Themis Bar Review Hangout - July 2015 Exam Forum

[anon sequitur]

This helps a little. Thanks. So say there's a recording of a jailhouse conversation. And the prosecution is saying the D said the car was green. And the defense is saying the D is heard saying the car was gray. NOW does BER apply?

Beluga explained why BER doesn't apply here, but I thought of another way to phrase things that might help. BER applies when a recording/document is literally the best conceivable evidence, not just the best available evidence. So what's the best conceivable evidence of whether or not a recording contains a conversation about a green car? The recording itself. Nothing could possibly be more on point. What is going to be the best conceivable evidence about the actual greenness of the car referred to on the audiotape? Not the audiotape, I guess that would be the car itself.

[Ahyis]

For NY people:

Last year's July exam had an essay question that pretty much required us to know the whole no-fault auto-insurance garbage. Fantastic.

[Nelson]

Can anyone help me with personal property and theif conveying good title?

Themis states that a truly genuine bona fide purchaser for value can prevail over the true owner of a chattel and thus, my understanding, have superior title.

Yet I just did an essay where the answer came out exactly the opposite, the answer stated that "It is irrelevant that subsequent transferees were acting in good faith" and that purchasing in good faith is not a good defense where the property is stolen property.

So I'm confused

Uh. I double checked my outline and where "iii) The bona fide purchaser truly believed that the owner who was selling the goods had the authority to do so," the owner shouldn't be able to get that property back.

That's what I thought, it's question 2 from an old Virginia Exam

http://law.wm.edu/academics/howto/prepa ... Answer.pdf

It's because of the way that title was originally obtained. In that exam, the thief got the property through larceny. So he had void title and cannot transfer good title to anyone subsequent in the chain (even BFPs) and therefore replevin is still available until eventually adverse possession would kick in. This might be throwing you off because you can transfer voidable title to a BFP in a case where there's a contract defense--fraud or duress for example. Then a subsequent transfer to a BFP will cut off the original owners replevin right.

Edit: Unam's example is slightly off because another way to acquire voidable title is to purchase from an agent who has legal possession but only apparent, not actual, authority to transfer. If a BFP buys from an agent with lawful possession, this transfer of title cuts off the owners replevin right.

It's helpful to think of the policy: if you just straight up steal something, without any semblance of a legal transfer, you've got void title and can never cut off the original owner's replevin right because we don't want to encourage people to steal shit and then sell it and cut off the owner's rights. If you instead illegally transfer property you have a present right to possession of, you've got voidable title and we're OK cutting off the owner's replevin because it's usually a situation where the original owner should have been more careful in its contracting or selection of agents.

[sd5289]

I'm also considering not doing anything the day before the exam, but not sure if that's a stupid idea.

I plan on doing the exact same thing, at least with respect to practice questions. I may review some, but I'm just going to go the gym, maybe play some video games, and try to rest.

Also, NY takers, just got this answer explanation on a MC question (I'm glad these things are treated more like extra credit than anything else...our average score on the NY MC simulation was 44%...LOL):

[+] Spoiler

Answer choice D is correct. If a decedent's distributees are grandparents or their issue, then the decedent's estate shall be distributed one-half to the maternal side and one-half to the paternal side. N.Y. Surrogate's Court Procedure Act § 1001 provides for the appointment of a public administrator to ensure that a diligent search is made to locate all distributees on both sides of the family in circumstances in which the decedent is survived by cousins on only one side of the family. Thus, the statute appears to mandate the appointment of a public administrator in circumstances such as this proceeding, when the only known distributees are first cousins on one side of Decedent's family. Thus, answer choices A, B, and C are incorrect.

In the words of Gandalf the Grey: "I have no memory of this place."

[sd5289]

I am so burnt out. Having SUCH a hard time focusing on this material today, ugh. And I still haven't done the simulated essay day so that's going to be real fun tomorrow.

I still haven't done the simulated essay day either but at this point I don't think I'm going to. What is the point? I'd rather work on the areas that I'm weakest at -- do those essays -- rather than put myself through a day long test at the end of which I will be exhausted and unable to review/study anymore.

I sat for the simulated MBE, so I feel like I have an idea of what its like to be in testing conditions for that long. I dunno, maybe I am wrong? I might try to do the first half of the simulated essay day -- did people think it was really helpful?

