar as well, depending on whether you interpret as unilateral or bilateral. Most likely bilateral. Lots of defenses, including capacity, undue influence, statute of frauds.

No contract but restitution for value of benefit to the doctor (maybe) in quasi-contract.

Anonymous said...

exactly, RAP not implicated when the future interest is in grantor.

Restraints on alienation was applicable, though.

Anonymous said...

yes, on the civ pro, you had to discuss joinder of the party.

Anonymous said...

I thought on the Contracts essay you had to discuss (in addition to the myriad of other issues) the pre-existing duty rule where the old dude said "I will give you my office building if you continue to take care of me." She was already doing something she was legal bound to do: be his doctor.

Anonymous said...

I missed restraint on alienation in the RP essay (even though it was so obvious). Do you think that means I failed the essay completely if I hit all the other issues? crap. REally don't want to take this again.

Nicky said...

I wrote about the pre-existing duty rule on the Contracts case. Statute of Frauds is a defense to enforcement, and since Al died, there would be no one to assert that defense. That's all I really brought up about the SOF.

There was no RAP issue on the Real Property Question - the fee simple subject to condition subsequent was an invalid restraint on alienation, so the reversion was invalid.

There was also no evidence issue in the Civ pro question that I saw..

Anonymous said...

I did not finish the first performance test (the article 9 stuff on maker/ principal and accommodated party, etc) . Stressed out because I took the attorney's exam and the PTs are 40% of my exam.

I felt good on the essays for the most part. I did many past essay exams and the Property, Professional responsibility, and the rest were tested before or had a similar fact pattern.

But the Tuesday PT killed me. And the Thursday PT was just okay... :-(

But good luck to everyone. I like how this site is positive and folks are respectful.

Anonymous said...

I'm not so sure joinder of parties was a necessary discussion point, because the facts dismiss that issue by saying that the motion for joinder was granted. The question asked about the opposing party's motion to dismiss.

Consideration was definitely a major issue on the contracts essay--including the pre-existing duty rule and that Dr. did not believe the building existed. Defenses also seemed like a major issue, and I know I missed undue influence, capacity, and unconscionability. Plus the statute of frauds, for contracts that can't be performed in under one year and land sale k's

Anonymous said...

Ive been checking this site since 2007 when i passed the second bar, California (previously passed another bar). You don't have to hit every issue to pass the bar exam. To pass, argue both ways and think of all logical ways that an attorney would think and his/her opponent would think. even if you don't know the law, you can BS it and as long as it sounds logical you will pass.

I wish nothing but the best for GP and all you bar takers out there.

Anonymous said...

One of the ludicrous aspects of the bar is that it appears that you do need to at least mention things like the RAP or Tenancy-by-the-entirety even if they don't apply (here, the RAP) or there is not enough info (here, TBE). Even if it is a throwaway sentence or two that mentions the rule and then states why it does not apply or how it would apply if more info was given.

Best of luck to you GP.

Anonymous said...

Ok, So I think I did well on all the essays and Pt's... Except the property, had a miny freak-out, and did not have enough time to write anything. Has anyone any idea on whether one can pass with one bad essay (I mean 55)?

Anonymous said...

Civ-Pro: I think you at least had to mention joinder, as the facts indicated it was a necessary party, I had a few sentences about it. I think the big issue was relation back doc.

Anonymous said...


1. Dan - conspiracy to commit burglary and larceny; burglary; larceny; battery.

2. Eric - conspiracy to commit burglary and larceny; accomplice liability for burglary and larceny.

3. Fred - accessory after the fact; receipt of stolen goods.

Civ Pro:

1. motion to compel - discovery (generally); logical relevance; character evidence (dismissed as irrelevant during discovery); 5th A privilege against self-incrimination (doc refused to answer depo Q) and applicable civil procedure for resolution of privileges.

2. motion to dismiss - joinder; relation back; despite SOL court granted leave to amend.

3. MSJ - collateral estoppel/issue preclusion; res judicata/claim preclusion (why not applicable).


offer (not definitie bc office bldg generic); acceptance (MBR; lapse); consideration (past consideration not sufficient); terms (condition precedent); detrimenal reliance; defenses (SOF, lack of capacity due to Alzheimer's, lack of consideration as weak argument re value of doc's services v. value of bldg, undue influence, unconscionability); one sentence regarding restitutionary remedy of quasi-K if court finds detrimenal reliance.


1. potential COI; actual COI; duty of competence (on everything since law did not address the cause of action for lawsuit); duty of fairness; duty of candor to tribunal; duty not to aid client in bad conduct (didn't check to see if client negligent, simply gave "plausible" argument of cost reduction as means of explaining withholding payments).

2. duty of fairness (threat); duty of competence (reporting someone for non-moral turpitude offense plus CA self-reporting std); duty of candor to tribunal; duty of dignity to profession; duty to communicate (shld have told physicians she was going to threaten their "friend").

RP (not much time):

1. restraint on alienation

2. severance of JT; TIC; intestaste succession TIC; ouster


1. Car - source SP; joint title presumption at divorce; CP in interest of justice bc H not working and no writing to defeat presumption; brief mention CA does not recognize c/l marriage.

2. Settlement- source CP; analyzed as personal injury award with counterargument re cause of action arising during marriage; resolved as W's SP.

3. Gambling Debt - H had no job, no SP so resolved as CP debt despite the usual rule that if not for benefit of the community it's supposed to be SP.

some essays okay, others not so good. everything i wrote could be completely wrong. essays seem to be racehorse, that's what made it difficult for me. may have spent too much time arguing both sides of issues. that kind of analysis takes forever. as long as i am blessed with GP's MBE score and the graders see fit to score me well enough to average 65 on essays, i'll take it.

