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Alright, can someone answer this question and please explain how they arrived at their answer? I'm missing questions left and right because I apparently do not understand evidence hearsay exceptions/exemptions.

A P sued a D under an age discrimination statute, alleging that the D refused to hire the P because she was over age 70.
The D's defense was that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant seeks to testify that the plaintiff’s former employer advised him not to hire the plaintiff because she was unable to perform productively for more than four hours a day. The testimony of the defendant is:

(A) inadmissible, because the defendant’s opinion of the plaintiff’s abilities is not based on personal knowledge.
(B) inadmissible, because plaintiff’s former employer’s statement is hearsay not within any exception.
(C) admissible as evidence that the plaintiff would be unable to work longer than four hours per day.
(D) admissible as evidence of the defendant’s reason for refusing to hire the plaintiff.





The correct answer (if you were wondering) is the first letter of the fifth word in the last sentence (call of the question).

redblueyellow wrote:Alright, can someone answer this question and please explain how they arrived at their answer? I'm missing questions left and right because I apparently do not understand evidence hearsay exceptions/exemptions.

A P sued a D under an age discrimination statute, alleging that the D refused to hire the P because she was over age 70.
The D's defense was that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant seeks to testify that the plaintiff’s former employer advised him not to hire the plaintiff because she was unable to perform productively for more than four hours a day. The testimony of the defendant is:

(A) inadmissible, because the defendant’s opinion of the plaintiff’s abilities is not based on personal knowledge.
(B) inadmissible, because plaintiff’s former employer’s statement is hearsay not within any exception.
(C) admissible as evidence that the plaintiff would be unable to work longer than four hours per day.
(D) admissible as evidence of the defendant’s reason for refusing to hire the plaintiff.





The correct answer (if you were wondering) is the first letter of the fifth word in the last sentence (call of the question).

I think the correct answer is correct because it falls within the category of character evidence to show motive, rather than hearsay. While you can't use character evidence generally in civil cases to show conformity, you can use it to show habit, motive, etc.

auds1008 wrote:

redblueyellow wrote:Alright, can someone answer this question and please explain how they arrived at their answer? I'm missing questions left and right because I apparently do not understand evidence hearsay exceptions/exemptions.

A P sued a D under an age discrimination statute, alleging that the D refused to hire the P because she was over age 70.
The D's defense was that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant seeks to testify that the plaintiff’s former employer advised him not to hire the plaintiff because she was unable to perform productively for more than four hours a day. The testimony of the defendant is:

(A) inadmissible, because the defendant’s opinion of the plaintiff’s abilities is not based on personal knowledge.
(B) inadmissible, because plaintiff’s former employer’s statement is hearsay not within any exception.
(C) admissible as evidence that the plaintiff would be unable to work longer than four hours per day.
(D) admissible as evidence of the defendant’s reason for refusing to hire the plaintiff.





The correct answer (if you were wondering) is the first letter of the fifth word in the last sentence (call of the question).

I think the correct answer is correct because it falls within the category of character evidence to show motive, rather than hearsay. While you can't use character evidence generally in civil cases to show conformity, you can use it to show habit, motive, etc.

It's simpler than that. Hearsay is an out of court statement being offered to prove the truth of the matter asserted. This statement is not being offered to prove P only worked 4 hours a day. It's being offered to show why D reasonably believed P would not be able to perform the job.

sportwarrior wrote:

auds1008 wrote:

redblueyellow wrote:Alright, can someone answer this question and please explain how they arrived at their answer? I'm missing questions left and right because I apparently do not understand evidence hearsay exceptions/exemptions.

A P sued a D under an age discrimination statute, alleging that the D refused to hire the P because she was over age 70.
The D's defense was that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant seeks to testify that the plaintiff’s former employer advised him not to hire the plaintiff because she was unable to perform productively for more than four hours a day. The testimony of the defendant is:

(A) inadmissible, because the defendant’s opinion of the plaintiff’s abilities is not based on personal knowledge.
(B) inadmissible, because plaintiff’s former employer’s statement is hearsay not within any exception.
(C) admissible as evidence that the plaintiff would be unable to work longer than four hours per day.
(D) admissible as evidence of the defendant’s reason for refusing to hire the plaintiff.





