Themis Bar Review Hangout - July 2015 Exam

[lilypad144]

Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

You can always impeach a witness with opinion or reputation evidence about their character for truthfulness. You can only use extrinsic evidence for impeachment (i.e. the extrinsic evidence is not relevant to the material substantive issue in the case) 1) if it's the witness's own prior inconsistent statement and the witness is on the stand, given an opportunity to explain or deny, and can be crossed/redirected by the other side; or 2) it's a criminal conviction that satisfies FRE 609. Otherwise, you're not going to be able to use extrinsic evidence. You can inquire into specific instances of conduct on cross that are probative of character for truthfulness only (so not just general bad character), but you have to take the witness's answer.

Thank you, that's helpful! I have a question then, I thought for impeaching with a prior conviction, you MAY admit a crime that doesn't involve dishonesty if it's a felony and subject to balancing. But I just looked at a model answer from a previous exam and the answer stated that a probation officer could not testify that a witness was convicted of malicious destruction of property bc it was not a prior conviction of dishonesty. How does that make sense? Super confused on that.

[Lawbro]

Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

Everyone else's explanations are pretty on point. I can see we've collectively done a lot of studying! Also, don't forget that even though you can't use character evidence to prove propensity, you can use it for MIMIC purposes (motive, intent, absence of mistake, identity, and common plan).

Hmm, I was under the impression you can use character evidence to show propensity. For example, somebody might give reputation testimony that D (in an assault case) is a violent person.

Well, that would be after the defendant "opens the door" by arguing peacefulness right? But the prosecution cannot itself initiate the crusade.

Right. Evidence is a tricky subject, I wish I took it in law school

[UnamSanctam]

Here's a conlaw question that I don't really understand

[+] Spoiler

A Congressional statute provides that any state that does not enact a statute requiring its residents to have car insurance for all personal vehicles will receive a drastically reduced amount of federal funding for road repair. A state refuses to enact such a statute because it does not want to discourage car purchases by those who cannot afford insurance premiums.

The federal statute relating to disbursement of highway funds conditioned on the insurance requirement is probably

Answer choices

A. Unconstitutional.

B. Constitutional only on the basis of the spending power.

C. Constitutional only on the basis of the commerce power.

D. Constitutional on the basis of both the spending power and the commerce power.

Correct answer was D, but I chose B. Isn't commandeering not allowed under the commerce clause?

I think it's only commandeering if it's a flat out obligation. This is an incentive.

Having said that, I think this is actually a close call. Fed gov't can condition the receipt of federal funds but it can't be a "gun to the head". In other words, the conditioning can't be so oppressive that the state really must accept or else lose out on substantial benefits. Here, the fact that the question says the state would receive drastically reduced federal funding makes it a close call. I think this is based on the Dole case.

Yeah, I was hinging on the use of that word. I think it's not a great question

Yeah, I got an MBE question the other day where the right answer was that something was unconstitutional because there were unconstitutional conditions attached (not using that exact terminology), but Themis reaaaaaaally hasn't used that all summer and the MBE questions seem to favor upholding stuff that actually appears to be a grey area for unconst. conditions in the real world.

[Lawbro]

Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

You can always impeach a witness with opinion or reputation evidence about their character for truthfulness. You can only use extrinsic evidence for impeachment (i.e. the extrinsic evidence is not relevant to the material substantive issue in the case) 1) if it's the witness's own prior inconsistent statement and the witness is on the stand, given an opportunity to explain or deny, and can be crossed/redirected by the other side; or 2) it's a criminal conviction that satisfies FRE 609. Otherwise, you're not going to be able to use extrinsic evidence. You can inquire into specific instances of conduct on cross that are probative of character for truthfulness only (so not just general bad character), but you have to take the witness's answer.

Thank you, that's helpful! I have a question then, I thought for impeaching with a prior conviction, you MAY admit a crime that doesn't involve dishonesty if it's a felony and subject to balancing. But I just looked at a model answer from a previous exam and the answer stated that a probation officer could not testify that a witness was convicted of malicious destruction of property bc it was not a prior conviction of dishonesty. How does that make sense? Super confused on that.

