Themis Bar Review Hangout - July 2015 Exam

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sd5289
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Tue Jul 07, 2015 9:46 am

milesdavisjd wrote:I ended up calling the Themis advisor today to discuss. She told me to wait until I had completed all of the prerequisites for the simulated MBE and Essay Exams (that includes doing ALL of the work assigned up until the first two mixed MBE sets). So basically, I'm going spend 15 hours a day over the next week so I can take the simulated MBE on my own, a week late. But I think that's a good approach. I do get a lot of fatigue/mistakes towards the end of the 34 question MBE sets, so this will be good conditioning to get ready for the test. Then hopefully I can slow down the pace a little bit until the test.


Like doing all of the MBE specific work? I've got a lot of NY stuff that's assigned this week, so was planning on doing the simulation tomorrow at the actual Themis location in order to do a test run before the big day.

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Mad Hatter
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Mad Hatter » Tue Jul 07, 2015 9:49 am

Ahyis wrote:Can't remember where the original post was (few pages back maybe) but someone mentioned REPEAT QUESTIONS in MBE/State MC. I recently did a set of NYMC, and got 6 repeated questions...needless to say, I got them right this time around, but I feel like it messed with my sense of how I really did on that set.

I asked Themis about it and got this response: "The questions you receive start off with questions you have not answered. After you have answered every question you will then receive all the questions you answered incorrectly. Finally, once every question is answered correctly you will then receive questions you answered correctly again, kind of like flashcards."

So basically, w'ere going to start seeing all the questions we got wrong show up again? If you're like me, and when you get something wrong you write it into your outline or whatever, I think I'm suddenly going to be unfairly getting a lot of upcoming questions right...

Why is that "unfair" though? I'm treating the problem sets as a way to supplement the lecture handouts/my outlines, so if I'm getting 70+% of the questions right by the end, I could care less that they're repeats as long as I'm confidently picking the right answer.

Edit: I guess I'm assuming that that the ~1500 questions we are given will cover everything you need to know. Whether that's the case or not (esp. w/r/t civ pro) remains a question I guess.

eloise16
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby eloise16 » Tue Jul 07, 2015 10:02 am

northwood wrote:
IamIn wrote:
northwood wrote:
zor wrote:Those of us taking the bar on a laptop--i.e. NY or anywhere else you have to buy ExamSoft--do you know if we do the multiple choice sections online as well? Or do we get physical scantrons to bubble in for that? And do we get paper test booklets to mark up or do we do everything on the screen?

Basically, since I want to simulate the actual exam MBE, I'm trying to figure out if I should do Wednesday's simulated MBE on paper or on the computer.



When I took the bar in July 2014, a computer was allowed only for the essays.. NYMC and the MBE were all done on scantron


Does ExamSoft allow to go back to previous essay answers and make changes?



If I remember correctly you get three tabs ( one for each essay) each session. You can write the essays in whatever order you want, just be sure to do one essay per tab ( and label them). Likewise you can hop around as often as you want in your 3 hour window. Just be sure to stop typing the moment they yell time.



My law school used Exam soft for every single exam I took. It's a really simple program but I highly suggest everyone who isn't familiar with it do the mock exam just to get a feel for the interface. The above poster is correct (if the setup is the same as it was in law school). You will have the software open to what looks like a blank document and on the right side there will be tabs for the other questions that you can switch between. Usually exam soft also has a timer you can set for yourself that will alert you when your time is up -- I'm really crossing my fingers that this will be on the bar exam because I always set it earlier than I need to remind me to wrap it up.

Also, I have never taken an exam on exam soft that actually had the question on the computer. It was always questions on paper and answers on the computer. I think it will probably be the same for the bar, so we should have a paper handout to mark up (crossing my fingers!).

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sd5289
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Tue Jul 07, 2015 10:07 am

Torts help:

[+] Spoiler
A driver negligently drove his car into a pedestrian, breaking her leg. The pedestrian's leg was put in a cast, and she used crutches to get about. While shopping at the local supermarket, the pedestrian non-negligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of the supermarket's produce department. The pedestrian's crutch slipped on the peel, and she fell to the floor, breaking her arm. Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance.
The pedestrian sued the driver and the supermarket for her injuries.
The pedestrian will be able to recover from

I chose "driver for broken leg only, and supermarket for broken arm only."