The correct answer (if you were wondering) is the first letter of the fifth word in the last sentence (call of the question).

I think the correct answer is correct because it falls within the category of character evidence to show motive, rather than hearsay. While you can't use character evidence generally in civil cases to show conformity, you can use it to show habit, motive, etc.

It's simpler than that. Hearsay is an out of court statement being offered to prove the truth of the matter asserted. This statement is not being offered to prove P only worked 4 hours a day. It's being offered to show why D reasonably believed P would not be able to perform the job.

That sounds right. I thought it was admissible because it had something to do with an element of some law that let the employer not hire her, like a statement of legal independence.

.

underthirty wrote:

sportwarrior wrote: It's simpler than that. Hearsay is an out of court statement being offered to prove the truth of the matter asserted. This statement is not being offered to prove P only worked 4 hours a day. It's being offered to show why D reasonably believed P would not be able to perform the job.

Sportwarrior is correct. A statement that is not hearsay does not require an exception. The statement most likely is being offered to prove the effect on the listener.

Can you guys explain this further? How did you know that this was the case? I understand the answer after reading the explanation, but I am unable to figure out at the time of answering the question what the actual purpose is accurately.

My original answer was B, as I believed the statement was offered for the truth of the matter asserted (i.e. because the previous employer said that P could only work 4 for hours a day, it would not be a good idea to hire her). I never read these as "I'm not agreeing with what was said (aka not offered for the truth of the matter asserted), but rather, that the statement was said and I based my decision from it." This is causing me to miss almost consistently any non-obvious question with "statement is hearsay not within any exception" as an answer choice.

In other words, what tipped you guys off that this statement was being offered not for its truth, but the effect on the listener (or for some other reason)? I don't think that any outlines or bar prep material I have has done a great job at explaining this difference.

Tutor told me to issue spot and outline as many essays as I could stomach, see what issues I missed, and re-read those issues/laws. Also said to read the table of contents for each subject and make sure theres nothing that pops out from the table of contents that I'm unfamiliar with (which is turning out to be a lot).

This is going to blow.

redblueyellow wrote:

underthirty wrote:

sportwarrior wrote: It's simpler than that. Hearsay is an out of court statement being offered to prove the truth of the matter asserted. This statement is not being offered to prove P only worked 4 hours a day. It's being offered to show why D reasonably believed P would not be able to perform the job.

Sportwarrior is correct. A statement that is not hearsay does not require an exception. The statement most likely is being offered to prove the effect on the listener.

Can you guys explain this further? How did you know that this was the case? I understand the answer after reading the explanation, but I am unable to figure out at the time of answering the question what the actual purpose is accurately.

My original answer was B, as I believed the statement was offered for the truth of the matter asserted (i.e. because the previous employer said that P could only work 4 for hours a day, it would not be a good idea to hire her). I never read these as "I'm not agreeing with what was said (aka not offered for the truth of the matter asserted), but rather, that the statement was said and I based my decision from it." This is causing me to miss almost consistently any non-obvious question with "statement is hearsay not within any exception" as an answer choice.

In other words, what tipped you guys off that this statement was being offered not for its truth, but the effect on the listener (or for some other reason)? I don't think that any outlines or bar prep material I have has done a great job at explaining this difference.

If it's any consolation, I think these are some of the hardest questions on the MBE. I sometimes get tripped up on some of the torts negligence/duty issues for similar reasons: it's a more nuanced issue of fact rather than a question of law. For evidence, what I always try to ask myself is: what is this evidence being used to prove? Here, it is that the employer did not decline to hiring due to discrimination, but instead due to supposed lack of ability to work sufficient hours. But I agree, it's a pretty blurry distinction. I just don't worry too much about these because I am bound to miss a handful of these issue of fact questions and no amount of memorization will prevent it if I'm not on my A-game to think carefully about what the evidence is being used to prove.

With torts, since I struggle with the same issue with duty and negligence, I often think about what the relationship between the parties is: would anything give rise to a special duty? And then with negligence, are there any additional factors that might weigh one way or another (special community standards, elevated duties for innkeepers and common carriers, etc.). Again, I don't get 100% right, but I'm ok missing a few here and there because I find them to be some of the hardest questions on the test.

