July 2015 California Bar Exam

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soj
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Re: July 2015 California Bar Exam

Postby soj » Wed Jul 22, 2015 2:49 am

don't try to shoehorn spl into negligence analysis. it's doctrinally incorrect (products liability was judicially created expressly to circumvent negligence requirements like breach, so using the negligence terminology/framework is wrong on every level), it doesn't work, and if the bar grader is anything like the neanderthals who grade your prep course essays, he'll automatically assume you've confused it with negligence and dock even more points.

just memorize elements like any tort or crime
(1) commercial supplier (ie not yard sale),
(2) placed product in stream of commerce (ie need not have directly sold to P, anyone in the mfg/supply chain),
(3) defect while in control (one of three types),
(4) causation,
(5) damages.
other talking points: D wasn't negligent (doesn't matter), P didn't buy (doesn't matter, no privity rqt, bystander can sue), services (spl doesn't apply), defenses (contrib(afaik does not elim recovery)/compara negligence, AoR, unforeseeable misuse, state of the art)

then do negligence, which should be fast since you already did causation and damages. you could even import some of the defenses.

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soj
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Re: July 2015 California Bar Exam

Postby soj » Wed Jul 22, 2015 3:06 am

even for strict liability, using the negligence framework is a little suspect. again, just memorize elements

animals: wild or domestic known
ultrahazardous: (1) high risk of serious harm that (2) can't be eliminated by reasonable care. (3) usually not common in the area (ie not factory waste in an industrial zone full of factories), and (4) balance danger with value. this is worth bringing up in your products liability analysis (in addition to spl, negligence, etc) if there's even a colorable argument that the product is so dangerous (eg toxic insecticide) that making it should be considered ultrahazardous

once one of the above is established, go straight to causation & damages. don't even bother using words like duty and breach, you'll just confuse your reader

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 3:11 am

soj wrote:even for strict liability, using the negligence framework is a little suspect. again, just memorize elements

animals: wild or domestic known
ultrahazardous: (1) high risk of serious harm that (2) can't be eliminated by reasonable care. (3) usually not common in the area (ie not factory waste in an industrial zone full of factories), and (4) balance danger with value. this is worth bringing up in the negligence portion of your products liability analysis (as a quick "does P even need to show duty/breach?" sidenote) if there's even a colorable argument that the product is so dangerous (eg toxic insecticide) that it should be considered ultrahazardous

once one of the above is established, go straight to causation & damages. don't even bother using words like duty and breach, you'll just confuse your reader


Wait, you straight went into ultrahazardous activities. No need to mention elements of strict liability?

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soj
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Re: July 2015 California Bar Exam

Postby soj » Wed Jul 22, 2015 3:17 am

redblueyellow wrote:Wait, you straight went into ultrahazardous activities. No need to mention elements of strict liability?

as in, absolute duty + breach + causation + damages? sure if you want. get that out of the way in one sentence but then go right into animals/ultrahazardous analysis since those are the two big SL paradigms (other than spl). think of animals/ultrahazardous as the ways to prove duty+breach.

really, though, rule statements are vastly overrated. you still gotta memorize em because they do earn you some points, and the more you memorize, the faster/more fluent you become at the analysis portion as well, but my impression is that a passable rule statement + shit tons of analysis (ie dumping relevant facts and shoehorning them into some semblance of legal analysis) is really the most effective way to get points. i know these model answers in our courses always have fucking treatises for rule statements, but i don't have time for that.

even my shitty prep course admitted in a video that when you're running out of time, you should ditch rule statements and shit out as much analysis as you can. that after telling us all summer that if you don't get the rule statement down perfectly you automatically fail the essay

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BuenAbogado
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Re: July 2015 California Bar Exam

Postby BuenAbogado » Wed Jul 22, 2015 4:04 am

How does one pronounce Seisen?

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 4:07 am

BuenAbogado wrote:How does one pronounce Seisen?


I've heard

"psy-zen" (as in psychology) OR

"see-zen," but that sounds odd to me.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 4:12 am

soj wrote:
redblueyellow wrote:Wait, you straight went into ultrahazardous activities. No need to mention elements of strict liability?

as in, absolute duty + breach + causation + damages? sure if you want. get that out of the way in one sentence but then go right into animals/ultrahazardous analysis since those are the two big SL paradigms (other than spl). think of animals/ultrahazardous as the ways to prove duty+breach.


