BarBri Bar Review Hangout - July 2015 Exam Forum

[charlesxavier]

Wow, after doing a few essays this morning this whole "make the rule up" thing has gained some weight in my mind. There were entire essays questions that are on topics not even mentioned in the CMR/Lecture. I read the answer and think that there's now way I could remember such specific rules. Then, I look up the real rule and the essay answer was completely wrong, but it sounded good.

Side note: Do you think it's a big deal if my answer spots the issue, uses the correct rule, but comes to a different conclusion? Several of the Evidence essays come down to 403 analysis/relevance and the answer is so subjective.

[Killingly]

Wow, after doing a few essays this morning this whole "make the rule up" thing has gained some weight in my mind. There were entire essays questions that are on topics not even mentioned in the CMR/Lecture. I read the answer and think that there's now way I could remember such specific rules. Then, I look up the real rule and the essay answer was completely wrong, but it sounded good.

Side note: Do you think it's a big deal if my answer spots the issue, uses the correct rule, but comes to a different conclusion? Several of the Evidence essays come down to 403 analysis/relevance and the answer is so subjective.

I friend of mine took the bar a couple years ago and paid to get his essay answers/grades back. He said that on one, he used the wrong rule/made up a rule and came to the wrong conclusion (though it was right under his application). He got the highest scaled grade on that one. So who knows.

[scaliaantics]

My contracts prof didn't teach the UCC. I think he may have mentioned that it was a thing, but then he ignored it.

It's ok, my Tort professor did not believe in people owing anyone a duty of care...

That argument is in the 3rd Restatement too. In some senses, all the work is done in proximate cause. If you do harm to a foreseeable victim, you're liable. That tends to be pretty accurate.

[charlesxavier]

Wow, after doing a few essays this morning this whole "make the rule up" thing has gained some weight in my mind. There were entire essays questions that are on topics not even mentioned in the CMR/Lecture. I read the answer and think that there's now way I could remember such specific rules. Then, I look up the real rule and the essay answer was completely wrong, but it sounded good.

Side note: Do you think it's a big deal if my answer spots the issue, uses the correct rule, but comes to a different conclusion? Several of the Evidence essays come down to 403 analysis/relevance and the answer is so subjective.

I friend of mine took the bar a couple years ago and paid to get his essay answers/grades back. He said that on one, he used the wrong rule/made up a rule and came to the wrong conclusion (though it was right under his application). He got the highest scaled grade on that one. So who knows.

That's exactly what the lecturer for the state essay workshop said. Basically, for tough questions 95% of people taking the test are clueless and in the same boat. Some people freak and can't put down 2 decent sentences or even answer the parts they know. Honestly, a well written, clear, confident, and concise essay that applies the wrong rule will beat a poorly written essay that applies the wrong rule every time.

[K Rock]

Can someone explain MBE Refresher #92? It says (b) is the answer because the attorney-client privilege does not apply in suits between two parties represented by the same attorney.

However, doesn't it violate rules of professional conduct for an attorney to represent two parties on opposite sides of the "v."? How is this possibly the right answer?

[cdelgado]

Wow, after doing a few essays this morning this whole "make the rule up" thing has gained some weight in my mind. There were entire essays questions that are on topics not even mentioned in the CMR/Lecture. I read the answer and think that there's now way I could remember such specific rules. Then, I look up the real rule and the essay answer was completely wrong, but it sounded good.

Side note: Do you think it's a big deal if my answer spots the issue, uses the correct rule, but comes to a different conclusion? Several of the Evidence essays come down to 403 analysis/relevance and the answer is so subjective.

I hope that the conclusions are immaterial. Evidence essays are difficult, and even then there are some I disagree with. There was one in my state over privileges, and the model answer basically just dismissed it because the wrong party raised the issue. I somewhat agree with that, but I went ahead and analyzed the actual privileges. It seemed like that's where it wanted you to go.

My favorites are the ones that site state specific statutes by the number or word for word. Give me a break.

[charlesxavier]

Can someone explain MBE Refresher #92? It says (b) is the answer because the attorney-client privilege does not apply in suits between two parties represented by the same attorney.