Apparently the answer was driver for both, and supermarket for broken arm only because the latter injury was reasonably foreseeable. HOW is it "reasonably" foreseeable to the driver that she would break her arm in the supermarket at a later time, totally unconnected to the initial accident?!

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annapach
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby annapach » Tue Jul 07, 2015 10:12 am

somuchbooty wrote:
Pleasye wrote:
somuchbooty wrote:Just a con law question that is bugging me...

[+] Spoiler
A state law provided that before an abortion may be performed a woman must (a) have a consultation with a physician, who should try to persuade the woman to have her baby, and (b) wait another 24 hours before seeking an abortion. A woman in the middle of her first trimester of pregnancy challenges the constitutionality of the law.

Would a court be likely to strike down this law?

A: No, because the state’s purpose is not to hinder women’s right to choose abortion, but merely to persuade women to choose birth and to ensure that their decisions are deliberate.

I don't know why, but the fact the doctors are obligated to attempt to persuade (read manipulate) women into not getting an abortion seems like an undue burden.

Ha yeah, welcome to the law of abortion. But in all seriousness, the court has pretty much acknowledged that the state interest in abortion is to preserve life, and thus, they are allowed to do things with the express purpose of dissuading women from having abortions. Consultations, pamphlets, showing women pics of dead babies, 24 hour waiting periods. All of that has been deemed not to be an undue burden (even though it totally is). Just memorize the list of stuff that has been deemed okay and not okay (the only thing I can think of that has been not okay is making a woman get her husband's permission) and don't try to think reasonably about it because it's just not.


thanks all, yeah, I better just remember what is cool and what isn't, because notifying your spouse seems WAY more legit than having a doctor brow beat you about what a terrible person you are. Both wrong, but the notifying spouse thing at least makes a tiny bit of sense in my mind.



Just so you know you're not alone I sent this question to all my [law school and non-law school] friends and every single one of them was like WUT

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annapach
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby annapach » Tue Jul 07, 2015 10:15 am

sd5289 wrote:Torts help:

[+] Spoiler
A driver negligently drove his car into a pedestrian, breaking her leg. The pedestrian's leg was put in a cast, and she used crutches to get about. While shopping at the local supermarket, the pedestrian non-negligently placed one of her crutches on a banana peel that had been negligently left on the floor by the manager of the supermarket's produce department. The pedestrian's crutch slipped on the peel, and she fell to the floor, breaking her arm. Had the pedestrian stepped on the banana peel at a time when she did not have to use crutches, she would have regained her balance.
The pedestrian sued the driver and the supermarket for her injuries.
The pedestrian will be able to recover from

I chose "driver for broken leg only, and supermarket for broken arm only."

Apparently the answer was driver for both, and supermarket for broken arm only because the latter injury was reasonably foreseeable. HOW is it "reasonably" foreseeable to the driver that she would break her arm in the supermarket at a later time, totally unconnected to the initial accident?!


I've noticed that there are a lot of fact patterns like this. It seems that the "reasonably foreseeable" is actually the "but for" test- "but for" the driver, she wouldn't have broken her leg, wouldn't have been on crutches, wouldn't have been susceptible to an injury like this. There was a similar question about "I poison you, and on the way to the hospital in the ambulance the ambulance driver has a heart attack and crashes the ambulance. Am I liable for both sets of injuries?" the answer was yes in that case, for the same "but for" reasons.

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milesdavisjd
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby milesdavisjd » Tue Jul 07, 2015 10:16 am

sd5289 wrote:
milesdavisjd wrote:I ended up calling the Themis advisor today to discuss. She told me to wait until I had completed all of the prerequisites for the simulated MBE and Essay Exams (that includes doing ALL of the work assigned up until the first two mixed MBE sets). So basically, I'm going spend 15 hours a day over the next week so I can take the simulated MBE on my own, a week late. But I think that's a good approach. I do get a lot of fatigue/mistakes towards the end of the 34 question MBE sets, so this will be good conditioning to get ready for the test. Then hopefully I can slow down the pace a little bit until the test.