Still somewhat confused (not your fault):

Do you mean this (sorry, my formatting didn't show up like I wanted):

A. Strict Liability Prima Facie case
1. nature of D's activity creates an absolute duty to make safe
a. Ultrahazardous activity
a1. condition or activity imposes a severe risk of harm
a2. condition cannot be made safe
a3. condition or activity is unusual in the community
2. causation
3. damages
[4. breach] <-- may or may not apply explicitly

OR

A. Strict Liability Prima Facie case
1. nature of D's activity creates an absolute duty to make safe
2. causation
3. damages
[4. breach] <-- may or may not apply explicitly
B. Ultrahazardous activity
1. condition or activity imposes a severe risk of harm
2. condition cannot be made safe
3. condition or activity is unusual in the community

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 4:21 am

2807 wrote:Done this many times..
Start here on page 3... read a bit..and see if this helps clarify
viewtopic.php?f=41&t=220409


Thanks, this did help!
I read the posts you mentioned in the other thread, what do you think about this? The large gaps between the text is just a page break on imgur. Had some trouble with the "therefore...because" conclusion statements for some of the IRACs.

The question was (Q1 July 2010):

Homeowner kept a handgun on his bedside table in order to protect himself against
intruders. A statute provides that “all firearms must be stored in a secure container that
is fully enclosed and locked.” Burglar broke into Homeowner’s house while Homeowner
was out and stole the handgun.

Burglar subsequently used the handgun in an attack on Patron in a parking lot
belonging to Cinema. Patron had just exited Cinema around midnight after viewing a
late movie. During the attack, Burglar approached Patron and demanded that she hand
over her purse. Patron refused. Burglar drew the handgun, pointed it at Patron, and
stated, “You made me mad, so now I’m going to shoot you.”

Patron fainted out of shock and suffered a concussion. Burglar took her purse and fled,
but was later apprehended by the police. Cinema had been aware of several previous
attacks on its customers in the parking lot at night during the past several years, but
provided no lighting or security guard.

Under what theory or theories, if any, might Patron bring an action for damages against
Homeowner, Burglar, or Cinema? Discuss.

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soj
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Re: July 2015 California Bar Exam

Postby soj » Wed Jul 22, 2015 4:31 am

redblueyellow wrote:.

the first one. except im not sure what "[4. breach] <-- may or may not apply explicitly" is. it's redundant. your ultrahazardous activity discussion (a, a1-a3) is the duty+breach. if you must insist on a canned SL prima facie rule statement, follow it up with "this absolute duty arises and is breached, for instance, when the defendant undertakes an ultrahazardous activity." now you're free to just replace the duty/breach headings with ultrahazardous activity. in any case i would not stress too much, just be flexible with your organization don't get writer's block on shit like this. i have the same problem but i keep telling myself i gotta give zero fucks about being 100% organizationally coherent and just vomit analysis

i would personally do this
A. Strict Liability Prima Facie case
1. nature of D's activity creates an absolute duty to make safe
a. Ultrahazardous activity
a1. condition or activity imposes a severe risk of harm
a2. condition cannot be made safe
a3. condition or activity is unusual in the community
2. causation
3. damages
4. defenses

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 5:21 am

soj wrote:
redblueyellow wrote:.

your ultrahazardous activity discussion (a, a1-a3) is the duty+breach. if you must insist on a canned SL prima facie rule statement, follow it up with "this absolute duty arises and is breached, for instance, when the defendant undertakes an ultrahazardous activity."


This is perfect, thank you!

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2807
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Re: July 2015 California Bar Exam

Postby 2807 » Wed Jul 22, 2015 10:06 am

redblueyellow wrote:
2807 wrote:Done this many times..
Start here on page 3... read a bit..and see if this helps clarify
viewtopic.php?f=41&t=220409


Thanks, this did help!
I read the posts you mentioned in the other thread, what do you think about this? The large gaps between the text is just a page break on imgur. Had some trouble with the "therefore...because" conclusion statements for some of the IRACs.

The question was (Q1 July 2010):

Homeowner kept a handgun on his bedside table in order to protect himself against
intruders. A statute provides that “all firearms must be stored in a secure container that
is fully enclosed and locked.” Burglar broke into Homeowner’s house while Homeowner
was out and stole the handgun.

Burglar subsequently used the handgun in an attack on Patron in a parking lot
belonging to Cinema. Patron had just exited Cinema around midnight after viewing a
late movie. During the attack, Burglar approached Patron and demanded that she hand
over her purse. Patron refused. Burglar drew the handgun, pointed it at Patron, and
stated, “You made me mad, so now I’m going to shoot you.”