Hope that helps, or is at least a bit of commiseration.

Just an FYI, my tutor used to bar grade, and used to work for BARBRI, and she suggested that I brush up pretty well on my Torts Defamation. Like mentioned it a couple times. So one can only hope/pray she has the inside scoop and that's something that will be tested.
Watch it be CA Civ Pro, Property, Remedies on day 1, and then I just quit. Fuck remedies.
How long has it been since murder is tested? That would be nice. I'm ALL SET with an evidence question. Or that random 13th amendment question i had in July '13.

CourtneyElizabeth wrote:Tutor told me to issue spot and outline as many essays as I could stomach, see what issues I missed, and re-read those issues/laws. Also said to read the table of contents for each subject and make sure theres nothing that pops out from the table of contents that I'm unfamiliar with (which is turning out to be a lot).

This is going to blow.

That's the same tactic I've been using, but I just know my familiarity with a lot of this stuff isn't where it needs to be. I keep coming across things I've read a bazillion times and totally understand, but that never occur to me in context of an essay question. Part of that has to do with exposing yourself to as many different fact patterns as possible. For me, the more ways I see a particular bit of law come up, the better I'm going to understand it and the more likely I am to remember it. The problem is I just have not been doing enough essays, and at this point there are just so many things that aren't occurring to me it's freaking me out.

I keep telling myself... 8 WHOLE DAYS. That's 16 totally usable hours a day to get through material. TONS of time. The key is to not panic, put your head down and just stay positive.

Of course, that's easier said than done. I know that for a fact, since I can't seem to do anything BUT panic.

CourtneyElizabeth wrote:Just an FYI, my tutor used to bar grade, and used to work for BARBRI, and she suggested that I brush up pretty well on my Torts Defamation. Like mentioned it a couple times. So one can only hope/pray she has the inside scoop and that's something that will be tested.
Watch it be CA Civ Pro, Property, Remedies on day 1, and then I just quit. Fuck remedies.
How long has it been since murder is tested? That would be nice. I'm ALL SET with an evidence question. Or that random 13th amendment question i had in July '13.

Thanks for sharing all the info! As for PRs did you get advice apart from how to allocate time, what files to read first, etc? Are there any definite do's/don'ts that you're aware of?

zabagabe wrote:For evidence, what I always try to ask myself is: what is this evidence being used to prove? Here, it is that the employer did not decline to hiring due to discrimination, but instead due to supposed lack of ability to work sufficient hours.

Thanks

But omg, Kaplan repeats the same thing over and over again to me when I've inquired. If I knew what the evidence is being used to prove, I wouldn't get the question wrong My question is how does one know what it's being used to prove?

Open question, to all, by the way. Maybe someone can tell me where I'm going astray:

1. P sues D for age discrimination because P is old
2. D thinks that P can't do the job and refuses to hire P
3. D was advised from P's former employer that P cannot work productively for more than four hours a day [inference that I assume the reader needs to make, as is common in evidence questions: the P cannot work productively for more than four hours a day is because P is old]
4. D seeks to introduce former employer's testimony because [inference -->] it shows that P cannot work productively for more than four hours per day [continuing inference --> because she is old].

So what did I do wrong here?

redblueyellow wrote:

zabagabe wrote:For evidence, what I always try to ask myself is: what is this evidence being used to prove? Here, it is that the employer did not decline to hiring due to discrimination, but instead due to supposed lack of ability to work sufficient hours.

Thanks

But omg, Kaplan repeats the same thing over and over again to me when I've inquired. If I knew what the evidence is being used to prove, I wouldn't get the question wrong My question is how does one know what it's being used to prove?

Open question, to all, by the way. Maybe someone can tell me where I'm going astray:

1. P sues D for age discrimination because P is old
2. D thinks that P can't do the job and refuses to hire P
3. D was advised from P's former employer that P cannot work productively for more than four hours a day [inference that I assume the reader needs to make, as is common in evidence questions: the P cannot work productively for more than four hours a day is because P is old]
4. D seeks to introduce former employer's testimony because [inference -->] it shows that P cannot work productively for more than four hours per day [continuing inference --> because she is old].

So what did I do wrong here?