Like doing all of the MBE specific work? I've got a lot of NY stuff that's assigned this week, so was planning on doing the simulation tomorrow at the actual Themis location in order to do a test run before the big day.


Not sure how they do it in NY, but we have one day for the MBE test, and then another day for the MEE, IL Essays, and MPT. Themis is holding two separate simulation days in Chicago (Today and Tomorrow). My advisor suggested I push both simulated tests out and do them next week, to be completely ready for both simulated test days. I would really recommend calling your own advisor for help specific to your situation. (I just called the Themis general number and they directed me to the right person). It was really helpful, and I was also able to ask other questions about my progress, goals, etc. They answered right away, so the whole thing took 10 min.

eloise16
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby eloise16 » Tue Jul 07, 2015 10:21 am

annapach wrote:
somuchbooty wrote:
Pleasye wrote:
somuchbooty wrote:Just a con law question that is bugging me...

[+] Spoiler
A state law provided that before an abortion may be performed a woman must (a) have a consultation with a physician, who should try to persuade the woman to have her baby, and (b) wait another 24 hours before seeking an abortion. A woman in the middle of her first trimester of pregnancy challenges the constitutionality of the law.

Would a court be likely to strike down this law?

A: No, because the state’s purpose is not to hinder women’s right to choose abortion, but merely to persuade women to choose birth and to ensure that their decisions are deliberate.

I don't know why, but the fact the doctors are obligated to attempt to persuade (read manipulate) women into not getting an abortion seems like an undue burden.

Ha yeah, welcome to the law of abortion. But in all seriousness, the court has pretty much acknowledged that the state interest in abortion is to preserve life, and thus, they are allowed to do things with the express purpose of dissuading women from having abortions. Consultations, pamphlets, showing women pics of dead babies, 24 hour waiting periods. All of that has been deemed not to be an undue burden (even though it totally is). Just memorize the list of stuff that has been deemed okay and not okay (the only thing I can think of that has been not okay is making a woman get her husband's permission) and don't try to think reasonably about it because it's just not.


thanks all, yeah, I better just remember what is cool and what isn't, because notifying your spouse seems WAY more legit than having a doctor brow beat you about what a terrible person you are. Both wrong, but the notifying spouse thing at least makes a tiny bit of sense in my mind.



Just so you know you're not alone I sent this question to all my [law school and non-law school] friends and every single one of them was like WUT


This is my field and is where I will be practicing law after the bar exam and I got this question wrong, too! I laughed for a good five minutes about it and am still bitter about it today. I think the lecturer on abortion was right that you just need to remember the very few points that he included on the lecture and not try to actually analyze the situation using the undue burden standard. Absolutely infuriating but I will bite my tongue for this one exam.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby smalogna » Tue Jul 07, 2015 10:52 am

Thoroughly convinced if I fail the bar exam I will have solely civ pro and NY practice to blame.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby zot1 » Tue Jul 07, 2015 11:25 am

milesdavisjd wrote:
sd5289 wrote:
milesdavisjd wrote:I ended up calling the Themis advisor today to discuss. She told me to wait until I had completed all of the prerequisites for the simulated MBE and Essay Exams (that includes doing ALL of the work assigned up until the first two mixed MBE sets). So basically, I'm going spend 15 hours a day over the next week so I can take the simulated MBE on my own, a week late. But I think that's a good approach. I do get a lot of fatigue/mistakes towards the end of the 34 question MBE sets, so this will be good conditioning to get ready for the test. Then hopefully I can slow down the pace a little bit until the test.


Like doing all of the MBE specific work? I've got a lot of NY stuff that's assigned this week, so was planning on doing the simulation tomorrow at the actual Themis location in order to do a test run before the big day.


Not sure how they do it in NY, but we have one day for the MBE test, and then another day for the MEE, IL Essays, and MPT. Themis is holding two separate simulation days in Chicago (Today and Tomorrow). My advisor suggested I push both simulated tests out and do them next week, to be completely ready for both simulated test days. I would really recommend calling your own advisor for help specific to your situation. (I just called the Themis general number and they directed me to the right person). It was really helpful, and I was also able to ask other questions about my progress, goals, etc. They answered right away, so the whole thing took 10 min.