I broke the NY simulated essay day up into two (did the PM session yesterday and the AM session today). I found it more helpful than the practice essays because a) I was still getting in the practice of taking the essays cold and having to improvise where I couldn't quite remember the rule, and b) they're back to back, so was good to get the feel for allocating my time across the entire time period rather than having it done for me.

I also thought the simulation essays had more to them that you had to do as opposed to the subject-specific ones. Plus it was good practice in having to figure out what area an essay was testing rather than Themis telling you.

[zot1]

I'm also considering not doing anything the day before the exam, but not sure if that's a stupid idea.

I plan on doing the exact same thing, at least with respect to practice questions. I may review some, but I'm just going to go the gym, maybe play some video games, and try to rest.

Alright, then I might just go for it too then. Maybe go to the movies. Take a long walk.

WE GOT THIS, YOU GUYS!

[GULCPerson]

Also, a crim pro question.

Say a judge fails to correctly strike a juror for cause and a party has to use a preemptory to strike instead. Is this reversible error? My understanding was no because the use of a preemptory would cure any harm and the mere fact of losing a preemptory is just tough luck

It's reversible, assuming you could demonstrate that it was prejudicial/harmful. You could argue that having to use a preemptory strike caused you to not have that strike available against another objectionable juror. I have no idea if that would be acceptable as prejudice though.

EDIT: apparently this is a state-by-state thing. Virginia doesn't have the specific distinction that NY does, as pointed out below me. Two sample answers posted by VBBE suggest that in Virginia, this probably is reversible (although I understand that this doesn't really answer Beluga's question, since those model answers are presumably what prompted the question in the first place).

[sd5289]

Also, a crim pro question.

Say a judge fails to correctly strike a juror for cause and a party has to use a preemptory to strike instead. Is this reversible error? My understanding was no because the use of a preemptory would cure any harm and the mere fact of losing a preemptory is just tough luck

No, in fact in New York you can't even complain about it on appeal unless you've used all your peremptories (I remember this from my clinic).

But specifically to the question, see Crim Pro distinctions outline, page 50, sub-b near the top of the page:

The loss of a peremptory challenge does not violate the right to an impartial jury... A defendant's exercise of a peremptory challenge is not denied or impaired when the defendant chooses to use such a challenge to remove a juror who should have been excused for cause.

Sub-c under that continues:

The Constitution allows states to choose between harmless-error review and automatic reversal when a judge, acting in good faith, erroneously denies a defendant's peremptory challenge... Thus, if state law permits harmless-error review of the erroneous seating of the juror, there is no constitutional requirement for automatic reversal of the defendant's conviction.

It's not automatically reversible in NY.

ETA: specifically because of what I bolded above, be sure to check your own state's distinctions!! States can go from harmless error to reversible error.

[smalogna]

For NY people:

Last year's July exam had an essay question that pretty much required us to know the whole no-fault auto-insurance garbage. Fantastic.

I think I had this as a practice essay and completely missed this issue. So that would've been fun if it was the real thing.

[Ahyis]

For NY people:

Last year's July exam had an essay question that pretty much required us to know the whole no-fault auto-insurance garbage. Fantastic.

I think I had this as a practice essay and completely missed this issue. So that would've been fun if it was the real thing.

I just finished going through the July 2014 essay answers - I'd say probably 20% of the stuff on there has never come up on a Themis essay, nor would I have thought to study it particularly hard. However, that means that 80% is stuff that I at least somewhat studied and could probably bullshit. So, I guess that's good.

[zot1]

For NY people:

Last year's July exam had an essay question that pretty much required us to know the whole no-fault auto-insurance garbage. Fantastic.

I think I had this as a practice essay and completely missed this issue. So that would've been fun if it was the real thing.

I just finished going through the July 2014 essay answers - I'd say probably 20% of the stuff on there has never come up on a Themis essay, nor would I have thought to study it particularly hard. However, that means that 80% is stuff that I at least somewhat studied and could probably bullshit. So, I guess that's good.

That's why we just need to pass

[zot1]

Not gonna drive myself too crazy today. Time for the U.S. game.

[sd5289]

I just finished going through the July 2014 essay answers - I'd say probably 20% of the stuff on there has never come up on a Themis essay, nor would I have thought to study it particularly hard. However, that means that 80% is stuff that I at least somewhat studied and could probably bullshit. So, I guess that's good.

