BarBri Thread: People taking Barbri for July 2013 exam

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Stinson
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Stinson » Sun Jul 28, 2013 11:54 am

Levels wtf?

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cahesu
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby cahesu » Sun Jul 28, 2013 12:09 pm

My criminal procedure professor went over this. If you are curious, the case is People v. DeBour, 40 N.Y. 2d 210.

Here's a brief summary: http://nassau18b.org/search_seizure/Debours%20Four%20Levels.pdf

Essentially, every interaction with a police officer in New York has implications under the New York constitution, unlike the federal constitution where a mere encounter has no Fourth Amendment consequences.

The Levels:

Level 1
Police Conduct: Request for Information (Non-hostile questioning)
Required Standard: Objective and Credible Reason

Level 2
Police Conduct: Common Law Inquiry (Allows hostile questioning)
Required Standard: Founded Suspicion

Level 3
Police Conduct: Stop
Required Standard: Reasonable Suspicion

Level 4
Police Condcut: Arrest
Required Standard: Probable Cause

Levels 3 and 4 are essentially the same as the federal standards. The difference is that less intrusive police conduct is also constitutionalized.

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sun Jul 28, 2013 12:10 pm

PitchO20 wrote:Uh, I saw this in one of the "acceptable" NY essay answers for one of the released exams. Did this guy totally make this up, or is this inquiry into "levels of encounters" something that we should know? I just analyzed the question based on a Terry/reasonable suspicion standard.

New York categorizes street encounters between police officers and citizens into
four levels, based upon the level of suspicion an officer has grounds for. In a level 1
encounter, the officer has no suspicion that criminal activity is afoot, and can only
inquire of persons their name and residence; they cannot compel the person to remain,
and the person is free to leave. In a level 2 encounter, the officer can ask pointed
questions pertaining to a specific instance of criminal activity that might lead a
reasonable person to believe they are suspected of a crime, based upon some founded
suspicion that criminal activity is afoot. In a level 3 encounter, the officer can briefly
detain a suspect and question them, as well as quickly frisk them for weapons to ensure
the safety of the officer during the encounter, based upon the officer's reasonable
suspicion that the defendant is engaged in criminal activity. Finally, a level 4 encounter
culminates in an arrest, where the officer has probable cause to suspect that the defendant
committed the crime in question.


This sounds familiar to me, but I think thats because I just took crim pro in my last semester. I don't think BarBri mentioned that, and in no way would we ever be expected to note those distinctions in the essay. Just knowing what a Terry stop is, what its limits are, when it applies, etc. would be more than enough.

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sun Jul 28, 2013 12:34 pm

You guys were right about the July 2012 NY essays. Every issue was relatively clear and straightforward. Sure, I didn't always have all the detail that these sample answers had, but I feel like I hit all the main issues, included enough relevant analysis, etc. I'm surprised you guys seemed to assume these are merely 6-level answers. A 5 would be the scaled average answer, correct? So a 6 would have merely 1 single point above and beyond what is just an average answer among all test-takers. One additional point could be the insertion of one relevant NY distinction, or some other small issue. I can't imagine that these answers are just 1 tiny issue above the mere average.

I think these are more like 7 or 8-level answers. Sure, no one gets a 10, but some people get 7's, 8's, and even 9 on occasion. And if these are supposed to be as "model" as real student responses can be, why in the world would they give us 6's?

Even Barbri's sample 6-level answers aren't as good as these, and thats a BarBri 6, meaning its really more like a 7.

moxypoxy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby moxypoxy » Sun Jul 28, 2013 1:33 pm

So, I know there's no non-refundable fees allowed for any matters in NY. Am I right in assuming this applies to general retainers?

Seems strange they wouldn't have brought that up in the lecture when first discussing retainers.

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sun Jul 28, 2013 2:42 pm

Can someone clarify a wills point for me?

For interested witnesses, general rule is that gifts to them are invalid. But if there are at least 2 disinterested witnesses, then no issue, then the gift is not invalidated, correct?