Instead of it shows that P cannot work productively for more than four hours per day [continuing inference --> because she is old], it should be, INSTEAD OF "because she is old." He did not hire her for reason A, which is permitted by law, NOT reason B, which is prohibited by law.

Honestly though, I don't think you should get too hung up on it. It's one fact-specific question. It is impossible to get 100% of these right, and fortunately, we don't need to to pass!

zabagabe wrote:
Instead of it shows that P cannot work productively for more than four hours per day [continuing inference --> because she is old], it should be, INSTEAD OF "because she is old." He did not hire her for reason A, which is permitted by law, NOT reason B, which is prohibited by law.

Honestly though, I don't think you should get too hung up on it. It's one fact-specific question. It is impossible to get 100% of these right, and fortunately, we don't need to to pass!

I think I get it; D is basically saying that he had an alternative reason not to hire P and that is because he thinks that P cannot work more than 4 productive hours per day. D does not know the reason why P can't work more than 4 hours per day, because the former employer did not tell him--the former employer only said that P can't work for more than 4 hours.

In other words, if the former employer said that P can't work more than 4 hours per day because she's frail and weak due to her age, then we have an issue. The fact that the former employer kept his mouth shut as to the reason gives the D an escape from the age discrimination charge.

Right?

I know it's only one question, but I've gotten a lot of these wrong over and over again when it comes to hearsay. It's to the point where I'm at 30% correct for evidence questions on the MBE

redblueyellow wrote:

zabagabe wrote:
Instead of it shows that P cannot work productively for more than four hours per day [continuing inference --> because she is old], it should be, INSTEAD OF "because she is old." He did not hire her for reason A, which is permitted by law, NOT reason B, which is prohibited by law.

Honestly though, I don't think you should get too hung up on it. It's one fact-specific question. It is impossible to get 100% of these right, and fortunately, we don't need to to pass!

I think I get it; D is basically saying that he had an alternative reason not to hire P and that is because he thinks that P cannot work more than 4 productive hours per day. D does not know the reason why P can't work more than 4 hours per day, because the former employer did not tell him--the former employer only said that P can't work for more than 4 hours.

In other words, if the former employer said that P can't work more than 4 hours per day because she's frail and weak due to her age, then we have an issue. The fact that the former employer kept his mouth shut as to the reason gives the D an escape from the age discrimination charge.

Right?

I know it's only one question, but I've gotten a lot of these wrong over and over again when it comes to hearsay. It's to the point where I'm at 30% correct for evidence questions on the MBE

It helps to look at it extremely literally.

Was the evidence being offered to prove that P worked effectively only 4 hours a day? No. If not, then it isn't hearsay.

Was the evidence being offered to show that D was reasonable in his belief that P wouldn't be a good hire? Yes. If you want to be specific, the evidence is being offered to show the effect upon the listener, ie that D subsequently formed a reasonable belief that the person wasn't going to be a good hire.

I've struggling with hearsay as well. I agree with the above. My tutor said, whatever the question is, just ask yourself is it being offered to prove the truth of that particular statement? Is what is being asserted "she only worked 4 hours" offered to prove that she actually only worked four hours? If it is then that's hearsay, but if it's not then it's not hearsay.

sportwarrior wrote:

CourtneyElizabeth wrote:Tutor told me to issue spot and outline as many essays as I could stomach, see what issues I missed, and re-read those issues/laws. Also said to read the table of contents for each subject and make sure theres nothing that pops out from the table of contents that I'm unfamiliar with (which is turning out to be a lot).

This is going to blow.

That's the same tactic I've been using, but I just know my familiarity with a lot of this stuff isn't where it needs to be. I keep coming across things I've read a bazillion times and totally understand, but that never occur to me in context of an essay question. Part of that has to do with exposing yourself to as many different fact patterns as possible. For me, the more ways I see a particular bit of law come up, the better I'm going to understand it and the more likely I am to remember it. The problem is I just have not been doing enough essays, and at this point there are just so many things that aren't occurring to me it's freaking me out.

I keep telling myself... 8 WHOLE DAYS. That's 16 totally usable hours a day to get through material. TONS of time. The key is to not panic, put your head down and just stay positive.

Of course, that's easier said than done. I know that for a fact, since I can't seem to do anything BUT panic.