Yeah, I'm actually looking at these too and I agree that I could probably answer the majority of this, but there's definitely some stuff on here that none of the many practice essays I've done has covered.

[skrubba5025]

I just finished going through the July 2014 essay answers - I'd say probably 20% of the stuff on there has never come up on a Themis essay, nor would I have thought to study it particularly hard. However, that means that 80% is stuff that I at least somewhat studied and could probably bullshit. So, I guess that's good.

Yeah, I'm actually looking at these too and I agree that I could probably answer the majority of this, but there's definitely some stuff on here that none of the many practice essays I've done has covered.

Where can I find these essays?

[Ahyis]

I just finished going through the July 2014 essay answers - I'd say probably 20% of the stuff on there has never come up on a Themis essay, nor would I have thought to study it particularly hard. However, that means that 80% is stuff that I at least somewhat studied and could probably bullshit. So, I guess that's good.

Yeah, I'm actually looking at these too and I agree that I could probably answer the majority of this, but there's definitely some stuff on here that none of the many practice essays I've done has covered.

Where can I find these essays?

BOLE website. Past examinations.

[sd5289]

EDIT: apparently this is a state-by-state thing. Virginia doesn't have the specific distinction that NY does, as pointed out below me. Two sample answers posted by VBBE suggest that in Virginia, this probably is reversible (although I understand that this doesn't really answer Beluga's question, since those model answers are presumably what prompted the question in the first place).

Someone from Virginia. My condolences for the suit thing. I'll be lucky if I can find real pants before trudging over to the Javits center in NY.

[dcdude]

Anyone else taking California and finding that their professional responsibility outlines are atrocious? The one subject we are almost certain to be tested on, and their three outlines have endlessly conflicting information. Suggestions? Better outlines you've used?

[zor]

Interesting. I may skip the simulated essay day too, then, and just do AM and PM on different days. I'm just fading at this point and don't think "endurance" is really a skill that will help. I was definitely planning to take Monday "off" except maybe glancing at the FROs one last time.

Best Evidence Rule: this is almost never at issue unless the document has legal effect or the witness is trying to describe the document. I know that the definition you keep seeing is that the CONTENTS are at issue, but I like to think of it more as the DOCUMENT being at issue.
- So can a photographer testify as to what he saw that day? Yes, he's testifying from personal knowledge, it doesn't matter that there's a photo. Can he look at the photo, put it down, and THEN testify based on his recollection, having refreshed it with the photo? Yep! Because he's not testifying about the photo itself or what's in it, he's testifying about what happened that day. But can he testify without the photo about what the picture shows if the trial is about whether the defendant is in the picture? No! The only way to know what's in the picture--in the picture, not there that day--is the photo.
- Can an accountant testify about a contract he entered with a vendor? Sure, personal knowledge! Can he testify that he and the vendor agreed it would be for $5,000? Yep, he can just remember! But can he testify that the CONTRACT says $1,000? No, you need the contract! The only way to know what the contract says is the contract.

Does that help?

[sp1kedrat]

does anyone know if ny essays are weighted like the mbe? or are they solely raw scores?

[seeladyliv]

I've never posted here before but as someone who took a UBE bar exam last July and did not pass (by 11 point!) and redoing themis now, i thought i would offer my opinion. My essays and mpt (50% of my exam points) wasn't great (132) but it was fine considering some rules popped up i had never heard of and i had to make them up and i hadn't looked over crim law in over a week because i was confident i knew it and it wasn't likely to be on the exam (that bit me in the ass). anyways my MBE score was the real shocker (133) i had previously done pretty well on them but on the day of the exam i was EXHAUSTED. like many of you studying for two + months was killing me and i had gotten off directed study and was doing my own thing. i avoided doing too many MBEs at the end because i hated seeing my scores and just studied outlines. this was a mistake for me. i had not done a set of 200 MBEs before exam day and i had only done a set of 100 twice ( i mean sitting for a whole uninterrupted set). on exam day i was tired from months of studying, from crappy sleep worrying about my essays, and just general test anxiety that when i got to the second set of MBE's i was ready to just start guessing on them. I felt like i couldn't even read anymore and i think this caused me to really mess up my score. my advice, for whatever it's worth, practice at least one set of 200 mbe and maybe a couple 100 sets if you have time and try to get some sleep.