My question is about the interested witness/intestate distributee "whichever is lower" rule. Lets say a witness is interested, but there are 2 disinterested. And lets also say that this 3rd witness is also an intestate distributee. Would the "whichever is lower" rule still apply to the 3rd witness simply by virtue of him being interested, even though he wasn't necessary?

Or would the "whichever is lower" rule apply when the interested witness is one of the 2 signing witnesses? My assumption is that, if only 2 witnesses, with one being interested, you just apply the default rule that it is invalid. Supernumerary rule would simply be a threshold issue, and the 3rd witness's gift would then be subject to the whichever is lower rule (if applicable).

Can someone clarify on this?

hds2388
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby hds2388 » Sun Jul 28, 2013 3:02 pm

moxypoxy wrote:So, I know there's no non-refundable fees allowed for any matters in NY. Am I right in assuming this applies to general retainers?

Seems strange they wouldn't have brought that up in the lecture when first discussing retainers.


I believe you can have non-refundable fees in New York, except for domestic relations matters.

moxypoxy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby moxypoxy » Sun Jul 28, 2013 3:07 pm

kaiser wrote:Can someone clarify a wills point for me?

For interested witnesses, general rule is that gifts to them are invalid. But if there are at least 2 disinterested witnesses, then no issue, then the gift is not invalidated, correct?

My question is about the interested witness/intestate distributee "whichever is lower" rule. Lets say a witness is interested, but there are 2 disinterested. And lets also say that this 3rd witness is also an intestate distributee. Would the "whichever is lower" rule still apply to the 3rd witness simply by virtue of him being interested, even though he wasn't necessary?

Or would the "whichever is lower" rule apply when the interested witness is one of the 2 signing witnesses? My assumption is that, if only 2 witnesses, with one being interested, you just apply the default rule that it is invalid. Supernumerary rule would simply be a threshold issue, and the 3rd witness's gift would then be subject to the whichever is lower rule (if applicable).

Can someone clarify on this?



You analyze the rules separately. If signing witness is an interested witness the bequest is invalid unless there are 2 other disinterested witnesses OR if the interested witness is an intestate distributee and would be entitled to the bequest after application of the which is least rule.

As to your second paragraph, the 3rd witness isn't interested merely because he's an intestate distributee, you're only interested if you're a will beneficiary. If the 3rd witness were a will beneficiary making 2 of the 3 interested witnesses, the supernumerary rule wouldn't apply and you'd have to apply whichever is least rule.

moxypoxy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby moxypoxy » Sun Jul 28, 2013 3:08 pm

hds2388 wrote:
I believe you can have non-refundable fees in New York, except for domestic relations matters.



That's what I thought too, originally. But going back to the lecture, the lecturer clearly says no non-refundable fees for domestic relations matters OR ANY OTHER MATTERS. Then says he introduces it in domestic relations because that's where it's usually tested.

hds2388
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby hds2388 » Sun Jul 28, 2013 3:09 pm

kaiser wrote:Can someone clarify a wills point for me?

For interested witnesses, general rule is that gifts to them are invalid. But if there are at least 2 disinterested witnesses, then no issue, then the gift is not invalidated, correct?

My question is about the interested witness/intestate distributee "whichever is lower" rule. Lets say a witness is interested, but there are 2 disinterested. And lets also say that this 3rd witness is also an intestate distributee. Would the "whichever is lower" rule still apply to the 3rd witness simply by virtue of him being interested, even though he wasn't necessary?

Or would the "whichever is lower" rule apply when the interested witness is one of the 2 signing witnesses? My assumption is that, if only 2 witnesses, with one being interested, you just apply the default rule that it is invalid. Supernumerary rule would simply be a threshold issue, and the 3rd witness's gift would then be subject to the whichever is lower rule (if applicable).

Can someone clarify on this?