Patron fainted out of shock and suffered a concussion. Burglar took her purse and fled,
but was later apprehended by the police. Cinema had been aware of several previous
attacks on its customers in the parking lot at night during the past several years, but
provided no lighting or security guard.

Under what theory or theories, if any, might Patron bring an action for damages against
Homeowner, Burglar, or Cinema? Discuss.



Looks like you are on your way !
I have stopped giving advice on the actual law, as I am very rusty with that.
I am only looking at form/function...So, you will have to check your own law/analysis.

However, even someone who does not know the law at all should be able to follow the essay if it is written simply, concise, and correct.
Yours is solid.

But I do see conclusory statements that concern me. "D pointed a gun at V, therefore it was extreme and outrageous conduct."
Careful with that....
Although it is common sense, you need to show that grader you know there is an analysis involved. I do not know what it is, but I assume at least one sentence could convey it.

Also, remember, your PRECISE legal issue statement is generally one sentence, and the RULE that follows is likely one sentence.. that uses many of the same words. It should feel redundant. (There are many variables, but for a start, just keep that simple form in mind.)

Keep up the good work.
Writing clear and concise is harder than people realize.
There is comfort in rambling and filing the page.
Many folks were very comfortable in law school, and will struggle now at the exam.

I do like the form, and so will the grader.
Just make sure those golden nuggets make the desired IMPACT on the grader:

State the "Topic" just to get it out of your head and separate it form the "legal issue."

Clearly state the precise legal issue. BE AS PRECISE AND SUCCINCT AS POSSIBLE
Then... state the RULE that applies. It should use similar words as the issue. (see my community property example)
Then... apply the few facts that matter to the rule you just stated
Then... state a conclusion to your issue statement that is consistent with what you just did.

Repeat for next legal issue. Make new topic if needed.

Underline, BOLD, indent, italics, WHATEVER.... to create a clear easy-to-follow pattern.
The grader will quickly notice you are nailing the required information, and will reward you....


Here is a quick roadmap to remember:

1. TOPIC
2. Precisie Legal Issue (Whether...)
3. RULE
4. Apply Facts (Here, because...)
5. Conclusion (Therefore, because.)..

Good luck to you.

ONWARD !
Last edited by 2807 on Wed Jul 22, 2015 10:35 am, edited 5 times in total.

InTheWideLand I Walk
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Re: July 2015 California Bar Exam

Postby InTheWideLand I Walk » Wed Jul 22, 2015 10:09 am

seems like NONE of this stuff has anything to do with minimum competence for practicing law. they might as well give us 1- a memory test instead of the essay, 2- a bunch of riddles instead of the mbe, and 3- a maze instead of the performance test. that would test the equivalent of what we are expected to do here.

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BuenAbogado
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Re: July 2015 California Bar Exam

Postby BuenAbogado » Wed Jul 22, 2015 2:58 pm

InTheWideLand I Walk wrote:seems like NONE of this stuff has anything to do with minimum competence for practicing law. they might as well give us 1- a memory test instead of the essay, 2- a bunch of riddles instead of the mbe, and 3- a maze instead of the performance test. that would test the equivalent of what we are expected to do here.


y u mad tho

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brotherdarkness
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Re: July 2015 California Bar Exam

Postby brotherdarkness » Wed Jul 22, 2015 3:20 pm

These essays are just the worst. Hopefully I do well enough on the MBE that I can bomb every essay and still pass.

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 3:25 pm

2807 wrote:But I do see conclusory statements that concern me. "D pointed a gun at V, therefore it was extreme and outrageous conduct."
Careful with that....
Although it is common sense, you need to show that grader you know there is an analysis involved. I do not know what it is, but I assume at least one sentence could convey it.

Also, remember, your PRECISE legal issue statement is generally one sentence, and the RULE that follows is likely one sentence.. that uses many of the same words. It should feel redundant. (There are many variables, but for a start, just keep that simple form in mind.)

Good luck to you.

ONWARD !


Thanks, dude!

Question though if you don't mind: "But I do see conclusory statements that concern me. 'D pointed a gun at V, therefore it was extreme and outrageous conduct.'"

I know you said that you don't know what the analysis is there, but how else could one literally conclude an element of a tort/crime/whatever? In this case, the element was extreme and outrageous conduct and my rationale is that pointing a gun at someone would satisfy that element.

I think what I'm trying to ask is how would you go about not making that a conclusory statement based on the "Therefore...because..." technique?

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 3:26 pm

InTheWideLand I Walk wrote:seems like NONE of this stuff has anything to do with minimum competence for practicing law. they might as well give us 1- a memory test instead of the essay, 2- a bunch of riddles instead of the mbe, and 3- a maze instead of the performance test. that would test the equivalent of what we are expected to do here.


