BarBri Bar Review Hangout - July 2015 Exam

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brotherdarkness
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby brotherdarkness » Mon Jul 20, 2015 4:15 pm

Charger wrote:
brotherdarkness wrote:
Rudolph wrote: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)


Question on this. I thought it was more of a two part test. First, if all D's reside in the same state then any district where one of those D resides OR where the issue giving rise to the suit occurred. P has the choice between these two. Then, if neither, then wherever D is subject to PJ.

Can someone clear this up for me?


Well, you could think of it as a two-part test: (1) if all Ds reside in same state, then any district where one of the Ds resides; or (2) in the district where a substantial part of the injury/transaction/whatever occurred.

But if you fail both parts of the test, then you lay venue wherever any D is subject to PJ. So I say three-part so that I remember the whole thing.

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Tiago Splitter
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Tiago Splitter » Mon Jul 20, 2015 4:19 pm

brotherdarkness wrote:But if you fail both parts of the test, then you lay venue wherever any D is subject to PJ. So I say three-part so that I remember the whole thing.

Practically wouldn't this have to be where all D's are subject to PJ? Because presumably if one D isn't subject to PJ there he can't be in the case anyway.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Charger » Mon Jul 20, 2015 4:21 pm

Right. I just mean that in the way you described it (first step, second step), you seem to be saying that if all Ds reside in that state, then you HAVE to lay venue in that state because it's proper. What I'm saying is that I think P doesn't have to, because even if all Ds reside in the same state P could still choose another state if the issue arose in another state. I just wanted to make sure I wasn't getting that wrong.

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brotherdarkness
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby brotherdarkness » Mon Jul 20, 2015 4:23 pm

Tiago Splitter wrote:
brotherdarkness wrote:But if you fail both parts of the test, then you lay venue wherever any D is subject to PJ. So I say three-part so that I remember the whole thing.

Practically wouldn't this have to be where all D's are subject to PJ? Because presumably if one D isn't subject to PJ there he can't be in the case anyway.


Hm interesting. Guess that means it splits the case in to different suits with the P having to go to whatever venue he can get a D subject to PJ in rather than handling it all in one suit. Presumably that would key up offensive issue preclusion or something like that.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Calicakes » Mon Jul 20, 2015 4:28 pm

Poopface wrote:What does "foundation" mean in evidence law and when is it required? When an answer says "inadmissible because there was no proper foundation laid" what the heck does that mean? Sorry if this is a dumb question I didn't take evidence in law school



Did you attend law school in the US? I thought Evidence was required. It was at my school.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby musicfor18 » Mon Jul 20, 2015 4:30 pm

brotherdarkness wrote:
Tiago Splitter wrote:
brotherdarkness wrote:But if you fail both parts of the test, then you lay venue wherever any D is subject to PJ. So I say three-part so that I remember the whole thing.

Practically wouldn't this have to be where all D's are subject to PJ? Because presumably if one D isn't subject to PJ there he can't be in the case anyway.


Hm interesting. Guess that means it splits the case in to different suits with the P having to go to whatever venue he can get a D subject to PJ in rather than handling it all in one suit. Presumably that would key up offensive issue preclusion or something like that.


I don't think this would happen, at least not because of a venue problem. If there isn't PJ over all of the Ds, then we wouldn't be talking about venue at all. Assuming the court has PJ over all the Ds, then as a fallback, any district in that state will be proper venue. I don't know why the statute says "any D" instead of "all Ds." Maybe it's because of the special rule about corporate Ds in states with multiple districts?

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Killingly » Mon Jul 20, 2015 4:31 pm

Calicakes wrote:
Poopface wrote:What does "foundation" mean in evidence law and when is it required? When an answer says "inadmissible because there was no proper foundation laid" what the heck does that mean? Sorry if this is a dumb question I didn't take evidence in law school



Did you attend law school in the US? I thought Evidence was required. It was at my school.