Kimberley said...

1. I would add robbery because he pushed her and took it by force.

2. B) There was a scope of discovery, and relevance, then perhaps privilege. A lil blurb on sanctions.

3. It was termination of offer by lapse and death. Pre existing duty, an no promissory estoppel cuz she didn't rely on the promise, she forgot about it.

4. COI- with his personal interests.he kindof schemed the health group by siding with his friends, leaking his defense
strategy. Improper communication with represented parties.Beth tries to threaten discipline and improper

5. Void restriction on alienation, fee simple subject to condition subsequent. When void phrase it terminates the right of reentry and gives chris and beth fee simple.

6. Unmarried cohabitants, or implied in fact contract. The income was for past employment so counts as CP.

jclarsen85 said...

Hey man, I hope you're doing well. I'm the young guy who sat behind you in Ontario. I hope you killed it. I haven't seen a proper discussion on the property essay so here it is:

The restraint on alienation was the huge issue in Part 1. They wanted to hear analysis on whether it was valid or not. A restraint on a FSA is invalid unless it is reasonable in time and for a legit purpose. However, courts are more willing to allow a restraint on alienation in a joint tenancy, so that the non-alienating tenant won't have to live with a stranger. But that only makes the "individual" alienation restriction valid, not the "joint" restriction. (pg 16 in real property of the CMR. So this required quite a bit of analysis. It was also important to note that this was a promissory restraint, not a forfeiture or disabling restraint - because if it was a forfeiture/disabling, then the transfer from Beth to Frank never would've happened.

After determining the restraint didnt sever the JT, the analysis should go like this: said it was fee simple subject to condition subsequent with right of re-entry. b and c had defeaseable fee subject to divestment. right of re-entry wasn't excercised so B and C had jtros, jtros split when it went to frank. frank's prop went to mona. mona and chris owned 1/2 tic. she owes money for taxes, repairs absent ouster. argued there was ouster. said andy still had a right of re-entry but he didnt exercise it yet so he still has a future interest; m and c had defeasable fee subj. to divestment. Also, points will be awarded for a discussion on AP wrt ouster.

Anonymous said...

What's the max score y'all think i can get for hitting all points on property except restraints on alienation? I usually have strong analysis. Am i looking at a 50 or 55?

Anonymous said...

even if RAP (or whatever else) seems totally inapplicable, it is almost definitely worth points to discuss it in a quick manner. and do it in a nice format (IRAC the shit out of things in a consistent style). and you'll get all the points you need.

good luck to everyone, especially the retakers.

then again, i can tell you - as a CA attorney - the profession pretty much sucks. so if you don't make it, there's that to fall back on.

Anonymous said...

Nice post on Real Property, JClarsen. My guess is that there will be much variation among applicants in their responses that portion of the 1st call (hence the dearth of "proper discussion", as you describe. For this reason, I'd also hazard to guess that your level of detail will not show up anywhere on the answer key--but still worth some points. Although I did recognize an invalid restraint on alienation (courts may view the clause as a forfeiture under government authority, incompatible with public policy), I'd place the smart money on finding and analyzing ouster and adverse possession--this is where the points were for this question.

Anonymous said...

Agree that JClarsen's post about RP is good. And scary since I missed that.

As for contracts, I thought that, even if one got to the mailed letter as an acceptance (with the mailbox rule possibly keeping it alive), it was technically a counter-offer since he asked for "care" and she said, "medical services." Mirror rule for common law would apply. But then argue that the terms were equivalent based on their prior relationship.

Additionally, one could argue that he gave the method of acceptance when he stated, "I need to know now." Therefore, only an acceptance at that point in time was valid. But then argue about acceptance by actions (finishing his exam and giving him medicine).

Minor quibble arguments but that is what I saw.

Anonymous said...

Essays werent too bad. I though the MBES were tough for me. For some reason I remember a whole bunch of questions which were narrowed down to two answers. More concerned about the MBE section then essays.

The Grand Poobah said...

Hey JC,

Sounds like you got most, or all, of the issues on the RP essay. I wrote the exact same thing, but differently! (lol) I think most people probably saw the main issues, the difference will be in the analysis. Good analysis means a higher score. Poor analysis, and poor use of the facts, means a lower score. Obvious, I know, but that's been my problem on exams past.

Let's hope that we both did a great job on the analysis. I suspect you did a better job than I did, but as long as I did well enough on all of them to get an average of about 62.5 on everything, I should pass. I've mentioned this before but, if I had averaged a 60 on all my written work on the last exam, including the PTs (my arch nemesis) I would have my license today.

Best of luck to everyone. I hope we all killed it!

Anonymous said...

Thinking about the alienation of restraint issue, I do believe that JC is correct that it was a big area for analysis. However, I do not agree that the restraint would be upheld. The policy is to not force a JT to have to "live with" a stranger. However, the restraint here prevented them from JOINTLY transferring the property. I think a court would strike the clause because both JT should be allowed to sell the property together.

Therefore I think that they still ended up with FSA in JT and no condition subsequent.

Anonymous said...

I took the attorney's exam here this past July. I am really worried about the first Performance Test (about article 9 which) I did not finish nor do a good job. Just had a nightmare about that not letting me pass the exam.

I know there is nothing I can do now but wait and see on November 18, but just venting. Sorry for the interruption.

The Grand Poobah said...

Anon 8:47: No interruption at all. I think most people had similar thoughts about that PT. I certainly thought it was one of the more difficult ones I had ever come across.

Anonymous said...

Hey GrandPoobah: Best of luck...hope you hear gr8t news on the 18th. Thanks for the website and forum. Talk to you soon....Best, Aimee