I'm planning to maybe call too. That aside, I asked a friend who already took and passed the bar with Themis regarding my progress. And he emphasized that it was so much better to not rush it because then I wouldn't be learning everything and that so many people pass without completing the entire program. So I'm planning to push the simulated exams for the weekend or earlier next week. Slow and steady wins the race, right?

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sd5289
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Tue Jul 07, 2015 12:07 pm

How are you guys measuring whether you're ready for the MBE simulation tomorrow? I've been done with the MBE subjects for a while now, and am just finishing off the practice set #5 in each subject. My "mixed sets" are supposed to start soon after the simulation.

I was feeling fairly ready to tackle the simulation, and figured the experience of waking up early and going to a test center would be valuable, but now I'm not so sure.

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Mad Hatter
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Mad Hatter » Tue Jul 07, 2015 12:10 pm

sd5289 wrote:How are you guys measuring whether you're ready for the MBE simulation tomorrow? I've been done with the MBE subjects for a while now, and am just finishing off the practice set #5 in each subject. My "mixed sets" are supposed to start soon after the simulation.

I was feeling fairly ready to tackle the simulation, and figured the experience of waking up early and going to a test center would be valuable, but now I'm not so sure.

Same boat. Let's do this.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Confused7 » Tue Jul 07, 2015 12:25 pm

Mad Hatter wrote:
sd5289 wrote:How are you guys measuring whether you're ready for the MBE simulation tomorrow? I've been done with the MBE subjects for a while now, and am just finishing off the practice set #5 in each subject. My "mixed sets" are supposed to start soon after the simulation.

I was feeling fairly ready to tackle the simulation, and figured the experience of waking up early and going to a test center would be valuable, but now I'm not so sure.

Same boat. Let's do this.


I'm doing the simulation but at home. Am I correct in understanding that we get 3 hours in the morning, 1 hour for lunch, and then 3 hours in the afternoon?

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Ahyis » Tue Jul 07, 2015 12:30 pm

Mad Hatter wrote:
Ahyis wrote:Can't remember where the original post was (few pages back maybe) but someone mentioned REPEAT QUESTIONS in MBE/State MC. I recently did a set of NYMC, and got 6 repeated questions...needless to say, I got them right this time around, but I feel like it messed with my sense of how I really did on that set.

I asked Themis about it and got this response: "The questions you receive start off with questions you have not answered. After you have answered every question you will then receive all the questions you answered incorrectly. Finally, once every question is answered correctly you will then receive questions you answered correctly again, kind of like flashcards."

So basically, w'ere going to start seeing all the questions we got wrong show up again? If you're like me, and when you get something wrong you write it into your outline or whatever, I think I'm suddenly going to be unfairly getting a lot of upcoming questions right...

Why is that "unfair" though? I'm treating the problem sets as a way to supplement the lecture handouts/my outlines, so if I'm getting 70+% of the questions right by the end, I could care less that they're repeats as long as I'm confidently picking the right answer.

Edit: I guess I'm assuming that that the ~1500 questions we are given will cover everything you need to know. Whether that's the case or not (esp. w/r/t civ pro) remains a question I guess.


I meant "unfair" in the sense of I'll be "falsely" doing better on sets because I've had the problems before and am just remembering the answer. If I get 85% right, but only because I remembered the correct answers from before, I don't feel like I'm being fairly tested on my application of knowledge - just muscle memory of Themis-specific questions, which won't necessarily help on the real MBE.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby gr8scOtt! » Tue Jul 07, 2015 12:46 pm

K question
[+] Spoiler
Mechanic agrees to fix owner's vehicle for $$ to be paid upon completion of the work. Two weeks later, before the work was completed, mechanic sent a letter to owner telling owner to pay the $$ to a creditor. Mechanic completes the work. Question: what is owner's best defense against an action by the creditor?

Answer: mechanic failed to perform the work adequately.

The explanation says that the creditor is an intended beneficiary, but I thought an intended beneficiary was one who was to benefit at the time the contract was made? Otherwise, it would be an incidental beneficiary? Explanation also says assignment of rights plays no role.