I mean, I went to NYU and it wasn't required. I took it anyway and it hasn't helped me.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby musicfor18 » Mon Jul 20, 2015 4:33 pm

gobias_inc wrote:
brotherdarkness wrote:
rinkrat19 wrote:
Poopface wrote:What does "foundation" mean in evidence law and when is it required? When an answer says "inadmissible because there was no proper foundation laid" what the heck does that mean? Sorry if this is a dumb question I didn't take evidence in law school
I am shit at proper legal definitions, so here is my plain-language version.
Foundation is like giving context of what a piece of evidence is and why it should be admissible. E.g., you can't just submit a photo into evidence; you have to show it to a witness and ask them if the photo is a fair and accurate representation of the scene of the incident as they recall it. You can't just start asking a random witness to interpret DNA analysis results; you have to establish that they are an expert in the field of DNA analysis by education/experience/certification and that they have read all the data on the analysis in question. You can't just start asking a witness about the victim's injuries, you have to establish that they are a board-certified doctor and they were the one who treated the victim after the attack in question. And so on.


While we're on the subject, what's the difference between "foundation" and "authentication"?


Foundation is "this evidence is admissible because it's supported by personal knowledge of the witness"
Authentication is "this evidence is, in fact, what the proponent purports it to be."


Foundation includes more than just personal knowledge, right? Doesn't it also include establishing anything that the applicable FRE requires for that evidence to be admitted. For example, if it's a dying declaration, isn't part of the foundation that the declarant said it under the belief of impending death?

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby rinkrat19 » Mon Jul 20, 2015 4:34 pm

Killingly wrote:
Calicakes wrote:
Poopface wrote:What does "foundation" mean in evidence law and when is it required? When an answer says "inadmissible because there was no proper foundation laid" what the heck does that mean? Sorry if this is a dumb question I didn't take evidence in law school



Did you attend law school in the US? I thought Evidence was required. It was at my school.


I mean, I went to NYU and it wasn't required. I took it anyway and it hasn't helped me.

Not required at Northwestern either. I took it (and forensic science, which had a lot of Evidence review in it) and it's one of my better subjects, but I am by no means awesome at it.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby kyle010723 » Mon Jul 20, 2015 4:40 pm

rinkrat19 wrote:
Killingly wrote:
Calicakes wrote:
Poopface wrote:What does "foundation" mean in evidence law and when is it required? When an answer says "inadmissible because there was no proper foundation laid" what the heck does that mean? Sorry if this is a dumb question I didn't take evidence in law school



Did you attend law school in the US? I thought Evidence was required. It was at my school.


I mean, I went to NYU and it wasn't required. I took it anyway and it hasn't helped me.

Not required at Northwestern either. I took it (and forensic science, which had a lot of Evidence review in it) and it's one of my better subjects, but I am by no means awesome at it.


Not a required course at ND either. Took it solely for the reason of the Bar and I guess it is just something a lawyer should know, albeit that I have no desire to do litigation.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby gobias_inc » Mon Jul 20, 2015 4:40 pm

musicfor18 wrote:
gobias_inc wrote:
brotherdarkness wrote:
rinkrat19 wrote:
Poopface wrote:What does "foundation" mean in evidence law and when is it required? When an answer says "inadmissible because there was no proper foundation laid" what the heck does that mean? Sorry if this is a dumb question I didn't take evidence in law school
I am shit at proper legal definitions, so here is my plain-language version.
Foundation is like giving context of what a piece of evidence is and why it should be admissible. E.g., you can't just submit a photo into evidence; you have to show it to a witness and ask them if the photo is a fair and accurate representation of the scene of the incident as they recall it. You can't just start asking a random witness to interpret DNA analysis results; you have to establish that they are an expert in the field of DNA analysis by education/experience/certification and that they have read all the data on the analysis in question. You can't just start asking a witness about the victim's injuries, you have to establish that they are a board-certified doctor and they were the one who treated the victim after the attack in question. And so on.


While we're on the subject, what's the difference between "foundation" and "authentication"?


Foundation is "this evidence is admissible because it's supported by personal knowledge of the witness"
Authentication is "this evidence is, in fact, what the proponent purports it to be."