Yea, basically :/

If they really wanted to test us on the law, I feel like they'd just give six PTs with real law instead of fake stuff. No MBEs unless it was objective testing and no essays.

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acronyx
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Re: July 2015 California Bar Exam

Postby acronyx » Wed Jul 22, 2015 3:37 pm

redblueyellow wrote:
InTheWideLand I Walk wrote:seems like NONE of this stuff has anything to do with minimum competence for practicing law. they might as well give us 1- a memory test instead of the essay, 2- a bunch of riddles instead of the mbe, and 3- a maze instead of the performance test. that would test the equivalent of what we are expected to do here.


Yea, basically :/

If they really wanted to test us on the law, I feel like they'd just give six PTs with real law instead of fake stuff. No MBEs unless it was objective testing and no essays.

This. I kind of like the PTs because they're a lot closer to any actual "lawyering" I've done. Take some relevant law, apply it to a set of facts.

That said, this also means I haven't done a practice PT in a while because I feel like my study time is much better spent cramming bs I'll never do in real life...which is sad.

juniormint33
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Re: July 2015 California Bar Exam

Postby juniormint33 » Wed Jul 22, 2015 4:04 pm

InTheWideLand I Walk wrote:seems like NONE of this stuff has anything to do with minimum competence for practicing law. they might as well give us 1- a memory test instead of the essay, 2- a bunch of riddles instead of the mbe, and 3- a maze instead of the performance test. that would test the equivalent of what we are expected to do here.


+1

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crumpetsandtea
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Re: July 2015 California Bar Exam

Postby crumpetsandtea » Wed Jul 22, 2015 4:49 pm

brotherdarkness wrote:These essays are just the worst. Hopefully I do well enough on the MBE that I can bomb every essay and still pass.

According to one timers, you can get straight 55s and pass so long as you get a raw score of 174/190 on the MBE.

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robinhoodOO
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Re: July 2015 California Bar Exam

Postby robinhoodOO » Wed Jul 22, 2015 4:55 pm

crumpetsandtea wrote:
brotherdarkness wrote:These essays are just the worst. Hopefully I do well enough on the MBE that I can bomb every essay and still pass.

According to one timers, you can get straight 55s and pass so long as you get a raw score of 174/190 on the MBE.


lol

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BuenAbogado
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Re: July 2015 California Bar Exam

Postby BuenAbogado » Wed Jul 22, 2015 4:57 pm

crumpetsandtea wrote:
brotherdarkness wrote:These essays are just the worst. Hopefully I do well enough on the MBE that I can bomb every essay and still pass.

According to one timers, you can get straight 55s and pass so long as you get a raw score of 174/190 on the MBE.


*Puts all essay books away and picks up MBE book*

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BuenAbogado
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Re: July 2015 California Bar Exam

Postby BuenAbogado » Wed Jul 22, 2015 4:58 pm

Yo I still wanna know how to pronounce Seisen by the way. This is really bugging me. Bonus points if you tell me how to pronounce scienter.

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Wed Jul 22, 2015 5:00 pm

BuenAbogado wrote:Yo I still wanna know how to pronounce Seisen by the way. This is really bugging me. Bonus points if you tell me how to pronounce scienter.


I responded to that earlier up.

All my professors pronounced scienter as "psy-enter"

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robinhoodOO
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Re: July 2015 California Bar Exam

Postby robinhoodOO » Wed Jul 22, 2015 5:00 pm

Every time I review the "selected answers" by the Bar, I'm just stunned at some of the shit others have written...Pure evidence question dealing nearly exclusively with hearsay in a civil action and a person starts the Essay by discussing Proposition 8. Why? Who the fuck would mention this? (1) It's Civil; (2) The essay makes no reference to discussing Fed and CA rules of evidence; and (3) Prop 8 has fuck all to do with hearsay anyway.

If I'm a grader and that's your lead-in to this type of question, I'm immediately questioning the minimum competency of this person; yet they receive a selected answer...Just stunned.

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robinhoodOO
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Re: July 2015 California Bar Exam

Postby robinhoodOO » Wed Jul 22, 2015 5:01 pm

redblueyellow wrote:
BuenAbogado wrote:Yo I still wanna know how to pronounce Seisen by the way. This is really bugging me. Bonus points if you tell me how to pronounce scienter.


I responded to that earlier up.

All my professors pronounced scienter as "psy-enter"


Waiting for that moment when you realize you guys are talking about two completely different things...




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