Confused7
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Confused7 » Tue Jul 07, 2015 1:05 pm

gr8scOtt! wrote:K question
[+] Spoiler
Mechanic agrees to fix owner's vehicle for $$ to be paid upon completion of the work. Two weeks later, before the work was completed, mechanic sent a letter to owner telling owner to pay the $$ to a creditor. Mechanic completes the work. Question: what is owner's best defense against an action by the creditor?

Answer: mechanic failed to perform the work adequately.

The explanation says that the creditor is an intended beneficiary, but I thought an intended beneficiary was one who was to benefit at the time the contract was made? Otherwise, it would be an incidental beneficiary? Explanation also says assignment of rights plays no role.


Intended beneficiaries do not have to be identified at the time the contract is made. So in this case, the creditor is an intended beneficiary. I got this question wrong too because the answer choice asks you to assume a lot of things. Here, the correct answer is that he failed to perform the work adequately because, if true, this would allow the owner to opt out of the contract.

Confused7
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Confused7 » Tue Jul 07, 2015 1:08 pm

NY takers - how much do we have to know about the jurisdiction of all the various courts in NY? Trying to memorize all the amount in controversy amounts and types of actions that can be brought in their original, exclusive, and concurrent jurisdictions is going to drive me crazy...

MrBriggs360
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby MrBriggs360 » Tue Jul 07, 2015 1:20 pm

Confused7 wrote:NY takers - how much do we have to know about the jurisdiction of all the various courts in NY? Trying to memorize all the amount in controversy amounts and types of actions that can be brought in their original, exclusive, and concurrent jurisdictions is going to drive me crazy...


Speaking completely out of my ass, but I can't see it ever being much more than an odd MC question or a small ancillary issue in an essay. Although it's a lot of information, there's not much there to even talk about. For instance, in an essay where they mention the claim is brought in Oneida County Court and the AiC is $30,000, you're either going to remember the limit is $25,000 and either mention it or not... but how much can that issue be worth?

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Mad Hatter
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Mad Hatter » Tue Jul 07, 2015 1:38 pm

Evidence Q:
[+] Spoiler
A defendant is tried for armed robbery of a convenience store. The prosecutor offers the testimony of a bartender that when he saw the money in the defendant's wallet, he said, "You must have just held up a store to have that much money," to which the defendant made no reply.

This evidence is:

I chose: admissible to prove that the defendant's conduct caused the bartender to believe that the defendant robbed the convenience store.

Right answer: inadmissible, because the defendant had no reason to respond to the bartender's statement.

The explanation says that it wouldn't fall under the party admission doctrine because a reasonable person would be silent. My question is: who cares though, if the statement isn't being used to prove that the robbery took place, only that the bartender thought that it did? Why is this a hearsay issue to begin with?

I should add that this is one of the NCBE non-approved Q's, so maybe its a fuckup...

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby gr8scOtt! » Tue Jul 07, 2015 1:57 pm

Confused7 wrote:
gr8scOtt! wrote:K question
[+] Spoiler
Mechanic agrees to fix owner's vehicle for $$ to be paid upon completion of the work. Two weeks later, before the work was completed, mechanic sent a letter to owner telling owner to pay the $$ to a creditor. Mechanic completes the work. Question: what is owner's best defense against an action by the creditor?

Answer: mechanic failed to perform the work adequately.

The explanation says that the creditor is an intended beneficiary, but I thought an intended beneficiary was one who was to benefit at the time the contract was made? Otherwise, it would be an incidental beneficiary? Explanation also says assignment of rights plays no role.


Intended beneficiaries do not have to be identified at the time the contract is made. So in this case, the creditor is an intended beneficiary. I got this question wrong too because the answer choice asks you to assume a lot of things. Here, the correct answer is that he failed to perform the work adequately because, if true, this would allow the owner to opt out of the contract.

I get that an intended beneficiary doesn't have to be named/identified, but isn't the whole premise of an intended beneficiary be that at the time the contract is made, the parties intend someone/anyone else to benefit from their contract?

So at any time after the contract is formed, either party to the contract can add an intended beneficiary? Why wouldn't that just be an assignment of rights?

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby always_raining » Tue Jul 07, 2015 2:07 pm

Mad Hatter wrote:Evidence Q:
[+] Spoiler
A defendant is tried for armed robbery of a convenience store. The prosecutor offers the testimony of a bartender that when he saw the money in the defendant's wallet, he said, "You must have just held up a store to have that much money," to which the defendant made no reply.