The rule is you can bring up a prior conviction of a Felony (subject to balancing), or any crime involving dishonesty (even misdemeanor), and that is not subject to balancing. Did your question specify that malicious destruction of property was a misdemeanor?

[Nelson]

Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

You can always impeach a witness with opinion or reputation evidence about their character for truthfulness. You can only use extrinsic evidence for impeachment (i.e. the extrinsic evidence is not relevant to the material substantive issue in the case) 1) if it's the witness's own prior inconsistent statement and the witness is on the stand, given an opportunity to explain or deny, and can be crossed/redirected by the other side; or 2) it's a criminal conviction that satisfies FRE 609. Otherwise, you're not going to be able to use extrinsic evidence. You can inquire into specific instances of conduct on cross that are probative of character for truthfulness only (so not just general bad character), but you have to take the witness's answer.

Thank you, that's helpful! I have a question then, I thought for impeaching with a prior conviction, you MAY admit a crime that doesn't involve dishonesty if it's a felony and subject to balancing. But I just looked at a model answer from a previous exam and the answer stated that a probation officer could not testify that a witness was convicted of malicious destruction of property bc it was not a prior conviction of dishonesty. How does that make sense? Super confused on that.

Was it a felony? You only automatically admit crimes of dishonesty and felonies. Malicious destruction of property doesn't sound like a felony.

Could also be your state's distinction. In my state, only crimes of dishonesty are admissible to impeach.

[lilypad144]

Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

You can always impeach a witness with opinion or reputation evidence about their character for truthfulness. You can only use extrinsic evidence for impeachment (i.e. the extrinsic evidence is not relevant to the material substantive issue in the case) 1) if it's the witness's own prior inconsistent statement and the witness is on the stand, given an opportunity to explain or deny, and can be crossed/redirected by the other side; or 2) it's a criminal conviction that satisfies FRE 609. Otherwise, you're not going to be able to use extrinsic evidence. You can inquire into specific instances of conduct on cross that are probative of character for truthfulness only (so not just general bad character), but you have to take the witness's answer.

Thank you, that's helpful! I have a question then, I thought for impeaching with a prior conviction, you MAY admit a crime that doesn't involve dishonesty if it's a felony and subject to balancing. But I just looked at a model answer from a previous exam and the answer stated that a probation officer could not testify that a witness was convicted of malicious destruction of property bc it was not a prior conviction of dishonesty. How does that make sense? Super confused on that.

The rule is you can bring up a prior conviction of a Felony (subject to balancing), or any crime involving dishonesty (even misdemeanor), and that is not subject to balancing. Did your question specify that malicious destruction of property was a misdemeanor?

No, it didn't! AND the model answer states "evidence of a prior conviction is admissible only if the crime contains an element of dishonesty, theft, or a false statement. Malicious destruction of private property is not a crime that involves dishonesty, theft, or a false statement. Accordingly, evidence of this conviction is barred by MRE 609(a)." WUT!?!?

[lilypad144]

Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

You can always impeach a witness with opinion or reputation evidence about their character for truthfulness. You can only use extrinsic evidence for impeachment (i.e. the extrinsic evidence is not relevant to the material substantive issue in the case) 1) if it's the witness's own prior inconsistent statement and the witness is on the stand, given an opportunity to explain or deny, and can be crossed/redirected by the other side; or 2) it's a criminal conviction that satisfies FRE 609. Otherwise, you're not going to be able to use extrinsic evidence. You can inquire into specific instances of conduct on cross that are probative of character for truthfulness only (so not just general bad character), but you have to take the witness's answer.

Thank you, that's helpful! I have a question then, I thought for impeaching with a prior conviction, you MAY admit a crime that doesn't involve dishonesty if it's a felony and subject to balancing. But I just looked at a model answer from a previous exam and the answer stated that a probation officer could not testify that a witness was convicted of malicious destruction of property bc it was not a prior conviction of dishonesty. How does that make sense? Super confused on that.

Was it a felony? You only automatically admit crimes of dishonesty and felonies. Malicious destruction of property doesn't sound like a felony.