"Though the days may be few, the hours are many!"

redblueyellow wrote: In other words, if the former employer said that P can't work more than 4 hours per day because she's frail and weak due to her age, then we have an issue. The fact that the former employer kept his mouth shut as to the reason gives the D an escape from the age discrimination charge.

Right?

FWIW now you're also misstating the substantive law.

Even if the old employer said she's frail and weak due to her age and that makes her a shitty worker, it would still not be discrimination to fire her. It's only discrimination if firing someone is based solely on the suspect classification, but the addition of any valid reason will make the action OK. A shitty worker is a shitty worker and we're not supposed to have to employ them, old, weak, black, gay, or otherwise.

Back to the evidence issue:

In this case it just turns on whether the thing that the person said to the employer is more or less likely to give the employer a valid reason to fire her. So if the speaker said "she's black and a bad worker" or "she's old and a bad worker" it doesn't matter, it's still a valid reason to fire her.

Often times in evidence questions the best thing to do is figure out all the elements that need to be proved. If even one of those elements is helped by the non-truth value of the statement, then it isn't hearsay. So here, you can definitely can tripped up because the truthfulness of the statement is really helpful. But because intent is an element of discrimination, you have to think about the state of mind of the discriminator and any evidence of that is admissible.

fslexcduck wrote:

redblueyellow wrote: In other words, if the former employer said that P can't work more than 4 hours per day because she's frail and weak due to her age, then we have an issue. The fact that the former employer kept his mouth shut as to the reason gives the D an escape from the age discrimination charge.

Right?

FWIW now you're also misstating the substantive law.

Even if the old employer said she's frail and weak due to her age and that makes her a shitty worker, it would still not be discrimination to fire her. It's only discrimination if firing someone is based solely on the suspect classification, but the addition of any valid reason will make the action OK. A shitty worker is a shitty worker and we're not supposed to have to employ them, old, weak, black, gay, or otherwise.

Back to the evidence issue:

In this case it just turns on whether the thing that the person said to the employer is more or less likely to give the employer a valid reason to fire her. So if the speaker said "she's black and a bad worker" or "she's old and a bad worker" it doesn't matter, it's still a valid reason to fire her.

Often times in evidence questions the best thing to do is figure out all the elements that need to be proved. If even one of those elements is helped by the non-truth value of the statement, then it isn't hearsay. So here, you can definitely can tripped up because the truthfulness of the statement is really helpful. But because intent is an element of discrimination, you have to think about the state of mind of the discriminator and any evidence of that is admissible.

This is helpful, thanks!

sportwarrior wrote:

CourtneyElizabeth wrote:Tutor told me to issue spot and outline as many essays as I could stomach, see what issues I missed, and re-read those issues/laws. Also said to read the table of contents for each subject and make sure theres nothing that pops out from the table of contents that I'm unfamiliar with (which is turning out to be a lot).

This is going to blow.

That's the same tactic I've been using, but I just know my familiarity with a lot of this stuff isn't where it needs to be. I keep coming across things I've read a bazillion times and totally understand, but that never occur to me in context of an essay question. Part of that has to do with exposing yourself to as many different fact patterns as possible. For me, the more ways I see a particular bit of law come up, the better I'm going to understand it and the more likely I am to remember it. The problem is I just have not been doing enough essays, and at this point there are just so many things that aren't occurring to me it's freaking me out.

I keep telling myself... 8 WHOLE DAYS. That's 16 totally usable hours a day to get through material. TONS of time. The key is to not panic, put your head down and just stay positive.

Of course, that's easier said than done. I know that for a fact, since I can't seem to do anything BUT panic.

I gave myself a similar pep talk earlier. A lot can be learned in an entire week. This link has a list of eight incredible things accomplished in one day: http://www.cracked.com/article_19802_th ... n-day.html

As you say, we have 8 WHOLE DAYS, which is apparently enough time to accomplish everything on that list, or, alternatively, master the bar exam.

I think it's also helpful to remember that most people are freaking out at this point and there is just so much information to learn I doubt it's possible to ever get to the point where you feel like you've mastered everything, even with an unlimited amount of study time.

@amalehuman ever since you mentioned Whiplash earlier in this thread I can't help but feel like the drummer in that movie when I'm doing timed practice essays, trying to keep my keystroke rate fast enough to avoid having a cymbal thrown at my head. Oddly I think it helps.