This evidence is:

I chose: admissible to prove that the defendant's conduct caused the bartender to believe that the defendant robbed the convenience store.

Right answer: inadmissible, because the defendant had no reason to respond to the bartender's statement.

The explanation says that it wouldn't fall under the party admission doctrine because a reasonable person would be silent. My question is: who cares though, if the statement isn't being used to prove that the robbery took place, only that the bartender thought that it did? Why is this a hearsay issue to begin with?

I should add that this is one of the NCBE non-approved Q's, so maybe its a fuckup...


If the prosecution was able to get this "admission" in, then it would be used to show that the defendant admitted to the robbery since s/he did not specifically deny it. So it would be an admission (not hearsay). Since a reasonable person would not feel compelled to deny the statement (or if it can't be proved that the defendant actually heard the bartender), then it is not an admission and instead is hearsay. Basically, the question is asking you whether the defendant admitted to the robbery by not denying the statement.

I see why it's confusing. It doesn't really matter what the bartender thought; it matters how the defendant responded.

As an example, let's say the bartender did not think defendant robbed a bank but then the defendant said to the bartender "I robbed a bank." Even if the bartender still did not believe that, it would probably be used as an admission still since the defendant said it (and we still don't care what the bartender thinks). This is the opposite situation. What matters is how the defendant responded, i.e., did the defendant admit it by not denying (or by explicitly stating it)?

Maybe a clearer example would be something like this: you get home after going to the store and your best friend sees what he thinks is your picture on TV for a suspect in a bank robbery. Your best friend believes it is you (even though your best friend is mistaken). If your best friend says to you "hey did you just rob that bank? I saw your picture on TV as a suspect" and you don't say anything (assuming a reasonable person would deny, and you had the chance to deny it), then your silence could be an admission even though your friend has a mistaken belief that the photo is of you.

Hope that helps. If anyone thinks I've misstated something, please correct! :)

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Mad Hatter
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Mad Hatter » Tue Jul 07, 2015 2:10 pm

Gotcha, that makes sense. Kind of misleading for the question not to tell you what the statement is being used for though. Thanks.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Pleasye » Tue Jul 07, 2015 2:11 pm

henry flower wrote:So... when I'm doing my MPT in ExamSoft, will I be able to open up a separate window for my notes and outline? I just tried my first MPT doing all of the planning and writing in one window, and it effing killed me.

I'm in Maryland and (I think) we do an MPT and three 25-minute state-specific essays in the first 3-hour portion. Does that I mean I'll be able to have four windows going throughout the exam? If so, I guess I can just erase my MPT notes/outline when I move on to the other essays. And once I DL ExamSoft, will I be able to fiddle with it pre-exam to see if it can do these types of things?

Also, this question is a few degrees dumber, but the MPT is exclusively on paper day-of-exam, right? It would be nice if we could get some copy-and-paste action from the actual text of the file/library, but I suppose that's impossible.

All my experiences with ExamSoft (in LS) have been that you get one window for each essay and no windows for notes or outlines. Not sure if it's set up differently for the bar exam, but I doubt it.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby always_raining » Tue Jul 07, 2015 2:11 pm

gr8scOtt! wrote:
Confused7 wrote:
gr8scOtt! wrote:K question
[+] Spoiler
Mechanic agrees to fix owner's vehicle for $$ to be paid upon completion of the work. Two weeks later, before the work was completed, mechanic sent a letter to owner telling owner to pay the $$ to a creditor. Mechanic completes the work. Question: what is owner's best defense against an action by the creditor?

Answer: mechanic failed to perform the work adequately.

The explanation says that the creditor is an intended beneficiary, but I thought an intended beneficiary was one who was to benefit at the time the contract was made? Otherwise, it would be an incidental beneficiary? Explanation also says assignment of rights plays no role.


Intended beneficiaries do not have to be identified at the time the contract is made. So in this case, the creditor is an intended beneficiary. I got this question wrong too because the answer choice asks you to assume a lot of things. Here, the correct answer is that he failed to perform the work adequately because, if true, this would allow the owner to opt out of the contract.