Could also be your state's distinction. In my state, only crimes of dishonesty are admissible to impeach.

Ah okay, you must be right. It must have been a misdemeanor. In that case, makes sense!! THANK YOU!!!!!!!!!!!!!

[refinedwarrior]

Finally took the simulated essay day. All I can say is lol at the length of the model answers, with case and restatement citations.

model answer rule statements/paragraphs/treatises are completely worthless, even more worthless than the lectures. i'm pretty sure they have these because the orangutans in charge of themis literally just copy and paste rule paragraphs from their internal mega-outline, which explains why you get rule statements waxing poetic about 12-factor tests that don't apply and full lists of 17 exceptions (none of which are remotely relevant). you should only be looking at these to check that you hit the major relevant issues and brought up the facts under each. i'm still memorizing rule statements, but highly watered down versions that i can actually memorize and that don't take me 7 minutes to write out.

Agree. Worthless and do not make me feel more prepared or better about this crap. I won't survive VA's exam. Not ready.

[zot1]

Ugh, it's getting harder and harder to get through this right now. I'm feeling extremely tired right now.

[zot1]

Ugh, it's getting harder and harder to get through this right now. I'm feeling extremely tired right now.

And I just had an essay for which I had barely two paragraphs to write about .

[Raiden]

Does anyone know where there are just some samples of actual essays? I just want to see how a 75 and a 55 look like, without signing up to see a bunch from 3rd party retailers.

[anon sequitur]

Could someone help me understand the right to a jury trial in federal court? Here is what I think I know:

Federal question SMJ: only for legal claims, not equitable

Diversity SMJ: FRCP give right to jury trial for legal claim, but don't provide right for a jury for an equitable claim; right to a jury for an equitable claim may apply if applicable state law grants it for that sort of claim?

[Ahyis]

Does anyone know where there are just some samples of actual essays? I just want to see how a 75 and a 55 look like, without signing up to see a bunch from 3rd party retailers.

I posted a couple pages back, but the NY BOLE site http://www.nybarexam.org/ExamQuestions/ ... stions.htm has all essay exams posted for like the last 10 years. It doesn't tell you what scores the model answers received, but says that they are "above average"

[Ahyis]

Could someone help me understand the right to a jury trial in federal court? Here is what I think I know:

Federal question SMJ: only for legal claims, not equitable

Diversity SMJ: FRCP give right to jury trial for legal claim, but don't provide right for a jury for an equitable claim; right to a jury for an equitable claim may apply if applicable state law grants it for that sort of claim?

I believe the rule is that the right is only for a legal claim. However, in the event of BOTH, the court tries the legal claim first, so that the jury will be around for the equitable claim (since there is no specific right to a jury for an equitable claim by itself under the FRCP).

[smalogna]

Federal income tax is terrible.

That's my future area of practice I'm very offend.....yeah it's pretty terrible.

[anon sequitur]

I believe the rule is that the right is only for a legal claim. However, in the event of BOTH, the court tries the legal claim first, so that the jury will be around for the equitable claim (since there is no specific right to a jury for an equitable claim by itself under the FRCP).

But what about when it's a state law claim in a federal diversity case, and the state law would guarantee a jury trial for that claim, but the FRCP do not? This came up in a specific question about choice of law issues, and the explanation said that if the forum state guaranteed a jury trial for that type of equitable claim, then the federal court would grant a jury trial. I got it wrong because I thought FRCP would just apply its rules for a jury trial, since they're procedure. Here's the question:

[+] Spoiler

An actress brought suit in federal district court in State B against her business manager seeking injunctive relief. The suit was properly brought under diversity jurisdiction. The actions that the actress sought to enjoin were occurring in State A, where the business manager resided. The actress resided in State B. Under the law of State A, the actress would be entitled to a jury to hear her claim. Under the law of State B, no jury is allowed in such matters. State B’s conflict-of-law rules provide that procedural matters are controlled by the law of the forum state, while substantive matters are to be controlled by the law of the place where the alleged wrong occurred. The actress has demanded a jury to hear the matter and the business manager has objected.