So, if there are 2 disinterested witness, then the interested witness gets their testate gift (because they didn't even have to be a witness in the first place. This is the supernumerary rule. On the other hand, if the witness is interested, and there is only one other disinterested witness, then the witness ONLY gets ANYTHING from the will if she would also be an intestate taker, and if she would be an intestate taker, she gets the lesser of her intestate share or her bequest (this is the "whichever is less rule"). Finally, if the witness is interested, there is only one other disinterested witness, and the interested witness is not an intestate taker, the gift is void and she gets nothing.

hds2388
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby hds2388 » Sun Jul 28, 2013 3:12 pm

moxypoxy wrote:
hds2388 wrote:
I believe you can have non-refundable fees in New York, except for domestic relations matters.



That's what I thought too, originally. But going back to the lecture, the lecturer clearly says no non-refundable fees for domestic relations matters OR ANY OTHER MATTERS. Then says he introduces it in domestic relations because that's where it's usually tested.


Right, so if he said that, he's wrong (look at essay R-1, this is the application of the DR rule). A general retainer is precisely a non-refundable fee. I remember him saying it was only for DR matters, but if you went back and listened to the recording, i won't argue it.

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sun Jul 28, 2013 3:13 pm

Ok I think I got it sorted out:

1 interested witness & 1 disinterested: The interested gets nothing UNLESS he is also an intestate distributee, in which case he gets "whichver is lower" between the 2 amounts

1 interested & 2 disinterested: He gets whatever the will gives him since he wasn't necessary (so no need to apply "whichever is lower" if at least 2 disinterested witnesses

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JollyGreenGiant
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby JollyGreenGiant » Sun Jul 28, 2013 3:27 pm

kaiser wrote:Ok I think I got it sorted out:

1 interested witness & 1 disinterested: The interested gets nothing UNLESS he is also an intestate distributee, in which case he gets "whichver is lower" between the 2 amounts

1 interested & 2 disinterested: He gets whatever the will gives him since he wasn't necessary (so no need to apply "whichever is lower" if at least 2 disinterested witnesses

fwiw, this is the law in my state.

moxypoxy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby moxypoxy » Sun Jul 28, 2013 3:29 pm

kaiser wrote:Ok I think I got it sorted out:

1 interested witness & 1 disinterested: The interested gets nothing UNLESS he is also an intestate distributee, in which case he gets "whichver is lower" between the 2 amounts

1 interested & 2 disinterested: He gets whatever the will gives him since he wasn't necessary (so no need to apply "whichever is lower" if at least 2 disinterested witnesses


yeah this is right

RodneyBoonfield
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby RodneyBoonfield » Sun Jul 28, 2013 3:54 pm

Evidence Question here:

Say you're in a civil case for a car accident tort and a driver (not sued, but drove for the company who is being sued) testifies that he was driving properly and not negligently at the time of the accident. If the plaintiff's attorney wants to inquire on cross about a conviction for reckless driving, a misdemeanor, he cannot, correct? This is not proper impeachment because it is not probative of truthfulness correct?

So the P's attorney can't use that past conviction to say well you're a liar and bad driver?

ben bernanke
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby ben bernanke » Sun Jul 28, 2013 4:00 pm

MPQ2 Half-Day Exam, #12

Why is (D) wrong? Is state sovereign immunity not applicable in contracts clause cases?

The answer simply states: "Sovereign immunity is not a constitutional doctrine"

What am i missing here???

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Joe Quincy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Joe Quincy » Sun Jul 28, 2013 4:01 pm

RodneyBoonfield wrote:Evidence Question here:

Say you're in a civil case for a car accident tort and a driver (not sued, but drove for the company who is being sued) testifies that he was driving properly and not negligently at the time of the accident. If the plaintiff's attorney wants to inquire on cross about a conviction for reckless driving, a misdemeanor, he cannot, correct? This is not proper impeachment because it is not probative of truthfulness correct?

So the P's attorney can't use that past conviction to say well you're a liar and bad driver?


It's prohibited character evidence. We allow convictions for felonies, etc because in theory they go to whether they will tell the truth. If his past record was relevant (suing the company for negligently hiring him), then it'd be admissible as to the company...because then it is notice he is a bad driver and they shouldn't have hired him...not he was driving badly here.
Last edited by Joe Quincy on Sun Jul 28, 2013 4:02 pm, edited 1 time in total.