I get that an intended beneficiary doesn't have to be named/identified, but isn't the whole premise of an intended beneficiary be that at the time the contract is made, the parties intend someone/anyone else to benefit from their contract?

So at any time after the contract is formed, either party to the contract can add an intended beneficiary? Why wouldn't that just be an assignment of rights?


I also got this wrong because (this is my biggest pet peeve) the question literally asks you to "assume the defenses are TRUE." If it were true that the creditor was not an intended beneficiary, then creditor does not have standing to sue!

I actually emailed themis about this question and they agreed, saying that it was really poorly worded but that it should have been clear that the creditor was an intended beneficiary (even though the call of the question says to assume otherwise).

I complained to some of my friends who took the bar last year and they said "these awful questions are great practice, because much like the practice MBE questions, the bar exam is also riddled with terrible questions!" Solace?

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sd5289
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Tue Jul 07, 2015 2:20 pm

always_raining wrote:
Mad Hatter wrote:Evidence Q:
[+] Spoiler
A defendant is tried for armed robbery of a convenience store. The prosecutor offers the testimony of a bartender that when he saw the money in the defendant's wallet, he said, "You must have just held up a store to have that much money," to which the defendant made no reply.

This evidence is:

I chose: admissible to prove that the defendant's conduct caused the bartender to believe that the defendant robbed the convenience store.

Right answer: inadmissible, because the defendant had no reason to respond to the bartender's statement.

The explanation says that it wouldn't fall under the party admission doctrine because a reasonable person would be silent. My question is: who cares though, if the statement isn't being used to prove that the robbery took place, only that the bartender thought that it did? Why is this a hearsay issue to begin with?

I should add that this is one of the NCBE non-approved Q's, so maybe its a fuckup...


If the prosecution was able to get this "admission" in, then it would be used to show that the defendant admitted to the robbery since s/he did not specifically deny it. So it would be an admission (not hearsay). Since a reasonable person would not feel compelled to deny the statement (or if it can't be proved that the defendant actually heard the bartender), then it is not an admission and instead is hearsay. Basically, the question is asking you whether the defendant admitted to the robbery by not denying the statement.

I see why it's confusing. It doesn't really matter what the bartender thought; it matters how the defendant responded.

As an example, let's say the bartender did not think defendant robbed a bank but then the defendant said to the bartender "I robbed a bank." Even if the bartender still did not believe that, it would probably be used as an admission still since the defendant said it (and we still don't care what the bartender thinks). This is the opposite situation. What matters is how the defendant responded, i.e., did the defendant admit it by not denying (or by explicitly stating it)?

Maybe a clearer example would be something like this: you get home after going to the store and your best friend sees what he thinks is your picture on TV for a suspect in a bank robbery. Your best friend believes it is you (even though your best friend is mistaken). If your best friend says to you "hey did you just rob that bank? I saw your picture on TV as a suspect" and you don't say anything (assuming a reasonable person would deny, and you had the chance to deny it), then your silence could be an admission even though your friend has a mistaken belief that the photo is of you.

Hope that helps. If anyone thinks I've misstated something, please correct! :)


Wow. Funky question.

I initially responded saying that the prosecution is trying to get that statement in to prove the truth of the matter asserted, namely that the bartender saw the money in the D's wallet and believed that he robbed the store, and the D is on trial for exactly that. So it's definitely a hearsay issue. Am now editing to add in the quoted text above.

The boldest part is the best explanation I can think of. If a "reasonable person" (not this D) wouldn't feel compelled to deny a claim like that, then it's not an admission, and I guess when you're thinking in objective terms, rather than subjectively this D would of course feel compelled to deny it because he did it, then it makes sense.

The distinction is between an actual party admission by the party vs not denying an "admission" made by another party where a reasonable person would feel compelled to deny it. The above poster is also correct that the party must have actually heard the statement, and had the ability to deny it. The example I remember from the lecture, which helps illustrate it, was the Lincoln assassination conspirators are sitting around a table when one states "John Wilkes Booth will be the one to assassinate Lincoln." If Booth was in the room, heard the statement, and didn't deny it, that would be deemed an adoptive admission at his trial if Lincoln was, in fact, assassinated.




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