How should the federal district court rule with regard to the actress’s right to a jury?

Correct Answer: Deny a jury, because the right to a jury is considered procedural, rather than substantive.
You Selected: Deny a jury, because the matter is equitable, rather than legal.

"Answer choice D is incorrect because while she has no federal constitutional right to a jury for an equitable action, she would still have a right under State A law to a jury in an equitable matter. "

[Nelson]

Federal income tax is terrible.

That's my future area of practice I'm very offend.....yeah it's pretty terrible.

It's just frustrating for bar prep because there's 10 times as many rules as any other area and they're all arcane as shit. Makes wills and family law look fun by comparison. At least in my state it's barely worth any points, so I haven't bothered to even start looking at it until now.

[BelugaWhale]

I believe the rule is that the right is only for a legal claim. However, in the event of BOTH, the court tries the legal claim first, so that the jury will be around for the equitable claim (since there is no specific right to a jury for an equitable claim by itself under the FRCP).

But what about when it's a state law claim in a federal diversity case, and the state law would guarantee a jury trial for that claim, but the FRCP do not? This came up in a specific question about choice of law issues, and the explanation said that if the forum state guaranteed a jury trial for that type of equitable claim, then the federal court would grant a jury trial. I got it wrong because I thought FRCP would just apply its rules for a jury trial, since they're procedure. Here's the question:

[+] Spoiler

An actress brought suit in federal district court in State B against her business manager seeking injunctive relief. The suit was properly brought under diversity jurisdiction. The actions that the actress sought to enjoin were occurring in State A, where the business manager resided. The actress resided in State B. Under the law of State A, the actress would be entitled to a jury to hear her claim. Under the law of State B, no jury is allowed in such matters. State B’s conflict-of-law rules provide that procedural matters are controlled by the law of the forum state, while substantive matters are to be controlled by the law of the place where the alleged wrong occurred. The actress has demanded a jury to hear the matter and the business manager has objected.

How should the federal district court rule with regard to the actress’s right to a jury?

Correct Answer: Deny a jury, because the right to a jury is considered procedural, rather than substantive.
You Selected: Deny a jury, because the matter is equitable, rather than legal.

"Answer choice D is incorrect because while she has no federal constitutional right to a jury for an equitable action, she would still have a right under State A law to a jury in an equitable matter. "

You're mixing two separate things. What counts as procedural v. substantive under federal law is a different inquiry than a procedural vs substantive law inquiry under a state's choice of law. Hence, under federal common law, the right to a jury trial is a procedural issue. As a result, for your question, under diversity the fed court applies state substantive law but federal procedural law, therefore you should deny the jury because its a procedural issue (as a matter of federal law) rather than a substantive state choice of law issue. You don't even look at state choice of law in this case. In other words, all of the info the question provided about State A and B's choice of law and stuff was a red herring. You didn't need those details.

[anon sequitur]

Correct Answer: Deny a jury, because the right to a jury is considered procedural, rather than substantive.
You Selected: Deny a jury, because the matter is equitable, rather than legal.

You're mixing two separate things. What counts as procedural v. substantive under federal law is different under a state's law. Hence, under federal common law, the right to a jury trial is a procedural issue whereas states categorize the right to a jury trial as a substantive issue. As a result, for your question, under diversity the fed court applies state substantive law but federal procedural law, therefore you should deny the jury because its a procedural issue (as a matter of federal law) rather than a substantive state issue. You don't even look at state choice of law in this case. In other words, all of the info the question provided about State A and B's choice of law and stuff was a red herring. You didn't need those details.

Okay, thanks, this was closer to what I thought the law was before this question started messing with my mind. I thought that since the right to a jury is procedural, it wouldn't matter what the state's law was, in federal court the federal rules would apply and there'd be no jury because it's an equitable matter, not a legal one. So basically I couldn't tell which answer should be correct, because they both looked right to me. Then the explanation made me think I misunderstood the whole thing. Or maybe I still do. Why is D wrong?

[sd5289]

Does anyone know where there are just some samples of actual essays? I just want to see how a 75 and a 55 look like, without signing up to see a bunch from 3rd party retailers.