Foundation includes more than just personal knowledge, right? Doesn't it also include establishing anything that the applicable FRE requires for that evidence to be admitted. For example, if it's a dying declaration, isn't part of the foundation that the declarant said it under the belief of impending death?


I think that's right; I probably phrased it wrong. As I understand it, personal knowledge is an element, so maybe a better way of putting it is "This evidence conforms to the requirements for its introduction." So for a picture of a crime scene, it's that the witness saw the crime scene. For a dying declaration, it's that the declarant made a statement and made that statement under a belief of impending death (though there still is a personal knowledge element, since the witness to that statement still needs to be able to show that they were present at the time of declaration and heard the statement).

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby gretchenweiners » Mon Jul 20, 2015 4:41 pm

Is getting and doing Emmanuel's worth it? Is it necessary? (Is it too late to matter?)

Haven't as of yet. Feel good about how I'm doing with barbri MBEs: 131/200 on simulated, 69/100 on refresher, 67/100 on half-day, and generally hovering around 70ish% on sets...but also get nervous seeing how many people are also using Emmanuel's and having really different results or being tested on different nuances/exceptions.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby kyle010723 » Mon Jul 20, 2015 4:43 pm

gretchenweiners wrote:Is getting and doing Emmanuel's worth it? Is it necessary? (Is it too late to matter?)

Haven't as of yet. Feel good about how I'm doing with barbri MBEs: 131/200 on simulated, 69/100 on refresher, 67/100 on half-day, and generally hovering around 70ish% on sets...but also get nervous seeing how many people are also using Emmanuel's and having really different results or being tested on different nuances/exceptions.


With that stat and only a week to go, I wouldn't bother.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Calicakes » Mon Jul 20, 2015 5:13 pm

kyle010723 wrote:
rinkrat19 wrote:
Killingly wrote:
Calicakes wrote:
Poopface wrote:What does "foundation" mean in evidence law and when is it required? When an answer says "inadmissible because there was no proper foundation laid" what the heck does that mean? Sorry if this is a dumb question I didn't take evidence in law school



Did you attend law school in the US? I thought Evidence was required. It was at my school.


I mean, I went to NYU and it wasn't required. I took it anyway and it hasn't helped me.

Not required at Northwestern either. I took it (and forensic science, which had a lot of Evidence review in it) and it's one of my better subjects, but I am by no means awesome at it.


Not a required course at ND either. Took it solely for the reason of the Bar and I guess it is just something a lawyer should know, albeit that I have no desire to do litigation.



If we wanted to become a "certified" law clerk after our first year, we had to take Evidence. We were required to do an externship, which I did at a city prosecutor's office. I went to Southwestern( in LA).

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby errmsg » Mon Jul 20, 2015 5:15 pm

What happens when a landowner conveys land as a "joint tenancy" to A and B without specifying the right of survivorship? Does the right of survivorship attach automatically or must it be expressly stated?

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Killingly
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Killingly » Mon Jul 20, 2015 5:17 pm

errmsg wrote:What happens when a landowner conveys land as a "joint tenancy" to A and B without specifying the right of survivorship? Does the right of survivorship attach automatically or must it be expressly stated?


I think it has to be expressly stated. But someone can correct me because I haven't confirmed.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby kyle010723 » Mon Jul 20, 2015 5:18 pm

errmsg wrote:What happens when a landowner conveys land as a "joint tenancy" to A and B without specifying the right of survivorship? Does the right of survivorship attach automatically or must it be expressly stated?


It's invalid, must use the magic language and meet all the extra requirements. So in that case, it will just be a tenancy in common.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Good Guy Gaud » Mon Jul 20, 2015 5:19 pm

Killingly wrote:
errmsg wrote:What happens when a landowner conveys land as a "joint tenancy" to A and B without specifying the right of survivorship? Does the right of survivorship attach automatically or must it be expressly stated?


I think it has to be expressly stated. But someone can correct me because I haven't confirmed.


I believe you're right. If it isn't expressly stated (or something close to it), I'm pretty sure the court will view it as a tenancy in common.