However, doesn't it violate rules of professional conduct for an attorney to represent two parties on opposite sides of the "v."? How is this possibly the right answer?

I think they (driver and passenger) initially were going to be co-plaintiffs when they consulted the attorney. Later the passenger decided to sue the driver and I think the assumption is that he got his own attorney.

[941law]

Just a +1 to all of this. Emanuel Civ Pro questions totally different ball game. I'm praying BarBri's will be more representative. That being said, I think it's going to be somewhere in between. The NCBE released sample is kinda in the middle of the two (at least it seems that way).

I finished all the Emanuel's subjects today, did ok on most subjects (except civ pro, and completely bombed Crim/Crim Pro, but crim is always my worst subject). My percentages for Emanuel were definitely significantly higher than Barbri MPQ overall, which was surprising because many Emanuel questions focused on areas Barbri barely touched on. But I guess it was a good review and a reminder for me to go back and look at the areas where Barbri just glossed over.

It's funny you say Barbri and Emanuel's touched on different topics because Emanuel prides itself on touching on the topics the bar exam most likely covers.

[ArmyOfficer]

Oh when a Barbri question asks for the best argument, and then there answer for the best argument will "probably fail." What is the point of this question?

[diowad]

To add a more light-hearted nature to the thread, what are everyone's plans after the bar?

Girlfriend and I are heading to South Beach two days after the exam for 2 nights, followed by a 4 day Caribbean cruise, then 2 more days in South Beach. This will actually be my first "major" vacation like trip so I am absolutely stoked. Curious to hear what others have planned.

My parents are treating me to the PGA Championship up in Wisconsin. Tiger Woods was my childhood sports hero and even though he sucks now that'll be exciting to see him play for the first time. And then hopefully Spieth will be going for history depending on how today goes.

[victortsoi]

Just a +1 to all of this. Emanuel Civ Pro questions totally different ball game. I'm praying BarBri's will be more representative. That being said, I think it's going to be somewhere in between. The NCBE released sample is kinda in the middle of the two (at least it seems that way).

I finished all the Emanuel's subjects today, did ok on most subjects (except civ pro, and completely bombed Crim/Crim Pro, but crim is always my worst subject). My percentages for Emanuel were definitely significantly higher than Barbri MPQ overall, which was surprising because many Emanuel questions focused on areas Barbri barely touched on. But I guess it was a good review and a reminder for me to go back and look at the areas where Barbri just glossed over.

It's funny you say Barbri and Emanuel's touched on different topics because Emanuel prides itself on touching on the topics the bar exam most likely covers.

I find this with adaptibar (equivalent to emmanuels, I think its safe to say?), there are just some topics that come up so much it seems like the examiners really focus on them. Like strict/products liability in torts or "common scheme of development" restrictive covenants in property, or deed by estoppel.

[brotherdarkness]

Can someone explain MBE Refresher #92? It says (b) is the answer because the attorney-client privilege does not apply in suits between two parties represented by the same attorney.

However, doesn't it violate rules of professional conduct for an attorney to represent two parties on opposite sides of the "v."? How is this possibly the right answer?

I think they (driver and passenger) initially were going to be co-plaintiffs when they consulted the attorney. Later the passenger decided to sue the driver and I think the assumption is that he got his own attorney.

Exactly. And when you decide to represent two parties on the same side of the "v" you always have a potential conflict of interest. So you've gotta make sure the lawyer reasonably believed it wouldn't materially interfere with his representation (in CA this belief doesn't have to be reasonable) and the clients must have given informed consent confirmed in writing. The clients also must be made aware that their attorney-client privilege would not protect them should they decide to sue one another. In other words, if Attorney A is representing co-plaintiffs/defendants B and C, and B and C subsequently decide to sue one another, neither B nor C can claim privilege as to their communications with the attorney.

(Kinda making this stuff up, but it sounds right?)

[BVest]

And 50% of the exam was torts and jury charge questions.

My prof was great, but the essay on our spring final was jury charge questions and it was unlike anything we'd ever discussed. At least we were all in the same boat.