Haha that's awesome! Maybe I will use that analogy when there's a deadline I want to keep.

morescotchplease wrote:

CourtneyElizabeth wrote:Just an FYI, my tutor used to bar grade, and used to work for BARBRI, and she suggested that I brush up pretty well on my Torts Defamation. Like mentioned it a couple times. So one can only hope/pray she has the inside scoop and that's something that will be tested.
Watch it be CA Civ Pro, Property, Remedies on day 1, and then I just quit. Fuck remedies.
How long has it been since murder is tested? That would be nice. I'm ALL SET with an evidence question. Or that random 13th amendment question i had in July '13.

Thanks for sharing all the info! As for PRs did you get advice apart from how to allocate time, what files to read first, etc? Are there any definite do's/don'ts that you're aware of?

You really shouldn't be afraid to spend a lot of time reading and outlining. Tutor makes notes on the library page - after each case what it's good for (What side of the argument, etc). She also said although those beautifully crafted headings are nice, don't waste too much time. If they ask "Does Bob have a chance to prevail on his motion to dismiss", your heading should be "Bob has a chance to prevail on his motion to dismiss BECAUSE…" Or "Bob doesn't have a chance to prevail BECAUSE…" Just keep it simple and focus on your analysis. She also said to save time, outline on your computer. Like if one of the tests you have to use pops up in one of the cases you're reading, type out the factors of the test in your computer. It saves time. I always ran out of time - on both bars I've taken it got own to the WIRE so I'm glad she said I could outline right on my computer.
Other than that, I got nothing. Read a TON of them, and hopefully at this point you've done at least one or two in their entirety. If not, don't freak - make sure you read a couple of each type: opinion letters, persuasive memos, closing statements, etc etc. You'll be familiar with what they're looking for by reading the answers to them, too.

Keep in mind this is just all stuff I've learned from my tutor this time because I failed the last two times I tried to take it without a tutor and with stupid Kaplan which is the devil IMHO.

CourtneyElizabeth wrote:

morescotchplease wrote:

CourtneyElizabeth wrote:Just an FYI, my tutor used to bar grade, and used to work for BARBRI, and she suggested that I brush up pretty well on my Torts Defamation. Like mentioned it a couple times. So one can only hope/pray she has the inside scoop and that's something that will be tested.
Watch it be CA Civ Pro, Property, Remedies on day 1, and then I just quit. Fuck remedies.
How long has it been since murder is tested? That would be nice. I'm ALL SET with an evidence question. Or that random 13th amendment question i had in July '13.

Thanks for sharing all the info! As for PRs did you get advice apart from how to allocate time, what files to read first, etc? Are there any definite do's/don'ts that you're aware of?

You really shouldn't be afraid to spend a lot of time reading and outlining. Tutor makes notes on the library page - after each case what it's good for (What side of the argument, etc). She also said although those beautifully crafted headings are nice, don't waste too much time. If they ask "Does Bob have a chance to prevail on his motion to dismiss", your heading should be "Bob has a chance to prevail on his motion to dismiss BECAUSE…" Or "Bob doesn't have a chance to prevail BECAUSE…" Just keep it simple and focus on your analysis. She also said to save time, outline on your computer. Like if one of the tests you have to use pops up in one of the cases you're reading, type out the factors of the test in your computer. It saves time. I always ran out of time - on both bars I've taken it got own to the WIRE so I'm glad she said I could outline right on my computer.
Other than that, I got nothing. Read a TON of them, and hopefully at this point you've done at least one or two in their entirety. If not, don't freak - make sure you read a couple of each type: opinion letters, persuasive memos, closing statements, etc etc. You'll be familiar with what they're looking for by reading the answers to them, too.

Keep in mind this is just all stuff I've learned from my tutor this time because I failed the last two times I tried to take it without a tutor and with stupid Kaplan which is the devil IMHO.

Thanks! very useful info.

We have so many days. I'm calling out sick/using vacation time at work and consequences be damned! It's worth it for a little piece of mind going into the exam.
Anyone else doing the same thing? Who else is working full time??

Can someone please point me to the past bar essay for regulatory takings / property? (year?) Anyone seen it?

Found: February 2010