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brotherdarkness
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby brotherdarkness » Mon Jul 20, 2015 5:31 pm

Magic words required for FSSCS? As in, does it need to say "but if...then [x] may re-enter and take"?

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby BVest » Mon Jul 20, 2015 5:32 pm

Charger wrote:
brotherdarkness wrote:
Rudolph wrote: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)


Question on this. I thought it was more of a two part test. First, if all D's reside in the same state then any district where one of those D resides OR where the issue giving rise to the suit occurred. P has the choice between these two. Then, if neither, then wherever D is subject to PJ.

Can someone clear this up for me?


Yes, P has choice between the two. If there's a district (or multiple) that fits the residency test and also a different district (or multiple) that fits the substantial part of the events step, P can choose where to file and venue will be proper in any of those.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby BVest » Mon Jul 20, 2015 5:47 pm

brotherdarkness wrote:Magic words required for FSSCS? As in, does it need to say "but if...then [x] may re-enter and take"?


I don't think you need specific magic language, just language sufficient to communicate the condition and the remedy. Basically you need enough to show that the language is not merely precatory.

Condition can be "but if" "however if" "provided" etc.

Remedy can be "then the grant is void" or "then grantor can reenter" or even implied if the context shows the intent to retake (which is more common when the condition is worded with "provided" -- e.g. "A to B, provided that B use it only for only for church purposes.")

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brotherdarkness
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby brotherdarkness » Mon Jul 20, 2015 5:56 pm

BVest wrote:
brotherdarkness wrote:Magic words required for FSSCS? As in, does it need to say "but if...then [x] may re-enter and take"?


I don't think you need specific magic language, just language sufficient to communicate the condition and the remedy. Basically you need enough to show that the language is not merely precatory.

Condition can be "but if" "however if" "provided" etc.

Remedy can be "then the grant is void" or "then grantor can reenter" or even implied if the context shows the intent to retake (which is more common when the condition is worded with "provided" -- e.g. "A to B, provided that B use it only for only for church purposes.")


I thought the CMR said you had to have the magic words "may re-enter" or whatever, but the questions don't seem to follow that rule.

Outis Onoma
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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Outis Onoma » Mon Jul 20, 2015 6:02 pm

The emanuel property questions covered a lot of stuff we didn't do in the barbri lecture notes. Starting to wonder if I should have read the CMR... too late now.

Also, disappointed I didn't get a boost. I got the same percentage correct for the emanuel property questions as I got for the barbri questions.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby musicfor18 » Mon Jul 20, 2015 6:02 pm

BVest wrote:
brotherdarkness wrote:
Remedy can be "then the grant is void" or "then grantor can reenter" or even implied if the context shows the intent to retake (which is more common when the condition is worded with "provided" -- e.g. "A to B, provided that B use it only for only for church purposes.")


But I think the court would probably construe this as a fee simple determinable, which has automatic termination rather than the power of termination.

According to the Multistate Outline, courts would probably construe your example above to be a covenant, easement, or trust. Or even a fee simple absolute, because the "provided" clause is merely precatory. See p. 3.

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Re: BarBri Bar Review Hangout - July 2015 Exam

Postby Kage3212 » Mon Jul 20, 2015 6:03 pm

brotherdarkness wrote:
BVest wrote:
brotherdarkness wrote:Magic words required for FSSCS? As in, does it need to say "but if...then [x] may re-enter and take"?


I don't think you need specific magic language, just language sufficient to communicate the condition and the remedy. Basically you need enough to show that the language is not merely precatory.

Condition can be "but if" "however if" "provided" etc.

Remedy can be "then the grant is void" or "then grantor can reenter" or even implied if the context shows the intent to retake (which is more common when the condition is worded with "provided" -- e.g. "A to B, provided that B use it only for only for church purposes.")


I thought the CMR said you had to have the magic words "may re-enter" or whatever, but the questions don't seem to follow that rule.


Pretty sure you are right here. If you use the language "provided that" without specifically stating that Grantor can re-enter and retake, my understandings is that is a FSD with POR in grantor. Without the express re-enter and retake language it will be a FSD rather than a FSSCS.




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