[facts of the case]
[jury instructions]
[jury verdict]

For each of the jury charges, what rule of law was the judge seeking to state, and did she state it correctly? If not, how should she have stated it? And if all of the jury charges had been correctly stated, could the jury have awarded the damage amount that they actually awarded?

[BVest]

Can someone explain MBE Refresher #92? It says (b) is the answer because the attorney-client privilege does not apply in suits between two parties represented by the same attorney.

However, doesn't it violate rules of professional conduct for an attorney to represent two parties on opposite sides of the "v."? How is this possibly the right answer?

I think they (driver and passenger) initially were going to be co-plaintiffs when they consulted the attorney. Later the passenger decided to sue the driver and I think the assumption is that he got his own attorney.

Exactly. And when you decide to represent two parties on the same side of the "v" you always have a potential conflict of interest. So you've gotta make sure the lawyer reasonably believed it wouldn't materially interfere with his representation (in CA this belief doesn't have to be reasonable) and the clients must have given informed consent confirmed in writing. The clients also must be made aware that their attorney-client privilege would not protect them should they decide to sue one another. In other words, if Attorney A is representing co-plaintiffs/defendants B and C, and B and C subsequently decide to sue one another, neither B nor C can claim privilege as to their communications with the attorney.

(Kinda making this stuff up, but it sounds right?)

That's at least close enough to right that I can't dispute it. I also think (at least in Texas) that if the clients do end up suing each other that the attorney cannot represent either of them, which from a business standpoint means by representing both of them from the start you risk losing not only one but both of your clients. So you only want to represent both when you're certain they won't turn against one another. But enough MPRE stuff, back to the bar.

As for the OP about loss of privilege in cases between prior co-represented parties, this is an attorney analog to the marriage privilege: In a suit between spouses or former spouses, the marriage privilege does not apply. Just think of the joint attorney as the marriage of two clients.

[Devlin]

Was ConLaw set 6 question 6 (13 in book) defective? All the answer choices discussed freedom/establishment of religion in the context of the 14th Amendment.

[brotherdarkness]

Was ConLaw set 6 question 6 (13 in book) defective? All the answer choices discussed freedom/establishment of religion in the context of the 14th Amendment.

Incorporated to the states thru the 14th or something like that, I believe (did those yesterday and don't remember exactly).

[vulaw]

Got 75-80% on the MBE 50 question mixed sets. Got 61/100 on the MBE refresher, wtf

Completely normal, just let it go. lol

Haha. I actually think it's a little ridiculous Barbri does this. If that was the last thing we looked at before going into the exam, we'd be looking for all these weird exceptions that will apply like 5 times out of 200. I think one of the answers on the Refresher was the Privileges/Immunities Clause of the 14th Amendment ... the one BarBri told us NEVER to pick.

You're good. Just stick with the mixed sets emanuel q's take test profit.

What the fuck, Barbri?!?! On multiple occasions lecturers have said "Never pick the Privileges and Immunities Clause of the 14th Amendment."

[musicfor18]

Got 75-80% on the MBE 50 question mixed sets. Got 61/100 on the MBE refresher, wtf

Completely normal, just let it go. lol

Haha. I actually think it's a little ridiculous Barbri does this. If that was the last thing we looked at before going into the exam, we'd be looking for all these weird exceptions that will apply like 5 times out of 200. I think one of the answers on the Refresher was the Privileges/Immunities Clause of the 14th Amendment ... the one BarBri told us NEVER to pick.

You're good. Just stick with the mixed sets emanuel q's take test profit.

What the fuck, Barbri?!?! On multiple occasions lecturers have said "Never pick the Privileges and Immunities Clause of the 14th Amendment."

Chemerinsky said never to pick it unless the question involves the right to interstate travel.

[lawadvice0811]

Freaking out a little.

Should I be worried?
Taking in NY.

65-75% on practice sets.
Simulated: 110/200 (I assume this was pure luck because I didn't study and was sick)
MBE Refresher: 60%

[Rudolph]

I thought I had this down pat, but now I'm not sure that I understand where venue is proper. I understand the two part test: venue is proper i) where a substantial part of the events giving rise to the claim took place; and ii) the district where any defendant resides, if all defendants reside in the state where that district is located.