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stratocophic
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby stratocophic » Sun Jul 28, 2013 4:02 pm

RodneyBoonfield wrote:Evidence Question here:

Say you're in a civil case for a car accident tort and a driver (not sued, but drove for the company who is being sued) testifies that he was driving properly and not negligently at the time of the accident. If the plaintiff's attorney wants to inquire on cross about a conviction for reckless driving, a misdemeanor, he cannot, correct? This is not proper impeachment because it is not probative of truthfulness correct?

So the P's attorney can't use that past conviction to say well you're a liar and bad driver?
Right. On the other hand, he could use it to impeach on cross if the driver says "I'm a perfectly safe driver, why I've never had so much as a speeding ticket, much less ever driven recklessly."

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Joe Quincy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Joe Quincy » Sun Jul 28, 2013 4:03 pm

stratocophic wrote:
RodneyBoonfield wrote:Evidence Question here:

Say you're in a civil case for a car accident tort and a driver (not sued, but drove for the company who is being sued) testifies that he was driving properly and not negligently at the time of the accident. If the plaintiff's attorney wants to inquire on cross about a conviction for reckless driving, a misdemeanor, he cannot, correct? This is not proper impeachment because it is not probative of truthfulness correct?

So the P's attorney can't use that past conviction to say well you're a liar and bad driver?
Right. On the other hand, he could use it to impeach on cross if the driver says "I'm a perfectly safe driver, why I've never had so much as a speeding ticket, much less ever driven recklessly."


Correct, except that would probably be a collateral matter and 403 would keep it out.

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sun Jul 28, 2013 4:06 pm

Does leasing out one's joint tenancy interest severe the joint tenancy in NY? CMR says states are split on this. Not sure what NY rule is.

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knickfan
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby knickfan » Sun Jul 28, 2013 4:11 pm

44 on the SFE!

pretty sure I'm fucked. I usually get in the 60s on BarBri materials. Don't have the heart to go over it. Panic is setting in..

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Joe Quincy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Joe Quincy » Sun Jul 28, 2013 4:13 pm

knickfan wrote:44 on the SFE!

pretty sure I'm fucked. I usually get in the 60s on BarBri materials. Don't have the heart to go over it. Panic is setting in..


I'm not even taking that. I'd rather have the confidence at this point.

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sun Jul 28, 2013 4:14 pm

knickfan wrote:44 on the SFE!

pretty sure I'm fucked. I usually get in the 60s on BarBri materials. Don't have the heart to go over it. Panic is setting in..


This is why I didn't even bother taking it. Why discourage yourself and go into a state of panic just days before the exam? You know that you know this stuff. So you shoot around 50% on the hardest questions. Thats not bad at all, considering about 15% of the test will be like that.

RodneyBoonfield
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby RodneyBoonfield » Sun Jul 28, 2013 4:17 pm

Joe Quincy wrote:
stratocophic wrote:
RodneyBoonfield wrote:Evidence Question here:

Say you're in a civil case for a car accident tort and a driver (not sued, but drove for the company who is being sued) testifies that he was driving properly and not negligently at the time of the accident. If the plaintiff's attorney wants to inquire on cross about a conviction for reckless driving, a misdemeanor, he cannot, correct? This is not proper impeachment because it is not probative of truthfulness correct?

So the P's attorney can't use that past conviction to say well you're a liar and bad driver?
Right. On the other hand, he could use it to impeach on cross if the driver says "I'm a perfectly safe driver, why I've never had so much as a speeding ticket, much less ever driven recklessly."


Correct, except that would probably be a collateral matter and 403 would keep it out.


Wouldnt the driver not be able to testify to himself being a perfectly safe driver because that is character evidence, which is not permitted in civil cases unless its a "character at issue" case?

phonepro
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby phonepro » Sun Jul 28, 2013 4:23 pm

General retainer fees are completely outlawed in NY? This goes against the ABA rule, where you can take into account the lawyers reputation etc. etc. ? Is that correct, :)




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