I posted a couple pages back, but the NY BOLE site http://www.nybarexam.org/ExamQuestions/ ... stions.htm has all essay exams posted for like the last 10 years. It doesn't tell you what scores the model answers received, but says that they are "above average"

Which has actually made me feel a LOT better because you can tell in some of them that it's straight up stream of consciousness writing. I've actually been taking the essay questions, outlining how'd I'd answer, and then compared to the sample answer (NY BOLE even says these shouldn't be seen as "model" answers). It's helped with additional practice + confidence building.

[juniormint33]

Generally, one plaintiff cannot aggregate claims against multiple defendants in order to meet the AIC requirement for diversity citizenship.

Is there an exception to this rule for when the multiple Ds are jointly liable tortfeasors? Or did I make that up?

[Pickled]

[+] Spoiler

A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.
In a suit against the roommate for assault, will the student prevail?
ANo, because the roommate did not touch the student.
BNo, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
CYes, because it was reasonable for the student to feel afraid of sleeping in his room afterward.
DYes, because the roommate intended to inflict serious harm.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim. Answer choice A is incorrect because contact or touching is not required to establish a claim of assault. Answer choice C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Proof of apprehension at the time of the defendant's act is necessary even given the fact that the student became fearful of future harmful contact. Answer choice D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim.

I thought assault was also attempted battery??

[ineptimusprime]

So the risk of loss rule thing from the lectures is just plain wrong. I've had like three or for questions where I've said a party bore the risk of loss because they were in breach, but the then the correct answer has to do with destination/shipment contract distinction.

[Ahyis]

Correct Answer: Deny a jury, because the right to a jury is considered procedural, rather than substantive.
You Selected: Deny a jury, because the matter is equitable, rather than legal.

You're mixing two separate things. What counts as procedural v. substantive under federal law is different under a state's law. Hence, under federal common law, the right to a jury trial is a procedural issue whereas states categorize the right to a jury trial as a substantive issue. As a result, for your question, under diversity the fed court applies state substantive law but federal procedural law, therefore you should deny the jury because its a procedural issue (as a matter of federal law) rather than a substantive state issue. You don't even look at state choice of law in this case. In other words, all of the info the question provided about State A and B's choice of law and stuff was a red herring. You didn't need those details.

Okay, thanks, this was closer to what I thought the law was before this question started messing with my mind. I thought that since the right to a jury is procedural, it wouldn't matter what the state's law was, in federal court the federal rules would apply and there'd be no jury because it's an equitable matter, not a legal one. So basically I couldn't tell which answer should be correct, because they both looked right to me. Then the explanation made me think I misunderstood the whole thing. Or maybe I still do. Why is D wrong?

I actually think THIS is the real reason why the correct answer is correct: A court sitting in DIVERSITY will apply STATE CONFLICT OF LAW RULES (because they are considered substantive). The court in your question was in the state where there was NO right to a jury trial, and it considered that right to be PROCEDURAL, not substantive; therefore, THAT LAW APPLIED. Federal view of jury trial being procedural/substantive takes a back seat to the state conflict of law rule because THAT is substantive.

This sounds super confusing, even to me. Tell me if you get what I'm trying to explain.

[Ahyis]

[+] Spoiler

A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.
In a suit against the roommate for assault, will the student prevail?
ANo, because the roommate did not touch the student.
BNo, because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him.
CYes, because it was reasonable for the student to feel afraid of sleeping in his room afterward.
DYes, because the roommate intended to inflict serious harm.
SUBMIT ANSWER

Sorry, that's not the best choice.

The answer you selected is not the best choice in this situation.

Answer choice B is correct. To establish a claim for assault, a plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the apprehension necessary for an assault claim. Answer choice A is incorrect because contact or touching is not required to establish a claim of assault. Answer choice C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Proof of apprehension at the time of the defendant's act is necessary even given the fact that the student became fearful of future harmful contact. Answer choice D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim.

I thought assault was also attempted battery??

In CRIMINAL law, yes. This is torts. It's a separate thing.