The second prong is confusing to me. If all defendants don't reside in the same state, then do we just ignore prong #2? And does "reside" mean "domicile"? I feel like sometimes we're supposed to consider personal jdx, but sometimes we dont..? (See Q54 MBE Refresher) Can someone clarify?

[Good Guy Gaud]

I thought I had this down pat, but now I'm not sure that I understand where venue is proper. I understand the two part test: venue is proper i) where a substantial part of the events giving rise to the claim took place; and ii) the district where any defendant resides, if all defendants reside in the state where that district is located.

The second prong is confusing to me. If all defendants don't reside in the same state, then do we just ignore prong #2? And does "reside" mean "domicile"? I feel like sometimes we're supposed to consider personal jdx, but sometimes we dont..? (See Q54 MBE Refresher) Can someone clarify?

Yea, I think if neither of the above apply then you resort to any district which has PJ over any defendant. Reside = domicile.

[brotherdarkness]

I thought I had this down pat, but now I'm not sure that I understand where venue is proper. I understand the two part test: venue is proper i) where a substantial part of the events giving rise to the claim took place; and ii) the district where any defendant resides, if all defendants reside in the state where that district is located.

The second prong is confusing to me. If all defendants don't reside in the same state, then do we just ignore prong #2? And does "reside" mean "domicile"? I feel like sometimes we're supposed to consider personal jdx, but sometimes we dont..? (See Q54 MBE Refresher) Can someone clarify?

Venue is a three-part test.

First, are all Ds residents of the same state? If so, any district where one of those Ds is residing is proper.

If not, second step. Where did the issue giving rise to the suit occur? Venue is proper in that district.

And if you can't lay venue in either, then venue is proper wherever any D is subject to PJ.

As far as reside and venue, it's different than PJ. For venue, a defendant resides wherever it is subject to PJ. For PJ, a defendant resides in only two places (place of incorporation and nerve center)

[buckythebadger]

I thought I had this down pat, but now I'm not sure that I understand where venue is proper. I understand the two part test: venue is proper i) where a substantial part of the events giving rise to the claim took place; and ii) the district where any defendant resides, if all defendants reside in the state where that district is located.

The second prong is confusing to me. If all defendants don't reside in the same state, then do we just ignore prong #2? And does "reside" mean "domicile"? I feel like sometimes we're supposed to consider personal jdx, but sometimes we dont..? (See Q54 MBE Refresher) Can someone clarify?

I was also confused with prong two, but there was a good question on the refresher about it. I don't have it with me, but I think it was something like this:
Accident in Southern District of State A. Plaintiff resides in State B. Defendant is the employee and employer. Employee resides in Central District of State A. Employer corporation is incorporated in State B, with principal place of business and operations in Southern District of State A.

Venue would be proper in Southern District of State A (where accident occurred) and Central District of State A (all defendant's reside in State A, so any district where the defendant's reside is a proper venue).

[Good Guy Gaud]

^ thanks

[musicfor18]

I thought I had this down pat, but now I'm not sure that I understand where venue is proper. I understand the two part test: venue is proper i) where a substantial part of the events giving rise to the claim took place; and ii) the district where any defendant resides, if all defendants reside in the state where that district is located.

The second prong is confusing to me. If all defendants don't reside in the same state, then do we just ignore prong #2? And does "reside" mean "domicile"? I feel like sometimes we're supposed to consider personal jdx, but sometimes we dont..? (See Q54 MBE Refresher) Can someone clarify?

Venue is a three-part test.

First, are all Ds residents of the same state? If so, any district where one of those Ds is residing is proper.

If not, second step. Where did the issue giving rise to the suit occur? Venue is proper in that district.

And if you can't lay venue in either, then venue is proper wherever any D is subject to PJ.

As far as reside and venue, it's different than PJ. For venue, a defendant resides wherever it is subject to PJ. For PJ, a defendant resides in only two places (place of incorporation and nerve center)

This last part isn't quite right. For venue purposes, a natural person resides in his domicile. A corporation or other business entity resides wherever it's subject to PJ (general or specific) for this lawsuit.