[sd5289]

Does anyone have a consolidated NY Practice outline because Themis's final attack outline is 50+ pages long. Lulz.

[sd5289]

@seeladyliv: how many MBE problems had you done overall? I don't think anyone here is just avoiding MBE's from here on out, but for me at least I've done nearly 1300 of them, and my scores have evened out despite whether I feel alert or exhausted, so I'm not terribly worried about that at this point. Will still do MBE's to stay fresh, but feel like, especially with your story, that it would help if we weren't so exhausted going into it.

[eloise16]

I've never posted here before but as someone who took a UBE bar exam last July and did not pass (by 11 point!) and redoing themis now, i thought i would offer my opinion. My essays and mpt (50% of my exam points) wasn't great (132) but it was fine considering some rules popped up i had never heard of and i had to make them up and i hadn't looked over crim law in over a week because i was confident i knew it and it wasn't likely to be on the exam (that bit me in the ass). anyways my MBE score was the real shocker (133) i had previously done pretty well on them but on the day of the exam i was EXHAUSTED. like many of you studying for two + months was killing me and i had gotten off directed study and was doing my own thing. i avoided doing too many MBEs at the end because i hated seeing my scores and just studied outlines. this was a mistake for me. i had not done a set of 200 MBEs before exam day and i had only done a set of 100 twice ( i mean sitting for a whole uninterrupted set). on exam day i was tired from months of studying, from crappy sleep worrying about my essays, and just general test anxiety that when i got to the second set of MBE's i was ready to just start guessing on them. I felt like i couldn't even read anymore and i think this caused me to really mess up my score. my advice, for whatever it's worth, practice at least one set of 200 mbe and maybe a couple 100 sets if you have time and try to get some sleep.

Isn't a 133 on the MBE a passable score?

[smalogna]

does anyone know if ny essays are weighted like the mbe? or are they solely raw scores?

"GRADING OF BAR EXAMINATION - The answers to the five essay questions and the MPT are each graded in accordance with a predetermined marking formula, and the grades attained by the applicant on the respective questions are the raw essay scores. The total number of questions answered correctly by an applicant on the 50 New York multiple choice questions is the raw score for that portion, and the number of questions answered correctly on the MBE questions is the applicant's raw score for the MBE portion.

Through psychometrically approved scaling procedures, the raw scores attained by the applicants on each portion of the examination are converted to scaled scores on a common scale of 0 to 1000, and the three scaled scores are then weighted and combined to yield total weighted scaled scores on the same 0 to 1000 scale. The relative weights assigned are 50% to the written portion (40% essays and 10% MPT), 10% to the New York multiple choice, and 40% to the MBE portion."

Translation: We're not going to tell you the details of scaling but MBE is 40%, Essays are 40%, NYMC are 10%, MPT 10%

[smalogna]

I've never posted here before but as someone who took a UBE bar exam last July and did not pass (by 11 point!) and redoing themis now, i thought i would offer my opinion. My essays and mpt (50% of my exam points) wasn't great (132) but it was fine considering some rules popped up i had never heard of and i had to make them up and i hadn't looked over crim law in over a week because i was confident i knew it and it wasn't likely to be on the exam (that bit me in the ass). anyways my MBE score was the real shocker (133) i had previously done pretty well on them but on the day of the exam i was EXHAUSTED. like many of you studying for two + months was killing me and i had gotten off directed study and was doing my own thing. i avoided doing too many MBEs at the end because i hated seeing my scores and just studied outlines. this was a mistake for me. i had not done a set of 200 MBEs before exam day and i had only done a set of 100 twice ( i mean sitting for a whole uninterrupted set). on exam day i was tired from months of studying, from crappy sleep worrying about my essays, and just general test anxiety that when i got to the second set of MBE's i was ready to just start guessing on them. I felt like i couldn't even read anymore and i think this caused me to really mess up my score. my advice, for whatever it's worth, practice at least one set of 200 mbe and maybe a couple 100 sets if you have time and try to get some sleep.

Isn't a 133 on the MBE a passable score?

133 scaled you're in danger territory. Sorry that you had that experience Seeladyliv but thanks for the advice, duly noted.